Citation Nr: 18158600 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-54 364 DATE: December 18, 2018 ORDER Prior to October 25, 2017, a rating in excess of 30 percent for right hand peripheral neuropathy is denied. For the period beginning October 25, 2017, a rating in excess of 40 percent for right hand peripheral neuropathy is denied. A rating in excess of 20 percent for left hand peripheral neuropathy is denied. A rating in excess of 20 percent for right lower extremity peripheral neuropathy is denied. A rating in excess of 20 percent for left lower extremity peripheral neuropathy is denied. REMANDED A rating in excess of 30 percent for diverticulitis, claimed as colitis, is remanded. Entitlement to a total disability rating based on individual unemployability, due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Prior to October 25, 2017, the right hand peripheral neuropathy was manifested by no more than moderate incomplete paralysis of the radial nerve 2. For the period beginning October 25, 2017, the right hand peripheral neuropathy has been manifested by no more than moderate incomplete paralysis of the radial nerve. 3. The left hand peripheral neuropathy is manifested by no more than moderate incomplete paralysis of the radial nerve. 4. The right lower extremity peripheral neuropathy is manifested by no more than moderate incomplete paralysis of the sciatic nerve. 5. The left lower extremity peripheral neuropathy is manifested by no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to October 25, 2017, the criteria for a rating in excess of 30 percent for right hand peripheral neuropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Codes 8513, 8514 and 8515 (2018). 2. For the period beginning October 25, 2017, the criteria for a rating in excess of 40 percent for right hand peripheral neuropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Codes 8513 and 8514 (2018). 3. The criteria for a rating in excess of 20 percent for left hand peripheral neuropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Codes 8514 and 8515 (2018). 4. The criteria for a rating in excess of 20 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2018). 5. The criteria for a rating in excess of 20 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to May 1971. In June 2018, the Veteran received a notice informing him that he can opt into the Rapid Appeals Modernization Program (RAMP). Later, in June 2018, the Veteran returned this notice and informed the Board that he wished to opt into the RAMP supplemental claim process. Later, in June 2018 and December 2018, the Veteran submitted a statement, informing the Board that he wished to opt into the RAMP higher-level review process. As the Veteran's claim was already pending before the Board and a decision is being issued, the Veteran is not eligible for the RAMP program because the issuance of this decision will result in a faster adjudication of his claims. General Legal Criteria for Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018). 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 (2018). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where 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. In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2018). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2018). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In both initial rating claims and increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2018) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities. Factual Background In an August 2002 rating decision, the RO granted service connection for peripheral neuropathy, left hand, with a 10 percent evaluation, effective July 9, 2001; peripheral neuropathy, right hand, with a 10 percent evaluation, effective July 9, 2001; peripheral neuropathy, left lower extremity, with a 10 percent evaluation, effective July 9, 2001; and peripheral neuropathy, right lower extremity, with a 10 percent evaluation, effective July 9, 2001. In an April 2013 rating decision, the RO granted increased ratings of 20 percent for left hand peripheral neuropathy and left and right lower extremity peripheral neuropathy, effective March 22, 2011. A 30 percent rating for right hand peripheral neuropathy was granted, effective March 22, 2011. The Veteran filed his current claim for an increased rating for his peripheral neuropathy disabilities in December 2015. In a November 2017 rating decision, the RO granted an increased rating of 40 percent for right hand peripheral neuropathy, effective October 25, 2017. On VA examination in March 2016, the Veteran reported intermittent numbness in the anterior part of his right thigh 6 days a week for several years. He also reported feeling cold under his feet 99% of the day for years, and occasional tingling in his feet. He also complained of severe coldness of the hands once a week for several years. He denied any numbness, burning or tingling in the hands or arms. On physical examination, the Veteran reported mild paresthesias and/or dysesthesias in the right upper and lower extremities and the left upper and lower extremities. He also reported mild numbness in the right lower extremity. Muscle strength was normal for both hands and lower extremities. Deep tendon reflexes were normal for both hands and lower extremities. Light touch was decreased for the right and left inner/outer forearms. Vibration sensation was decreased for both lower extremities. There was no muscle atrophy or trophic changes. The examiner diagnosed mild, incomplete paralysis of the radial nerve for the right and left upper extremities and mild, incomplete paralysis of the sciatic nerve for the right and left lower extremities. On VA examination in October 2017, the Veteran reported that he was unable to engage in tasks that required fine motor skills; that he easily dropped things; and that he was unable to stand or walk for an extended length of time. On physical examination, the Veteran reported mild paresthesias and/or dysesthesias in the right upper and lower extremities and the left upper and lower extremities. He also reported moderate numbness in the upper and lower extremities bilaterally. Muscle strength was normal for both hands and lower extremities. Deep tendon reflexes were normal for both hands and lower extremities. Light touch was decreased for the right hand/fingers, the lower legs/ankles bilaterally, and the foot/toes bilaterally. Position sense, vibration sensation and cold sensation was decreased for the right and left lower extremities. There was no muscle atrophy or trophic changes. The examiner diagnosed moderate, incomplete paralysis of the radial nerve for the right upper extremity and mild, incomplete paralysis of the radial nerve for the left upper extremity and moderate, incomplete paralysis of the sciatic nerve for the right and left lower extremities. Right and Left Hand Peripheral Neuropathy The Veteran’s left hand peripheral neuropathy has been rated under Diagnostic Code 8515, pertaining to incomplete paralysis of the median nerve. His right hand peripheral neuropathy has been rated under Diagnostic Code 8515 and Diagnostic Code 8513, pertaining to incomplete paralysis of all radicular groups. The medical evidence for both periods on appeal shows involvement of the radial nerve in the right and left upper extremities. Therefore, the Board finds that the Veteran’s right and left hand peripheral neuropathy are both more appropriately rated under Diagnostic Code 8514 or Diagnostic Code 8513. The Board notes however, that the diagnostic codes are similar. In this regard, Diagnostic Codes 8513 and 8514 have the same rating (20%) for mild, incomplete paralysis of the major hand, while Diagnostic Code 8515 provides a lower 10% rating for mild incomplete paralysis of the major hand. Diagnostic Codes 8514 and 8515 have the same rating (30%) for moderate incomplete paralysis of the major hand, while Diagnostic Code 8513 provides a higher rating (40%) for moderate, incomplete paralysis of the major hand. Diagnostic Codes 8514 and 8515 both provide 20% ratings for moderate incomplete paralysis of the minor hand. All radicular groups are addressed by Diagnostic Code 8513 for paralysis, Diagnostic Code 8613 for neuritis, and Diagnostic Code 8713 for neuralgia. Under these diagnostic codes, a 20 percent evaluation is assigned for mild incomplete paralysis in the minor or major extremity. A 30 percent rating is assigned for moderate incomplete paralysis in the minor extremity, whereas the same in the major extremity warrants a 40 percent rating. Severe incomplete paralysis results in a 60 percent evaluation for the minor extremity and a 70 percent rating for the major extremity. The highest respective ratings of 80 percent regarding the minor extremity and 90 percent regarding the major extremity are reserved for complete paralysis. The radial nerve is addressed by Diagnostic Code 8514 for paralysis, Diagnostic Code 8614 for neuritis, and Diagnostic Code 8714 for neuralgia. Under these diagnostic codes, a 20 percent evaluation is assigned for mild incomplete paralysis in the minor or major extremity. A 20 percent rating is also assigned for moderate incomplete paralysis in the minor extremity, whereas the same in the major extremity warrants a 30 percent rating. Severe incomplete paralysis results in a 40 percent evaluation for the minor extremity and a 50 percent rating for the major extremity. The highest respective ratings of 60 percent regarding the minor extremity and 70 percent regarding the major extremity are reserved for complete paralysis. Complete paralysis occurs with drop of hand and fingers, perpetual flexion of the wrist and fingers, adduction of the thumb with the thumb falling within the line of the outer border of the index finger, an inability to extend the hand at the wrist, an inability to extend the proximal phalanges of the fingers, and inability to extend the thumb, and inability to move the wrist laterally, weakened supination of the hand, weakened extension and flexion of the elbow, and the loss of synergic motion of the extensors which seriously impairs the hand grip. Total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a. 1. An increased rating for right hand peripheral neuropathy, evaluated as 30 percent disabling prior to October 25, 2017 and as 40 percent disabling thereafter Period Prior to October 25, 2017 Prior to October 25, 2017, the Veteran’s right hand peripheral neuropathy was rated as 30 percent disabling under Diagnostic Code 8515. As noted above, the Board finds that the Veteran’s disability is more appropriately rated under Diagnostic Code 8514. Moreover, the Board notes that as Diagnostic Code 8515 provides a lower 10% rating for mild incomplete paralysis of the major hand than Diagnostic Code 8514, which provides a 20% rating, and as Diagnostic Codes 8514 and 8515 provide the same (30%) rating for moderate incomplete paralysis of the major hand, rating the Veteran’s right hand peripheral neuropathy under Diagnostic Code 8514 for this period will not prejudice the Veteran. The March 2016 VA examination report reflects sensory complaints, which were mild in nature, including mild paresthesias and/or dysesthesias in the right upper extremity. Furthermore, there were no objective findings of muscle dystrophy or trophic changes. Likewise, the January 2016 VA examiner characterized his right hand radial nerve condition as mild in nature. Based on the complaints and objective findings, prior to October 25, 2017, the Veteran's peripheral neuropathy, affecting the radial nerve of the right hand, was mostly sensory, and the findings do not meet or nearly approximate the criteria for a disability rating in excess of 30 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8514. Period Beginning October 25, 2017 For the period beginning October 25, 2017, the Veteran’s right hand peripheral neuropathy is rated as 40 percent disabling under Diagnostic Code 8513 for all radicular groups. The October 2017 VA examination report reflects sensory complaints, which were mild to moderate in nature, including mild paresthesias and/or dysesthesias and moderate numbness in the right upper extremity. Furthermore, there were no objective findings of muscle dystrophy or trophic changes. Likewise, the October 2017 VA examiner characterized his right hand radial nerve condition as moderate in nature. Based on the complaints and objective findings, for the period beginning October 25, 2017, the Veteran's peripheral neuropathy, affecting the radial nerve of the right hand, was mostly sensory, and the findings do not meet or nearly approximate the criteria for a disability rating in excess of 40 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8513. The Board has found no other section that provides a basis upon which to assign a higher disability evaluation or separate compensable evaluation for the right hand peripheral neuropathy for any period on appeal. The Veteran had not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). 2. A rating in excess of 20 percent for left hand peripheral neuropathy The Veteran's left hand peripheral neuropathy is rated as 20 percent disabling under Diagnostic Code 8515. As noted above, the Board finds that the Veteran’s disability is more appropriately rated under Diagnostic Code 8514. Nevertheless, the Board notes that as Diagnostic Code 8514 and Diagnostic Code 8515 provide the same rating (20%) for moderate incomplete paralysis of the minor hand, rating the Veteran’s left hand peripheral neuropathy under Diagnostic Code 8514 will not prejudice the Veteran. The March 2016 and October 2017 VA examination reports reflect complaints, which are mostly sensory and range in nature from mild to moderate, including mild paresthesias and/or dysesthesias and moderate numbness of the left upper extremity. Furthermore, there have been no objective findings of muscle dystrophy or trophic changes. Likewise, the January 2016 and October 2017 VA examiners characterized his left hand radial nerve condition as mild in nature. Based on the complaints and objective findings, the Veteran's peripheral neuropathy, affecting the radial nerve of the left hand, is mostly sensory, and the findings do not meet or nearly approximate the criteria for a disability rating in excess of 20 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8514. The Board has found no other section that provides a basis upon which to assign a higher disability evaluation or separate compensable evaluation for the left hand peripheral neuropathy. The Veteran had not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Left and Right Lower Extremity Peripheral Neuropathy 3. A rating in excess of 20 percent for left lower extremity peripheral neuropathy 4. A rating in excess of 20 percent for right lower extremity peripheral neuropathy The Veteran's left and right lower extremity peripheral neuropathy are rated as 20 percent disabling under Diagnostic Code 8520, which addresses the sciatic nerve. The sciatic nerve is addressed by Diagnostic Code 8520 for paralysis, Diagnostic Code 8620 for neuritis, and Diagnostic Code 8720 for neuralgia. Under these diagnostic codes, a 10 percent evaluation is assigned for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. Severe incomplete paralysis, with marked muscular atrophy results in a 60 percent evaluation. The highest rating of 80 is reserved for complete paralysis. Complete paralysis occurs when the foot drops and dangles; there is no active movement possible of the muscles below the knee; and flexion of the knee is weakened or (very rarely) lost. The March 2016 and October 2017 VA examination reports reflect complaints, which are mostly sensory and range in nature from mild to moderate, including mild paresthesias and/or dysesthesias and moderate numbness in the left and right lower extremities. Furthermore, there have been no objective findings of muscle dystrophy or trophic changes. Likewise, the January 2016 VA examiner characterized his left and right lower extremity sciatic nerve conditions as mild in nature and the October 2017 VA examiner characterized his left and right lower extremity sciatic nerve conditions as moderate in nature. Based on the complaints and objective findings, the Veteran's peripheral neuropathy, affecting the sciatic nerve of the left and right lower extremities, is mostly sensory, and the findings do not meet or nearly approximate the criteria for disability ratings in excess of 20 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board has found no other section that provides a basis upon which to assign higher disability evaluations or separate compensable evaluations for the left and right lower extremity peripheral neuropathy. The Veteran had not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). REASONS FOR REMAND 1. A rating in excess of 10 percent for diverticulitis is remanded. The last VA examination for the Veteran’s diverticulitis was provided in July 2014. In the January 2017 Statement of Accredited Representative in Appealed Case, VA Form 646, the Veteran’s representative noted that the Veteran was reporting that his diverticulitis was more severe than the current 30 percent rating, and that the last VA examination did not properly reflect the severity of his condition. See January 2017 VA Form 646. Given the evidence of possible increased symptomatology, a new VA examination is warranted to determine the current severity of the service-connected diverticulitis. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 2. Entitlement to a total disability rating based on individual unemployability, due to service-connected disabilities (TDIU) is remanded. The Veteran is currently service-connected for diverticulitis, claimed as colitis (30% disabling); peripheral neuropathy, right hand (30% disabling); peripheral neuropathy, left hand (20% disabling); peripheral neuropathy, right lower extremity (20% disabling); peripheral neuropathy, left lower extremity (20% disabling); residuals, left index finger laceration with tendon rupture (10% disabling); scars, left index finger (0% disabling). He has had a combined disability rating of 80 percent since March 22,2011 and a combined rating of 90 percent since September 20, 2013. Thus, he meets the schedular criteria for TDIU as of March 22, 2011. The March 2016 Peripheral Neuropathy VA examiner opined that, due to his bilateral upper and lower extremity peripheral neuropathy, the Veteran most likely would not function well in physical employment occupations. Rather, he would most likely function well in predominantly sedentary occupations, which involve siting most of the time, with brief periods to stand and stretch, and walking and standing for brief periods of time. There is no medical opinion of record addressing the combined effect of all the Veteran's service-connected disabilities on his ability to work. The United States Court of Appeals for Veterans Claims has held that in the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the appellant's service-connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In addition, 38 C.F.R. § 4.16 holds that the Board must consider the impact of all of the Veteran's service-connected conditions on his ability to obtain and maintain gainful employment. The Court has also held that VA has an obligation to obtain retrospective medical opinions in instances where there is competent evidence suggesting that a higher rating may be appropriate during a relevant period but insufficient clinical evidence to determine whether such an increase is, in fact, warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). In light of the evidence noted above, the Board finds it necessary to remand the issue of entitlement to a TDIU in order for a VA examiner to provide a medical opinion as to whether the Veteran is unemployable due to the combined effect of his service-connected disabilities. The Board also notes that because a decision on the remanded claim for an increased rating for diverticulitis, claimed as colitis could significantly impact a decision on the TDIU issue, the issues are inextricably intertwined. Thus, a remand of the claim for entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, schedule the Veteran for a VA examination to determine the current severity of his service-connected diverticulitis. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. All pertinent symptomatology and findings associated with the Veteran's service-connected diverticulitis must be reported in detail. The examiner must specifically discuss whether the diverticulitis is mild, with disturbances of bowel function with occasional episodes of abdominal stress; moderate, with frequent episodes of bowel disturbance with abdominal distress; or severe, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The examiner should also state what impact, if any, the Veteran's diverticulitis has on his daily living and would have on occupational functioning. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. 3. Then, provide the Veteran's claims file to an appropriate clinician to provide a retrospective opinion regarding the impact of the Veteran's service-connected disabilities on his ability to work. An in-person examination is only required if deemed necessary by the examiner. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Based on a review of the claims file, the examiner must provide a functional assessment of the Veteran's service-connected disabilities and the occupational limitations associated with these conditions, without consideration or any mention of his age or non-service-connected disabilities. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. If, and only if, a new examination is required by the examiner, the examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 4. After completion of the above and any other development deemed necessary, review the expanded record and readjudicate the issues of entitlement to an increased rating for diverticulitis and entitlement to a TDIU. If any benefit on appeal remains denied, the Veteran and his representative should be furnished an appropriate SSOC and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Yankey, Counsel