Citation Nr: 1804332 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 11-19 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right wrist, residuals of a right wrist injury. 2. Entitlement to an increased initial rating for diabetic neuropathy of the left lower extremity, presently rated as noncompensable prior to December 16, 2009, and as 10 percent disabling thereafter. 3. Entitlement to an increased initial rating for diabetic neuropathy of the right lower extremity, presently rated as noncompensable prior to December 16, 2009, and as 10 percent disabling thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. The Veteran does not have ankylosis of the right wrist. 2. Prior to December 16, 2009, the Veteran denied symptoms associated with his peripheral neuropathy of the bilateral lower extremities. 3. From December 16, 2009, the Veteran's bilateral peripheral neuropathy of the lower extremities was manifested by symptoms which were wholly sensory and mild in nature, affecting either the popliteal or sciatic nerves. 4. The schedular criteria adequately address the Veteran's symptoms of his right wrist and bilateral peripheral neuropathy disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected degenerative joint disease of the right wrist have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5125, 5214, 5215 (2017). 2. The criteria for a compensable rating prior to December 16, 2009, for diabetic peripheral neuropathy of the left lower extremity were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, DCs 8720, 8721 (2017). 3. The criteria for a rating in excess of 10 percent after December 16, 2009, for diabetic peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, DCs 8720, 8721. 4. The criteria for a compensable rating prior to December 16, 2009, for diabetic peripheral neuropathy of the right lower extremity were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, DCs 8720, 8721. 5. The criteria for a rating in excess of 10 percent after December 16, 2009, for diabetic peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, DCs 8720, 8721. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of a letter sent in October 2007. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, private treatment records, VA examination reports, and statements from the Veteran and his representative. Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none. In the Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). II. Increased Ratings The Veteran seeks increased ratings for a right wrist disability and right and left lower extremity peripheral neuropathy. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issues on appeal, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2017). The Board will address his wrist and peripheral neuropathy disabilities separately. A. Right Wrist The Veteran is presently service connected for degenerative joint disease of the right wrist, rated as 10 percent disabling from the date of service connection. He asserts that he is entitled to a higher rating for that disability. As an initial matter, the Board takes judicial notice of the fact that the Veteran is right handed, and therefore his right wrist is to be addressed as the major wrist. Disabilities of the wrist affecting both major and minor wrists, are afforded a 10 percent maximum rating based on limitation of motion when there is either evidence of palmar flexion limited in line with the forearm, or dorsiflexion of less than fifteen degrees. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5215 (2017). Ratings in excess of 10 percent are only assigned under the diagnostic criteria if there is evidence of ankylosis. Particularly, a 30 percent rating is assigned for favorable ankylosis in 20 to 30 degrees dorsiflexion. 40 percent is assigned for ankylosis in any other position, except favorable. A 50 percent disability rating is assigned for unfavorable ankylosis in any degree of palmar flexion, or with ulnar or radial deviation. Extremely unfavorable ankylosis is rated as loss of use of hand under DC 5125, which compensates for amputation of the hand. 38 C.F.R. § 4.71a, DC 5214 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2017). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 (2017). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). The evidence of record shows that in August 2007, the Veteran was diagnosed with slack wrist with flexion of the right wrist to about 20 degrees, and extension to 0 degrees. Radial deviation was about zero degrees and ulnar deviation was about 15 degrees. There was no evidence of ankylosis noted. In December 2009, the Veteran was afforded a VA examination in connection with his initial service connection claim. The Veteran reported pain, stiffness and weakness, but denied deformity, giving way, instability, incoordination, and decreased joint motion. He denied episodes of dislocation or subluxation and locking episodes. There were no symptoms of inflammation. At that time he denied flare-ups. Right dorsiflexion was limited to 35 degrees. Right palmar flexion was limited to 35 degrees. Radial deviation was to 10 degrees. Ulnar deviation was to 18 degrees. There was no objective evidence of pain following repetitive motion. There were no additional limitations after repetition. The examiner explicitly stated that there was no joint ankylosis. X-rays conducted in December 2009 showed degenerative joint disease, advanced joint narrowing due to previous trauma, resulting in markedly reduced range of motion and strength in the right wrist. The Veteran reported that at the time he was retired, having retired in 2009 due to eligibility by age or duration of work. The examiner stated that the Veteran's wrist disability would impact occupational activities due to decreased manual dexterity, problems with lifting and carrying, decreased strength and pain. Effects of the problem on usual daily activities were generally moderate in nature. An imaging study of the right wrist conducted in June 2011showed severe narrowing of the radiocarpal joint space and the joint space between the proximal row carpal bones. No range of motion findings were reported. No evidence of ankylosis was reported. In June 2016, the Veteran was again afforded a VA examination in support of his claim. Degenerative arthritis was confirmed as the diagnosis. At that time, the Veteran reported decreased range of motion and intermittent right wrist pain. Flare-ups were reported as resulting in increased pain with activity. The examiner stated that the wrist disability limited the Veteran's activities in that he would be limited in writing, pushing/pulling, and wrist rotation. Palmar flexion was to 5 degrees. Dorsiflexion was to 5 degrees. Ulnar deviation was to 5 degrees. Radial deviation was to five degrees. Pain was noted on examination and caused functional loss on all ranged of motion. Objective evidence of pain included grimacing at the right dorsal wrist. The examiner stated the severity of such pain was mild. There was evidence of pain with weight bearing, but no evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examination was medically consistent with the Veteran's statements regarding functional loss with repetitive use over time. Pain, significantly limited functional ability with repeated use, although to what degree it could not be described. The examination was not conducted during a flare up, but the examiner stated that it was medically consistent with the Veteran's statements regarding flare-ups. Strength testing showed active movement against some resistance in flexion, with complete strength in extension. The examiner explicitly stated that there was no evidence of ankylosis. There were no other pertinent findings. The examiner stated that, regardless of the Veteran's current employment status, the right wrist disability limited his ability to write, push/pull, and engage in wrist rotation. VA treatment records showed complaints of wrist pain in May and June 2011, with referral to orthopaedics considered, and comfort measures provided. Further treatment records from VA show continued complaints of wrist pain, but no evidence of ankylosis. In light of the above, the Board finds that a schedular rating in excess of 10 percent cannot be assigned. Particularly, the Board observes that at no point in time has the Veteran been shown to have ankylosis affecting his right wrist. Under the statutory diagnostic criteria applicable to a wrist disability, the only rating in excess of 10 percent which can be assigned is assigned for ankylosis. As there is no such pathology in the record, the Board cannot assign a higher rating. In reaching this conclusion, the Board acknowledges the Veteran's representative's January 2018 argument that the June 2016 examination was inadequate as it failed to meet the standards set in the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). To the extent that that decision requires VA examinations to specifically address limitation of motion during periods of flare-ups, such evidence is necessary for the Board to consider when flare-up periods may result in additional limitation of motion. In this instance, the Veteran is already in receipt of the maximum rating based on limitation of motion; he can only be granted a higher statutory rating if there is evidence of ankylosis. Such evidence would not be relevant to the symptoms or pathology required to provide a higher rating, therefore, that argument does not render the examination inadequate in this case. See Sharp v. Shulkin, 29 Vet.App. 26, 35 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). In sum, the Board has considered all evidence of record, but because the Veteran's right wrist disability has not been manifested by ankylosis at any point on appeal, a higher rating cannot be assigned. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2017). B. Bilateral Peripheral Neuropathy - Lower Extremities The Veteran is presently service connected for bilateral diabetic peripheral neuropathy, affecting the right and left lower extremities. Each extremity is rated as non-compensable prior to December 16, 2009, and as 10 percent disabling thereafter. He asserts that he is entitled to higher ratings for both. The Veteran's peripheral neuropathy has been rated under Diagnostic Code 8721, which compensates for neuralgia affecting the popliteal nerve. Under the applicable diagnostic criteria, a 10 percent rating is assigned for mild incomplete paralysis of the popliteal nerve. Moderate incomplete paralysis is provided a 20 percent rating. Severe incomplete paralysis is granted a 30 percent rating. Finally, complete paralysis of the popliteal nerve, described as foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension of the proximal phalanges of the toes lost; abduction of the foot lost; adduction weakened; anesthesia covers the entire dorsum of the foot and toes; is assigned a 40 percent rating. 38 C.F.R. § 4.124a, DC 8721 (2017). The Board observes that the Veteran's diabetic peripheral neuropathy has also been described as affecting the sciatic nerve, and therefore the Board will also consider a possible increased rating under that diagnostic criteria. Under the applicable diagnostic code, milder incomplete paralysis of the sciatic nerve is assigned a 10 percent rating. A 20 percent rating is assigned for moderate incomplete paralysis. Moderately severe incomplete paralysis is assigned a 40 percent rating. Severe, with marked muscular atrophy, is assigned a 60 percent disability rating. Finally, complete paralysis of the sciatic nerve, described as the foot dangles and drops; no active movement possible of the muscles below the knee; flexion of the knee weakened or (very rarely) lost; is assigned an 80 percent disability rating. 38 C.F.R. § 4.124a, DC 8720 (2017). The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Words such as "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). The evidence of record shows that in February 2008, the Veteran was afforded a VA examination in connection with his service connection claim for diabetes mellitus, type II (the Board takes notice that the disabilities on appeal are service connected secondary to his diabetes mellitus). At that time, both right and left lower extremity showed normal color and temperature with no trophic changes or ulcers, and normal pulses. Neurological coordination was normal. There was no motor loss or sensory loss found. Deep tendon reflexes were normal. The Veteran reported being employed at that time, full time, with lost work in the prior year due to a head injury. No neurological diseases were diagnosed. He explicitly denied peripheral neuropathy symptoms at that time. In light of this, the Board finds that a compensable rating cannot be assigned. The Veteran explicitly denied symptoms associated with peripheral neuropathy during this examination. Absent evidence of applicable symptoms, even mild in nature, a compensable rating cannot be assigned. The Veteran appealed the denial of service connection for peripheral neuropathy, and on December 16, 2009, he was provided a new VA examination. At that time, he reported gradual onset of burning in the feet, with intermittent plantar pain, increased in the left foot. Course since onset was stable. He was treated with medication to fair results, although he had only been on the medication of approximately six weeks, and reported that he could not yet tell if he had improved. Symptoms present only affected the feet. He reported numbness, paresthesias (burning), and pain. The right leg was noted to be weaker than the left due to childhood polio. Both lower extremities showed decreased vibration sensation to the midfoot, and decreased pain to the midfoot. Light touch and positional sensation were normal. Reflexes were all normal. There was no evidence of muscle atrophy, abnormal tone, or bulk. There were no tremors, ricks or other abnormal movements. Gait and balance were normal. Function of the joints was not affected. He reported being retired as of September 2009, due to age or duration of work, and not due to disability. The examiner stated that there were no effects on his activities of daily living due to his neuropathy. Here, the Board finds that a rating in excess of 10 percent should not be assigned based on this examination report because there is no evidence of incomplete paralysis that is moderate in nature or greater. The symptoms are sensory at most; there is no evidence of issues with the reflexes or strength; gait and joint use are not affected. Further, the examiner found no evidence that the disability would have any effects on his occupational activities or other activities of daily living. In light of this, the Board finds that the symptoms identified in this examination report are mild at most, and therefore should be compensated with a 10 percent rating. In June 2016, a new VA examination was conducted. The Veteran complained of numbness, tingling and pain in his lower extremities. Symptoms included mild constant pain in the lower extremities; mild paresthesias and/or dysthesia; and moderate numbness. Neurological examination showed normal muscle strength. Deep tendon reflexes were normal in the knees and absent in the ankles. Light touch/monofilament testing was decreased in the right foot/toes, but normal in the left. Positional sense was normal. Vibration and cold sensation were decreased. There was no evidence of muscle atrophy or trophic changes. The examiner diagnosed right and left incomplete paralysis affecting the sciatic nerve, mild in nature. The examiner opined that his peripheral neuropathy would limit his ability to stand and walk, although it was not implied that such activities were precluded entirely. No other pertinent physical findings, complications, conditions, signs or symptoms were reported. Again, the Board finds that this examination report does not support a rating in excess of 10 percent for either lower extremity. The symptoms reported by the Veteran at the time of his examination were wholly sensory in nature. At most, he has shown some moderate numbness, but factors such as muscle strength, muscle atrophy, and trophic changes are completely unaffected. Numbness, tingling, and pain are entirely sensory, and as such, should be afforded a 10 percent rating for mild incomplete paralysis of either the sciatic or popliteal nerve (in this case, it is the sciatic which is affected). The Board has reviewed the Veteran's other available treatment records and found nothing that would provide a higher rating. For example, an April 2012 pain medicine evaluation showed complaints of pain in the low back and right knee, but not any neurological findings. In July 2013, he was seen for swelling in his legs (mild edema), although pulses and other neurological factors were all intact. A December 2013 foot screening clinic note showed loss of protective sensation via monofilament testing, which is entirely sensory in nature and therefore does not support a higher disability rating. A January 2016 treatment note indicated neuropathy of the feet and lower abdomen, but provided no further description of any associated symptoms which the Board could consider in evaluating the claim. A February 2016 urology consultation showed neurological symptoms to be grossly intact. Most recently, in October 2016, the Veteran was seen in the VA podiatry clinic requesting shoes but stated that he had no acute foot problems; neurological testing was within normal limits. Essentially, the record does not show any symptoms which would inform the Board that the Veteran experiences anything greater than mild incomplete paralysis of the sciatic or popliteal nerves due to diabetic peripheral neuropathy. As such, a rating in excess of 10 percent cannot be assigned after December 16, 2009. In sum, the Board has considered all of the evidence of record, but finds that prior to December 16, 2009, a compensable rating cannot be assigned for bilateral peripheral neuropathy of the lower extremities. From December 16, 2009, onwards, the maximum schedular rating based on the evidence of record is 10 percent. Increased ratings are thus denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. C. Extraschedular Consideration The Veteran's representative, in a January 2018 statement, raised the issue of referral for extraschedular consideration for the Veteran's disabilities on appeal. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2017). The Court of Appeals for Veteran's Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board may not award an extraschedular rating in the first instance, but rather must refer such a claim to the Director of Compensation Services for initial consideration. The Board finds that referral for such consideration is not warranted in this matter. Although the Veteran complains of pain affecting his right wrist, and limiting use of that joint, the Board finds that this is exactly the type of symptom anticipated by the schedular criteria applicable to the wrist, namely loss of range of motion and use of the wrist. Likewise, sensory symptoms, as experienced by the Veteran, are precisely the type of symptoms anticipated by the schedular criteria addressing neuralgia of both the sciatic and popliteal nerves. Essentially, the Veteran's disabilities are productive of symptoms specifically identified in the Rating Schedule. As such, the first criteria for extrashedular referral has not been met. "If either [Thun] element is not met, then referral for extraschedular consideration is not appropriate." Urban v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1312, *27, 29 Vet. App. 82 (Sept. 18, 2017) (quoting Yancy v. McDonald, 27 Vet. App. 484, 494-95 (2016)). Therefore, because the schedular criteria addresses the symptoms of both disabilities on appeal, the Board finds that referral for extraschedular consideration is not appropriate in this appeal. ORDER A rating in excess of 10 percent for degenerative joint disease of the right wrist is denied. A compensable rating for diabetic peripheral neuropathy of the left lower extremity is denied prior to December 16, 2009. A rating in excess of 10 percent for diabetic peripheral neuropathy of the left lower extremity is denied after December 16, 2009. A compensable rating for diabetic peripheral neuropathy of the right lower extremity is denied prior to December 16, 2009. A rating in excess of 10 percent for diabetic peripheral neuropathy of the right lower extremity is denied after December 16, 2009. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs