Citation Nr: 18158755 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-44 648 DATE: December 17, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left upper extremity from December 22, 2011, is denied. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right upper extremity for the period from December 22, 2011 through August 30, 2016, is denied. Entitlement to an increased rating of 30 percent, and no higher, for peripheral neuropathy of the right upper extremity from August 31, 2016, is granted. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity from December 22, 2011, is denied. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity from December 22, 2011, is denied. FINDINGS OF FACT 1. From December 22, 2011, the Veteran’s peripheral neuropathy of the left upper extremity manifested functional impairment equivalent to no more than mild incomplete paralysis of the median nerve. 2. From December 22, 2011, through August 30, 2016, the Veteran’s peripheral neuropathy of the right upper extremity manifested functional impairment equivalent to no more than mild incomplete paralysis of the median nerve. 3. From August 30, 2016, the Veteran’s peripheral neuropathy of the right upper extremity manifested functional impairment equivalent to no more than moderate paralysis of the median nerve of the major (dominant) extremity. 4. From December 22, 2011, the Veteran’s peripheral neuropathy of the left lower extremity manifested functional impairment equivalent to no more than mild incomplete paralysis of the sciatic nerve. 5. From December 22, 2011, the Veteran’s peripheral neuropathy of the right lower extremity manifested functional impairment equivalent to no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left upper extremity from December 22, 2011, have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 4.1, 4.6, 4.7, 4.10, 4.40, 4.41, 4.124a, Diagnostic Code 8515. 2. The criteria for entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right upper extremity for the period from December 22, 2011, through August 30, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 4.1, 4.6, 4.7, 4.10, 4.40, 4.41, 4.124a, Diagnostic Code 8515. 3. The criteria for entitlement to an increased rating of 30 percent, and no higher, for peripheral neuropathy of the right upper extremity for the period from August 30, 2016, have been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 4.1, 4.6, 4.7, 4.10, 4.40, 4.41, 4.124a, Diagnostic Code 8515. 4. The criteria for entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity from December 22, 2011, have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 4.1, 4.6, 4.7, 4.10, 4.40, 4.41, 4.124a, Diagnostic Code 8520. 5. The criteria for entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity from December 22, 2011, have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.102, 4.1, 4.6, 4.7, 4.10, 4.40, 4.41, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1983 to May 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Jurisdiction currently resides with the RO in New York, New York. The Board notes that additional VA treatment records have been associated with the claims file since the last supplemental statement of the case was issued in April 2017. However, the Board finds that such treatment records are duplicative of evidence previously considered. As such, there is no prejudice to the Veteran by the Board’s adjudication of the appeal at this time. Hence, remand for readjudication of the appeal with consideration of the additional VA treatment records would needlessly delay adjudication with no benefit to the Veteran. 38 C.F.R. § 19.37 (b); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Duty to Notify and Assist 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Legal Criteria – Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, a disability rating may require re-evaluation in accordance with changes in a veteran’s condition. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In VA examination records, the Veteran reported that he is right handed. Increased Rating – Peripheral Neuropathy of the Left Upper Extremity The Veteran seeks entitlement to a higher initial rating for his service-connected peripheral neuropathy of the left upper extremity. The rating period on appeal is from December 22, 2011, the effective date for service connection. The Veteran’s disability is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8515, which provides for rating diseases of the peripheral nerves manifested by complete paralysis of the median nerve, ratable at 70 percent for the major extremity and 60 percent for the minor extremity; severe incomplete paralysis of the median nerve, ratable at 50 percent for the major extremity and 40 percent for the minor extremity; moderate incomplete paralysis of the median nerve, ratable at 30 percent for the major extremity and 20 percent for the minor extremity; and mild incomplete paralysis of the median nerve, ratable at 10 percent for the major extremity and 10 percent for the minor extremity. The Veteran had a VA examination in June 2014. The examiner diagnosed the Veteran with paralysis of the median and sciatic nerves. The Veteran reported symptoms including severe pain, severe paresthesias/dysesthesias, and numbness in his extremities. Upon examination, the examiner noted normal reflexes, muscle strength and sensation and assessed the disability as mild incomplete paralysis of the right and left median nerve, noting that the Veteran had difficulty with activity that required prolonged use of the hand but not loss of grip, dropping objects or activities such as driving an automobile. The Veteran’s left and right radial nerve was normal. VA treatment records reflect complaints of pain due to peripheral neuropathy. For example, a VA neurology note from December 2014 shows that the Veteran reported a burning, painful, aching sensation in his hands and feet, becoming worse with exertion but was able to work as a custodian The Veteran had a VA examination in February 2016. The Veteran reported symptoms including mild, intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in his extremities. Strength including grip strength was normal, reflexes were normal except for slight loss at the brachioradialis, and sensation was normal except slightly decreased in the hands and fingers. The examiner assessed the disability as mild incomplete paralysis of the right and left median nerve. The Veteran’s left and right radial nerve was normal. The Veteran had a VA examination in February 2017. The Veteran reported symptoms including mild, intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in his extremities. He reported occasional dropping of objects at his job as a custodian but strength including drip strength was normal except for slight decrease in pinch strength. Reflexes were normal and sensation was normal except for slight debris in the hands. The examiner assessed the disability as mild incomplete paralysis of the left median nerve, and moderate incomplete paralysis of the right median nerve. The Veteran’s left and right radial nerve was normal. After careful review, the Board finds that the most probative evidence is against assigning an initial rating in excess of 10 percent for the Veteran’s peripheral neuropathy of the left upper extremity during the rating period on appeal. The Veteran’s disability has manifested symptoms including mild, incomplete paralysis of the median nerve. Such a level of functional impairment is contemplated by a 10 percent rating. 38 C.F.R. § 4.124a, DC 8515. The Veteran has not manifested moderate or severe incomplete paralysis, or complete paralysis of the left upper extremity to the extent that a higher rating would be appropriate. The Board has considered the Veteran’s lay statements. He is competent to report symptoms, such as pain and difficulty with certain activities, that are capable of lay observation, and the reports are credible. However, his reports of severe pain on some occasions are subjective and not consistent with later reports of mild pain to examiners and outpatient clinicians and medical assessments of the degree of loss of function caused by the disability which were observed as mild. The Board places greater weight on the competent, probative medical evidence of record, which is thorough, and provides enough detail to rate the Veteran under relevant rating criteria. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In a June 2018 brief, the Veteran’s representative generally raised the issue of an extra-schedular rating citing difficulty gripping objects and that “he may have issues with his feet.” The Board has considered whether the issue may be referred for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321. There is a three-step inquiry to determine if a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. If the first requirement is met, the Board must next determine whether the veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” If both requirements above are satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, referral is not warranted. The Veteran has complained of painful neuropathy, manifested with symptoms of burning and tingling in his extremities. Such symptoms are adequately contemplated by the relevant schedular rating criteria for neuropathy. See 38 C.F.R. § 4.124a, DC 8515. Additionally, the Veteran has not exhibited frequent periods of hospitalization or marked interference with employment to the extent that consideration of an extraschedular rating is appropriate. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In sum, the most probative evidence is against assigning a rating in excess of 10 percent for the Veteran’s peripheral neuropathy of the left upper extremity, and higher staged ratings are not appropriate. See Fenderson, 12 Vet. App. at 126-27. As the preponderance of the evidence is against the claim, the benefit of the doubt does not apply, and the claim is denied. 38 U.S.C. § 5107 (b). Increased Rating – Peripheral Neuropathy of the Right Upper Extremity The Veteran seeks entitlement to higher staged initial ratings for his service-connected peripheral neuropathy of the right upper extremity, currently rated at 10 percent from December 22, 2011, and 20 percent from August 31, 2016. The rating period on appeal is from December 22, 2011, the effective date of service connection. The Veteran’s disability is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8714, which provides for rating neuralgia of the radial nerve manifested by complete paralysis ratable at 70 percent for the major extremity and 60 percent for the minor extremity; severe incomplete paralysis of the radial nerve, ratable at 50 percent for the major extremity and 40 percent for the minor extremity; moderate incomplete paralysis of the radial nerve, ratable at 30 percent for the major extremity and 20 percent for the minor extremity; and mild incomplete paralysis of the radial nerve, ratable at 20 percent for the major extremity and 20 percent for the minor extremity. The Veteran had a VA examination in June 2014. The Veteran reported being right-hand dominant, and experiencing symptoms including severe pain, severe paresthesias/dysesthesias, and numbness in his extremities. The Veteran exhibited mild incomplete paralysis of the right and left median nerve. The Veteran’s left and right radial nerve was normal. VA treatment records reflect complaints of pain due to peripheral neuropathy. For example, a VA neurology note from December 2014 shows that the Veteran reported a burning, painful, aching sensation in his hands and feet which becomes worse with exertion. The Veteran had a VA examination in February 2016. The Veteran reported symptoms including mild, intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in his extremities. Strength including grip strength was normal, reflexes were normal except for slight loss at the brachioradialis, and sensation was normal except slightly decreased in the hands and fingers. The examiner assessed the disability as mild incomplete paralysis of the right and left median nerve. The Veteran’s left and right radial nerve was normal. The Veteran had a VA examination in February 2017. The Veteran reported symptoms including mild, intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in his extremities. He reported occasional dropping of objects at his job as a custodian but strength including drip strength was normal except for slight decrease in pinch strength. Reflexes were normal and sensation was normal except for slight debris in the hands. The examiner assessed the disability as mild incomplete of the left median nerve, and moderate incomplete paralysis of the right median nerve. The Veteran’s left and right radial nerve was normal. After review, the Board finds that the Veteran’s disability was not productive of functional impairment warranting a rating in excess of 10 percent prior to August 31, 2016. However, from August 31, 2016, the date the Veteran alleged worsening in his condition, the Veteran manifested moderate incomplete paralysis of the median nerve in the right upper extremity, which merits assignment of a 30 percent rating under 38 C.F.R. § 4.124a, DC 8515. In an April 2017 rating decision, the RO granted an increased rating to 20 percent for peripheral neuropathy of the right upper extremity under 38 C.F.R. § 1.124a, DC 8714, and stated that it had assigned a rating based on mild incomplete paralysis of a major extremity. The RO further stated that a higher evaluation of 30 percent is not warranted for neuralgia of the radial nerve unless evidence shows the nerve damage is moderate. However, the February 2017 VA examiner documented moderate incomplete paralysis of the median nerve in the Veteran’s major (dominant) right upper extremity. Under DC 8515, this meets the criteria of a 30 percent rating. The Veteran’s radial nerves were evaluated as normal in all VA examinations of record; thus, a rating under DC 8714 for neuralgia of the radial nerves is not appropriate. Therefore, the Board finds that a rating of 30 percent, and no higher, for peripheral neuropathy of the right upper extremity, based on moderate incomplete paralysis of the median nerve under DC 8515, is warranted from August 31, 2016. The Veteran has not exhibited symptoms productive of functional impairment such that a rating in excess of 30 percent is warranted. Specifically, he has not manifested severe incomplete, or complete paralysis of the median nerve as is contemplated for a rating in excess of 30 percent. 38 C.F.R. § 4.124a, DC 8515. The Board has considered the Veteran’s lay statements. He is competent to report symptoms, such as pain, that are capable of lay observation, and is credible. However, his reports of severe pain on one occasion is subjective and not consistent with later reports of mild to moderate pain and medical assessments of the degree of loss of function caused by the disability which were observed as mild to moderate. Instead, the Board relies on the competent, probative medical evidence of record, which is thorough, and provides enough detail to rate the Veteran under relevant rating criteria. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In sum, the most probative evidence does not show that prior to August 31, 2016, the Veteran displayed symptoms productive of functional impairment sufficient to warrant a rating in excess of 10 percent. However, from August 31, 2016, the Veteran manifested functional impairment equivalent to moderate incomplete paralysis of the median nerve of his right (major) upper extremity, which warrants a 30 percent rating under DC 8515. Therefore, a rating of 30 percent, and no higher, is granted effective August 31, 2016. The Board refers to the issue of an extra-schedular rating provided above. Increased Rating – Peripheral Neuropathy of the Left Lower Extremity The Veteran seeks entitlement to higher staged initial ratings for his service-connected peripheral neuropathy of the left lower extremity, currently rated at 10 percent from December 22, 2011. See 38 C.F.R. § 3.400 (o). The Veteran’s peripheral neuropathy of the left lower extremity is currently rated under 38 C.F.R. § 4.124a, DC 8520, which provides for rating paralysis of the sciatic nerve, manifested by complete paralysis ratable at 80 percent; severe incomplete paralysis with marked muscular atrophy ratable at 60 percent; moderately severe incomplete paralysis ratable at 40 percent; moderate incomplete paralysis ratable at 20 percent; and mild incomplete paralysis ratable at 10 percent. VA medical records show that the Veteran had a neurology consultation in January 2014. The Veteran reported a sensation of dull pins and needles, and numbness in both of his hands and feet. He further reported some weakness, dropping keys, and difficulty turning door knobs, but denied falling or stumbling. The neurologist recommended medication, and a follow-up consultation in three months. The Veteran had a VA examination in June 2014. The examiner did not review the claims file. The Veteran reported severe, constant pain, paresthesias/dysesthesias, and numbness in his left lower extremity. Upon examination, the examiner noted normal strength, reflexes, and sensation except for some decreased sensation in the foot and toes. The examiner assessed the disability as mild incomplete paralysis of the left sciatic nerve, and mild incomplete paralysis of the left external popliteal nerve. The examiner noted some difficulty in extended standing, walking and climbing. The Veteran had a VA examination in February 2016. The examiner reviewed the claims file and evaluated the Veteran. The Veteran reported mild intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness of the extremities. The Veteran had a normal gait and did not use assistive devices. Strength was normal; reflexes were slightly reduced at the knee and ankle, and sensation was normal except reduced in the foot and toes. The examiner found mild incomplete paralysis of the left sciatic nerve. The Veteran had a VA examination in February 2017. The examiner reviewed the claims file and evaluated the Veteran. The Veteran reported mild intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness of the extremities. The Veteran had a normal gait and did not use assistive devices. Strength was normal; reflexes were slightly reduced at the knee and ankle, and sensation was normal except reduced in the ankle, foot and toes. The Veteran reported some occasions of stumbling but no falls. The examiner found mild incomplete paralysis of the left sciatic nerve and noted that the Veteran may have some impaired spatial orientation of the feet. After careful review, the most probative evidence is against assigning higher staged initial ratings for the Veteran’s peripheral neuropathy of the left lower extremity. The Veteran has manifested symptoms productive of functional impairment equivalent to mild incomplete paralysis of the sciatic nerve. Such a level of functional impairment is contemplated by a 10 percent rating. 38 C.F.R. § 4.124a, DC 8520. The Veteran has not manifested moderate, moderately severe, or severe incomplete paralysis, or complete paralysis of the sciatic nerve, to the extent that a higher rating would be appropriate. See id. The Board notes that the June 2014 VA examiner found mild incomplete paralysis of the left external popliteal nerve, raising the question of whether a separate rating could be assigned. However, the examiner’s finding is not consistent with other medical evidence. For example, VA examinations in February 2016 and February 2017 found normal external popliteal nerves, and VA medical records do not suggest paralysis of the external popliteal nerve. Furthermore, the examiner indicated that she did not review the claims file, including relevant VA treatment records such as the January 2014 neurology consultation. Accordingly, the Board affords her opinion lesser probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran’s lay statements. He is competent to report symptoms, such as pain, that are capable of lay observation, and is credible. However, his reports of severe pain on one occasion is subjective and not consistent with later reports of mild pain and medical assessments of the degree of loss of function caused by the disability which were observed as mild. Instead, the Board relies on the competent, probative medical evidence of record, which is thorough, and provides enough detail to rate the Veteran under relevant rating criteria. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board has considered whether the issue may be referred for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321. See Thun, 22 Vet. App. at 111. The Veteran has complained of painful neuropathy, manifested with symptoms of burning and tingling in his extremities. Such symptoms are adequately contemplated by the relevant schedular rating criteria for neuropathy. See 38 C.F.R. § 4.124a, DC 8515. Additionally, the Veteran has not exhibited frequent periods of hospitalization or marked interference with employment to the extent that consideration of an extraschedular rating is warranted. In sum, the most probative evidence is against assigning a rating in excess of 10 percent for the Veteran’s peripheral neuropathy of the left lower extremity, and higher staged ratings are not appropriate. See Fenderson, 12 Vet. App. at 126-27. As the preponderance of the evidence is against the claim, the benefit of the doubt does not apply, and the claim is denied. 38 U.S.C. § 5107 (b). The Board refers to the issue of an extra-schedular rating provided above. Increased Rating – Peripheral Neuropathy of the Right Lower Extremity The Veteran seeks entitlement to higher staged initial ratings for his service-connected peripheral neuropathy of the right lower extremity, currently rated at 10 percent from December 22, 2011. The rating period on appeal is from December 22, 2011, the effective date for service connection. The Veteran’s peripheral neuropathy of the right lower extremity is currently rated under 38 C.F.R. § 4.124a, DC 8520. The Veteran had a VA examination in June 2014. The examiner did not review the claims file. The Veteran reported severe, constant pain, paresthesias/dysesthesias, and numbness in his right lower extremity. Upon examination, the examiner noted normal strength, reflexes, and sensation except for some decreased sensation in the foot and toes. The examiner assessed the disability as mild incomplete paralysis of the right sciatic nerve, and mild incomplete paralysis of the right external popliteal nerve. The Veteran had a VA examination in February 2016. The examiner reviewed the claims file and evaluated the Veteran. The Veteran reported mild intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness of the extremities. The Veteran had a normal gait and did not use assistive devices. Strength was normal; reflexes were slightly reduced at the knee and ankle, and sensation was normal except reduced in the foot and toes. The examiner found mild incomplete paralysis of the right sciatic nerve. The Veteran had a VA examination in February 2017. The examiner reviewed the claims file and evaluated the Veteran. The Veteran reported mild intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness of the extremities. The Veteran had a normal gait and did not use assistive devices. Strength was normal; reflexes were slightly reduced at the knee and ankle, and sensation was normal except reduced in the ankle, foot and toes. The Veteran reported some occasions of stumbling but no falls. The examiner found mild incomplete paralysis of the left sciatic nerve and noted that the Veteran may have some impaired spatial orientation of the feet. After careful review, the most probative evidence is against assigning higher staged initial ratings for the Veteran’s peripheral neuropathy of the right lower extremity. The Veteran has manifested symptoms productive of functional impairment equivalent to mild incomplete paralysis of the right sciatic nerve. Such a level of functional impairment is contemplated by a 10 percent rating. 38 C.F.R. § 4.124a, DC 8520. The Board notes that the June 2014 VA examiner found mild incomplete paralysis of the right external popliteal nerve, raising the question of whether a separate rating could be assigned. However, for the reasons discussed in the previous section, the Board affords her opinion lesser probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. The Board has considered the Veteran’s lay statements. He is competent to report symptoms, such as pain, that are capable of lay observation, and is credible. However, his reports of severe pain on one occasion is subjective and not consistent with later reports of mild pain and medical assessments of the degree of loss of function caused by the disability which were observed as mild. Instead, the Board relies on the competent, probative medical evidence of record, which is thorough, and provides enough detail to rate the Veteran under relevant rating criteria. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board has considered whether the issue may be referred for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321. See Thun, 22 Vet. App. at 111. The Veteran has complained of painful neuropathy, manifested with symptoms of burning and tingling in his extremities. Such symptoms are contemplated by the relevant schedular rating criteria for neuropathy. 38 C.F.R. § 4.124a, DC 8515. Additionally, the Veteran has not exhibited frequent periods of hospitalization or marked interference with employment to the extent that consideration of an extraschedular rating would be warranted. In sum, the most probative evidence is against assigning a rating in excess of 10 percent for the Veteran’s peripheral neuropathy of the right lower extremity, and higher staged ratings are not appropriate. The benefit of the doubt does not apply, and the claim is denied. 38 U.S.C. § 5107. (Continued on the next page)   The Board refers to the issue of an extra-schedular rating provided above. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel