Citation Nr: 1818062 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 13-12 438 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for diabetic neuropathy of the right upper extremity, effective October 9, 2009. 2. Entitlement to an initial rating in excess of 20 percent for diabetic neuropathy of the left upper extremity, effective October 9, 2009. 3. Entitlement to a rating in excess of 30 percent for diabetic neuropathy of the right upper extremity, effective June 20, 2012. 4. Entitlement to a rating in excess of 20 percent rating for diabetic neuropathy of the left upper extremity, effective June 20, 2012. 5. Entitlement to a rating in excess of 30 percent for diabetic neuropathy of the right upper extremity, effective May 16, 2017. 6. Entitlement to rating in excess of 20 percent for diabetic neuropathy of the left upper extremity, effective May 16, 2017. 7. Entitlement to an initial rating in excess of 10 percent for diabetic neuropathy of the left lower extremity, effective March 16, 2009. 8. Entitlement to an initial rating in excess of 10 percent for diabetic neuropathy of the right lower extremity, effective October 10, 2009. 9. Entitlement to a 20 percent rating for diabetic neuropathy of the left lower extremity, effective June 20, 2012. 10. Entitlement to a rating in excess of 20 percent rating for diabetic neuropathy of the right lower extremity, effective June 20, 2012. 11. Entitlement to a rating in excess of 20 percent for diabetic neuropathy of the right lower extremity, effective May 16, 2017. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to June 1969. This case was previously before the Board of Veterans' Appeals (Board) in February 2017, when it was remanded for further development. Following the requested development, the VA Appeals Management Center in Washington, D.C. confirmed and continued the ratings in effect for diabetic peripheral neuropathy of the upper and lower extremities. Thereafter, the case was returned to the Board for further appellate action. FINDINGS OF FACT 1. Effective October 9, 2009, the Veteran's diabetic neuropathy of the left upper extremity, was productive of moderate incomplete paralysis. 2. Effective October 9, 2009, the Veteran's diabetic neuropathy of the right upper extremity, was productive of moderate incomplete paralysis. 3. Effective June 20, 2012, the Veteran's diabetic neuropathy of the left upper extremity, was productive of severe incomplete paralysis. 4. Effective June 20, 2012, the Veteran's diabetic neuropathy of the right upper extremity, was productive of severe incomplete paralysis. 5. Effective May 16, 2017, the Veteran's diabetic neuropathy of the left upper extremity, was productive of moderate incomplete paralysis. 6. Effective May 16, 2017, the Veteran's diabetic neuropathy of the right upper extremity, was productive of moderate incomplete paralysis. 7. Effective March 16, 2009, the Veteran's diabetic neuropathy of the left lower extremity was productive of moderate incomplete paralysis. 8. Effective October 9, 2009, the Veteran's diabetic neuropathy of the right lower extremity was productive of moderate incomplete paralysis. 9. Effective June 20, 2012, the Veteran's diabetic neuropathy of the left lower extremity was productive of severe incomplete paralysis. 10. Effective June 20, 2012, the Veteran's diabetic neuropathy of the right lower extremity was productive of severe incomplete paralysis. 11. Effective May 16, 2017, the Veteran's diabetic neuropathy of the right lower extremity was productive of moderate incomplete paralysis. CONCLUSIONS OF LAW 1. Effective March 16, 2009, the criteria for an initial rating in excess of 20 percent rating for diabetic neuropathy of the left upper extremity were not met. 38 U.S.C. §§ 1155, 5103, 5103A (2006); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.69, 4.124a, Diagnostic Code 8515 (2009). 2. Effective October 9, 2009, the criteria for an initial rating in excess of 30 percent rating for diabetic neuropathy of the right upper extremity were not met. 38 U.S.C. §§ 1155, 5103, 5103A (2006); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.69, 4.124a, Diagnostic Code 8515 (2009). 3. Effective June 20, 2012, the criteria for a 50 percent rating for diabetic neuropathy of the right upper extremity were met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.69, 4.124a, Diagnostic Code 8515 (2011). 4. Effective June 20, 2012, the criteria for 40 percent rating for diabetic neuropathy of the left upper extremity were met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.69, 4.124a, Diagnostic Code 8515 (2011). 5. Effective May 16, 2017, the criteria for a rating in excess of 30 percent for diabetic neuropathy of the right upper extremity were not met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.69, 4.124a, Diagnostic Code 8515 (2016). 6. Effective May 16, 2017, the criteria for a rating in excess of 20 percent rating for diabetic neuropathy of the left upper extremity were not met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.69, 4.124a, Diagnostic Code 8515 (2016). 7. Effective March 16, 2009, the criteria for an initial rating of 20 percent for diabetic neuropathy of the left lower extremity were met. 38 U.S.C. §§ 1155, 5103, 5103A (2006); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2008). 8. Effective October 9, 2009, the criteria for an initial rating of 20 percent for diabetic neuropathy of the right lower extremity were met. 38 U.S.C. §§ 1155, 5103, 5103A (2006); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2009). 9. Effective June 20, 2012, the criteria for a 60 percent rating for diabetic neuropathy of the left lower extremity were met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2011). 10. Effective June 20, 2012, the criteria for a 60 percent for diabetic neuropathy of the right lower extremity were met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2011). 11. Effective May 16, 2017, the criteria for a rating in excess of 20 percent for diabetic neuropathy of the right lower extremity were not met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that the ratings for his diabetic peripheral neuropathy of his upper and lower extremities do not adequately reflect the severity of those disabilities. Therefore, he maintains that increased ratings are warranted. To the extents indicated, the Board agrees. Prior to consideration of the merits of a claim, VA has a duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits and to assist claimants in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In January 2010, VA appropriately notified the Veteran of the information and evidence needed to substantiate and complete his claims for service connection for diabetic peripheral neuropathy of the upper and lower extremities. VA then obtained identified and available evidence, conducted examinations, and provided the Veteran a hearing before the Board. Thereafter, the RO granted service connection for diabetic peripheral neuropathy of the upper and lower extremities. However, the Veteran disagreed with the initial ratings assigned for each of those disabilities, and this appeal ensued. The issues of entitlement to increased ratings are considered "downstream" issues. Grantham v. Brown, 114 F.3d 1156 (1997). Although VA has not specifically notified the veteran of the information and evidence necessary to substantiate the increased rating claims, such notice is not required once service connection has been substantiated. VAOGCPREC 8-03, 69 Fed. Reg. 25180 (2004). In this regard, there is no evidence of any VA error in notifying or assisting the Veteran in the development of any of his increased rating claims, and the Veteran has not identified any outstanding and available evidence necessary to substantiate those claims. Therefore, the Board will proceed to the merits of the appeal. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4 (2017). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. 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. During the course of an appeal, a veteran 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; that is, there may be a basis for staged ratings to reflect the various degrees of disability. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, when service connection is granted and an initial rating award is at issue, separate ratings can be assigned for separate periods from the time service connection became effective. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Upper Extremities In evaluating impairment of the upper extremities, it is often important to determine a veteran's major or dominant upper extremity. Impairment of a major upper extremity can frequently result in a rating higher than that assignable for impairment of the minor upper extremity. 38 C.F.R. § 4.69. In this case, the Veteran is right-handed. The Veteran's peripheral neuropathy of the upper extremities is rated as paralysis of the median nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8515. A 10 percent rating is warranted for mild incomplete paralysis of the major or minor upper extremity. A 20 percent rating is warranted for moderate incomplete paralysis of median nerve in the Veteran's minor upper extremity, and a 30 percent rating is warranted for moderate incomplete paralysis of the major upper extremity. A 40 percent rating is warranted for severe incomplete paralysis of median nerve in the Veteran's minor upper extremity, and a 50 percent rating is warranted for severe incomplete paralysis of the major upper extremity. A 60 percent rating is warranted for complete paralysis of median nerve in the Veteran's minor upper extremity, and a 70 percent rating is warranted for complete paralysis of the major upper extremity. A review of the record shows that since service connection for peripheral neuropathy of the left upper extremity became effective March 16, 2009 and service connection for peripheral neuropathy of the right upper extremity became effective October 9, 2009, the Veteran has been followed by VA. He has also been examined by VA to determine the extent of those disorders. The Veteran contends that the peripheral neuropathy of his upper extremities is manifested by pain, numbness, and burning so severe that it causes him to drop things and that it interrupts his sleep. During a VA neurologic examination on October 9, 2009, the Veteran's muscle power, tone, and bulk were normal in his upper extremities, and he demonstrated good coordination. However, he had decreased sensation and reflexes. Following the examination, the examiner opined that the Veteran demonstrated moderate incomplete paralysis of both upper extremities. Then, as now, moderate incomplete paralysis was consistent with the 30 percent rating for the right (major) upper extremity and with the 20 percent rating for the left (minor) upper extremity, initially assigned effective October 9, 2009. Accordingly, those ratings are confirmed and continued. During his June 20, 2012 VA examination, the Veteran noted that medication did not provide much relief from the pain, burning, and numbness in his upper extremities. On examination, however, his strength remained full in both upper extremities, and there were no trophic changes of the skin. The evidence was equivocal as whether or not he had muscular atrophy. The Veteran's deep tendon reflexes in his upper extremities continued to be decreased, as did the sensation in his hands and fingers. Following the examination, the examiner stated that the Veteran had severe incomplete paralysis of both upper extremities. The examiner noted that due to peripheral neuropathy, the Veteran was precluded from the repetitive use of his hands. Given the continuing deficits in the Veteran's reflexes and sensation, the equivocal evidence of muscular atrophy, and the examiner's opinion of severe incomplete paralysis, the Board finds that the symptoms of the Veteran's peripheral neuropathy met or more nearly approximated the criteria for a 50 percent rating for the Veteran's right upper extremity and a 40 percent rating for his left upper extremity. At the very least, there is an approximate balance of evidence both for and against the claim that the peripheral neuropathy warranted increased ratings for each upper extremity. Under such circumstances, all reasonable doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Accordingly, increased ratings for the upper extremities will be granted on that basis. On May 16, 2017, still during the course of the appeal, the Veteran was, again, examined by VA. His muscle power, tone, and bulk were normal; that is, there was no evidence of muscle atrophy in his upper extremities. In addition, he demonstrated good upper extremity coordination. Although his reflexes and sensation continued to be depressed, there remained no trophic changes of his skin. Moreover, the examiner found the Veteran's median and ulnar nerves to be normal, and the radial nerve to be productive of no more than moderate incomplete paralysis. (Although the median nerve was found to be normal, the Board notes that for levels of moderate incomplete paralysis and higher, impairment of the radial nerve is rated in the same manner as the median nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8516) On balance such findings met or more nearly approximated the schedular criteria for the initial 30 percent rating for impairment of the right upper extremity and the initial 20 percent rating for impairment of the left upper extremity. Therefore, those ratings are assigned, effective May 16, .2017. The Lower Extremities The peripheral neuropathy of the Veteran's lower extremities is rated in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under that code, a 10 percent rating is warranted for mild, incomplete paralysis of the sciatic nerve; and a 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis; while a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent schedular rating is warranted for complete paralysis of the sciatic nerve, in which the foot dangles and drops, and no active movement is possible of muscles below the knee. In such cases, flexion of the knee is weakened or (very rarely) lost. As with the upper extremities, VA has followed the Veteran for peripheral neuropathy of the lower extremities. During his October 2009 VA examination, he reported a two year history of neuropathy of the lower extremities. He stated that the numbness in his feet would wake him at night. He also reported that he would occasionally trip; however, it was noted that he walked with a normal gait and did not use an assistive device. In addition, it was noted that he was not taking any medications for his peripheral neuropathy. On examination, the Veteran's muscle power, tone, and bulk were normal in his lower extremities, and he demonstrated good lower extremity coordination. However, he had sensory deficits in his feet, as well as decreased deep tendon reflexes throughout his lower extremities. Following the examination, the examiner opined that pain, burning, and numbness in his legs and the deficit in his sensation and reflexes were productive of moderate incomplete paralysis of the sciatic nerve. On balance, such findings met or more nearly approximated the schedular criteria for a 20 percent rating for the left and right lower extremities since service connection became effective on March 16, 2009 and October 9, 2009, respectively. To those extents, the appeal is also granted. In arriving at this decision, the Board has considered the possibility of a still-higher rating. However, as late as May 2011, it was noted that despite the Veteran's complaints of tingling and numbness in his lower extremities, he worked out at a fitness center four times a week for 45 to 60 minutes at a time and that he played golf three days a week. Moreover, there were no findings that the peripheral neuropathy in his lower extremities was productive of any more than moderate incomplete paralysis. Accordingly, he did not meet or more nearly approximate the schedular criteria for a rating in excess of 20 percent in either lower extremity. During an October 2011 consultation with the VA Podiatry Service, the examiner ordered diabetic shoes and socks, in part, due to the neuropathy in the Veteran's lower extremities. On April 10, 2012, the Veteran was reexamined by VA to determine the severity of his peripheral neuropathy of the lower extremities. The examination was performed by the same physician who had examined him in October 2009. The Veteran reported increasing numbness and pain in his feet, impaired sleep due to those sensations, and instability when walking frequently. The examiner also noted that the Veteran had started on medication without much relief. In addition to the increased symptomatology reported by the Veteran, there was at least equivocal evidence of marked muscular atrophy. Therefore, the examiner opined that the Veteran's peripheral neuropathy of the lower extremities was productive of severe incomplete paralysis. Given the examiner's review of the record, her previous evaluation of the Veteran, and her opinion of increased symptomatology, the Board is of the opinion that the Veteran met or more nearly approximated the schedular criteria for a 60 percent rating for each lower extremity. In arriving at this decision, the Board has considered the possibility of a still higher schedular evaluation. However, the Veteran did not demonstrate foot drop or a lack of active movement of muscles below the knee. Accordingly, a rating in excess of 60 percent was not warranted. In July and October 2016, the Veteran's treating VA podiatrist noted that the Veteran had significant worsening of his peripheral neuropathy. In April 2017, the podiatrist noted that the Veteran not only had a loss of protective sensation extending up to the mid-shaft of the tibia, bilaterally, she noted a left foot drop. In May 2017, the Veteran was examined by a different VA examiner to determine the severity of the Veteran's peripheral neuropathy. Unlike the previous examiner who noted decreased sensation in the lower extremities, the May 2017 examiner noted the absence of sensation. She also confirmed the presence of left foot drop associated with peripheral neuropathy. However, there was no evidence that the foot dangled and dropped or that there was no active movement possible of the muscles below the knee or that flexion of knee was weakened or lost. Indeed, the Veteran demonstrated full strength in the left knee, and the Veteran's left ankle demonstrated active motion against some resistance (4/5). Although the examiner found the Veteran's peripheral neuropathy of the lower extremities consistent with moderate incomplete paralysis, the foregoing findings suggest a higher degree of impairment and do not warrant a reduction in the 60 percent rating for the Veteran's left lower extremity. Accordingly, that rating is confirmed and continued. The evidence does show, however, that the peripheral neuropathy of the Veteran's right lower extremity is consistent with moderate incomplete paralysis. Although deep tendon reflexes were decreased at the right knee, they were full at the right ankle. There was no evidence of muscle atrophy, and the Veteran had full strength in the right lower extremity. In addition, there was no evidence of foot drop on the right. Indeed, the peripheral neuropathy of right lower extremity was manifested primarily by the absence of sensation. Such findings met or more nearly approximated the criteria associated with a moderate degree of impairment. Accordingly, effective May 16, 2017, a 20 percent rating, and no more, is warranted for peripheral neuropathy of the right lower extremity. Additional Considerations In August 2017, the Veteran reported that his May 2017 VA examination had not been adequate for rating purposes. He stated that he had only been in the examiner's office for about 20 minutes and that the examiner had, primarily, talked about things other than the severity of the Veteran's peripheral neuropathy. Therefore, he maintained that an additional examination was warranted for the purpose of receiving a fair review of his claim. Where there is a claim for disability compensation or pension, including those for increased ratings, but medical evidence accompanying the claim is not adequate for rating purposes, a VA examination will be authorized. 38 C.F.R. 3.326(a) (2017). In this case, however, the May 2017 VA examination was adequate, because it was based on correct facts and sufficiently informed the Board of the examiner's judgment on a medical question and the essential rationale for the opinion. Monzingo v. Shinseki, 26 Vet. App. 97 (2012). Moreover, while the Veteran is competent to report evidence which is capable of lay observation, he is not competent to provide conclusions which require medical expertise, such as determining the adequacy of an examination. Davidson v. Shinseki, 581 F.3d 1313 (2009). In this regard, he has not presented any competent evidence challenging the adequacy of the examination. Accordingly, the request for an additional examination is denied. ORDER Entitlement to an initial rating in excess of 30 percent for diabetic neuropathy of the right upper extremity, effective October 9, 2009, is denied. Entitlement to an initial rating in excess of 20 percent for diabetic neuropathy of the left upper extremity, effective October 9, 2009, is denied. Entitlement to a 50 percent for diabetic neuropathy of the right upper extremity, effective June 20, 2012, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a 40 percent rating for diabetic neuropathy of the left upper extremity, effective June 20, 2012, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 30 percent for diabetic neuropathy of the right upper extremity, effective May 16, 2017, is denied. Entitlement to rating in excess of 20 percent for diabetic neuropathy of the left upper extremity, effective May 16, 2017, is denied. Entitlement to an initial 20 percent rating percent for diabetic neuropathy of the left lower extremity, effective March 16, 2009 is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to an initial 20 percent rating percent for diabetic neuropathy of the right lower extremity, effective October 10, 2009 is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a 60 percent rating for diabetic neuropathy of the right lower extremity, effective June 20, 2012, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a 60 percent rating for diabetic neuropathy of the left lower extremity, effective June 20, 2012 is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 20 percent for diabetic neuropathy of the right lower extremity, effective May 16, 2017, is denied. ____________________________________________ SARAH RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs