Citation Nr: 21003113 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-14 934 DATE: January 19, 2021 ORDER 1. Entitlement to a disability evaluation in excess of 10 percent for paralysis of the median nerve due to diabetic peripheral neuropathy of right upper extremity is denied. 2. Entitlement to a disability evaluation in excess of 10 percent for paralysis of the median nerve due to diabetic peripheral neuropathy of left upper extremity is denied. 3. A separate 20 percent evaluation for left upper extremity, and 30 percent evaluation for right upper extremity, and no higher, for moderate neuralgia of the median nerve is granted. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy of the right upper extremity has been manifested by no more than mild incomplete paralysis of the median nerve during the appeal period. 2. The Veteran’s peripheral neuropathy of the left upper extremity has been manifested by no more than mild incomplete paralysis of the median nerve during the appeal period. 3. The Veteran’s right and left upper extremities manifested moderate neuralgia of the median nerve. 4. The Veteran’s PTSD precludes him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8515. 2. The criteria for entitlement to a rating in excess of 10 percent for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8515. 3. From November 18, 2015 forward, the criteria for a separate rating of 20 percent for left upper extremity, and 30 percent for right upper extremity, and no higher, for moderate neuralgia of the median nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8715. 4. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to January 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran was provided a hearing with a Veterans Law Judge during which he provided testimony regarding his TDIU claim. At a hearing before the undersigned Veterans Law Judge in July 2019, the Veteran provided testimony concerning his peripheral neuropathy of the bilateral upper extremities’ claims. A copy of each hearing transcript has been associated with the claims file. Each of the aforementioned claims were most recently remanded by the Board in October 2019 for further development. The Board finds that there has been substantial compliance and the matters have rightfully returned to the Board. Stegall v. West, 11 Vet. App. 268 (1998). These claims have been advanced on the docket pursuant to 38 U.S.C. § 7107 and 38 C.F.R. § 20.900 (c) for good or sufficient cause shown. Increased Rating Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. 38 C.F.R. § 4.31. 1. Entitlement to a disability evaluation in excess of 10 percent for diabetic peripheral neuropathy of right upper extremity is denied. 2. Entitlement to a disability evaluation in excess of 10 percent for diabetic peripheral neuropathy of left upper extremity is denied. 3. A separate 20 percent evaluation for left upper extremity, and 30 percent evaluation for right upper extremity, and no higher, for neuralgia of the median nerve is granted. The Veteran is seeking higher disability ratings for his service-connected right and left upper extremities due to diabetic peripheral neuropathy. The Veteran’s peripheral neuropathy of the right and left upper extremities is rated pursuant to Diagnostic Code (DC) 8515, for paralysis of the median nerve. A 10 percent evaluation is assigned for mild incomplete paralysis (major or minor), moderate incomplete paralysis is rated 20 percent (minor) or 30 percent (major) disabling, and severe incomplete paralysis is rated 40 percent (minor) or 50 percent (major) disabling. Complete paralysis of the median nerve warrants a 60 percent (minor) or 70 percent (major) evaluation with the hand inclined to the ulnar side with the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, and the thumb in the plane of the hand (ape hand); incomplete and defective pronation of the hand with the absence of flexion of the index finger, feeble flexion of the middle finger, inability to make a fist, and index and middle fingers that remain extended; inability to flex the distal phalanx of the thumb with defective opposition and abduction of the thumb at right angles to the palm; weakened flexion of the wrist; and pain with trophic disturbances. 38 C.F.R. § 4.124a, DC 8515. In applying the schedular criteria for rating peripheral nerve disabilities, 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. Words such as “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. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Neuritis of the median nerve is rated under DC 8615, and neuralgia of the median nerve is rated under DC 8715. 38 C.F.R. § 4.124. The criteria are consistent with the criteria for rating degrees of paralysis as set forth above. 38 C.F.R. § 4.124a, Diagnostic Codes 8515, 8615, 8715. Neuritis of the peripheral nerves, 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, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia of a peripheral nerve characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Initially, the Veteran was granted service connection for diabetic peripheral neuropathy bilateral upper extremities in January 2014 rating decision. November 2015 is the filing date of the Veteran’s claim for increased rating for diabetic peripheral neuropathy bilateral upper extremities. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed. 38 C.F.R. § 3.400. A November 2015 VA diabetic sensory-motor peripheral neuropathy examination reflects the Veteran’s reports of shooting pain in his wrists with tingling and mild numbness. His dominant hand was noted to be his right hand. His symptoms were noted to be severe intermittent pain in the right and left upper extremities, and mild numbness in both upper extremities. Neurologic examination was normal. Deep tendon reflexes were normal. Light touch, position sense, vibration sensation, and cold sensation testing results were normal. There was no muscle atrophy. There were no trophic changes attributable to diabetic peripheral neuropathy. The Veteran was noted to have incomplete paralysis of the right and left medial nerves which were both described as mild. Based on these findings, the examiner noted that overall, the severity of the Veteran’s upper extremity sensory neuropathy was mild. A July 2016 VA diabetic sensory-motor peripheral neuropathy examination reflects the Veteran’s reports of having balance problems which causes an inability to stand and walk for prolonged periods. His dominant hand was noted to be his right hand. His symptoms were noted to be mild intermittent pain in the right and left upper extremities. Neurologic examination was normal. Deep tendon reflexes were normal. Light touch, position sense, vibration sensation, and cold sensation testing results were normal. There was no muscle atrophy. There were no trophic changes attributable to diabetic peripheral neuropathy. The Veteran was noted to have incomplete paralysis of the right and left medial nerves which were both described as mild. The Veteran last underwent a VA diabetic sensory-motor peripheral neuropathy examination in January 2020. In describing the history of the Veteran’s diabetic peripheral neuropathy, the examiner noted the Veteran’s report of mild numbness in his upper extremities. Symptoms were noted to be mild intermittent pain. Neurologic examination was normal. Deep tendon reflexes were normal. Light touch of the shoulder area was noted to be decreased. There was no muscle atrophy. There were no trophic changes attributable to diabetic peripheral neuropathy. The Veteran was noted to have incomplete paralysis of the right and left medial nerve which were both described as mild. The Board finds the November 2015, July 2016, and January 2020 VA examinations to be competent, credible, and highly probative, as they are supported by in-person examinations, review of the relevant records, medical expertise, proper consideration of lay evidence, and scientific testing. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding moderate incomplete paralysis of the bilateral upper extremities. Each examiner of record opined that the severity of the Veteran’s upper extremity sensory neuropathy was mild. In finding that a higher rating is not warranted, the Board notes that the weight of the competent and probative evidence is against finding that the symptoms are significantly disabling, as there is no evidence of muscle atrophy, significant sensory changes, weakness, or diminished or hyperactive reflexes graded as medically moderate. Thus, ratings higher than 10 percent are not warranted for paralysis of the median nerve for peripheral neuropathy of the right and left upper extremities at any point during the period on appeal. The Board acknowledges the November 2015 and July 2016 VA examination reports which note bilateral severe and mild intermittent pain, which could warrant additional evaluations under DC 8715 for neuralgia. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The Board finds a separate 30 percent evaluation for the right upper extremity, and a 20 percent evaluation for the left upper extremity under DC 8715 for neuralgia is granted from November 18, 2015. A higher rating cannot be granted under this DC as the maximum rating allowed is equal to moderate incomplete paralysis. Moreover, a higher rating cannot be assigned under Diagnostic Code 8615, as the record does not demonstrate neuritis of the median nerve. See 38 C.F.R. § 4.123. All possibly applicable diagnostic codes have been considered in compliance with Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board notes that the benefit of the doubt has been applied, where applicable. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The term unemployability as used in VA regulations governing total disability ratings is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). The Veteran contends that his PTSD renders him unable to obtain and maintain substantially gainful employment. He meets the schedular requirement for a TDIU pursuant to 38 C.F.R. § 4.16 (a). After careful consideration of the entire record, the Board finds that the Veteran is unable to obtain and maintain substantially gainful employment consistent with his education and occupational experience because of his service-connected PTSD. The record reveals the Veteran last worked as a fiscal manager doing administration work for a hospital from April 1991 to April 2005, after which he went on disability retirement. In the February 2015 private evaluation, the examiner noted that after completing an interview, administering memory and personality tests, and reviewing the Veteran’s claims file, the Veteran is found to have markedly impaired social and occupational functioning. The examiner explained that the Veteran’s ability to stay on task and adapt to professional settings is impaired due to his PTSD with depression. During the examination, the Veteran reported feeling near continuous panic attacks, impaired impulse control, and neglect of personal appearance. He further reported moving his friend into his home to assist him with activities of daily living. Considering these reports, the examiner opined that the Veteran is unable to perform past occupations due to his PTSD symptoms, and stated he does not have transferrable skills, and would have great difficulty sustaining any occupation given his PTSD symptoms. Lastly, the examiner remarked that it is more likely than not that the Veteran has been unemployable since 2005. The Veteran’s friend submitted a written statement in February 2019 explaining that the Veteran has had an increase in memory loss and is unable to remember what has recently been discussed. She further described the Veteran as being short tempered and angry when he can’t understand a person on the phone or when driving, and easily offended when he is reminded of something he has forgotten. In the Veteran’s February 2020 VA PTSD examination, the Veteran reported avoiding places where he cannot see an exit, and difficulty feeling safe. He endorsed isolation, irritation, and sometimes arriving at destinations, not being sure how he got there. The examiner found the Veteran’s social and occupational impairment as deficient in most areas such as work, family relations, judgment, thinking, and mood. The Veteran’s PTSD symptoms include depressed mood, anxiety, near-continuous panic or depression, chronic sleep impairment, flattened affect, disturbance in motivation and mood, impaired impulse control, and difficulty in adapting to stressful circumstances. Other noted symptoms include dissociative-like episodes. In a hearing before the Board in May 2017, the Veteran reported his PTSD symptoms cause problems with work. Specifically, he reported difficulty with concentration and complex problem solving. Based on the evidence of record, the Board finds that the Veteran has consistently reported that he is unable to work due to his PTSD related symptoms, which include lack of concentration, memory, and anxiety. Also of record is a statement from the Veteran’s friend indicating that the Veteran’s PTSD symptoms, and their effect on his memory, mood, and dealings with others, were concerning. Additionally, a VA examiner has noted the Veteran’s PTSD symptoms and their negative effect on most areas of his life, including employment. Also, of great significance is the thorough and in-depth private opinion which indicates the Veteran is unable to perform past occupations due to his PTSD symptoms, does not have transferrable skills, and would have great difficulty sustaining any occupation given his PTSD symptoms. Accordingly, the Board finds that there is sufficient persuasive evidence that shows that the Veteran’s PTSD prevents him from being able to continue to perform the tasks required as a fiscal manager. Moreover, his psychological limitations due to his PTSD would make working in any setting difficult. (Continued on the next page)   Therefore, given the severity of the Veteran’s PTSD and the limitations caused by that disability, the Board finds that his service-connected PTSD precludes him from obtaining and maintaining substantially gainful employment. Accordingly, the Board finds that entitlement to a TDIU is warranted, effective October 1, 2015, the date of claim. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.Russell 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.