Citation Nr: 1806179 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 07-28 073A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating greater than 10 percent for peripheral neuropathy of the left upper extremity. 2. Entitlement to an increased rating greater than 10 percent for peripheral neuropathy of the right upper extremity. 3. Entitlement to an increased rating greater than 10 percent for peripheral neuropathy of the left lower extremity. 4. Entitlement to an increased rating greater than 10 percent for peripheral neuropathy of the right lower extremity. 5. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel FINDING OF FACT The Veteran's neuropathy of the lower and upper extremities has manifested as subjective complaints of mild constant pain, with objective findings of mild paresthesias and/or dysesthesias, and mild numbness. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating greater than 10 percent for neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8515 (2017). 2. The criteria for entitlement to an increased rating greater than 10 percent for neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8515 (2017). 3. The criteria for entitlement to an increased rating greater than 10 percent for neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for entitlement to an increased rating greater than 10 percent for neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1966 through June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Veteran testified at a videoconference hearing before a now retired Veterans Law Judge sitting at the RO. A transcript is of record. In June 2017, the Board notified the Veteran that the Veterans Law Judge who presided over his January 2012 hearing had retired. VA rules require that a Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.717. The Veteran declined another hearing. The Board remanded the above-listed issues in November 2013. That development having been conducted to the extent possible, the matter is again before the Board for further appellate review. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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). Thus, the Board need not discuss any potential issues in this regard. Further, the Veteran has not alleged any deficiency with the conduct of his Board hearing with respect to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The regulations pertinent to this decision (38 C.F.R. §§ 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.123, 4.124a, Diagnostic Codes 8515, 8520) were initially provided in the August 2007 Statement of the Case and most recently in the October 2016 Supplemental Statement of the Case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. The Veteran asserts that his neuropathy of the bilateral upper and lower extremities is worse than what is contemplated by his separate 10 percent disability ratings. Specifically, he claims he has reduced grip strength in his hands and increased fatigability in his legs. A private medical record dated January 2006 noted the Veteran reported muscle weakness, numbness, and tingling in his feet. Physical examination revealed palpable dorsalis pedis and posterior tibial pulses bilaterally. His lower extremities had normal texture, color, and turgor. He had a negative Babinski test, diminished discrimination between sharp and dull, a 6 out of 10 monofilament test, and the physician could not elicit a deep tendon reflex of the Achilles. In February 2006, the Veteran was evaluated for weakness of his left side following a 1997 tractor accident. Neurological evaluation revealed mild-to-moderate weakness of the left arm, mild weakness of the left leg, and decreased reflexes throughout. An April 2006 private medical record noted the Veteran's neuropathy pain had significantly improved. The Veteran continued to report tingling in his feet and numbness in his digits in June and August 2006. Private medical records from June 2007 note the Veteran complained of pain and burning in his feet and that his left hand was painful and numb. The Veteran was afforded a VA examination in July 2007. He reported experiencing tingling in his fingers bilaterally, his right foot felt as if there was a stone in his shoe and the outside of his foot was numb, and his left foot was numb, especially in the left great toe. Sensory function tests of his upper extremities found his sense of vibration and pain was normal bilaterally and his sense of light touch was decreased bilaterally. He had no monofilament sensation on the anterior surfaces of his right and left hands, diminished monofilament sensation on the palm of his right hand, and normal pinwheel sensations on all surfaces bilaterally. Lower extremity function tests reflected normal sensation to vibration bilaterally, decreased pain on anterior surfaces bilaterally, sensation to light touch absent on the anterior surface of his feet bilaterally, and diminished monofilament sensation on his soles bilaterally. The examiner noted the Veteran's left lower extremity had more loss of sensation than his right lower extremity. Reflex testing demonstrated the Veteran had normal reflexes in all extremities. A December 2007 nerve conduction study reflected no definite lower extremity peripheral neuropathy involving the tested nerves on the left. However, the report noted the findings did not preclude the existence of a small fiber peripheral neuropathy. In May 2008, the Veteran was afforded another VA examination to evaluate the severity of his peripheral neuropathy. He reported he felt unable to squeeze his hands with some aching pain and stiffness, but no radicular pain or weakness. He also reported numbness to the bottom and sides of his feet and toes with intermittent burning. Physical examination revealed his upper motor strength was normal, and he could touch his thumb to the tips of his fingers with good grip except for his pinky. He demonstrated decreased sensation in his hands to the level of the wrist with marked decreased sensation in his fingers, which was less marked in his more proximal hand. There was tenderness over the proximal interphalangeal joints and metacarpophalangeal joints bilaterally. Physical examination of his lower extremities revealed normal radial and posterior tibial pulses, but his dorsalis pedis pulses were not palpable. He had decreased sensation in his feet, which was marked distally, less marked proximally, and present to the level of his ankle. He also had decreased sensation to monofilaments bilaterally. The examiner diagnosed the Veteran with diabetic peripheral neuropathy of the upper extremities involving decreased sensation of the hand bilaterally, marked in the finger, less dramatic in his more proximal hand. with no significant dysesthesia; and peripheral neuropathy of the bilateral feet with burning dysesthesias bilaterally. The Veteran underwent EMG testing in May 2008. Test results revealed mild left carpal tunnel, but there was no evidence of a diffuse neuropathy. During a May 2010 diabetic foot exam, the Veteran reported that he believed his neuropathy was worsening. His dorsalis pedis and posterior tibial pulses were palpable, and neurologic evaluation revealed partial loss of protective sensation via monofilament. The Veteran was afforded a VA examination in March 2011. He reported finger and foot numbness and aching in his feet. Reflex testing revealed decreased reflexes in his biceps, triceps, brachioradialis, and knee jerk, absent reflexes in his finger jerk, abdominal, and ankle jerk, and negative Babinski bilaterally. Sensory testing of his upper extremities was normal bilaterally. His lower extremities demonstrated decreased sensation to vibration, normal sensation to pain and pinprick, normal position sense, decreased sensation to light touch in his left foot ant toes, and no dysesthesias. Physical examination of his lower extremities reflected hair loss below the knees bilaterally and mild clawing of his right lateral four toes. The examiner diagnosed the Veteran with mild peripheral neuropathy of the lower extremities. In March 2011, the Veteran underwent EMG testing. The tests reflected no definitive electrophysiologic evidence of peripheral neuropathy. In January 2012, the Veteran testified at a Board hearing. During his hearing, he reported that his hands are numb, resulting in him frequently dropping objects, being unable to complete fine tasks such as buttoning shirts, and decreased ability to open food packages. He also reported his legs would go numb below the knee after sitting for a long time and his feet would hurt after walking approximately half a mile. The Veteran was afforded another VA examination to assess the severity of his upper and lower extremity peripheral neuropathy in April 2012. The Veteran reported mild constant pain, no intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness for his upper and lower extremities bilaterally. Muscle strength testing and deep tendon reflexes were normal for all of his extremities bilaterally. He had decreased sensation to light touch in his feet and toes bilaterally, but sensation to light touch was normal for the rest of his extremities. He had normal position sense, no muscle atrophy, and no trophic changes. The examiner noted that his radial, median, ulnar, sciatic, and femoral nerves were all normal bilaterally. In May 2014, the Veteran was afforded a final VA examination to evaluate his upper and lower extremity peripheral neuropathy. He reported that he felt his neuropathy was getting worse, but doctors had told him that the condition had not progressed. Physical examination reflected normal strength, decreased deep tendon reflexes, normal position sense, and normal sensation to cold in all extremities. He did not have any sensation to light tough in his left foot and toes, but his other extremities were normal. He had decreased sensation to vibration in his right lower extremity, but all his others were normal. The examiner found no evidence of peripheral neuropathy in either the upper or lower extremities bilaterally. After a complete review of the record, the Board finds that the Veteran's bilateral upper and lower diabetic neuropathy manifested as no more than mild symptoms. The overwhelming medical evidence indicates that the Veteran demonstrated decreased reflexes and sensation to light touch, with mild pain and numbness. There is no evidence the Veteran experienced involvement of any nerves other than his median and sciatic nerves, bilaterally. As such, rating under a different diagnostic code are not warranted. The Board notes that the May 2008 VA examiner diagnosed him with marked decreased sensation in the fingers, but he had good strength in the upper extremities and good grip, except for the pinky finger. Marked decreased sensation of the fingers, without evidence of increased pain, numbness, weakness, or dysesthesias is not comparable to moderate incomplete paralysis of the median nerve to warrant an increased, 30 percent rating for the dominant hand, or an increased, 20 percent rating for the minor hand. The Board finds that the January 2007, March 2011, May 2012, and May 2014 VA examinations are accurate evaluations of the Veteran's peripheral neuropathy. None of those examinations noted the Veteran experienced moderate pain, weakness, numbness, or dysesthesias. Although the March 2011 VA examination report noted the Veteran had absent finger jerk and abdominal reflexes, all the other examinations noted no more than decreased reflexes. Importantly, the May 2012 examination only found peripheral neuropathy of the lower extremities, and the May 2014 examination noted that there was no evidence of any peripheral neuropathy. Most notably, nerve conduction studies conducted in December 2007, May 2008, and March 2011 showed no evidence of peripheral neuropathy. Accordingly, the Veteran's disability could not manifest as anything more than mild incomplete paralysis of the bilateral median nerve and the bilateral sciatic nerve. A higher, 20 or 30 percent rating for diabetic neuropathy of the upper extremities is not warranted unless the neuropathy manifests as moderate incomplete paralysis of the median nerve. A higher 20 percent rating for diabetic neuropathy of the lower extremities is not warranted unless the peripheral neuropathy manifests as moderate incomplete paralysis of the sciatic nerve. The Veteran's lay statements and testimony have been considered in this decision. However, it is the objective findings of his disability upon which ratings are based. Accordingly, entitlement to ratings in excess of 10 percent for left upper extremity, right upper extremity, left lower extremity, and right lower extremity peripheral neuropathy are not warranted. As the preponderance of the evidence is against assignment of any higher ratings, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to an increased rating greater than 10 percent for service-connected peripheral neuropathy of the left upper extremity is denied. Entitlement to an increased rating greater than 10 percent for service-connected peripheral neuropathy of the right upper extremity is denied. Entitlement to an increased rating greater than 10 percent for service-connected peripheral neuropathy of the left lower extremity is denied. Entitlement to an increased rating greater than 10 percent for service-connected peripheral neuropathy of the right lower extremity. REMAND The Veteran is currently scheduled for a Board hearing to address his separate appeal of entitlement to an increased rating for PTSD. As entitlement to a TDIU is inextricably intertwined with the issue of entitlement to an increased rating for PTSD, it must be remanded. Although the issue of a TDIU was raised under Rice, it was not fully developed during the January 2012 Board hearing on the peripheral neuropathy claims. Since PTSD is one of the Veteran's higher rated disabilities, it would be more appropriate to consider the TDIU claim along with the PTSD claim at the Board hearing. Accordingly, the case is REMANDED for the following action: Continue to process the Veteran's currently pending Board hearing on his appeal for an increased rating for PTSD. At that hearing, the Veteran can also address his claim for TDIU. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs