Citation Nr: 18157119 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-34 059 DATE: December 11, 2018 ORDER Entitlement to a rating higher than 10 percent prior to April 7, 2017, and higher than 20 percent thereafter, for left upper extremity peripheral neuropathy is denied. Entitlement to a rating higher than 10 percent prior to April 7, 2017, and higher than 20 percent thereafter, for right upper extremity peripheral neuropathy is denied. Entitlement to a 20 percent rating, but no higher, for right lower extremity peripheral neuropathy is granted. FINDINGS OF FACT 1. Prior to April 2017, the Veteran’s peripheral neuropathy of the bilateral, upper extremities was manifested by mild, incomplete paralysis. 2. From April 2017, the Veteran’s peripheral neuropathy of the bilateral, upper extremities was manifested by moderate, incomplete paralysis in both the median and ulnar nerves. 3. Throughout the appeal period, the Veteran’s right, lower extremity peripheral neuropathy was manifested by moderate, incomplete paralysis, with additional symptoms of hair loss and decreased mobility. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent prior to April 2017, and 20 percent thereafter, for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, 4.124a, Diagnostic Code (DC) 8513. 2. The criteria for a rating higher than 10 percent prior to April 2017, and 20 percent thereafter, for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, 4.124a, DC 8513. 3. The criteria for a 20 percent rating for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, 4.124a, DC 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from august 1967 to March 1969. The July 2017 rating decision awarded a 20 percent rating for both the right and left upper extremities, effective April 7, 2017. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 1. Entitlement to a rating higher than 10 percent prior to April 7, 2017, and higher than 20 percent thereafter, for left upper extremity peripheral neuropathy. 2. Entitlement to a rating higher than 10 percent prior to April 7, 2017, and higher than 20 percent thereafter, for right upper extremity peripheral neuropathy. 3. Entitlement to a rating higher than 10 percent for right lower extremity peripheral neuropathy. Diagnostic Code 8513 provide ratings for paralysis, neuritis, and neuralgia for all radicular groups (upper, middle, and lower). Disability ratings of 20, 30, and 60 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of all minor (or non-dominant) radicular groups. A maximum 80 percent rating is warranted for complete paralysis of all minor radicular groups. See 38 C.F.R. § 4.124a. Diagnostic Code 8521, for paralysis of the popliteal nerve affords a 40 percent rating for complete paralysis, causing foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. A 30 percent rating is provided for incomplete paralysis of the sciatic nerve that is severe. A 20 percent rating is provided for moderate, incomplete paralysis, and a 10 percent rating is provided for mild, incomplete paralysis. The general rating criteria for diseases of the peripheral nerves provide that 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. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. However, the Board also notes that the words mild, moderate and severe are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. VA treatment records show continuous treatment for pain in his legs and numbness in his hands caused by his neuropathy diagnosis. Notes show that in 2013, he experienced pain that caused difficulty climbing stairs and driving a car; the pain improved with rest. He had numbness in his hands and fingers. Notes dated in 2014, show he experienced pain and tingling in both legs, which caused episodes of falls. Records from 2017 show he continued to experience pain but it was relieved with medication. In his May 2016 substantive appeal, the Veteran indicated that he experienced limitation of flexion and extension, loss of strength, and severe nerve damage to his upper and lower extremities. The Veteran was afforded a VA examination for peripheral nerves in April 2013, and he complained of neuropathic symptoms in his bilateral lower extremities and hands. On physical examination, radicular symptoms for the upper extremities included mild numbness and paresthesias; for the lower extremities, there was moderate, constant pain, and mild numbness. The examiner noted normal strength and no muscle atrophy in his extremities; however, there was slightly decreased reflexes in both upper and lower extremities. Light touch, position sense and monofilament testing showed decreased sensations and senses in the bilateral hands, fingers, ankle, lower leg, foot, and toes. The examiner indicated the Veteran had mild, sensory peripheral neuropathy in both his upper and lower extremities. During the April 2017 VA examination, the examiner indicated the Veteran did not have decreased muscle strength or muscle atrophy. Light touch and monofilament testing showed decreased sensations and senses in the bilateral hands, fingers, ankle, lower leg, foot, and toes. Position sense, and vibration sense testing showed decreased sensations in the upper extremities and senses were absent in the bilateral, lower extremities. The examiner noted the Veteran had mild, incomplete paralysis in the median and ulnar nerves of the upper extremities. As for his lower extremities, the examiner noted mild, incomplete paralysis in the sciatic nerve. During the May 2018 VA examination, the Veteran complained of bilateral, upper and lower extremity numbness and tingling sensation; he also had muscle weakness in his bilateral, lower extremities. Mild, constant pain, paresthesias, and numbness were noted in the upper extremities, as well as, moderate, constant pain, paresthesias, and numbness in the lower extremities. Muscle strength was normal. However, there was some decrease in reflexes in the upper and lower extremities. Light touch and cold sensation testing showed decreased sensations and senses in the bilateral hands, fingers, ankle, lower leg, foot, and toes. The Veteran also experienced loss of hair in distal lower extremities. The examiner noted the Veteran had mild, incomplete paralysis in the median and ulnar nerves of the upper extremities. As for his lower extremities, the examiner noted mild, incomplete paralysis in the sciatic nerve. Based on the foregoing, the Board finds that a 20 percent rating is warranted for the Veteran’s right, lower extremity for the entire appeal period. However, the evidence of record does not show an increased rating is warranted for any peripheral neuropathy disability of the upper extremities at any point.   Right, Lower Extremity The Veteran’s right, lower extremity peripheral neuropathy is evaluated under diagnostic code 8521. To be awarded a higher rating, the Veteran’s disability must be manifested by moderate or severe incomplete paralysis. Prior to April 2017: During this time period, the most probative evidence of record shows the Veteran’s disability manifested as no more than mild, incomplete paralysis. Specifically, the April 2013 examination showed moderate pain and mild numbness; however, his muscle strength was normal. There was also decreased sensation and reflexes in his ankle and foot. The examiner indicated he had mild, incomplete paralysis in his lower extremities. Treatment records showed he experienced significant pain in his lower extremities that led to several falls. He also reported limited range of movement in his legs due to his condition. As he experienced some functional loss due to his disability, in the form of mobility issues, the Board finds that a higher, 20 percent rating is warranted to compensate for those additional impairments, representative of moderate impairment. After April 2017: The Veteran’s symptoms remained the same or slightly improved, as treatment records show he experienced some relief due to pain medications. On physical examinations during this period, he had some slowing of some reflexes, though not consistently and on occasion were noted as normal. However, at no point was there muscle atrophy or muscle wasting noted. There was a note that the Veteran had loss hair on his legs and experienced cramp in his legs at night. Additionally, both VA examiners noted that the Veteran had mild, incomplete paralysis. Even after resolving all reasonable doubt in favor of the Veteran, the Board finds that his symptoms most closely approximate the criteria contemplated for moderate, incomplete paralysis throughout the appeal period. A higher rating is not warranted because the evidence does not show he experienced severe incomplete paralysis. Importantly, the VA examiner noted “mild” neuropathy, and there was no evidence of any advanced symptoms like atrophy or significantly affected reflexes or strength. Right and Left Upper Extremities The Veteran’s peripheral neuropathy of the bilateral upper extremities is evaluated under diagnostic code 8513. Prior to the increase in April 2017, to be awarded a higher rating, the Veteran’s disabilities must be manifested by moderate, incomplete paralysis of each upper extremity. After April 2017, the Veteran’s peripheral neuropathy must be manifested by moderately severe, incomplete paralysis. Prior to April 2017: The evidence shows his peripheral neuropathy of the upper extremities was manifested by numbness in his hands and fingers. On physical examinations during this period, he had some slowing of some reflexes, and slightly decreased sensation in his hands and fingers. However, at no point was there muscle atrophy or muscle wasting noted. There was no indication of decreased muscle strength. Overall, the April 2013 examiner found that his disability amounted to mild, incomplete paralysis in each upper extremity. The Board notes that the Veteran was originally awarded a 10 percent rating under Diagnostic Code 8615; however, his symptoms are more properly rated under Diagnostic Code 8513. After April 2017: Results of VA examination show his peripheral neuropathy of the upper extremities was manifested by mild pain, paresthesias, numbness in his hands and fingers. He also had some decreased reflexes. Again, at no point was there muscle atrophy or decrease in strength noted in either upper extremity. The April 2017 increase was awarded based on a showing of mild, incomplete paralysis in both the median and ulnar nerves; there is no evidence showing these conditions have worsened to warrant a rating a greater than 20 percent. The Board finds that that the Veteran’s awarded ratings for the above time periods are representative of his disability. A higher rating is not warranted because the evidence does not show he experienced moderately severe or severe incomplete paralysis, in that all VA examinations noted “mild” neuropathy and there was no evidence of any advanced symptoms like atrophy or significantly affected reflexes or strength. Therefore, a higher rating for peripheral neuropathy of the bilateral upper extremities is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel