Citation Nr: 20004496 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 15-40 024 DATE: January 21, 2020 ORDER Entitlement to an increased evaluation in excess of 10 percent disabling for right lower extremity peripheral neuropathy prior to July 27, 2015 is denied. Entitlement to an increased evaluation in excess of 20 percent disabling for right lower extremity peripheral neuropathy from July 27, 2015 is denied. Entitlement to an increased evaluation in excess of 10 percent disabling for left lower extremity peripheral neuropathy prior to July 27, 2015 is denied. Entitlement to an increased evaluation in excess of 20 percent disabling for left lower extremity peripheral neuropathy from July 27, 2015 is denied. The claim of entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to the service-connected disability of diabetes mellitus type II, is reopened. The claim of entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to the service-connected disability of diabetes mellitus type II, is reopened. The claim of entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and dyssomnia is reopened. Entitlement to service connection for an acquired psychiatric disorder other than dyssomnia, to include posttraumatic stress disorder (PTSD) and depressive disorder, is denied. Entitlement to service connection for dyssomnia is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to the service-connected disability of diabetes mellitus type II, is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to the service-connected disability of diabetes mellitus type II, is remanded. REFERRED The issues of entitlement to an increased evaluation in excess of 0 percent disabling for right lower extremity peripheral neuropathy prior to January 15, 2010 and entitlement to an increased evaluation in excess of 0 percent disabling for left lower extremity peripheral neuropathy prior to January 15, 2010 were raised in a December 2019 Informal Hearing Presentation and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The Veteran’s right lower extremity peripheral neuropathy was manifested by no more than mild incomplete paralysis prior to July 27, 2015. 2. The Veteran’s right lower extremity peripheral neuropathy is manifested by no more than moderate incomplete paralysis from July 27, 2015. 3. The Veteran’s left lower extremity peripheral neuropathy was manifested by no more than mild incomplete paralysis prior to July 27, 2015. 4. The Veteran’s left lower extremity peripheral neuropathy is manifested by no more than moderate incomplete paralysis from July 27, 2015. 5. An August 2007 rating decision denied service connection for peripheral neuropathy of the right upper extremity; the Veteran did not perfect an appeal of that decision, and new and material evidence was not received within one year of notice of its issuance. 6. Evidence received more than one year after that August 2007 rating decision is neither cumulative nor redundant of the evidence that was already of record and considered in that decision, and this additional evidence raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for peripheral neuropathy of the right upper extremity. 7. An August 2007 rating decision denied service connection for peripheral neuropathy of the left upper extremity; the Veteran did not perfect an appeal of that decision, and new and material evidence was not received within one year of notice of its issuance. 8. Evidence received more than one year after that August 2007 rating decision is neither cumulative nor redundant of the evidence that was already of record and considered in that decision, and this additional evidence raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for peripheral neuropathy of the left upper extremity. 9. An August 2007 rating decision denied service connection for an acquired psychiatric disorder to include PTSD and dyssomnia; the Veteran did not perfect an appeal of that decision, and new and material evidence was not received within one year of notice of its issuance. 10. Evidence received more than one year after that August 2007 rating decision is neither cumulative nor redundant of the evidence that was already of record and considered in that decision, and this additional evidence raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD and dyssomnia. 11. The preponderance of the evidence shows that the Veteran does not have a diagnosis of PTSD that meets the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition; and that his depressive disorder was not incurred during active military service and was not caused by an in-service injury, illness/disease or event. 12. Resolving reasonable doubt in the Veteran’s favor, his dyssomnia is at least as likely as not related to an in-service event. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right lower extremity peripheral neuropathy prior to July 27, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for a disability rating in excess of 20 percent for right lower extremity peripheral neuropathy from July 27, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating in excess of 10 percent for left lower extremity peripheral neuropathy prior to July 27, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for a disability rating in excess of 20 percent for left lower extremity peripheral neuropathy from July 27, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The August 2007 rating decision denying service connection for peripheral neuropathy of the right upper extremity is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. 6. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for peripheral neuropathy of the right upper extremity has been received since that August 2007 rating decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The August 2007 rating decision denying service connection for peripheral neuropathy of the left upper extremity is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. 8. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for peripheral neuropathy of the left upper extremity has been received since that August 2007 rating decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 9. The August 2007 rating decision denying service connection for an acquired psychiatric disorder to include PTSD and dyssomnia is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. 10. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD and dyssomnia has been received since that August 2007 rating decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 11. The criteria for service connection for an acquired psychiatric disorder other than dyssomnia, including PTSD and depressive disorder, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 12. The criteria for service connection for dyssomnia are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to January 1970. The Board of Veterans’ Appeals (Board) notes that, in order to best reflect the specific issues on appeal and the evidence of record, it has bifurcated and slightly recharacterized some of the issues, as set forth above, on the title page of this decision. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. Entitlement to an increased evaluation in excess of 10 percent disabling for right lower extremity peripheral neuropathy prior to July 27, 2015 2. Entitlement to an increased evaluation in excess of 10 percent disabling for left lower extremity peripheral neuropathy prior to July 27, 2015 3. Entitlement to an increased evaluation in excess of 20 percent disabling for right lower extremity peripheral neuropathy from July 27, 2015 4. Entitlement to an increased evaluation in excess of 20 percent disabling for left lower extremity peripheral neuropathy from July 27, 2015 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. In this case, the Veteran claims entitlement to increased evaluations/ratings for his service-connected right and left lower extremity peripheral neuropathy during the period prior to July 27, 2015. He claims that he is entitled to the increased ratings because his feet swell, go numb and he gets tingling sensations in his feet and cramps and poor circulation in both legs. See, e.g., VA Form 21-4138, Statement in Support of Claim received in March 2010. However, the Board notes that while the Veteran is competent to report the symptoms that he experiences, he is not competent to opine on the severity of his bilateral lower extremity peripheral neuropathy, to include the severity and completeness of any nerve paralysis. Such issues are medically complex, and a competent diagnosis or finding of such neurological conditions and their severity requires certain medical training and credentials that the Veteran has not shown himself to have. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the most pertinent evidence in relation to the Veteran’s claims of entitlement to increased evaluations of his service-connected lower extremity peripheral neuropathy consists of the Veteran’s and his representative’s written statements, as summarized above, the Veteran’s VA and private medical treatment records, and the relevant reports of the VA examinations that the Veteran has been afforded during the period on appeal. The Veteran’s VA and private treatment records that relate to the period on appeal show that he has complained of chronic numbness and tingling on and off in his feet, including in January 2010 and May 2012, and that he reported left leg pain and trouble walking (that was not noted to be related to his neuropathy) in March 2009. See, e.g., VA treatment records received in February 2010; private treatment records received in May 2010; VA treatment records received in August 2015. The Veteran was afforded VA examinations for the purpose of assessing the severity of his bilateral lower extremity peripheral neuropathy in February 2010 and July 2015. The February 2010 examiner indicated that the Veteran reported numbness and a tingling sensations in his feet, and that vibration sense and pinprick sensation were both absent in the big toes bilaterally. Also of note, in the rationale, the examiner explained “that peripheral neuropathy usually starts in the big toes, that is at the end of long nerve such as sciatic nerve and then move proximally later. Currently, it is only affecting the big toes.” However, the February 2010 examiner did not explicitly indicate which nerves were affected or how severe any associated nerve paralysis was. See VA examination report dated in February 2010. The July 2015 VA examiner opined that the Veteran’s neuropathy-related symptoms included moderate paresthesias and/or dysesthesias and numbness in his bilateral lower extremities. Deep tendon reflexes were decreased in the bilateral ankles, light touch/monofilament testing results were decreased in the bilateral ankles/lower legs and feet/toes, and vibration and cold sensation were absent in the bilateral lower extremities. The examiner indicated that the Veteran’s sciatic nerve was moderately and incompletely paralyzed bilaterally. Finally, the examiner indicated that the neuropathy does not affect the Veteran’s ability to work because the disability was mild. See VA examination report dated in July 2015. Based on the above, the Board finds that the disability was primarily manifested by numbness and tingling in his feet and mild incomplete paralysis of his bilateral sciatic nerves prior to July 27, 2015 and by the same symptoms and moderate incomplete paralysis of his bilateral sciatic nerves from July 27, 2015. The Board also finds that the most probative evidence of record is against a finding that the Veteran’s right or left peripheral neuropathy was manifested by any other significant symptoms or paralysis of the sciatic nerve that was worse than moderate and incomplete prior to July 27, 2015 or moderately severe and incomplete thereafter. The Board thus finds that the level of impairment was most analogous to mild incomplete paralysis prior to July 27, 2015 and to moderate incomplete paralysis thereafter. The Board bases these findings on the evidence set forth above, most notably including the February 2010 examiner’s opinion that the neuropathy only affected the Veteran’s big toes, the July 2015 examiner’s explicit opinion that the Veteran’s sciatic nerve paralysis was moderate and incomplete, and the absence of any indication that the Veteran’s nerve involvement was anything more than sensory at any point in time during the period on appeal, especially before July 27, 2015. The Board notes that it has also considered all other potentially applicable diagnostic codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service connected. Therefore, a separate or higher rating under a different diagnostic code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for ratings in excess of 10 percent for his right and left lower extremity peripheral neuropathy prior to July 27, 2015 and in excess of 20 percent for each thereafter. In denying such ratings, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board also notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). 5. Whether new and material evidence sufficient to reopen the claim of entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to the service-connected disability of diabetes mellitus type II, has been received 6. Whether new and material evidence sufficient to reopen the claim of entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to the service-connected disability of diabetes mellitus type II, has been received 7. Whether new and material evidence sufficient to reopen the claim for entitlement to service connection for an acquired psychiatric disorder to include PTSD and dyssomnia has been received Service connection for peripheral neuropathy of the bilateral upper extremities and for a mental condition was denied in an August 2007 rating decision. The Veteran was notified of that determination and of his appellate rights, and he did not appeal or submit new and material evidence within the following year. Accordingly, that decision is a final and binding determination based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. Evidence received since that unappealed rating decision includes but is not limited to VA treatment records containing a January 2010 nursing note that indicates that the Veteran had chronic numbness and tingling in his hands for the previous 3 years related to his diabetic neuropathy. Evidence received since then also includes reports of April 2010 and August 2015 VA examinations, which indicate, respectively, that the Veteran has/had diagnoses of dyssomnia and unspecified depressive disorder. This newly received evidence is new because it was not previously considered in the August 2007 rating decision, and it is material because it pertains to unestablished facts necessary to substantiate the claims of entitlement to service connection for the aforementioned conditions, namely the presence and nature of the Veteran’s claimed disabilities. As this additional evidence is new and material, these claims are consequently reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). This action will not prejudice the Veteran, as the Agency of Original Jurisdiction (AOJ) previously reopened the claim of entitlement to service connection for a mental condition in the July 2010 rating decision from which this appeal stems, and the issues of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities are being remanded for readjudication by the AOJ, as discussed below. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). 8. Entitlement to service connection for an acquired psychiatric disorder other than dyssomnia, to include posttraumatic stress disorder (PTSD) and depressive disorder Service connection for PTSD requires medical evidence diagnosing the condition in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V), of the American Psychiatric Association; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f), 4.125(a). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). Regarding this claim, the Veteran contends that he incurred a mental illness during his active military service and/or as a result of an in-service event. He contends that the illness is manifest by difficulty maintaining social relationships, frustration, depression, recurring nightmares, poor sleep, excessive eating, a decreased attention span, and fearfulness or discomfort when he observes things that remind him of his time on active duty (the sounds of helicopters or gunshots, for example). See, e.g., VA Form 21-4138, Statement in Support of Claim received in March 2010. The Veteran’s wife wrote a statement wherein she indicated that he experienced feelings of depression, difficulty with social interactions, and poor sleep, too. See lay statement received in April 2010. However, here again, neither the Veteran nor his wife are competent to diagnose him with a psychiatric condition or to determine such a condition’s etiology. The Veteran’s VA and private treatment records do not reflect any actual diagnosis of PTSD that conforms to the DSM-V criteria; however, they do reflect that he was being treated for PTSD and that he was diagnosed with depression NOS. See, e.g., VA treatment records received in August 2010; VA treatment records received in August 2015. The Veteran was afforded VA examinations to assess the nature and etiology of any acquired psychiatric disorders in April 2010 and August 2015. Neither examiner indicated that the Veteran had a diagnosis of PTSD, much less one that conforms to the DSM-V criteria. The April 2010 VA examination report indicates that the examiner was of the opinion that the Veteran’s psychiatric diagnoses include dyssomnia, not otherwise specified, and the examiner stated that “the [V]eteran’s dyssomnia is related to recurrent dreams of events at a rice paddy in a village near Hey.” The Board interprets this statement to mean that the Veteran’s dyssomnia is related to an event that took place during the Veteran’s active military service. The July 2015 VA examination report indicates that the examiner that performed that examination found that the Veteran does not have a diagnosis of PTSD that conforms to the DSM-V criteria, but that he does have a diagnosis of unspecified depressive disorder. In the remarks section of the report, the examiner wrote that the Veteran’s symptoms did not meet the DSM-V criteria and that his depressive disorder diagnosis was not related to his service and that it instead has to do with personal issues. After review and consideration of all of the evidence of record, including but not limited to that discussed above, the Board finds that the preponderance of the evidence weighs against finding that the Veteran has a diagnosis of PTSD that conforms to the DSM-V criteria and against finding that the Veteran has any other acquired psychiatric disorder other than dyssomnia that is related to his active service. The weight of the evidence of record, notably the two VA examination reports, reflects that the Veteran does not have any such conforming diagnosis of PTSD and that there is no relation between his depressive disorder and active service. Additionally, the record does not contain any evidence of any competent and formal diagnoses of any acquired psychiatric conditions other than dyssomnia and depressive disorder. Accordingly, service connection is not warranted for PTSD, depressive disorder, or any other acquired psychiatric disorder other than dyssomnia. To this extent, the appeal is denied. 9. Entitlement to service connection for dyssomnia The April 2010 examiner indicated that the Veteran had a diagnosis of dyssomnia that is related to an event that took place during the Veteran’s active military service. Based on that opinion, and the Veteran’s complaints of nightmares and difficulty sleeping, the Board finds that the evidence is in relative equipoise as to whether the Veteran has a diagnosis of dyssomnia that is related to his service. Accordingly, entitlement to service connection for dyssomnia is granted. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to the service-connected disability of diabetes mellitus type II, is remanded. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to the service-connected disability of diabetes mellitus type II, is remanded. According to the August 2015 Statement of the Case (SOC), the AOJ did not reopen these claims. As discussed above, the Board is reopening them herein. As such, the issues must be remanded to the AOJ for adjudication on their merits. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). The matters are REMANDED for the following action: The AOJ should complete any additional development necessary, consider all of the evidence of record, and readjudicate the remaining issues on appeal. If the benefits sought are not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, 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.