Citation Nr: 1804276 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 06-21 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to May 30, 2012 and in excess of 20 percent from May 30, 2012 to November 13, 2013, for right upper extremity (RUE) diabetic neuropathy. 2. Entitlement to a rating in excess of 20 percent prior to May 30, 2012, in excess of 30 percent from May 30, 2012 to November 13, 2013, and in excess of 50 percent thereafter, for RUE diabetic neuropathy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to July 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In that decision, the AOJ denied a rating greater than 10 percent for diabetic neuropathy of the RUE. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in December 2009. A written transcript of this hearing has been prepared and incorporated into the evidence of record. A December 2013 RO rating decision granted a 30 percent disability rating for diabetic neuropathy of the RUE effective from November 14, 2013. The Board had previously remanded the appeal in September 2009, February 2010, March 2012 and May 2013. In a decision dated March 2015, the Board denied, in part, an rating in excess of 10 percent for RUE diabetic neuropathy prior to November 14, 2013 and in excess of 30 percent thereafter, and remanded the same to the RO for consideration on an extra-scheduler basis pursuant to 38 C.F.R. § 3.321 (b)(1). The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an order dated December 7, 2015, the Court remanded the claims to the Board pursuant to the terms of a Joint Motion for Remand (JMR). In January 2016, the Veteran's representative waived AOJ consideration of additional evidence added to the record since the AOJ's last adjudication in January 2014. In a decision dated March 2016, the Board granted, in part, a disability rating of 20 percent from May 30, 2012, to November 13, 2013 for RUE diabetic neuropathy. The Board also granted a disability rating of 50 percent from November 14, 2013, for RUE diabetic neuropathy. The Board remanded a claim for entitlement to a rating in excess of 10 percent for RUE diabetic neuropathy prior to May 30, 2012, and in excess of 30 percent for RUE on an extra-schedular basis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2017 decision, the Board denied entitlement to an increased rating in excess of 10 percent prior to May 30, 2012, 20 percent prior to November 14, 2013, and 50 percent since November 14, 2013, for RUE diabetic neuropathy on an extraschedular basis. The Veteran has not appealed this decision; and therefore, this is not currently before the Board. In June 2017, the Court issued a memorandum decision that reversed the Board's assignment of a 10 percent disability rating for the period prior to May 30, 2012, and 20 percent disability rating for the period from May 30, 2012, to November 13, 2013, for RUE diabetic neuropathy. The Court remanded the matters for the Board to award a disability rating of 20 percent for the period prior to May 30, 2012, and a disability rating of 30 percent from May 30, 2012, to November 13, 2013, for RUE diabetic neuropathy. Additionally, the remainder of the March 17, 2016, Board decision on appeal was vacated, and the Veteran's RUE diabetic neuropathy claim for all periods on appeal was remanded for readjudication. The issue of entitlement to a rating in excess of 20 percent prior to May 30, 2012, in excess of 30 percent from May 30, 2012 to November 13, 2013, and in excess of 50 percent thereafter, for RUE diabetic neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the time period prior to May 30, 2012, the Veteran's RUE diabetic neuropathy was manifested by no more than mild incomplete paralysis of the radial, median, ulnar and musculocutaneous nerves as demonstrated by subjective complaint of tingling, numbness and pain sensation and objective findings of decreased sensation including proprioception and diminished reflexes but absent motor or trophic changes. 2. For the time period from May 30, 2010 to November 13, 2013, the Veteran's RUE diabetic neuropathy was manifested by no more than moderate incomplete paralysis of the radial, median, ulnar and musculocutaneous nerves as demonstrated by subjective complaint of tingling, numbness and pain sensation and objective findings of decreased sensation including proprioception, diminished reflexes and interference with manual dexterity but absent additional motor or trophic changes. 3. The Veteran's RUE is his major extremity. CONCLUSION OF LAW The criteria for higher schedular ratings for RUE diabetic neuropathy are met as follows: a 20 percent rating under DC 8514 for the time period prior to May 30, 2012, and a 30 percent rating under DC 8514 from May 30, 2012, to November 13. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.120, 4.124a, Diagnostic Codes (DC) 8514-8517 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim decided herein, no notice or duty to assist deficiencies have been alleged by the Veteran or his representative. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.") Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, as is the case with respect to the Veteran's RUE diabetic neuropathy claim, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In cases such as this, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The following analysis is therefore undertaken with the possibility that "staged rating" may be warranted. The Veteran's RUE diabetic neuropathy was previously rated under DC 8514. DC 8514 provides the rating criteria for paralysis of the musculospiral nerve (radial nerve) and, therefore, neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, DC 8514. For the major extremity, a 20 percent rating is warranted for mild incomplete paralysis, a 30 percent rating is warranted for moderate incomplete paralysis, and a higher 50 percent evaluation is warranted for severe incomplete paralysis. Complete paralysis of the radial nerve, which is rated as 70 percent disabling for the major extremity, contemplates drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of the wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity. DC 8614 refers to neuritis of the radial nerve while DC 8714 refers to neuralgia of the radial nerve. In a March 2016 Board decision, a disability rating of 10 percent was assigned prior to May 30, 2012, and a disability rating of 20 percent was assigned from May 30, 2012 to November 13, 2013, for RUE diabetic neuropathy. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2017, the Court issued a memorandum decision reversing the Board's decision insofar as it determined that the Board had errored when assigning disability ratings for the minor extremity for RUE diabetic neuropathy, as the Veteran's right upper extremity was his major extremity. The Court directed that a 20 percent disability rating be awarded prior to May 30, 2012, and a disability rating of 30 percent be assigned from May 30, 2012, to November 13, 2013. The Court vacated and remanded the remainder of the Board's March 2016 decision in regard to RUE diabetic neuropathy and ordered that all periods on appeal be remanded for readjudication. This issue is addressed in the remand portion of this opinion. Under applicable law, the Court has exclusive jurisdiction to review decisions of the Board, and has power to affirm, modify, or reverse a decision of the Board, or to remand the matter, as appropriate. 38 U.S.C. §§ 7252(a), 7261. In the present case, the record shows that the Court issued its judgment on the Veteran's appeal in June 2017. Its decision is therefore binding on the Board, and entitlement to a rating of 20 percent prior to May 30, 2012, and a rating of 30 percent from May 30, 2012, to November 13, 2013, for RUE diabetic neuropathy is granted. ORDER Entitlement to a 20 percent disability evaluation prior to May 30, 2012, for RUE diabetic neuropathy is granted. Entitlement to a 30 percent disability evaluation from May 30, 2012, to November 13, 2013, for RUE diabetic neuropathy is granted. REMAND As to the claim of entitlement to a rating in excess of 20 percent prior to May 30, 2012, in excess of 30 percent from May 30, 2012 to November 13, 2013, and in excess of 50 percent thereafter, for RUE diabetic neuropathy, the Board finds that a remand to obtain retroactive medical opinions as to the severity of the Veteran's disability for the time periods in question is required because the existing record is not adequate to provide the Board with this needed information. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 84 -86 (2006). In its June 2017 memorandum decision, the Court concluded that the Board erred in failing to consider radicular group ratings for the Veteran's RUE diabetic neuropathy for all periods upon appeal. Specifically, in its March 2016 decision, the Board found that the Veteran had varying levels of paralysis of his radian, median, ulnar, and musculocutaneous nerves for the periods on appeal. However, the Board erred in failing to consider whether the Veteran was entitled to higher ratings under the radicular group ratings. Upon review of the record, the Board finds that the existing record is not adequate to the provide the Board with the information necessary to adequately consider whether the Veteran's disability is entitled to compensation under the DCs for radicular group rating, and therefore must remand the claim in order to obtain retroactive medical opinions. Additionally, the Board notes that the Veteran has not undergone a VA examination for his RUE diabetic neuropathy since November 2013. Given the length of time since the last examination, the Board finds that additional examination is needed in order to adequately consider the current severity of the Veteran's disability. See 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated since August 2016. 2. After completion of item 1, schedule the Veteran for a VA examination to ascertain the current nature and severity of his service-connected RUE diabetic neuropathy disability. The claims file must be made available for review, and the examiner must note that a review was completed. All indicated tests and studies must be completed. The examiner should address the following: The examiner must also address functional impairment, if any, during flare-ups or when the right upper extremity is used repeatedly. The range of motion lost during a period of flare-up or over-use must be indicated in degrees. If the examination occurs when a flare-up is not being experienced, or at a time without repeated use over a period of time, the examiner must ascertain adequate information, such as frequency, duration, characteristics, severity, or functional loss regarding the Veteran's flares by alternative means and estimate the Veteran's functional loss due to flares or repeated use based on all the evidence of record. If the Veteran no longer experiences flare-ups of the right upper extremity, this should be made clear. The examiner should then review the record and elicit any information deemed necessary from the Veteran to ascertain the functional impact, if any, the Veteran's prior history of flare-ups had at the time. The examiner should solicit information, such as, the dates of previous flare-ups and the symptoms associated with such flare; frequency and duration of flare-ups; and a description of pain and duration of such pain during a flare-up. If this is not feasible to determine the above-requested information without resort to speculation, the examiner must provide an explanation for why this is so. It must be clear that the inability to provide an opinion is predicated on lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. 3. Forward the entire claims file to the appropriate medical professional for retroactive medical opinions as to the severity of the Veteran's RUE diabetic neuropathy. The examiner should note review the claims file in the report. The examiner is requested to review the VA examinations from May 2004, December 2008, May 2012, and November 2013 with particular attention to the varying level of paralysis of affected nerves. The examiner should retroactively determine if the upper radicular group, the middle radicular group, lower radicular group, and/or all radicular groups were affected at the time of the prior examinations. If the examiner finds that any radicular group was affected at the time of the prior examination, he/she is to report whether involvement resulted in mild, moderate, or severe incomplete paralysis or complete paralysis. Finally, the examiner will provide an opinion as to whether the Veteran's subjective reports of his symptoms are consistent with the objective clinical findings and must describe all functional limitations resulting from the service-connected disability at issue. A complete rationale for all opinions must be provided. The Board recognizes that this question requires an imprecise estimation, but the examiner is asked to please attempt to state an answer to the best of his or her ability. If the information cannot be provided then a specific reason should be given for why this is so. Any related neurologic issues should also be noted and described, to include results of reflex, sensation, and motor strength testing. 4. Then, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. . The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. Department of Veterans Affairs