Citation Nr: 21062433 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-31 727 DATE: October 7, 2021 ORDER A rating in excess of 10 percent for peripheral neuropathy of the right upper extremity is denied. A rating in excess of 10 percent for peripheral neuropathy of the left upper extremity is denied. A rating in excess of 10 percent for peripheral neuropathy and radiculopathy of the right lower extremity is denied. A rating in excess of 10 percent for peripheral neuropathy and radiculopathy of the left lower extremity is denied. REMANDED Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT At no point has the Veteran's bilateral upper extremity peripheral neuropathy and bilateral lower extremity peripheral neuropathy and radiculopathy been more severe than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8515. 2. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8515. 3. The criteria for a rating in excess of 10 percent for peripheral neuropathy and radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520. 4. The criteria for a rating in excess of 10 percent for peripheral neuropathy and radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1976 to November 1976. These matters come before the Board of Veterans Appeals (Board) on appeal from August 2016 and September 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously remanded by the Board in April 2019. Substantial compliance with the remand requests regarding the increased ratings claims having been accomplished, the Board may proceed to consider those claims. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that further development is necessary regarding the service connection claims and they are remanded below. Subsequent to the Board remand, service connection for a back disability, bilateral pes planus, and bilateral hallux valgus were granted in a July 2020 rating decision. That represented a full grant of the benefits sought in regard to the service connection claims and they are no longer in appellate status. Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Also in the July 2020 decision, service connection for bilateral lower extremity radiculopathy was granted and combined with the peripheral neuropathy ratings. Over the course of the appeal, the Veteran indicated that he is unemployable. As such, entitlement to TDIU has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings Service connection for right upper extremity peripheral neuropathy was granted at 10 percent disabling, effective October 17, 1978, and for left upper extremity peripheral neuropathy at 10 percent disabling, effective December 30, 2009, under 38 C.F.R. § 4.124a, DC 8515, pertaining to the median nerve. Service connection for right lower extremity peripheral neuropathy with radiculopathy and left lower extremity peripheral neuropathy with radiculopathy was granted at 10 percent, respectively, effective December 30, 2009, under 38 C.F.R. § 4.124a, DC 8520, pertaining to the sciatic nerve. The Veteran submitted a claim for increased ratings on June 16, 2016. Accordingly, the Board will consider entitlement to ratings in excess of 10 percent from the date of claim, including whether there was a factually ascertainable increase in severity within the year preceding the increased rating claim. See 38 C.F.R. § 3.400(o)(2). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's right upper extremity is his major or dominant extremity. Under DC 8515 as it pertains to the major extremity, a rating of 10 percent is assigned for mild incomplete paralysis. Moderate incomplete paralysis warrants a 30 percent rating. Severe incomplete paralysis warrants a 50 percent rating. Complete paralysis warrants a 70 percent rating. Complete paralysis is manifested by the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and/or pain with trophic disturbances. Under DC 8515 as pertains to the minor extremity, a rating of 10 percent is assigned for mild incomplete paralysis of the median nerve. A rating of 20 percent is assigned for moderate incomplete paralysis, and a rating of 40 percent is assigned for severe incomplete paralysis. A rating of 60 percent is assigned for complete paralysis of the median nerve. Under the criteria of DC 8520, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating contemplates moderate incomplete paralysis, while a 30 percent disability rating contemplates severe incomplete paralysis; a 40 percent disability rating contemplates moderately severe incomplete paralysis; and a 60 percent rating contemplates severe incomplete paralysis with marked muscular atrophy. A maximum disability rating of 80 percent contemplates complete paralysis as evidenced by the foot dangles and drops, no active movement possible of the muscles below the knee, flexion of the knee weakened, or very rarely lost. 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, the Veteran reported to VA clinicians in February 2016 that he had a new onset of persistent numbness and tingling in his legs and feet. The Veteran underwent a VA examination in July 2016. He was diagnosed with right side ulnar neuropathy and left lower extremity radiculopathy. He described intermittent numbness and tingling of the right hand which occurred infrequently and without warning. He often dropped objects, especially if they were heavy. He also sometimes experienced numbness and weakness with pain in his left leg including a severe and sharp, shooting pain that radiated from his lower back about once every 2 to 3 weeks, lasting 1 to 2 minutes. He had to stop and rest when that occurred. It was usually provoked by standing, driving, or walking for prolonged period of time. The examiner indicated that he had no constant pain in his extremities; mild intermittent pain in the right upper extremity and moderate intermittent pain in the left lower extremity; mild paresthesias and/or dysesthesias in the right upper extremity and right and left lower extremities; and mild numbness in the right upper extremity and right and left lower extremities. Muscle strength testing was normal in all extremities and there was no atrophy. Reflexes were normal in all extremities, as well. A sensory examination demonstrated decreased sensation in the bilateral shoulder area, inner/outer forearm, hand/fingers, upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. However, the examiner stated that sensory test was purely subjective and, in this case, was unreliable and not valid due to discrepancies between anatomical patterns and the Veteran's responses upon neurological examination. Gait was normal and the Veteran used no assistive devices. Both the Phalen's sign and Tinel's sign had negative results bilaterally. The examiner indicated that the Veteran had mild incomplete paralysis of the right ulnar nerve and mild incomplete paralysis of the left sciatic nerve. All other nerves were normal. He had good strength in his lower extremities, as well. Prior EMG testing demonstrated mild right ulnar neuropathy. The examiner determined that the Veteran's peripheral neuropathy did not cause a functional impact. In September 2016 and March 2017 VA treatment records, the Veteran denied pain, tingling, or numbness in either leg. In October 2016, he reported to VA clinicians that previous tingling had moved to his left side from his hand to his leg. He also had weakness in his left hand that came and went. Another VA examination was conducted in January 2020. The Veteran described numbness in his feet, treated with Gabapentin. Symptoms included no constant pain; mild intermittent pain in the left upper extremity; no paresthesias/dysesthesias; and mild numbness in the bilateral upper and lower extremities. Muscle strength was normal in all extremities but decreased in left knee extension. Reflexes were decreased in all extremities. Light touch/monofilament testing was decreased in the left inner/outer forearm and the right hand/fingers. Position sense and cold sensation were decreased in the bilateral lower extremities. There was no muscle atrophy. The examiner indicated that the Veteran had mild incomplete paralysis involving the median nerve in the right and left upper extremities and mild incomplete paralysis involving the sciatic nerve in the right and left lower extremities. The functional impact was determined to be trouble walking and standing and trouble handling small objects. 1. A rating in excess of 10 percent for peripheral neuropathy of the right upper extremity is denied. 2. A rating in excess of 10 percent for peripheral neuropathy of the left upper extremity is denied. 3. A rating in excess of 10 percent for peripheral neuropathy and radiculopathy of the right lower extremity is denied. 4. A rating in excess of 10 percent for peripheral neuropathy and radiculopathy of the left lower extremity is denied. Based on the foregoing, the Board finds that ratings in excess of 10 percent for the Veteran's bilateral upper and lower extremity peripheral neuropathy and radiculopathy are not warranted. At no point during the appeal period was the severity of his peripheral neuropathy determined to be worse than mild by VA examiners. Further, treating clinicians have not indicated that his bilateral upper and lower extremity symptomology is more severe than mild. That is, manifestations described in the medical treatment records, examination reports, and based on lay statements appear to be small in amount, to include mild numbness, mild intermittent pain, and so forth. As peripheral neuropathy and radiculopathy have not been shown to be moderate at any point, ratings in excess of 10 percent under the criteria of DC 8515 and DC 8520 are not warranted. Accordingly, ratings in excess of 10 percent for peripheral neuropathy of the bilateral upper extremities and peripheral neuropathy and radiculopathy of the bilateral lower extremities are not merited. In finding no increased ratings or further separate ratings warranted, the Board finds that the Veteran's disability is fully capable of evaluation under the rating schedule. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus is remanded. The April 2019 Board remand directed the RO to conduct a VA examination in connection with the Veteran's claim for service connection for diabetes mellitus and to obtain an opinion regarding direct and secondary service connection addressing medical articles submitted in June 2017 indicating that his Guillain-Barré syndrome affected the nerves that regulate his blood glucose. In January 2020, a VA examination was conducted. The examiner determined that diabetes mellitus was less likely than not caused by any in-service event as there was no objective evidence to say that it began during service. The examiner also stated that diabetes mellitus causes peripheral neuropathy, not the other way around. Peripheral neuropathy cannot cause diabetes. As such, it was less likely than not proximately due to or the result of his service-connected peripheral neuropathy. The examiner also stated that peripheral neuropathy cannot aggravate diabetes mellitus. No rationale was provided in support. The Board finds that a new VA opinion is needed before a decision may be rendered on the claim. The January 2020 opinion did not provide sufficient rationales for the determinations given nor did it address the medical articles noted in the remand directives. As such, an addendum opinion should be obtained upon remand. 2. Entitlement to service connection for sleep apnea is remanded. The April 2019 Board remand directed the RO to conduct a VA examination in connection with the Veteran's claim for service connection for sleep apnea and to obtain an opinion regarding direct and secondary service connection. An examination was conducted in January 2020. The examiner determined that sleep apnea was less likely than not caused by any in-service event as there was no objective evidence to say sleep apnea started in service. He further concluded that sleep apnea is not the result of any service-connected disability because it was not caused by any of the Veteran's diagnoses and it was not aggravated as there is no connection between sleep apnea and peripheral neuropathy. The Board finds that a new VA opinion is needed before a decision may be rendered on the claim. The January 2020 opinion contained conclusory statements without supporting rationales for the determinations given. As such, an addendum opinion should be obtained upon remand. 3. Entitlement to a TDIU is remanded. As the Veteran's claims for service connection for diabetes mellitus and sleep apnea may affect whether entitlement to a TDIU is warranted, the issue is inextricably intertwined with the service connection claims and remanded, as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the Veteran's claim for service connection for diabetes mellitus from an appropriate VA clinician. The need for an additional examination is left to the discretion of the clinician writing the opinion. Following a review of the claims file, the clinician is asked to address the following: (a.) Is the disability related to an in-service injury, event, or disease? (b.) Is the disability caused by the service-connected peripheral neuropathy? (c.) Is the disability aggravated (i.e., worsened beyond natural progression) by the service-connected peripheral neuropathy? (d.) The clinician is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). (e.) The clinician is specifically asked to address medical articles submitted by the Veteran suggesting that Guillain-Barré syndrome affects the nerves that regulate blood glucose. (f.) The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports should be acknowledged and considered in formulating any opinion. (g.) If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. (h.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. 2. Obtain an addendum opinion regarding the Veteran's claim for service connection for sleep apnea from an appropriate VA clinician. The need for an additional examination is left to the discretion of the clinician writing the opinion. Following a review of the claims file, the clinician is asked to address the following: (a.) Is the disability related to an in-service injury, event, or disease? (b.) Is the disability caused by the service-connected peripheral neuropathy? (c.) Is the disability aggravated (i.e., worsened beyond natural progression) by the service-connected peripheral neuropathy? (d.) The clinician is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. at 239. (e.) The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports should be acknowledged and considered in formulating any opinion. (f.) If medical literature is relied upon in rendering this determination, the clinician should identify and specifically cite each reference material used. (Continued on the next page) (g.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. 3. Ensure that the requested opinions are associated with the claims file. After completing the above, and any additionally indicated development, readjudicate the claims, including entitlement to TDIU. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.