Citation Nr: 19170809 Decision Date: 09/12/19 Archive Date: 09/11/19 DOCKET NO. 18-23 528 DATE: September 12, 2019 ORDER Entitlement to an increased rating of 30 percent, but no higher, for service-connected right upper extremity peripheral neuropathy, is granted. Entitlement to an increased rating of 20 percent, but no higher, for service-connected left upper extremity peripheral neuropathy, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Service connection was previously granted effective May 5, 2015, for right upper extremity peripheral neuropathy and Veteran was granted a rating of 10 percent. 2. Service connection was previously granted effective May 5, 2015, for left upper extremity peripheral neuropathy and Veteran was granted a rating of 10 percent. 3. The Board finds that the Veteran’s left and right upper extremity peripheral neuropathy has been productive of at most moderate incomplete paralysis. 4. The preponderance of the evidence demonstrates that the Veteran’s service-connected disabilities cause him to be unable to secure and follow a substantially gainful occupation at all times during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no more, for upper right extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8515. 2. The criteria for a rating of 20 percent, but no more, for upper left extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8515. 3. The criteria for a TDIU have been met during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty with the United States Navy from September 1966 to November 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedules), found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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. See 38 C.F.R. § § 3.321 (a), 4.1, 4.21. 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. See 38 C.F.R. § § 4.7, 4.21. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § § 4.3. A veteran’s entire history is to be considered when making disability ratings. See 38 C.F.R. § 4.1; Schafrath, 1 Vet. App. at 589. Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of an initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In the matter before us, the Veteran’s left and right upper extremity peripheral neuropathy disabilities are separately rated 10 percent disabling under diagnostic code 8515. The Veteran contends that he is entitled to higher initial ratings for his service-connected peripheral neuropathy disabilities. In rating the peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § § 4.120. The Board notes that the evidence, discussed in more detail below, indicates that the Veteran experiences paralysis in his left and right upper extremity median nerves. The criteria for evaluation of paralysis of the median nerve is listed under 38 C.F.R. § § 4.124a, DC 8515. Under DC 8515, “mild” incomplete paralysis of the median nerve warrants a 10 percent rating for both the major and minor extremities. “Moderate” incomplete paralysis of the median nerve warrants a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity. “Severe” incomplete paralysis of the median nerve warrants a 50 percent rating for the major extremity and a 40 percent rating for the minor extremity. Complete paralysis of the median nerve warrants a 70 percent rating for the major extremity and a 60 percent rating for the minor extremity. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given, whether due to the varied level of the nerve lesion or to partial degeneration. When involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § § 4.124a. The Board notes that words such as “mild,” “moderate,” and “severe” 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. Here, the evidence shows that the Veteran is right-handed. The Veteran underwent a VA examination in February 2017 during which he complained of tingling in his fingers. In a subsequent April 2017 VA examination, the VA examiner noted that the Veteran experienced mild intermittent pain and moderate paresthesias and/or dysesthesias, as well as numbness of his left and right upper extremities. Although the Veteran exhibited normal muscle strength and reflexes upon examination, the April 2017 VA examiner found that the Veteran suffered from moderate incomplete paralysis in all radicular groups of the upper extremities. In consideration of this, the Board finds that the Veteran's left and right upper extremity peripheral neuropathy has been productive of at most moderate incomplete paralysis. The Board determines that increased initial ratings are warranted for the Veteran’s service-connected left and right upper extremity peripheral neuropathy disabilities. To reiterate, the February 2017 VA examiner diagnosed the Veteran with “mild” incomplete paralysis of the median nerve. By contrast, the April 2017 VA examiner diagnosed the Veteran with “moderate” incomplete paralysis of the median nerve. Based on the foregoing, the Board finds that the evidence both for and against the claims on appeal is in relative equipoise. As such, the Board will grant an increased initial rating of 20 percent for the “moderate” incomplete paralysis affecting the Veteran’s left upper extremity median nerve. Similarly, the Board will grant an increased initial rating of 30 percent for the “moderate” incomplete paralysis affecting the Veteran’s right (dominant) upper extremity median nerve. Under DC 8515, higher ratings are warranted for symptoms comparable to complete paralysis or “severe” incomplete paralysis. However, with regard to the instant matter, there is no evidence in the record of such severity. Furthermore, there is no indication in the record of symptoms comparable to “severe” incomplete paralysis of or of complete paralysis. For these reasons, the Board finds that disability ratings in excess of 20 percent (for the minor extremity) and 30 percent (for the major extremity) are not warranted for the period on appeal. In considering the appropriate disability rating for the Veteran’s peripheral neuropathy of his upper extremities, the Board has considered the Veteran's contention that his disability is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms since such reporting requires only personal knowledge as it comes to him through his senses, he is deemed not competent to identify his specific level of disability with regard to the corresponding diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s peripheral neuropathy of his upper extremities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which peripheral neuropathy is evaluated. As a final matter, the Veteran has not raised any other issues regarding his service-connected left and right upper extremity peripheral neuropathy disabilities, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the veteran or reasonably raised by the evidence of record). Entitlement to a Total Disability Evaluation Based on Individual Unemployability (TDIU) The Veteran contends that he is unable to work due to his service-connected disabilities. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow “substantially gainful employment” as a result of service-connected disabilities. 38 C.F.R. §§ 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. §§ 4.16(a), the matter should be referred for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. §§ 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In all cases, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. § § § 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). A veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. §§ 4.16(b). After a review of the record, the Board finds that TDIU should be granted. The Veteran has the following service-connected disabilities: • Post-Traumatic Stress Disorder and Major Depressive Disorder (50 percent from November 10, 2016); • Peripheral neuropathy of the right upper extremity (10 percent from November 10, 2016); • Peripheral neuropathy of the left upper extremity (10 percent from November 10, 2016); • Peripheral neuropathy of the right lower extremity (20% from May 5, 2015); • Peripheral neuropathy of the left lower extremity (20% from May 5, 2015); • Left lower extremity peripheral vascular disease (40% from November 10, 2016); • Diabetes Mellitus Type II (20% from May 5, 2015); and • Tinnitus (10% from November 16, 2015). The Veteran’s combined rating is 30 percent from June 7, 2010, 40 percent from July 21, 2011, 30 percent from February 1, 2015, 70% from May 5, 2015, and 90 percent from November 10, 2016. Based on these combined totals, the Veteran meets the schedular criteria for a TDIU from November 10, 2016. The Veteran’s application for TDIU indicates that he was most recently employed in June 2012 as a general contractor. In considering, however, the severity of the Veteran’s disabilities, his work history, his experience, the Veteran’s own statements as to his inability to work due to his conditions, as well as resolving any doubt in favor of the Veteran, the Board finds that the combined effects of the manifestations of his service-connected disabilities are sufficiently incapacitating to result in unemployability. Additionally, the record indicates that while the February 2017 VA examiner reported that the Veteran’s conditions would not interfere with his ability to work, the April 2017 VA examiner contradicted this assertion. As a general contractor, balance and dexterity are crucial skills. The record contains the Veteran’s statement that he was unable to climb ladders (certainly a skill that a general contractor would find necessary). Conspicuously though, the record does not designate what type of work the Veteran might perform given his symptoms of shooting and stabbing back and leg pain, decreased lower extremity sensation, coupled with his symptoms of hand numbness, due to his peripheral neuropathy. In addition, the Veteran’s PTSD also has the potential to interfere with his ability to work. As such, any doubt on this issue is resolved in favor of the claimant. See 38 C.F.R. § § 5107 38 C.F.R. § § 3.102. Accordingly, entitlement to a TDIU is granted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Harrell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.