Citation Nr: 21011214 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 06-14 115 DATE: March 1, 2021 ORDER Entitlement to an initial rating greater than 10 percent for peripheral neuropathy of the left upper extremity (for accrued purposes), is denied. Entitlement to an initial rating greater than 10 percent for peripheral neuropathy of the right upper extremity (for accrued purposes), is denied. FINDING OF FACT The Veteran’s service-connected neuropathy of the right and left upper extremities was each manifested by intermittent pain, numbness and tingling approximating no worse than mild incomplete paralysis of the median nerve; a diagnosis of peripheral neuropathy of either upper extremity is not confirmed by objective testing. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for service-connected neuropathy of the right upper extremity are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Codes (DCs) 8699-8615 (2020). 2. The criteria for an initial disability rating greater than 10 percent for service-connected neuropathy of the left upper extremity are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Codes (DCs) 8699-8615 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from April 1965 to March 1969. Unfortunately, the Veteran died in February 2010. The appellant is his surviving spouse who has been substituted as the appellant in this appeal. This appeal before the Board of Veterans’ Appeals (Board) arose from a February 2003 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, granted service connection for neuropathy of the upper extremities, each evaluated as 10 percent disabling, effective May 8, 2001. The Veteran disagreed with the initial ratings assigned and perfected an appeal to the Board. In June 2009, the Veteran testified during a Board hearing before a Veterans Law Judge (VLJ) at the RO. When that VLJ retired from employment with the Board, a January 2021 letter was sent requesting clarification whether the substituted appellant wanted a new hearing. The letter informed the appellant that she was entitled to another hearing with a different VLJ or if she did not respond within thirty days, the Board will assume that she does not want another hearing and proceed accordingly. The appellant did not respond, and the case has been reassigned to the undersigned for the purposes of this decision. A transcript of that hearing is of record. In a February 2019 decision, the Board, inter alia, denied initial disability ratings greater than 10 percent, each, for service-connected neuropathy of the right and left upper extremities. Thereafter, the Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Veteran’s then representative and VA’s General Counsel filed a Joint Motion for Partial Remand (JMPR or Joint Motion) with the Court to vacate the Board’s decision insofar as it had denied initial disability ratings greater than 10 percent for service-connected neuropathy of the right and left upper extremities. (The Board notes that in its February 2019 action, the Board had also denied higher ratings for service-connected sciatic neuropathy of the right and left lower extremities; in their Joint Motion, the parties noted that the appellant had elected not to challenge the Board’s denial of these claims and the requested that the Court dismiss the appeal with regard to those claims.) In February 2020, the Court granted the parties’ Joint Motion and the issue of entitlement to initial ratings greater than 10 percent for neuropathy of the right and left upper extremities were remanded to the Board for further proceedings consistent with the Joint Motion. The matter was before the Board once again in August 2020. The Board remanded the issues for additional development consistent with the terms of the JMPR. The requested development has been completed and the matter is properly before the Board once again and the Board finds that there has been substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial rating greater than 10 percent for peripheral neuropathy of the left upper extremity (for accrued purposes) 2. Entitlement to an initial rating greater than 10 percent for peripheral neuropathy of the right upper extremity (for accrued purposes) The appellant contends that a rating greater than 10 percent is warranted for peripheral neuropathy of the Veteran’s right and left upper extremities. The Veteran's service-connected peripheral neuropathy of the right and left upper extremities has each been evaluated as 10 percent disabling under 38 C.F.R. § 4.124a, DC 8699-8615, which here indicates a non-listed neurological disability (DC 8699) evaluated, by analogy, to neuritis of the median nerve. See 38 C.F.R. §§ 4.20, 4.27. That code provides ratings that are the same as, or higher than, those provided under other potentially applicable codes. Under DC 8615, a 10 percent rating is assigned for mild incomplete paralysis major or minor side); a 30 percent rating is assigned for moderate incomplete paralysis of the major side (20 percent for minor side); a 50 percent rating is assigned for severe incomplete paralysis of the major side (40 percent for the minor side); a 70 percent rating is assigned for complete paralysis of the major side (60 percent of the minor side); complete paralysis of the median nerve is characterized by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand; pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, inability to make a fist, index and middle fingers remaining extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb at right angles to the palm; flexion of the wrist weakened; and pain with trophic disturbances. 38 C.F.R. § 4.124a, DC 8615. Further, the term "incomplete paralysis" with this and other peripheral nerve injuries 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Moreover, for neuritis not characterized by the organic changes referenced above, the maximum is moderate incomplete paralysis. 38 C.F.R. § 4.123. The Board previously found that in light of points raised in the Joint Motion, and further review of the claims file, in denying higher initial ratings for the Veteran’s peripheral neuropathy of the right and left upper extremities, the Board, in its February 2019 decision, found particularly probative the Veteran’s assessment of his symptoms and a 2018 VA examiner’s explanation of why the Veteran’s complained of symptoms could not be conclusively attributed to neuropathy, as diagnostic tests did not confirm a diagnosis of upper extremity neuropathy. In the Joint Motion, however, the parties agreed that the 2018 VA examination was not adequate to rely upon for adjudication purposes because the VA examination “did not fully discuss or reconcile her findings with those of an April 2007 addendum to the March 2007 examination, which indicated the Veteran’s test results were “consistent with mild axonal polyneuropathy, most likely due to diabetes mellitus.” The parties also noted that the VA examiner “also did not discuss or reconcile her findings with those contained in an October 2007 VA examination report, which the diagnosed ‘mild diabetic peripheral neuropathy of all four extremities.” The parties thus agreed with a remand was warranted to obtain a new VA medical opinion in which the reviewing clinician addresses and April and October 2007 medical findings. Accordingly, given the terms of the parties’ Joint Motion, the issues of entitlement to initial disability ratings greater than 10 percent for service-connected neuropathy of the right and left upper extremities were previously remanded for the AOJ to obtain an addendum medical opinion. A post-remand VA examination was afforded to the Veteran in October 2020. However, after a thorough review of the record, the examiner opined that it is less likely as not (less than 50% probability) that the Veteran had peripheral neuropathy of the right or left upper extremity. The October 2020 VA examiner reviewed the findings of the March 2007 VA examination and noted that there was an evaluation of peripheral neuropathy in 2000. The Veteran reported having burning and tingling pain in his toes and soles of his feet, cold sensation in feet most of the time, and pain worse with ambulation, balance reported to be impaired, bilateral foot pain and tingling and similar sensation in all fingers and medial palm, sense of numbness in hands "which has caused him to have poor dexterity and drop objects frequently. The examiner noted that the Veteran underwent an Electromyography (EMG) 2003, which showed evidence of very mild early peripheral neuropathy and borderline prolonged median distal latencies suggesting mild median nerve compressions at the wrist." The examination noted sensory to show that light touch, push pull, temperature was decreased at fingertips and absent at toes bilaterally and that sensation normalized just above ankles and around MCP joints of hands. The conclusions from this report were of polyneuropathy "most likely due to Diabetes" and "left thenar atrophy possibly due to carpal tunnel syndrome.” Therefore, the March 2007 examination impression was that the 2003 EMG/NCV (Nerve Conduction Velocity) supported lower extremity neuropathy and possible median nerve compressions at the wrist. The exam supported decreased sensation in the fingertips and in the feet to the ankle level, and a diagnosis of polyneuropathy and possible carpal tunnel syndrome. The examiner noted that shortly after the March 2007 VA examination, the Veteran had nerve studies again in April 2007. EMG/NCV was noted to be done for numbness in the hands and feet. The study was found to be “minimally abnormal, showing small amplitude peroneal sensory response, suggestive of a neuropathy, although non diagnostic. All other tests were normal. No electrodiagnostic evidence of bilateral median neuropathy across the wrists was found. Therefore, the study was noted to be "suggestive of a neuropathy" in the lower extremity but did not support objective evidence of upper extremity polyneuropathy, nor upper extremity median neuropathy. An April 2007 addendum opinion was issued after the EMG/NCV test noted above. The examiner found that the study was consistent with mild axonal polyneuropathy, most likely due to diabetes mellitus. This was noted to be more likely the reasoning behind the patient's numbness and extremity pain, although the data did not show clear progression of neuropathy compared to the 2003 EMG. There was no evidence of carpal tunnel syndrome. The examiner noted that although the addendum opinion did not specify the location of the "mild axonal polyneuropathy," per the opinion, based on the findings of the April 2007 EMG/NCV the examiner observed that lower extremity polyneuropathy was the only possibility. An October 2007 VA examination diagnosed the Veteran with mild diabetic peripheral neuropathy in all four extremities. However, the October 2020 examiner found that this diagnosis was inconsistent with the evidence of record as it does not support upper extremity neuropathy based on objective findings. The examiner also reviewed the findings of a July 2002 diabetes examination. However, the examiner found that objective testing at the time only showed diabetic neuropathy of the lower extremities and not upper extremities during that examination. A review of the VA treatment records, as well as a review of the hearing testimony provided in June 2009 was also conducted by the examiner. However, the examiner confirmed his conclusion that the Veteran did not have a diagnosis of peripheral neuropathy in the upper extremities after a thorough review of the record, although a February 2003 rating decision granted service connection for bilateral upper and lower extremity peripheral neuropathy secondary to diabetes. If a diagnosis was provided, it was found to be inconsistent with the evidence of record. In adjudicating a claim, the competence and credibility of the Veteran and other lay persons must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran is competent to present as evidence what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Similarly, the appellant can present lay evidence based on her observations. The Veteran’s and the appellant’s statements have been considered and the Board finds that the statements are outweighed by the clinical findings of record. The Board assigns greater probative value to the clinical findings in the VA examination reports and clinical records that were recorded following physical examinations of the Veteran, based on the medical expertise of the examining physicians. These are more probative than the Veteran's and appellant’s assertions that the Veteran’s neuropathy worsened. There is no indication that the Veteran had, or the appellant currently has the requisite medical expertise or knowledge to determine the severity of his peripheral neuropathy, pursuant to rating criteria, which has not been shown by the clinical evidence of record. Thus, the Veteran’s and appellant’s lay assertions regarding severity of his peripheral neuropathy are not credible. Accordingly, a higher rating during the period on appeal is not warranted as moderate incomplete paralysis of the median nerve is not shown at any point during the appeal period in order to grant a higher rating. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Based on the foregoing, a rating greater than 10 percent is not warranted for peripheral neuropathy of the Veteran’s right and left upper extremities, and the claim is denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.