Citation Nr: 21005346 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-34 539A DATE: February 1, 2021 ORDER Entitlement to an increased rating from 10 to 20 percent for left upper extremity peripheral neuropathy for the period prior to November 21, 2017, is granted. Entitlement to an increased rating from 10 to 20 percent for left upper extremity peripheral neuropathy for the period between November 21, 2017, and April 17, 2019, is granted. Entitlement to a rating in excess of 20 percent for left upper extremity peripheral neuropathy for the period beginning April 17, 2019, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period beginning April 17, 2019, is granted. REMANDED Entitlement to an initial compensable rating for right lower extremity peripheral neuropathy for the period prior to February 7, 2013, is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy for the period between February 7, 2013, and November 20, 2017, is remanded. Entitlement to a compensable rating for right lower extremity peripheral neuropathy for the period between November 21, 2017, and April 17, 2019, is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity sciatic nerve peripheral neuropathy for the period beginning April 17, 2019, is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity femoral nerve peripheral neuropathy for the period beginning April 17, 2019, is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity peroneal nerve peripheral neuropathy for the period beginning April 17, 2019, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to April 17, 2019, is remanded. FINDINGS OF FACT 1. The Veteran’s left upper extremity peripheral neuropathy was manifested by no more than moderate incomplete paralysis of the minor extremity during the period prior to November 21, 2017. 2. The Veteran’s left upper extremity peripheral neuropathy was manifested by no more than moderate incomplete paralysis of the minor extremity during the period between November 21, 2017, to April 17, 2019. 3. The Veteran’s left upper extremity peripheral neuropathy is manifest by no more than moderate incomplete paralysis of the minor extremity during the period beginning April 17, 2019. 4. The evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities preclude gainful employment consistent with his education and occupational experience for the period beginning April 17, 2019. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent for left upper extremity peripheral neuropathy during the period prior to November 21, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. 2. The criteria for a disability rating of 20 percent for left upper extremity peripheral neuropathy during the period between November 20, 2017, and April 17, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. 3. The criteria for a disability rating in excess of 20 percent for left upper extremity peripheral neuropathy during the period beginning April 17, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. 4. The criteria for a TDIU during the period beginning April 17, 2019 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to October 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in November 2017. A transcript of the hearing is associated with the Veteran’s claims folder. This claim was previously before the Board in September 2018 at which point the Board denied a rating in excess of 10 percent for left upper extremity peripheral neuropathy for the period prior to November 21, 2017, denied a compensable rating for right lower extremity peripheral neuropathy for the period prior to February 7, 2013, and granted a 10 percent rating for right lower extremity peripheral neuropathy for the period between February 7, 2013 to November 20, 2017. Additionally, the Board remanded claims for entitlement to an increased rating for right lower extremity peripheral neuropathy for the period beginning November 21, 2017, entitlement to an increased rating for left upper extremity peripheral neuropathy for the period beginning November 21, 2017, and entitlement to service connection for left lower extremity peripheral neuropathy. The Veteran appealed the Board's September 2018 decision insofar as it denied a rating in excess of 10 percent for left upper extremity peripheral neuropathy for the period prior to November 21, 2017, denied a compensable rating for right lower extremity peripheral neuropathy for the period prior to February 7, 2013, denied a rating in excess of 10 percent for right lower extremity peripheral neuropathy for the period of February 7, 2013 to November 20, 2017, and failing to adjudicate a claim for entitlement to a TDIU, to the United States Court of Appeals for Veterans Claims (Court). In July 2019 the Court granted a Joint Motion for Partial Remand (JMPR), vacating the challenged portions of the Board’s September 2018 decision and remanding them for further adjudication. The issues are now returned to the Board for such action. Regarding the claims remanded by the Board in the September 2018 decision, in a June 2020 rating decision the RO granted service connection for left lower extremity peripheral neuropathy. This constitutes a full grant of benefits sought by the Veteran. Therefore, there is no longer a case or controversy regarding the issue of entitlement to service connection for left lower extremity peripheral neuropathy for the Board to consider. The remaining claims have been returned to the Board for further adjudication. 1. Entitlement to an increased rating from 10 to 20 percent for left upper extremity peripheral neuropathy for the period prior to November 21, 2017. 2. Entitlement to an increased rating from 10 to 20 percent for left upper extremity peripheral neuropathy for the period between November 21, 2017 and April 17, 2019. The Veteran contends that he is entitled to an initial rating in excess of 10 percent for left upper extremity peripheral neuropathy. This claim was previously before the Board in September 2018, at which point a 10 percent rating was granted for the period between February 7, 2013 and November 20, 2017. The Board also remanded a claim for a rating in excess of 10 percent for the period after November 20, 2017. As previously noted, the Veteran appealed the Board’s September 2018 decision to the extent that it denied a rating in excess of 10 percent for the period prior to November 21, 2017, to the Court, which subsequently vacated the Board’s decision in a July 2019 JMPR. As to the remanded claim, in a June 2020 rating decision the RO granted a 20 percent rating for left upper extremity peripheral neuropathy effective April 17, 2019. The RO did not address the period of time between November 21, 2017, and April 17, 2019. The Veteran’s medical records indicate that he has paralysis of the left median and ulnar nerves. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8515. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent disabling for the major extremity and 20 percent disabling for the minor extremity. Severe incomplete paralysis is rated as 50 percent disabling for the major extremity and 40 percent disabling for the minor extremity. Complete paralysis with 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 place of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion if middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to the palm; flexion of the wrist weakened; pain with trophic disturbances is rated as 70 percent disabling for the major extremity and 60 percent disabling for the minor extremity. 38 C.F.R. § 4.124a. Paralysis of the ulnar nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8516. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent disabling for the major extremity and 20 percent disabling for the minor extremity. Severe incomplete paralysis is rated as 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity. Complete paralysis with a “griffin claw” deformity due to flexor contraction of the ring and little fingers, very marked atrophy in the dorsal interspace and thenar and hypothenar eminences, loss of extension of the ring and little fingers, inability to spread the fingers (or reverse), inability to adduct the thumb, and weakened flexion of the wrist, is rated as 60 percent disabling for the major extremity and 50 percent disabling for the minor extremity. 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 picture 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 Board notes that the Veteran is right-handed. (11/21/2017, Hearing Transcript, p. 15). Therefore, in evaluating the severity of his left upper extremity peripheral neuropathy, the Board will use the “minor” rating scale. The Veteran was afforded a peripheral neuropathy examination in August 2012. He reported moderate constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness. Strength was reduced in elbow flexion, elbow extension, grip, and pinch. Despite the noted reduced strength, no atrophy was noted. Reflexes and sensation were normal, and no trophic changes were observed. (8/21/2012, VA Examination, p. 6-8). The Veteran underwent another peripheral neuropathy examination in February 2013. He reported moderate paresthesias and moderate numbness. Pain was not endorsed. Strength was normal with no signs of muscle atrophy. Likewise, reflexes were normal. Sensation in the left hand and fingers was decreased. No trophic changes were noted. The examiner opined that the Veteran’s symptoms were consistent with mild incomplete paralysis of the left ulnar nerve. (2/7/2013, VA Examination, p. 3-6, 8). The Veteran’s next VA peripheral neuropathy examination was conducted in April 2019. He reported moderate constant pain, mild intermittent pain, moderate paresthesias, and mild numbness. Strength was normal with no signs of muscle atrophy. Likewise, reflexes were normal. Sensation in the left hand and fingers was decreased. Cold sensation in the left upper extremity was decreased. No trophic changes were noted in the left upper extremity. The examiner opined that the Veteran’s symptoms were consistent with mild incomplete paralysis of the left median and ulnar nerves. (4/17/2019, C&P Examination, p. 2-6). Based on the above, the Board finds that the disability is primarily manifest by moderate constant pain, moderate paresthesias, moderate numbness, and reduced sensation. Thus, despite the characterizations of the examiners, the Board finds that the level of impairment is most analogous to moderate incomplete paralysis for the period prior to November 21, 2017. The Board acknowledges that the Veteran did not undergo a VA examination during the six-year period between the February 2013 and April 2019 examinations. However, given the relative consistency of the reported symptoms in each of the cited VA examinations and the lack of evidence suggesting that the Veteran’s symptoms improved during the period between November 21, 2017, and April 17, 2019, the Board finds that the evidence is in relative equipoise as to whether the severity of the symptoms during this period constituted moderate incomplete paralysis. Therefore, affording the Veteran the benefit of the doubt, the Board finds that his level of impairment is most analogous to moderate incomplete paralysis for the period between November 21, 2017, and April 17, 2019. While a rating increase to 20 percent is warranted during the period in question, as discussed above, the Board finds that a rating in excess of 20 percent is not warranted, as the level of impairment of the Veteran’s symptoms did not rise to the level of severe. In this regard, the Veteran did not endorse severe subjective symptoms. Moreover, his reflexes were normal throughout the period on appeal, no muscle atrophy was noted, and no tropic changes of the left upper extremity were noted. The Board acknowledges that a reduction of strength was noted in the August 2012 examination, however, the Veteran’s strength was normal during the subsequent examinations. As such, the Board concludes that the Veteran’s level of impairment does not rise to the level of severe. The Board has 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 Veteran’s level of impairment most closely approximates a finding of moderate incomplete paralysis. Therefore, a 20 percent rating is warranted. 3. Entitlement to a rating in excess of 20 percent for left upper extremity peripheral neuropathy for the period beginning April 17, 2019. The Veteran contends that he is entitled to a rating in excess of 20 percent for left upper extremity peripheral neuropathy. As noted in the previous section, in a September 2018 Board decision, a claim for entitlement to a rating in excess of 10 percent for the period after November 20, 2017, was remanded. In a June 2020 rating decision, the RO granted a 20 percent rating for left upper extremity peripheral neuropathy effective April 17, 2019. As the RO’s grant of an increased rating does not constitute a full grant of benefits sought, the Board will now consider entitlement to a rating in excess of 20 percent for the period beginning April 17, 2019. As detailed above, the Veteran underwent a VA peripheral neuropathy examination in April 2019. He reported moderate constant pain, mild intermittent pain, moderate paresthesias, and mild numbness. Strength was normal, with no signs of muscle atrophy. Likewise, reflexes were normal. Sensation in the left hand and fingers was decreased. Cold sensation in the left upper extremity was decreased. No trophic changes were noted in the left upper extremity. The examiner opined that the Veteran’s symptoms were consistent with mild incomplete paralysis of the left median and ulnar nerves. (4/17/2019, C&P Examination, p. 2-6). Based on the above, the Board finds that the disability is primarily manifest by moderate constant pain, mild intermittent pain, moderate paresthesias, mild numbness, and decreased sensation. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis for the period beginning April 17, 2019. A rating in excess of 20 percent is not warranted as the level of impairment of the Veteran’s symptoms did not rise to the level of severe. In this regard, he did not endorse severe subjective symptoms. Moreover, his strength and reflexes were normal, with no evidence of tropic changes or muscle atrophy. As such, the Board concludes that the Veteran’s level of impairment does not rise to the level of severe. The Board has 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 Veteran’s level of impairment most closely approximates a finding of moderate incomplete paralysis. Therefore, a rating in excess of 20 percent is not warranted. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period beginning April 17, 2019. Based on a review of the record, the Board finds that the Veteran’s service-connected disabilities preclude substantially gainful employment. A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is 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), 4.19, 4.25.    Generally, to be eligible for a TDIU, a schedular percentage threshold must be met.  If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling.  If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).    In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)).  The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107. The Veteran was last employed in May 2012 as a carpenter. His social security administration records confirm that he last earned income in 2012. (10/22/2020, SSA Letter, p. 2). For the period on appeal, service connection has been in effect for the following disabilities: diabetes mellitus, type 2 (20 percent from March 28, 2012), right upper extremity peripheral neuropathy (20 percent from April 17, 2019), left upper extremity peripheral neuropathy (20 percent from April 17, 2019), right lower extremity peripheral neuropathy of the sciatic nerve (10 percent from April 17, 2019), left lower extremity peripheral neuropathy of the sciatic nerve (10 percent from April 17, 2019), left lower extremity peripheral neuropathy of the femoral nerve (10 percent from April 17, 2019), and right lower extremity peripheral neuropathy of the femoral nerve (10 percent from April 17, 2019). His combined rating is 70 percent from April 17, 2019. As such, the Veteran meets the threshold requirements set forth under 38 C.F.R. § 4.16(a) as of April 17, 2019. Therefore, the Board must determine if the aforementioned service-connected disabilities preclude substantially gainful employment during this period.   In this regard, the Veteran submitted a private vocational opinion, dated September 25, 2020, wherein a private examiner opined that the Veteran is “unable to maintain gainful employment in a physical or sedentary capacity due to [his] peripheral neuropathy and diabetes since May 2012.” (10/22/2020, Medical Treatment Records, p. 4). The private examiner indicated that the Veteran’s neuropathy would prevent him from working as a carpenter, as he would not be able to “climb scaffolding” as his previous employment required. The examiner further indicated that neuropathy in his feet prevents the Veteran from standing for long periods, while neuropathy in his hands prevents him from grasping and feeling the tools necessary to complete his work. Finally, the examiner noted that the Veteran experiences “dizzy spells” and “near syncopal episodes” related to his service-connected diabetes mellitus that would pose a safety risk if he were to be employed. Based on the aforementioned, the Board concludes that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Accordingly, a TDIU is warranted for the period beginning April 17, 2019. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for right lower extremity peripheral neuropathy for the period prior to February 7, 2013, is remanded. 2. Entitlement to a compensable rating for right lower extremity peripheral neuropathy for the period between November 21, 2017, and April 17, 2019, is remanded. 3. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy for the period between February 7, 2013, and November 20, 2017, is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Evidence indicates that there may be outstanding relevant VA treatment records. Specifically, VistA Imaging systems’ images and documents of a February 4, 2013, EMG report is not associated with the claims file. (11/6/2020, CAPRI, p. 209). Any VA treatment records are within VA’s constructive possession and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. A copy of the February 2013 EMG report is needed to determine which nerves were affected by the Veteran’s peripheral neuropathy, and by association, which diagnostic code to apply. The Board acknowledges that the February 2013 examiner indicated that the EMG found mild peroneal neuropathy. (2/7/2013, VA Examination, p. 16). However, the absence of the EMG report in the Veteran’s records frustrates the Board’s review of his claim. Therefore, a remand is warranted. 4. Entitlement to a rating in excess of 10 percent for right lower extremity sciatic nerve peripheral neuropathy for the period beginning April 17, 2019, is remanded. 5. Entitlement to a rating in excess of 10 percent for right lower extremity femoral nerve peripheral neuropathy for the period beginning April 17, 2019, is remanded. 6. Entitlement to a rating in excess of 10 percent for right lower extremity peroneal nerve peripheral neuropathy for the period beginning April 17, 2019, is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board notes that the Veteran was afforded a VA peripheral neuropathy examination in April 2019. However, this examination is inadequate to determine the current severity of the Veteran’s right lower extremity peripheral neuropathy as the examination appears to be incomplete. In this regard, while the examiner did opine on the severity of sciatic and femoral nerve neuropathy, the examiner did not address the severity of peroneal nerve neuropathy. (4/17/2019, C&P Exam, p. 6). The Veteran was previously diagnosed with incomplete paralysis of the peroneal nerve during a February 2013 examination. (2/7/2013, VA Examination, p. 11). The lack of information regarding the current severity of peroneal nerve neuropathy prevents the Board from fully adjudicating the claim. As such, the claim must be remanded for further development. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to April 17, 2019, is remanded. The Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) during the period prior to April 17, 2019. Therefore, the claim for TDIU must be remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's complete VA medical records, including any and all VistA clinical images, data, results, or documents. Of particular interest is an EMG test dated February 4, 2013. Any negative search results must be noted in the claims file and communicated to the Veteran. (Continued on the next page)   2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right lower extremity peripheral neuropathy, to include neuropathy of the sciatic, femoral, and peroneal nerves. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner – MUST – address the current severity of neuropathy of the sciatic, femoral, and peroneal nerves. 3. Refer the Veteran’s claim for TDIU for the period prior to April 17, 2019, to VA’s Director of Compensation Service for extraschedular consideration. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.