Citation Nr: 18116262 Decision Date: 07/05/18 Archive Date: 07/05/18 DOCKET NO. 10-09 412 DATE: July 5, 2018 ORDER Entitlement to an initial rating of 10 percent, but not higher, for peripheral neuropathy, left upper extremity, prior to February 10, 2010 is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an increased rating for peripheral neuropathy, left upper extremity, currently evaluated as 20 percent disabling for the period from February 10, 2010 is denied. Entitlement to an initial rating of 10 percent, but not higher, for peripheral neuropathy, right upper extremity, for the period prior to February 10, 2010 is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an increased rating for peripheral neuropathy, right upper extremity, currently rated 30 percent disabling for the period from February 10, 2010 is denied. FINDINGS OF FACT 1. Prior to February 10, 2010, the Veteran’s peripheral neuropathy, left upper extremity, most closely approximated mild incomplete paralysis. 2. For the period from February 10, 2010, the Veteran’s peripheral neuropathy, left upper extremity did not more closely approximate at least severe incomplete paralysis. 3. Prior to February 10, 2010, the Veteran’s peripheral neuropathy, right upper extremity, most closely approximated mild incomplete paralysis. 4. For the period from February 10, 2010, the Veteran’s peripheral neuropathy, right upper extremity did not more closely approximate at least severe incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to February 10, 2010, the criteria for a rating of 10 percent, but no higher, for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, diagnostic code (DC) 8515. 2. For the period from February 10, 2010, the criteria for a rating greater than 20 percent for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8515. 3. Prior to February 10, 2010, the criteria for a rating of 10 percent, but no higher, for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8515. 4. For the period from February 10, 2010, the criteria for a rating greater than 30 percent for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to December 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which among other things granted service connection for peripheral neuropathy, left upper extremity, and peripheral neuropathy, right upper extremity, both evaluated as noncompensable. In March 2009 the Veteran filed a notice of disagreement with the noncompensable ratings for his left and right upper extremity peripheral neuropathy among other issues. The Veteran was issued a statement of the case in October 2009, and perfected his appeal to the Board in March 2010. A May 2012 rating decision granted a rating increase for peripheral neuropathy, right upper extremity, evaluating it as 30 percent disabling from February 9, 2012, and peripheral neuropathy, left upper extremity, evaluating it as 20 percent disabling from February 9, 2012. In April 2016, the Board granted a rating increase for peripheral neuropathy, left upper extremity, evaluating it as 20 percent disabling, and for peripheral neuropathy, right upper extremity, evaluating it as 30 percent disabling, both effective February 10, 2010, but denied a compensable rating for both prior to February 10, 2010. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In November 2017, the Court reversed the April 2016 Board decision and remanded the issues of noncompensable ratings for the bilateral upper extremities for the period prior to February 10, 2010, finding that VA had implicitly waived the requirement that the Veteran file a substantive appeal of the July 2006 rating decision within 60 days after notice of the statement of the case was mailed. The Court found that the Veteran was prejudiced by the Board’s failure to adjudicate the matter as an appeal of the July 2006 rating decision. The appeal has been returned to the Board for further actions on the claims consistent with the finding of the Court, and Ratings The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93. The requirements of the statutes and regulation have been met in this case. VA notified the Veteran in November 2005 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence he was to provide, what part VA would attempt to obtain, and how disability ratings and effective dates are determined. Following the July 2006 rating decision, the Veteran submitted private treatment records in September 2006 and a notice of disagreement for peripheral neuropathy requesting a statement of the case which was issued in November 2007. In November 2007, the Veteran was provided with a notification that action on his notice of disagreement was delayed pending additional medical records. A formal substantive appeal was not thereafter submitted within 60 days from receipt of the statement of the case. However, as the Court found as a matter of law that VA waived the requirement that the Veteran file a substantive appeal within 60 days of the SOC, the Board will consider the requirement waived, as requested by the Veteran’s representative in the June 2018 post remand brief. The Veteran’s representative also contends that VA failed to properly issue a supplemental statement of the case following receipt of private medical records. See 38 C.F.R. § 19.31 (b)(1). However, the evidence of record indicates that the private medical records in question were received in September 2006 and the Veteran was issued a statement of the case in November 2007. Therefore, the statement of the case was issued after receipt of the private medical records, thus issuance of a supplemental statement of the case was not warranted. In May 2015, the Veteran’s representative requested a new examination as the Veteran contended that his peripheral neuropathy of the left upper extremity had worsened since the most recent examination in February 2012 if the Board was unable to grant an increased evaluation. The VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim affording VA examinations in February 2012, June 2015, and July 2015. For the reasons indicated in the discussion below, those examinations are adequate to decide the claim. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Neither the Veteran nor his representative has raised any other issues regarding the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument.) Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s peripheral neuropathy of the left and right upper extremities has been evaluated under 38 C.F.R. § 4.124a, DC 8515 applicable to diseases of the peripheral nerves, and specifically paralysis of the median nerve. Under DC 8515, a 10 percent rating is warranted for mild incomplete paralysis of the median nerve, a 30 percent rating is warranted for moderate incomplete paralysis of the major side and 20 percent of the minor side, a 50 percent rating is warranted for severe incomplete paralysis of the major side and 40 percent of the minor side, and a 70 percent rating is warranted for complete paralysis of the major side and 60 percent of the minor side. 38 C.F.R. § 4.124a, DC 8515. The Veteran is right handed. Words such as “severe,” “moderate,” and “mild” are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. In applying the schedular criteria for rating peripheral nerve conditions, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. VA’s Adjudication Procedures Manual Rewrite instructed rating specialists to determine the severity of a peripheral nerve condition using the following guidance. Degree of Incomplete Paralysis Description: mild - subjective symptoms or diminished sensation; moderate - absence of sensation confirmed by objective findings; severe - more than sensory findings are demonstrated, such as atrophy, weakness, and diminished reflexes. M21-1MR, pt. III, subpt. iv, ch. 4, § G(4)(b). The Manual currently gives the following guidance on cases where a peripheral nerve disability is only manifested by sensory impairment: “To make a choice between mild and moderate, consider the evidence of record and the following guidelines: The mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuous assigned a lower medical grade reflecting less impairment and/or affecting a smaller area in the nerve distribution. Reserve the moderate level of evaluation for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuously assigned a higher medical grade reflecting greater impairment and/or affecting a larger area in the nerve distribution.” This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. VA Adjudication Procedures Manual, III.iv.4.G.4.b (updated April 3, 2017). The Manual is not binding on the Board DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”). The note preceding § 4.124a provides that when the involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. In Miller v. Shulkin, 28 Vet. App. 376, the United States Court of Appeals for Veterans Claims (Court) interpreted the note preceding § 4.124a as providing for “a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve.” The Court further added that the “note contains no mention of non-sensory manifestations,” and “decline[d] to read into the regulation a corresponding minimum disability rating for non-sensory manifestations.” Id. An April 2006 VA examination report indicated the Veteran suffered from peripheral neuropathy of the right hand which was manifested by tingling and numbness from the elbow down to the right hand. The Veteran did not have any weakness, joint problems, or muscle atrophy in his hands. He stated that the peripheral neuropathy in his hands do not cause any functional impairment. Private treatment records from November 2007 note normal range of motion and strength in the left and right upper extremities with no joint enlargement or tenderness. A February 2008 private treatment note indicates that the Veteran had mild left upper arm and forearm discomfort with tingling and slight weakness. Additional February 2008 private consultation notes indicate the Veteran complained of numbness and weakness in both arms. A February 2012 VA examination report noted that the Veteran began to have symptoms of peripheral neuropathy in his hands in 2008. The Veteran stated that he has some difficulty typing on the keyboard and with grasping and holding objects. The Veteran reported moderate paresthesias and/ or dysesthesias, and mild numbness of the right and left upper extremities. The Veteran displayed normal strength in both upper extremities, and normal sensation to light touch. His position sense, vibration sensation, and cold sensation tests were all normal for both upper extremities, and the Veteran did not have any muscle atrophy. The examiner reported moderate incomplete paralysis of the right and left median nerves. The examiner opined that the Veteran’s peripheral neuropathy is stable with no discernable worsening and no evidence of any true peripheral neuropathy from diabetes. A June 2015 disability benefits questionnaire (DBQ) indicated the Veteran suffered from constant mild pain, moderate paresthesias and/or dysesthesias, and mild numbness of the right and left upper extremities. Muscle strength was noted to be normal, and deep tendon reflexes were decreased in the Veteran’s triceps and brachioradialis. Light touch testing, position sense and vibration sensation were normal for the right and left upper extremities, but cold sensation was decreased. The Veteran did not have muscle atrophy. The examiner noted normal median nerves. A July 2015 DBQ indicated the Veteran suffered from moderate paresthesias and/or dysesthesias of the right and left upper extremities. All other tests of the right and left upper extremities were normal except for light touch testing which noted decreased sensation of the right inner/outer forearm, and decreased sensation of the right and left hand/fingers. There was no muscle atrophy, and the examiner reported mild incomplete paralysis of the median nerve in both the right and left extremities. The examiner concluded that in addition to cervical radiculopathy with reduced sensation to posterior right arm and numbness which originate from nerve root, the Veteran has right median nerve neuropathy with positive Tinel’s test and has no left median nerve neuropathy. 1. Entitlement to an initial compensable rating for peripheral neuropathy, left upper extremity, prior to February 10, 2010 For the period prior to February 10, 2010, the evidence is at least evenly balanced as to whether the Veteran’s symptoms for left upper extremity peripheral neuropathy more closely approximate mild incomplete paralysis of the median nerve. While private treatment records from November 2007 note normal range of motion and strength in the left and right upper extremities, private treatment records from February 2008 indicate that the Veteran suffered mild left upper arm and forearm discomfort with tingling and slight weakness. Private treatment records note that the Veteran’s symptoms are not wholly sensory, but the weakness of the Veteran’s left upper extremity is noted to be slight. The Veteran’s left upper extremity peripheral neuropathy symptoms more closely approximate mild paralysis, thus a 10 percent rating for mild incomplete paralysis of the minor side of the median nerve is warranted. There is no evidence of record for the period prior to February 10, 2010 that suggests the Veteran’s left upper extremity peripheral neuropathy symptoms are indicative of at least moderate incomplete paralysis of the minor side of the median nerve as his non-sensory symptoms were noted to be slight. The absence of sensation was not confirmed by testing, there was no atrophy, weakness, or diminished reflexes, and the symptoms were not significant or disabling such that they reflected greater impairment of affected a large area in the nerve distribution. Therefore, a rating higher than 10 percent is not warranted for the period prior to February 10, 2010 under DC 8515. 2. Entitlement to an increased rating for peripheral neuropathy, left upper extremity, currently evaluated as 20 percent disabling for the period from February 10, 2010 For the period from February 10, 2010, a rating higher than 20 percent for left upper extremity peripheral neuropathy is not warranted. The February 2012 VA examination report, June 2015 DBQ, and July 2015 DBQ indicate that the Veteran suffered from moderate paresthesias or dysesthesias, and mild pain and numbness. They also note normal strength, and normal sensation except for decreased sensation of the left hand/fingers. These reports of mild and moderate pain and numbness indicate that the Veteran’s symptoms do not more closely approximate severe incomplete paralysis of the median nerve for the minor side. There was no atrophy, weakness, or diminished reflexes, and the symptoms were not significant or disabling such that they reflected greater impairment of affected a large area in the nerve distribution. Therefore, the preponderance of the evidence is against a rating higher than 20 percent for the Veteran’s left upper extremity peripheral neuropathy for the period from February 10, 2010. 3. Entitlement to an initial compensable rating for peripheral neuropathy, right upper extremity, for the period prior to February 10, 2010 For the period prior to February 10, 2010, the evidence is at least evenly balanced as to whether the Veteran’s symptoms for right upper extremity peripheral neuropathy more closely approximate mild incomplete paralysis of the median nerve. An April 2006 VA examination report indicated the Veteran suffered from peripheral neuropathy of the right hand with tingling and numbness from the elbow down to the right hand which did not cause functional impairment, but no weakness, joint problems, or muscle atrophy. Also, as previously stated, private treatment records from November 2007 note normal range of motion and strength in the right upper extremities, and private consultation notes from February 2008 indicate that the Veteran complained of numbness and weakness in both arms. While the Veteran’s symptoms are not wholly sensory, the evidence suggests that the Veteran’s right upper extremity weakness is of the degree which more closely approximates mild incomplete paralysis as there does not appear to be any functional impairment. Therefore, a 10 percent rating for mild incomplete paralysis of the median nerve for the major side is warranted. There is no evidence of record for the period prior to February 10, 2010 that suggests the Veteran’s right upper extremity peripheral neuropathy symptoms are indicative of at least moderate incomplete paralysis of the median nerve of the major side. The evidence primarily suggests normal range of motion, and numbness and weakness which do not more nearly approximate those of at least the moderate degree. There was no atrophy, weakness, or diminished reflexes, and the symptoms were not significant or disabling such that they reflected greater impairment of affected a large area in the nerve distribution. Therefore, a rating higher than 10 percent is not warranted for the period prior to February 10, 2010 under DC 8515. 4. Entitlement to an increased rating for peripheral neuropathy, right upper extremity, currently rated 30 percent disabling for the period from February 10, 2010 For the period from February 10, 2010, a rating higher than 30 percent for right upper extremity peripheral neuropathy is not warranted. The February 2012 VA examination report, June 2015 DBQ, and July 2015 DBQ indicate that the Veteran suffered from moderate paresthesias or dysesthesias, and mild pain and numbness. They also note normal strength, and normal sensation. The Veteran did report functional impairment as the February 2012 VA examination report noted difficulty typing on the keyboard, and grasping and holding objects. These reports of mild and moderate pain and numbness along with the Veteran’s reports of functional impairment indicate that the Veteran’s symptoms do not more closely approximate severe incomplete paralysis of the median nerve for the major side. There was no atrophy, weakness, or diminished reflexes, and the symptoms were not significant or disabling such that they reflected greater impairment of affected a large area in the nerve distribution. Therefore, the preponderance of the evidence is against a rating higher than 20 percent for the Veteran’s left upper extremity peripheral neuropathy for the period from February 10, 2010. The Board notes that in his brief to the Court, the Veteran’s representative argued the Veteran’s symptomatology was analogous to 38 C.F.R. § 4.123, DC 8516 as that is “the only rating schedule provision addressing sensory disturbances”, thus the Veteran’s bilateral peripheral neuropathy should be rated under DC 8516. However, 38 C.F.R. § 4.123 explains that neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved. Hence, DC 8515 for paralysis of the median nerve takes into consideration the Veterans sensory disturbances and is the diagnostic code most analogous to the Veteran’s symptoms. Additionally, there is no evidence of record which suggests at least mild incomplete paralysis of either the ulnar or radial nerves, thus a higher rating under either DC 8514 or 8516 is not warranted. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). The terms mild, moderate, and severe in the rating criteria are broad enough to encompass all the Veteran’s symptoms. Therefore, referral for extraschedular consideration is not warranted. A claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case neither the claimant nor the record has raised the question of unemployability due to service-connected disability. Therefore, no further discussion of a TDIU is necessary. For the foregoing reasons, the preponderance of the evidence is against any higher ratings other than those granted by the Board in this decision. The benefit of the doubt doctrine is therefore not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel