Citation Nr: 20042328 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 16-52 173 DATE: June 22, 2020 ORDER A rating in excess of 10 percent for the period prior to July 13, 2015 and in excess of 30 percent for the period from July 13, 2015 for diabetic peripheral neuropathy of the left upper extremity is denied. A rating in excess of 10 percent for the period prior to July 13, 2015 and in excess of 40 percent for the period from July 13, 2015 for diabetic peripheral neuropathy of the right upper extremity is denied. A total disability rating based on individual unemployability (TDIU) for the period from May 31, 2011 to March 7, 2012 is granted, subject to regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Prior to July 13, 2015, the Veteran's diabetic peripheral neuropathy of the right upper extremity was manifested by mild incomplete paralysis of the median nerve. 2. From July 13, 2015, the Veteran’s diabetic peripheral neuropathy of the left upper extremity is manifested by moderate incomplete paralysis of all radicular groups. 3. Prior to July 13, 2015, the Veteran’s diabetic peripheral neuropathy of the right upper extremity was manifested by mild incomplete paralysis of the median nerve. 4. From July 13, 2015, the Veteran’s diabetic peripheral neuropathy of the right upper extremity is manifested by moderate incomplete paralysis of all radicular groups. 5. For the period from May 31, 2011 to March 7, 2012, the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to July 13, 2015, the criteria for an initial rating in excess of 10 percent for diabetic peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8615. 2. From July 13, 2015, the criteria for a rating in excess of 30 percent for diabetic peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513. 3. Prior to July 13, 2015, the criteria for an initial rating in excess of 10 percent for diabetic peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8615. 4. From July 13, 2015, the criteria for a rating in excess of 40 percent for diabetic peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513. 5. The criteria for entitlement to TDIU for the period from May 31, 2011 to March 7, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to March 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in April 2019 when they were remanded for further development. Increased Rating Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities 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. A Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Prior to July 13, 2015, the Veteran’s diabetic peripheral neuropathy of the bilateral upper extremities was rated under Diagnostic Code (DC) 8615 for neuritis of the median nerve. VA regulations provide that neuritis is to be rated on the scale provided for injury of the nerve involved with a maximum equal to severe incomplete paralysis. See 38 C.F.R. § 4.123. Where neuritis is not characterized by organic changes, such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, the maximum rating which may be assigned will be that of moderate incomplete paralysis. Id. The scale for paralysis of the median nerve provides that a 10 percent rating is assigned for mild incomplete paralysis of either the major or minor extremity. A 20 percent rating is assigned where there is moderate incomplete paralysis of the minor extremity and a 30 percent rating is assigned where there is moderate incomplete paralysis of the major extremity. A 40 percent rating is assigned where there is severe incomplete paralysis of the minor extremity and a 50 percent rating is assigned where there is severe incomplete paralysis of the major extremity. A 60 percent rating is assigned for complete paralysis of the minor extremity and a 70 percent rating is assigned for complete paralysis of the major extremity. Complete paralysis of the median nerve is characterized by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand; pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, inability to make a fist, index and middle fingers remaining extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb at right angles to the palm; flexion of the wrist weakened; and pain with trophic disturbances. 38 C.F.R. § 4.124a, DC 8515. From July 13, 2015, the Veteran’s diabetic peripheral neuropathy of the bilateral upper extremities has been rated under DC 8513 for involvement of all radicular groups (the ulnar, radial, and median nerves). Under DC 8513, a 20 percent rating is warranted for mild incomplete paralysis of the major or minor extremity. A 30 percent rating is assigned where there is moderate incomplete paralysis of the minor extremity and a 40 percent rating is assigned where there is moderate incomplete paralysis of the major extremity. A 60 percent rating is assigned where there is severe incomplete paralysis of the minor extremity and a 70 percent rating is assigned where there is severe incomplete paralysis of the major extremity. An 80 percent rating is assigned where there is complete paralysis of the minor extremity and a 90 percent rating is assigned where there is complete paralysis of the major extremity. In rating diseases of the peripheral nerves, the term 'incomplete paralysis' indicates a degree of lost or impaired function substantially less than the type picture 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. The rating schedule does not define the terms 'mild," "moderate," or "severe," as used in this diagnostic code to describe the degree of incomplete paralysis. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In addition, where the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id.; see Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). Notably, the Veteran is right-handed, so his right upper extremity is considered the major upper extremity. 38 C.F.R. § 4.69. His left upper extremity is considered the minor upper extremity. Id. 1. Prior to July 13, 2015 The Veteran and his attorney contend that his service-connected diabetic peripheral neuropathy of the bilateral upper extremities warrants an initial disability rating in excess of 10 percent prior to July 13, 2015. A review of the record shows the Veteran was provided a VA examination in August 2011 in which the examiner diagnosed the Veteran with neuropathy of the upper extremities and noted that the condition resulted in neuritis. During the examination, the Veteran reported progressive loss of strength in his arms along with tingling and numbness in his hands that he treats with Gabapentin. Physical examination of the Veteran’s bilateral brachial, radial, and ulnar pulses were all 2+. Neurological examination of the upper extremities revealed that the motor functioning was within normal limits. Sensory function for the stocking glove and boot distribution were decreased in the bilateral upper extremities based on modality of touch. Reflexes were all 2+, indicating normal reflexes. There was no ulcer present, no eczema, and no stasis pigmentation on both upper extremities. Extremity exam did not reveal persistent coldness or any changes in color. The Veteran was provided another VA examination in August 2013 in which the examiner concluded that the Veteran did not have a diagnosis of upper extremity diabetic peripheral neuropathy. The examination report indicates that the Veteran had normal strength, deep tendon reflexes, position sense, vibration sensation, and cold sensation. There was no evidence of muscle atrophy or trophic changes. On August 2013 VA examination for diabetes, the Veteran reported having progressive loss of strength attributable to his diabetes and reported that he could not hold anything. The Veteran’s VA treatment records note treatment for upper extremity diabetic peripheral neuropathy. An April 2014 note indicates acute and chronic arm neuropathy. The Veteran also reported burning pain in the right upper inner part of the arm. He stated that the pain was worse when lifting objects. There was no muscle weakness or stiffness. In June 2014, paresthesias of the right fingers was noted. It was also noted that the Veteran’s dosage of Gabapentin was increased from 600 mg to 800 mg. An August 2014 note indicates the Veteran was treated for severe burning pain in his right arm. It was noted that the pain in his right arm was medial and that the pain starts in the biceps and radiates down into the forearm. The physician also noted that the Veteran was guarding his right arm and hand and that the pain would periodically radiate into his left hand. In September 2014, the Veteran complained of pain in his right arm with associated numbness and tingling. He reported that his symptoms started in January after he had a fall and landed on his right side. He stated that the pain starts in his neck and radiates down to all his fingers. He also reported that he had decreased grip strength and that it is difficult for him to pick up objects. In December 2014, the Veteran reported pain in his right arm. He stated that the pain starts in his biceps and radiates down into his forearm. He stated that the pain also periodically radiates into the left hand. It was noted that he was guarding the right arm and hand. Nerve conduction studies were performed and were normal. There was no electrodiagnostic evidence of right median or ulnar neuropathy. Following an April 2019 Board remand, a retrospective opinion was obtained to resolve discrepancies between VA examinations which indicate the Veteran did have upper extremity diabetic peripheral neuropathy (i.e., the August 2011 VA examination) and VA examinations which indicate the Veteran did not have upper extremity diabetic peripheral neuropathy (i.e., the August 2013 VA examination). In the September 2019 retrospective opinion, the VA examiner explained that the Veteran could have had symptoms of diabetic peripheral neuropathy without objective findings on examination. The examiner stated that it is common for individuals to have only subjective complaints and a negative physical exam as the condition, as well as manifestations of the condition, progresses over time due to the worsening of the diabetic condition. The examiner also noted that findings may differ because examinations are provider dependent and are not based on a standardized procedure. The September 2019 VA examiner also conducted an examination of the Veteran and noted that, during the examination, the Veteran reported the onset of pain, numbness, and tingling in the hands about eight years ago. Following a review of the evidence, the Board concludes that a preponderance of the evidence is against finding that the Veteran’s neuritis of the bilateral upper extremities was manifested by any more than mild incomplete paralysis prior to July 13, 2015. As noted above, the maximum rating for neuritis without organic changes (i.e., loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating) is moderate. See 38 C.F.R. § 4.123. Here, the evidence of record for the period on appeal fails to establish that the Veteran’s condition resulted in organic changes. For example, the August 2011 VA examination report shows that the Veteran’s motor functioning was within normal limits and reflexes were normal. There was also normal cold sensation and no trophic changes. In addition, the August 2013 VA examination report notes normal strength, deep tendon reflexes, position sense, vibration sensation, and cold sensation and the absence of muscle atrophy or trophic changes. The Board acknowledges that the August 2011 examiner noted decreased sensory functioning; however, a subsequent VA examination failed to find any evidence of sensory disturbance. The Board finds the inconsistency of the examination results indicative of a less severe condition most appropriately characterized as mild. The Board also acknowledges that the Veteran reported pain in his bilateral upper extremities and that, in August 2014, the Veteran described his pain as “severe.” However, one incident of severe pain does not rise to the level of severity contemplated by the higher rating and the Veteran’s entire disability picture for the period on appeal does not indicate that his pain was severe. Finally, the Board acknowledges that the Veteran’s medication for neuropathy was increased in dosage during the appeal period. However, the Board finds the increase in his medication does not indicate moderate symptomatology when considered in conjunction with the other evidence of record. As such, given overall symptoms shown, the Board concludes that the evidence most nearly approximates a finding of mild incomplete paralysis of the bilateral upper extremities, which is in accordance with the currently assigned 10 percent ratings for each upper extremity. For these reasons, a rating in excess of 10 percent is not warranted for the diabetic peripheral neuropathy of the left and right upper extremities prior to July 13, 2015. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. From July 13, 2015 As noted above, the RO increased the Veteran’s disability rating to 30 percent for the left upper extremity and 40 percent for the right upper extremity effective July 13, 2015. The evidence for this period includes a July 2015 VA examination. A review of the examination report shows that, during the examination, the Veteran complained of pain in his hands. His symptoms included mild intermittent pain, mild paresthesias and/or dysesthesia, and mild numbness of the upper extremities. Muscle strength testing revealed active movement against some resistance (4/5) in the upper extremities and the examiner noted that there was no evidence of muscle atrophy. Deep tendon reflex testing was normal in the biceps for the right upper extremity but hypoactive in the left upper extremity. Reflexes were also hypoactive in the triceps and brachioradialis for both the left and right upper extremities. There was normal sensation in the shoulder area but decreased sensation in the forearm and hands/fingers for the bilateral upper extremities. There was no evidence of trophic changes. The examiner noted bilateral moderate incomplete paralysis of the radial nerve, bilateral moderate incomplete paralysis of the median nerve, and bilateral moderate incomplete paralysis of the ulnar nerve. The examiner also noted that the Veteran occasionally used a cane. In May 2017, the Veteran was provided another VA examination. Following examination of the Veteran, the examiner noted that there were no symptoms of neuropathy in the Veteran’s upper extremities. Strength testing, deep tendon reflexes, and light touch testing were all normal in the bilateral upper extremities. An October 2017 note in the Veteran’s VA treatment records contains a complaint of pain in the right upper arm from the elbow. It was noted that the pain caused limited motion in the shoulder. Following an April 2019 Board remand, a retrospective opinion was obtained to resolve discrepancies between VA examinations which indicate the Veteran did have upper extremity diabetic peripheral neuropathy (i.e., the July 2015 VA examination) and VA examinations which indicate the Veteran did not have upper extremity diabetic peripheral neuropathy (i.e., the May 2017 VA examination). In the September 2019 retrospective opinion, the VA examiner explained that the Veteran could have had symptoms of diabetic peripheral neuropathy without objective findings on examination. The examiner stated that it is common for individuals to have only subjective complaints and a negative physical exam as the condition, as well as manifestations of the condition, progresses over time due to the worsening of the diabetic condition. The examiner then noted that examinations are provider dependent and are not based on a standardized procedure so findings may differ. The September 2019 VA examiner also conducted an examination of the Veteran. The examiner noted a diagnosis of neuropathy in the upper extremities and noted that the Veteran reported symptoms, including numbness, pain, and tingling in hands, which became worse over time. The Veteran reported treatment of his condition with Tylenol. The examiner noted that the Veteran’s symptoms included mild constant pain, moderate intermittent pain, mild paresthesias, and mild numbness in the upper extremities. Strength testing, deep tendon reflexes, position sense, vibration sensation, and cold sensation were normal. Results of light touch testing were noted as normal for the shoulder area and forearm but were decreased in the hands and fingers. There was no evidence of muscle atrophy or trophic changes. The examiner noted that there was mild incomplete paralysis of the radial nerve, median nerve, and ulnar nerve in the bilateral upper extremities. The examiner then indicated that the overall severity of the upper extremity sensory neuropathy was mild. After review of the evidence of record, the Board finds that the evidence does not support a rating in excess of 30 percent for the left upper extremity and 40 percent for the right upper extremity for the period from July 13, 2015. The medical evidence of record for the period on appeal does not suggest the Veteran’s condition is severe as the records note at most moderate symptomatology. The Veteran’s disability involvement has been manifested by at most mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesia, and mild numbness of the upper extremities. Also, strength and reflex testing have at most reflect moderate symptomatology. Additionally, the July 2015 VA examiner indicated that the Veteran’s overall condition reflected moderate incomplete paralysis of all radicular groups in the bilateral upper extremities. As such, given overall symptoms shown and described above, the Board concludes that the evidence most nearly approximates a finding of moderate incomplete paralysis of all radicular groups, which is in accordance with the currently assigned 30 percent rating for the left upper extremity and 40 percent rating assigned for the right upper extremity. For these reasons, a rating in excess of 30 percent for the left upper extremity and 40 percent for the right upper extremity is not warranted for the diabetic peripheral neuropathy. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to TDIU for the period from May 31, 2011 to March 7, 2012 is granted. The Veteran seeks entitlement to TDIU for the period from May 31, 2011 to March 7, 2012 as he contends that he was unemployable due to his service-connected disabilities. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or, multiple disabilities incurred as a prisoner of war. Id. The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The United States Court of Appeals for Veterans Claims (Court) recently held that "substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Further, the word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). During the period on appeal, the Veteran had the following service-connected disabilities: posttraumatic stress disorder (PTSD), rated at 70 percent; chronic renal insufficiency with hypertension associated with type II diabetes mellitus, rated at 30 percent; hypertensive heart disease associated with chronic renal sufficiency with hypertension, rated at 30 percent; type II diabetes mellitus, rated at 20 percent; peripheral neuropathy of the right lower extremity associated with type II diabetes, rated at 10 percent; peripheral neuropathy of the left lower extremity associated with type II diabetes, rated at 10 percent; peripheral neuropathy of the right upper extremity associated with type II diabetes, rated at 10 percent; peripheral neuropathy of the left upper extremity associated with type II diabetes, rated at 10 percent; residuals of a fracture of the right hand, rated as noncompensable; and otitis externa, rated as noncompensable. The combined rating for the service-connected disabilities was 90 percent effective May 31, 2011. As the Veteran’s PTSD was evaluated as 70 percent disabling, his disabilities met the schedular requirements for TDIU. The question remaining is whether the Veteran's service-connected disabilities (alone) render him incapable of participating in a substantially gainful occupation. Here, a balance of the evidence supports that from May 31, 2011 to March 7, 2012 the Veteran's service-connected disabilities substantially impacted his ability to secure and engage in types of employment at any exertional level. The Veteran reported in his May 2011 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, that his PTSD, diabetes, and neuropathy conditions prevented him from working. He stated that he last worked full-time in September 2008 and became too disabled to work in September 2008. He reported that he had been working part-time as a stocker from 2010 to 2011 making $400 a month. On July 2011 VA examination, the Veteran reported that he had stopped working two years previously because the neuropathy in his feet caused severe pain and he could no longer do his job as a delivery driver/salesman. He reported that he had recently begun working a part-time job, but that even the few hours of work a week caused him pain and would then make him more irritable with his wife and young grandchildren when he returned home. The VA examiner stated that the Veteran’s emotional and physical problems interfere with his ability to work, even part-time. He noted that he had constant interference with his physical health because neuropathy caused him pain that interfered with his daily and work activities. The examiner stated that the Veteran experiences significant neuropathy and this increases his anger and frustration to the point that he has walked off the job several times. Additionally, the examiner stated that jobs involving only sedentary activity are likely to create stress and irritability that would be difficult for the Veteran to handle, especially due to his developing problems with attention/concentration and memory. In August 2011, a VA examiner noted that the Veteran’s hypertensive heart disease can result in decreased weight-bearing and lifting activity through chest pain, fatigue, leg pain, and shortness of breath. The examiner also noted that the Veteran’s neuropathy resulted in poor weight-bearing, persistent pain or numbness, and poor grip sensitivity and strength and his diabetes resulted in fatigue, edema, and decreased exertion. The Board affords great probative weight to the July 2011 and August 2011 opinions provided by VA examiners regarding the effect of the Veteran’s service-connected disabilities as they are consistent with the record and provide explanation for the conclusions reached. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). Based on the foregoing, the Board finds that the overall evidence of record is at least in equipoise as to a finding that when considering the Veteran’s history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation, the effects of the Veteran’s service-connected PTSD, diabetes, peripheral neuropathy, and hypertensive heart disease caused him to have difficulty with most occupations during the period on appeal. Although he reported that he was working part-time during this period, his wages were below the poverty threshold level. Therefore, the Board concludes the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. In summary, the Board finds that entitlement to TDIU from May 31, 2011 to March 7, 2012 is warranted. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.