Citation Nr: 21010252 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-23 187 DATE: February 24, 2021 ORDER An initial higher disability rating of 30 percent, but no higher, for peripheral neuropathy right upper extremity prior to August 26, 2008 is granted. An initial disability rating of 20 percent, but no higher, for peripheral neuropathy left upper extremity prior to August 26, 2008 is granted. An initial disability rating in excess of 50 percent from August 26, 2008 for peripheral neuropathy right upper extremity is denied. An initial disability rating in excess of 40 percent from August 26, 2008 for peripheral neuropathy left upper extremity is denied. An earlier effective date of December 7, 2006 for the award of a total disability rating based on individual unemployability due to service-connected disability is granted. An earlier effective date of December 7, 2006 for the award of special monthly compensation (SMC) at the statutory housebound rate is granted. REMANDED Entitlement to an effective date prior to July 1, 2016 for the award of SMC at the intermediate rate between 38 U.S.C. § 1114 (l) & (m) is remanded. Entitlement to a higher level of SMC based on the need for regular aid and attendance is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s peripheral neuropathy right upper extremity was of a moderate rather than a mild severity prior to August 26, 2008. 2. The evidence is at least evenly balanced as to whether the Veteran’s peripheral neuropathy left upper extremity was of a moderate rather than a mild severity prior to August 26, 2008. 3. From August 26, 2008, the Veteran’s peripheral neuropathy right upper extremity is rated as 50 percent disabling, which is the maximum schedular rating permitted for incomplete paralysis of the median nerve group of the major extremity; the Veteran did not have peripheral neuropathy of all radicular groups. 4. From August 26, 2008, the Veteran’s peripheral neuropathy left upper extremity is rated as 40 percent disabling, which is the maximum schedular rating permitted for incomplete paralysis of the median nerve group of the minor extremity; the Veteran did not have peripheral neuropathy of all radicular groups. 5. As of December 7, 2006, the Veteran was in receipt of service connection for peripheral neuropathy of the bilateral lower extremities, which rendered him unable to secure and follow substantially gainful employment. 6. As of December 7, 2006, the Veteran is considered to be in receipt of service connection for one disability considered as totally disabling with additional service-connected disability independently ratable as 60 percent disabling. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the appellant’s favor, the criteria for a 30 percent disability rating but no higher for peripheral neuropathy right upper extremity have been met prior to August 26, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. 2. Resolving all reasonable doubt in the appellant’s favor, the criteria for a 20 percent disability rating but no higher for peripheral neuropathy left upper extremity have been met prior to August 26, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8515. 3. From August 26, 2008, the criteria for a disability rating in excess of 50 percent for peripheral neuropathy right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8515. 4. From August 26, 2008, the criteria for a disability rating in excess of 40 percent for peripheral neuropathy left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8515. 5. The criteria for an earlier effective date of December 7, 2006 for the award of a total disability rating based on individual unemployability due to service-connected disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. 6. The criteria for SMC based on statutory housebound status have been met from December 7, 2006. 38 U.S.C. §§ 1114; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to April 1972. The Veteran passed away in October 2018 and the appellant is his surviving spouse. She has been substituted for the Veteran in continuing to pursue these appeals. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Concerning the claims for increased ratings for right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy, a January 2008 rating decision granted service connection for right and left upper extremity peripheral neuropathy and assigned a 10 percent rating for each effective September 19, 2007. A March 2010 rating decision increased the ratings for the right and left upper extremity peripheral neuropathy to 50 and 40 percent, respectively, effective August 26, 2008, the date of a VA examination report. In November 2015, the Board determined that new and material evidence was received within the one-year period to appeal the January 2008 rating decision concerning the assigned initial ratings for the right and left upper extremity peripheral neuropathy. Therefore, the January 2008 rating decision is on appeal concerning the claims for higher initial ratings for right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy. The Veteran participated in a hearing before the undersigned Veterans Law Judge in May 2015. A transcript of the hearing is associated with the claims folder. In November 2015, the Board remanded the issues of entitlement to higher evaluations for peripheral neuropathy of the upper and lower extremities for further development, and denied the Veteran’s claim for SMC for loss of use of the bilateral upper and lower extremities. The Veteran appealed the Board’s denial of entitlement to SMC for loss of use of the bilateral lower extremities to the Court of Appeals for Veterans Claims (Court), and in a May 2016 Order, the Court vacated the portion of the November 2015 decision that denied entitlement to SMC for loss of use of the lower extremities, and remanded the matter to the Board for action consistent with the parties’ Joint Motion for Partial Remand (JMPR). In April 2016 the Board issued a decision granting initial disability ratings of 40 percent each for left and right lower extremity peripheral neuropathy, granting an earlier effective date of December 7, 2006 for the award of service connection for posttraumatic stress disorder (PTSD), and denying an initial rating in excess of 40 percent for PTSD. The Board remanded the issues of entitlement to higher initial disability ratings for left and right upper extremity peripheral neuropathy, entitlement to SMC based on the need for regular aid and attendance, and entitlement to an effective date prior to August 30, 2007 for the award of a TDIU for further development. While the appellant’s attorney has submitted statements indicating that the appellant continues to seek higher ratings for peripheral neuropathy of the bilateral lower extremities as well as an earlier effective date for the award of service connection for PTSD, the record does not reflect that the Veteran appealed the Board’s April 2016 decision on these issues to the Court. They are therefore not on appeal at this time. In January 2017, the Board remanded the issue of entitlement to SMC based on the loss of use of the bilateral lower extremities for further development. In a September 2017 decision, a Decision Review Officer granted SMC based on the loss of use of the bilateral lower extremities from July 1, 2016, and entitlement to a higher level of SMC, at the intermediate rate between subsections (l) and (m) of 38 U.S.C. § 1114 from July 1, 2016. As this does not account for the entire period on appeal, however, the raised claims of entitlement to an effective date prior to July 1, 2016 for the award of SMC at the intermediate rate between 38 U.S.C. § 1114 (l) & (m) and entitlement to an even higher level of SMC based on the need for regular aid and attendance remain on appeal. Increased Rating Claims Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civilian occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. At of the date of this decision, the Veteran was in receipt of a 10 percent disability rating for his service-connected peripheral neuropathy right upper extremity and a 10 percent disability rating for his service-connected peripheral neuropathy left upper extremity prior to August 26, 2008, which was increased to 50 percent for the right upper extremity and 40 percent for the left upper extremity thereafter, under DC 8599-8520. This designation means it is rated by analogy to incomplete paralysis of the median nerve under 38 C.F.R. § 4.124a. Under the criteria of DC 8520 for the median nerve, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent 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 plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of 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 palm; flexion of wrist weakened; pain with trophic disturbances, is rated as 70 percent for the major extremity and 60 percent 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). 1. Entitlement to an initial higher disability rating of 30 percent, but no higher for peripheral neuropathy right upper extremity prior to August 26, 2008 is granted. 2. Entitlement to an initial disability rating of 20 percent, but no higher for peripheral neuropathy left upper extremity prior to August 26, 2008 is granted. In a March 2007 letter, an individual with medical training who indicated that she knew the Veteran personally and professionally indicated that the Veteran’s diabetes had progressed to the point where he then had “severe neuropathy of both his feet and upper extremities.” At a September 2007 VA neurological examination, the Veteran reported pain, numbness, tingling, and burning sensation in the hands, forearms, forelegs, and feet on both sides, with symptoms starting a few years prior and progressing in severity. On neurologic examination, there was decreased pinprick, light touch, vibration, and proprioception in the high glove distribution, with deep tendon reflexes diffusively suppressed. The examiner diagnosed diabetic peripheral neuropathy, severe, affecting both upper extremities and both lower extremities. At the September 2007 diabetes examination, the Veteran reported that he had some symptoms in his hands and arms, both bilaterally, and reported a decreased range of motion in his arms, primarily his shoulders, and a decreased grasp with numbness, pain, and tingling in the upper extremities. The report states that his symptoms were “constant and waxing and waning in nature.” On physical examination, range of motion of the extremities was found to be within normal limits, with strength testing showing some decrease in hand grasp. VA treatment records prior to August 26, 2008 do not document complaints of upper extremity symptoms, but do include complaints of lower extremity neurological symptoms. In considering the evidence of record, the Board finds that prior to August 26, 2008, the weight of the evidence demonstrates peripheral neuropathy of the upper extremities that is best categorized as moderate, rather than mild or severe. Although the VA examiner and lay statement of record describe the Veteran’s neuropathy as “severe,” the factual determination concerning severity under the rating schedule is for the adjudicator. The fact that the Veteran did not report complaints pertaining to upper extremity symptoms to his VA physicians, particularly in the context of his neurology consults where he discussed neuropathy of the lower extremities, is found to be especially persuasive. While his symptoms were described as “constant” at the September 2007 diabetes examination, the fact that he also described them as waxing and waning, and that they apparently were not of sufficient severity as to be reported to his treatment providers, leads the Board to conclude that the overall disability picture for his upper extremity peripheral neuropathy prior to August 2008 was better described as moderate, rather than severe. Because the September 2007 examination documented decreased reflexes and some loss of grip strength, a higher award for moderate, rather than mild, incomplete paralysis is found warranted. The Board has also considered whether a higher rating might be available under another diagnostic code. However, while the Veteran described limitations pertaining to range of motion of the shoulder, the medical evidence of record, including a July 2017 VA examination report, indicates that the Veteran’s median nerve was affected, rather than his radial or ulnar nerves. An additional medical opinion was provided in June 2020, in which the reviewing physician concluded that the evidence demonstrated involvement of the middle and lower radicular groups, but that there were no objective findings pertaining to the upper radicular group. The neuropathy can therefore not be classified as affecting all radicular groups, which is the only other set of diagnostic codes for which a disability rating greater than 30 percent for the major and 20 percent for the minor extremity is potentially available for moderate incomplete paralysis. A preponderance of the evidence having been found to weigh against the award of a disability rating in excess of 30 percent for peripheral neuropathy of the right upper extremity and 20 percent for peripheral neuropathy of the left upper extremity prior to August 26, 2008, there is no reasonable doubt to be resolved in the appellant’s favor. A higher initial disability rating of 30 percent for peripheral neuropathy of the right upper extremity and 20 percent for peripheral neuropathy of the left upper extremity prior to August 26, 2008 is granted. 3. From August 26, 2008, entitlement to an initial disability rating in excess of 50 percent for peripheral neuropathy right upper extremity is denied. 4. From August 26, 2008, an initial disability rating in excess of 40 percent for peripheral neuropathy left upper extremity is denied. From August 26, 2008 until his death in October 2018, the Veteran was in receipt of the maximum schedular evaluation available under DC 8515 for incomplete paralysis of the median nerve. There is therefore no basis to award a higher evaluation. The Board has considered all other potentially applicable diagnostic codes, but as explained above, the evidence does not demonstrate that the Veteran’s peripheral neuropathy affected all radicular groups, which is the only diagnostic code for diseases of the peripheral nerves under which higher evaluations may be assigned for severe incomplete paralysis. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the evidence is against a rating in excess of 50 percent for peripheral neuropathy of the right upper extremity and in excess of 40 percent for peripheral neuropathy of the left upper extremity from August 26, 2008. 5. Entitlement to an earlier effective date of December 7, 2006 for the award of a total disability rating based on individual unemployability due to service-connected disability is granted. In a June 2010 rating decision, the RO granted a TDIU effective from August 30, 2007 to August 26, 2008. The RO explained that the dates reflected the date the Veteran met the schedular criteria for consideration of individual unemployability, and the date the Veteran was assigned a combined schedular 100 percent evaluation for service-connected disabilities. The Board notes, however, that subsequent decisions have resulted in the Veteran meeting the schedular numeric criteria for a TDIU from an earlier date. As the Veteran had appeals seeking higher initial disability ratings pending for which a claim for a TDIU has been found to be part and parcel, the Board may consider whether a TDIU may be awarded from an earlier date. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that a claim for a TDIU rating is part of an increased rating claim when such a claim is raised by the record). It is the established policy of VA 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). A TDIU will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 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, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability 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). For purposes of the regulation, disabilities resulting from a common etiology or a single accident are considered to be “one disability,” and their ratings are combined to determine eligibility. The effective date of the award of a TDIU shall be the date entitlement arises, but shall not be earlier than the date of receipt of the application, unless such entitlement arose within the one-year preceding receipt. See 38 U.S.C. § 5110, 38 C.F.R. § 3.400. While pursuing the claim, the Veteran consistently asserted that the severity of his diabetes and associated peripheral neuropathy of the lower extremities rendered him physically unable to perform his job working construction, and led to his retirement in 2006. While his April 2008 TDIU application indicated that he was unable to work because of his service-connected diabetes mellitus and ankle disabilities, as well as a nonservice-connected back disability, the weight of the evidence leads to a conclusion that the severity of the Veteran’s peripheral neuropathy of the lower extremities, alone, was sufficient to support an award of a TDIU. In this regard, the Board notes that an August 2008 VA examiner opined that the Veteran’s most significant medical issue impacting his employability was his severe peripheral neuropathy of the lower extremities, which was found to preclude both physical and sedentary employment. Even if his lower extremity impairment did not preclude sedentary employment, the Board notes that the Veteran’s educational and occupational history would not have prepared him for sedentary employment. The effective date of the grant of service connection for peripheral neuropathy of the bilateral lower extremities is December 7, 2006, with a 40 percent rating assigned for each lower extremity. At that time, the Veteran had a combined disability rating of 80 percent. The Veteran thus met the schedular numeric criteria for a TDIU on December 7, 2006, and is found to have been rendered unable to secure and follow a substantially gainful occupation as of this date. An earlier effective date of December 7, 2006 may be assigned for the award of TDIU. The Board acknowledges that it has been argued that the severity of the Veteran’s service-connected PTSD led to conflict with coworkers and managers and resulted in him leaving a number of positions, and alone would be sufficient to prevent his employment. However, his long period of self-employment in construction (10+ years) until his physical condition deteriorated to the point where he had to stop working demonstrates that he was in fact able to maintain substantially gainful employment despite his PTSD symptoms. Therefore, although the Veteran met the schedular numeric criteria for an award of TDIU based on his 70 percent evaluation for PTSD from September 2005, it was not until service-connected went into effect for his lower extremity peripheral neuropathy that his service-connected disabilities prevented him from securing and following a substantially gainful occupation. Therefore, an effective date for the award of a TDIU prior to December 7, 2006 is not found warranted. 6. Entitlement to an earlier effective date of December 7, 2006 for the award of SMC at the statutory housebound rate is granted. Special monthly compensation may be payable at a specified rate if a veteran, as the result of service-connected disability, has one service-connected disability rated as 100 percent disabling and separate disability rated at 60 percent or higher or is permanently housebound. The veteran will be found to be permanently housebound if, due to service-connected disabilities, he is substantially confined to his home or the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that such confinement will continue throughout the veteran’s lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Board has considered whether the award of a TDIU in this case could substitute for the one service-connected disability rated as 100 percent disabling for purposes of assigning an earlier effective date for the award of SMC. As described in greater detail above, the weight of the evidence demonstrates that the severity of the Veteran’s service-connected peripheral neuropathy of the lower extremities, alone, was sufficient to support the award of a TDIU from December 7, 2006. Thus, from December 7, 2006, the Veteran could be considered to be in receipt of a 100 percent evaluation for his service-connected peripheral neuropathy, bilateral lower extremities, as well as additional separate disability rated as 60 percent or higher. An earlier effective date for the award of SMC at the statutory housebound rate is therefore warranted from December 7, 2006. REASONS FOR REMAND 1. Entitlement to an effective date prior to July 1, 2016 for the award of special monthly compensation at the intermediate rate between 38 U.S.C. § 1114 (l) & (m) due to loss of use of the bilateral lower extremities is remanded. In January 2017, the Board remanded the matter of entitlement to special monthly compensation based on the loss of use of the bilateral lower extremities for further development. In part, it directed that the AOJ must obtain an examination and medical opinion concerning the Veteran’s remaining function of the lower extremities which specifically addressed what limitation the Veteran would have experienced were his legs to have been amputated and he had a suitable prosthetic device. An additional VA examination was conducted in July 2017, but the examination report does not include the discussion required. Remand is needed for a retrospective medical opinion on whether the Veteran’s service-connected disabilities resulted in the effective loss of use of his lower extremities prior to July 1, 2016, which specifically addresses his retained function as it compares to the type and level of function which he would have retained from amputation and replacement with suitable prosthesis. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). The Board notes that a September 2007 Decision Review Officer decision granted entitlement to special monthly compensation based on the loss of use of the bilateral lower extremities from July 1, 2016. However, as this did not cover the full period on appeal, such award was not a full grant of the benefits sought. 2. Entitlement to a higher level of SMC based on the need for regular aid and attendance is remanded. The appellant has asserted that the Veteran required assistance with dressing throughout and with bathing for a significant portion of the relevant appeal period. The Board notes, however, that in addition to his peripheral neuropathy of the left and right upper extremities, the Veteran was noted to have chronic back pain, and was issued a reacher, black elastic shoelace and a sock aid by VA occupational therapy. It is unclear to what extent the Veteran’s need for assistance in dressing and showering was due to his service-connected rather than nonservice-connected disabilities. On remand, a medical opinion should be sought addressing the extent of functional impairment and need for assistance due solely to service-connected disability. The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion from an appropriate clinician concerning the extent of the Veteran’s retained function to use his lower extremities during the course of the relevant appeal period. The clinician is asked to identify the earliest date (between December 2006 to July 2016) from which, considering only impairment from the Veteran’s service-connected disabilities, no effective function remained other than that which would be equally well-served by amputation with use of a suitable prosthetic appliance. The clinician must describe the Veteran’s actual remaining function over time, and must discuss what functioning the Veteran would have been expected to retain if his legs were amputated and he used prostheses. A complete rationale must be provided for any opinion and/or conclusion stated. 2. Obtain a retrospective medical opinion from an appropriate clinician with sufficient expertise in neurology concerning the severity of the Veteran’s service-connected disabilities as they related to his ability to dress and bathe throughout the course of the relevant appeal period (December 2006 to October 2018). The clinician is asked to provide an opinion as to the earliest date during the relevant appeal period that the Veteran’s service-connected disabilities, alone, resulted in functional impairment requiring the regular aid and attendance of another person to assist him with dressing and undressing himself and/or bathing/showering. To the extent possible, the clinician should distinguish between functional impairment resulting from service-connected disabilities (e.g. left ankle and bilateral upper and extremity peripheral neuropathy) and other nonservice-connected disability (including a back condition). The clinician’s attention is particularly directed toward the following VA occupational therapy notes: September 2011: noting a request for power wheelchair due to diabetes mellitus, chronic back pain, and diabetic neuropathy, and patient status of moderate assistance needed for lower body dressing; February 2014: assistive devices including reacher, black elastic shoelaces, and sock aid were provided to assist the Veteran in dressing his lower extremities. A clear rationale must be provided for any conclusion reached and/or opinion stated. If the clinician cannot determine whether certain functional impairment is more likely than not attributable to a non-service connected, rather than service-connected disability, they should so state. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.