Citation Nr: 18146936 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-15 504 DATE: November 2, 2018 ORDER The claim of entitlement to a disability rating of 40 percent for peripheral neuropathy of the left lower extremity is granted, subject to the laws and regulations controlling the award of monetary benefits. The claim of entitlement to a disability rating of 40 percent for peripheral neuropathy of the right lower extremity is granted, subject to the laws and regulations controlling the award of monetary benefits. The claim of entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy left upper extremity is denied. The claim of entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy right upper extremity is denied. REMANDED ISSUES The claim of entitlement to a higher disability rating for PTSD with alcoholism, rated as 30 percent prior to July 24, 2012, and 50 percent thereafter, is remanded. The claim of entitlement to a temporary total evaluation under the provisions of 38 C.F.R. § 4.29 is remanded. The claim of entitlement to a TDIU due to service-connected PTSD and hemorrhoids, for the period from June 26, 2009, to July 24, 2012. FINDINGS OF FACT 1. The Veteran’s left lower extremity peripheral neuropathy more closely approximated moderately severe incomplete paralysis of the sciatic nerve. 2. The Veteran’s right lower extremity peripheral neuropathy more closely approximated moderately severe incomplete paralysis of the sciatic nerve. 3. The Veteran’s peripheral neuropathy with of the left upper extremity more closely approximated mild incomplete paralysis of the left median nerve. 4. The Veteran’s peripheral neuropathy with of the right upper extremity more closely approximated mild incomplete paralysis of the right median nerve. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2018). 2. The criteria for a 40 percent rating for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2018). 3. The criteria for an initial rating in excess of 10 percent for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2018). 4. The criteria for an initial rating in excess of 10 percent for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Navy from July 1968 to July 1972 and February 1977 to December 1985. On June 26, 2009, the Veteran filed claims for entitlement to increased ratings for PTSD and hemorrhoids. In a May 2010 rating decision, the RO denied the claims for increase and the Veteran did not submit a notice of disagreement. However, within a year of the May 2010 rating decision, new and material VA treatment records showing a worsening of his PTSD and hemorrhoids were constructively associated with the claims folder. Specifically, a July 2010 VA treatment record showed that the Veteran was found to have an anal fissure during a July 9, 2010, colonoscopy. Additionally, June 2010 and September 2010 VA treatment records noted worsening psychiatric symptoms and some suicidal ideation. Accordingly, the Veteran’s claims for increased ratings for his PTSD and hemorrhoids relate back to the May 2010 rating decision, which did not become final as to those claims. See 38 C.F.R. § 3.156 (b) (2018) (stating that if new and material evidence is received within the relevant appeal period, the evidence is to be considered as having been filed in connection with the pending claim). See also Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). He later filed a claim for increase for PTSD in July 2012 and for hemorrhoids in February 2013. The claims for increase were denied in the July 2013 rating decision. The Board notes that the Veteran did not include the hemorrhoids increased rating claim in his April 2016 substantive appeal. In September 2015, the Veteran filed a claim for a TDIU. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. In February 2016, the RO granted entitlement to a TDIU, effective September 9, 2015. The Veteran disagreed with the effective date. In a May 2017 rating decision, the RO determined that the grant of a 100 percent combined schedular rating since July 24, 2012 rendered his TDIU claim moot from that date. As the PTSD and hemorrhoids increased rating claims were pending since the May 2010 rating decision, the Board has recharacterized the issue on appeal as entitlement to a TDIU due to service-connected PTSD and hemorrhoids, for the period from June 26, 2009, to July 24, 2012. In addition, it appears that the Veteran submitted a substantive appeal with respect to his claims for entitlement to earlier effective dates for the grant of service connection for his alcoholism, distal pancreatectomy, and splenectomy. However, the Board’s review of the record reveals that the Agency of Original Jurisdiction (AOJ) has not certified the issues for consideration by the Board, and it appears the AOJ is still taking action on the claim. As such, the Board will not accept jurisdiction over the issues at this time, but the issues will be the subject of a subsequent Board decision, if otherwise in order. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 ; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2018). At the outset, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Entitlement to a higher disability rating for peripheral neuropathy of the right lower extremity, rated as 20 percent prior to March 6, 2012, 40 percent from March 6, 2012, to February 6, 2013, and 20 percent thereafter. The Veteran’s bilateral peripheral neuropathy of the bilateral upper extremity is rated as 10 percent disabling for each upper extremity, pursuant to Diagnostic Code 8515 for paralysis of the median nerves. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Under Diagnostic Code 8515, mild incomplete paralysis of the median nerve warrants a 10 percent evaluation for either the minor or major hand, moderate incomplete paralysis of the median nerve warrants a 20 percent evaluation for the minor hand and a 30 percent evaluation for the major hand, and severe incomplete paralysis of the median nerve warrants a 40 percent evaluation for the minor hand and a 50 percent evaluation for the major hand. Complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, the thumb in the place of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, inability to make a fist, and the index and middle finger remain extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb at the right angle to the palm; weakened flexion of the wrist; and pain with trophic disturbances warrants a 60 percent evaluation for the minor hand and a 70 percent evaluation for the major hand. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Veteran’s bilateral lower extremity peripheral neuropathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 20 percent is assigned for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis with foot dangle and drop, no active movement possible of muscles below the knee, or flexion of knee weakened or (very rarely) lost. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. § 4.424a (2018). The words “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 (2018). It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. In rating peripheral nerve injuries and their residuals, attention is given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Following a review of the evidence of record, the Board concludes that the Veteran is entitled to a 40 percent disability rating for each lower extremity throughout the entire appeal period. The Board also finds that increased ratings are not warranted for the bilateral upper extremity peripheral neuropathy. Prior to February 6, 2013, the evidence shows that his bilateral lower extremity peripheral neuropathy was manifested by severe neuropathic pain, paresthesias, tingling, persistent burning pain, mild weakness, and numbness. He complained that he was unable to feel his feet and that the numbness involved the entire foot to the ankle, with the worse numbness near the big toe. Treatment providers recommended an electromyography if his symptoms continued to worsen. Therefore, an electromyography was completed in March 2012, which revealed severe peripheral polyneuropathy. It was noted that his peripheral neuropathy was likely due to his past alcohol abuse and diabetes. That same month, the Veteran reported improvement following the electromyography, however, he continued to complain of painful neuropathy in his feet. During a September 2012 neurology consult, he was advised to continue to use nortriptyline to the max that he could tolerate it and then consider additional treatments. Providers also recommended that he continue to manage his diabetes, abstain from alcohol, and lower his B6 levels. Beginning on February 6, 2013, the medical evidence shows that his lower extremity peripheral neuropathy was manifested by moderate constant pain, moderate intermittent pain, mild to moderate paresthesias/dysesthesias, and moderate numbness. Physical examinations conducted in February 2013, January 2016, and July 2017 revealed normal strength; decreased deep tendon reflexes in the knees; absent deep tendon reflexes in the ankles; decreased light tough in the ankles and lower legs; absent light touch in the feet and toes; decreased position sense; and decreased vibration sensation. There was no muscle atrophy or trophic changes noted in any of the VA examination reports or treatment records. The February 2013, January 2016, and July 2017 VA examiners described the severity of the Veteran’s lower extremity neuropathy as moderate incomplete paralysis. Subsequent VA treatment records noted increased neuropathic pain, persistent chronic burning, leg aches, and some difficulty with toe and heel standing secondary to peripheral neuropathy. In June 2013, he was prescribed topical Capsaicin for his persistent pain. October 2014 VA treatment records describe the Veteran’s neuropathy as severe. A November 2014 VA neurology note indicated a mild subtle progression in chronic longstanding neuropathy complaints. The neurologist noted a history of prior treatment with limited response. The January 2016 VA examination report indicated that the Veteran was no longer treating his symptoms with nortriptyline and that he could not tolerate the side effects of gabapentin and pregabalin. He treated his symptoms with the occasional use of tramadol at night for relief of his foot symptoms. It was noted that his bilateral lower extremity neuropathy contributed to limited walking endurance. January 2016 VA treatment records noted that his symptoms became more painful over the last few months. Throughout the period on appeal, the Veteran’s bilateral upper extremity radiculopathy has been manifested by mild numbness, mild paresthesias/dysesthesias, and no pain symptoms. The February 2013 VA examination report indicated that his upper extremity neuropathy did not affect manual dexterity. Physical examinations conducted in February 2013, January 2016, and July 2017 showed decreased deep tendon reflexes in the biceps, triceps, and brachioradialis; decreased light touch in the hands and fingers; normal position sense; normal vibration sensation; and no muscle atrophy. The August 2013 electromyography revealed normal findings and there was no evidence of peripheral neuropathy of the left upper extremity. The February 2013, January 2016, and July 2017 VA examiners stated that the Veteran had mild incomplete paralysis of the median nerve. The January 2016 VA examiner noted that the Veteran had some mild numbness in the fingers and hands, but his upper extremity symptoms were not particularly bothersome. Based on the foregoing, the Board finds that 40 percent ratings, but no higher, are warranted for the Veteran’s bilateral lower extremity peripheral neuropathy. The medical evidence shows symptoms such as persistent burning pain, numbness of the entire foot, absent deep tendon reflexes, absent light touch, decreased position sense, and decreased vibration sensation. The Veteran was given an electromyography due to worsening symptoms and the electromyography showed severe peripheral neuropathy. The Board acknowledges that the VA examiners concluded that there was moderate incomplete paralysis. However, the Veteran’s VA treatment providers described his lower extremity peripheral neuropathy as severe and noted that there was limited response to his prescribed treatment. His peripheral neuropathy also limited walking endurance. Therefore, the Board resolves reasonable doubt in the Veteran’s favor and finds that the presence of moderately severe incomplete paralysis of the sciatic nerve has been approximated throughout the appeal period. In addition, the Board finds that a 60 percent rating is not warranted for the bilateral lower extremity peripheral neuropathy. The medical evidence does not suggest severe incomplete paralysis with marked muscular atrophy. The VA examination reports indicated that there was no muscle atrophy or trophic changes, and that strength testing was normal. Therefore, the Board finds that the Veteran’s lower extremity peripheral neuropathy has more nearly approximated moderately severe than severe with muscular atrophy. With respect to his upper extremity peripheral neuropathy, the Veteran has not been shown to have moderate incomplete paralysis of the median nerve. The medical evidence shows that the Veteran’s upper extremity neuropathy is mild, as shown by the normal electromyography findings, the lack of pain, and the VA examiner’s conclusions that the symptoms were mild. The medical evidence does not suggest moderate incomplete paralysis of the median nerve. Based on the foregoing, the Board finds that the Veteran’s overall disability picture does not more nearly approximate the 20 percent criteria and is consistent with the 10 percent evaluation assigned, for the bilateral upper extremity disability. The Board has considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant’s disabilities with the established criteria provided in the rating schedule for each disability. If the criteria reasonably describe the claimant’s disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the service-connected disabilities, as discussed above, are contemplated by the schedular criteria. There is no indication in the record that the average industrial impairment from the individual disability or from the Veteran’s service connected disabilities in combination would be in excess of that contemplated by the assigned ratings. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321 (b) is not in order. As the preponderance of the evidence is against any additional disability rating, the benefit of the doubt rule is not applicable, and entitlement to any additional increased disability rating must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7 2. Entitlement to a higher disability rating for peripheral neuropathy of the left lower extremity, rated as 20 percent prior to March 6, 2012, 40 percent from March 6, 2012, to February 6, 2013, and 20 percent thereafter. Please see discussion in paragraph 1. 3. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the right upper extremity. Please see discussion in paragraph 1. 4. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the left upper extremity. Please see discussion in paragraph 1. REASONS FOR REMAND 1. Entitlement to a higher disability rating for PTSD with alcohol abuse, rated as 30 percent prior to July 24, 2012, and 50 percent thereafter is remanded. February 2011 VA treatment records indicated that the Veteran was hospitalized at two hospitals in January 2011 due to suicidal ideation. Unfortunately, the medical records from his private hospitalizations are not associated with the electronic claims file. Therefore, further development is warranted to obtain any outstanding private treatment records pertaining to the Veteran’s PTSD. 2. Entitlement to a temporary total evaluation under the provisions of 38 C.F.R. § 4.29 is remanded. The issues of entitlement to a temporary total evaluation under the provisions of 38 C.F.R. § 4.29 and entitlement to a TDIU are inextricably intertwined with the claim for an increased rating for his service-connected PTSD with alcohol abuse. As such, consideration of the Veteran’s claims for entitlement to a temporary total evaluation under the provisions of 38 C.F.R. § 4.29 and entitlement to a TDIU must be deferred pending the outcome of the increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). 3. Entitlement to a TDIU due to service-connected PTSD and hemorrhoids, for the period from June 26, 2009, to July 24, 2012. Please see discussion in paragraph 2. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include the January 2011 private treatment records referenced in the February 2011 VA treatment records. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the AOJ should readjudicate the issues on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel