Citation Nr: 21022899 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-29 810 DATE: April 19, 2021 ORDER Entitlement to an initial rating of 30 percent, but no higher, for right upper extremity peripheral neuropathy is granted. Entitlement to an initial rating of 20 percent, but no higher, for left upper extremity peripheral neuropathy is granted. Entitlement to an initial rating greater than 10 percent for right lower extremity peripheral neuropathy prior to April 13, 2016, is denied. Entitlement to an initial rating greater than 10 percent for left lower extremity peripheral neuropathy prior to April 13, 2016, is denied. Entitlement to an increased rating of 40 percent, but no higher, for right lower extremity peripheral neuropathy from April 13, 2016, is granted. Entitlement to an increased rating of 40 percent, but no higher, for left lower extremity peripheral neuropathy from April 13, 2016, is granted. REMANDED Entitlement to an effective date earlier than January 25, 2017, for Dependents Educational Assistance (DEA) Benefits under Chapter 35, United States Code, is remanded. FINDINGS OF FACT 1. For the duration of the appeal, the Veteran’s right upper extremity peripheral neuropathy more nearly approximates moderate incomplete paralysis of the median nerve. 2. For the duration of the appeal, the Veteran’s left upper extremity peripheral neuropathy more nearly approximates moderate incomplete paralysis of the median nerve. 3. Prior to April 13, 2016, the Veteran’s right lower extremity peripheral neuropathy symptomatology does not more nearly approximate moderate incomplete paralysis of the sciatic nerve. 4. Prior to April 13, 2016, the Veteran’s left lower extremity peripheral neuropathy symptomatology does not more nearly approximate moderate incomplete paralysis of the sciatic nerve. 5. Beginning April 13, 2016, the Veteran’s right lower extremity peripheral neuropathy more nearly approximates moderately severe incomplete paralysis of the sciatic nerve. 6. Beginning April 13, 2016, the Veteran’s left lower extremity peripheral neuropathy more nearly approximates moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an increased initial rating of 30 percent, but no higher, for right upper extremity peripheral neuropathy have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8515, 8615 (2020). 2. The criteria for an increased initial rating of 20 percent, but no higher, for left upper extremity peripheral neuropathy have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8515, 8615 (2020). 3. The criteria for a rating greater than 10 percent for right lower extremity peripheral neuropathy prior to April 13, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8520, 8620 (2020). 4. The criteria for a rating greater than 10 percent for left lower extremity peripheral neuropathy prior to April 13, 2016, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8520, 8620 (2020). 5. The criteria for an increased rating of 40 percent for right lower extremity peripheral neuropathy from April 13, 2016, have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8520, 8620 (2020). 6. The criteria for an increased rating of 40 percent for left lower extremity peripheral neuropathy from April 13, 2016, have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8520, 8620 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to February 1968. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In this decision the Agency of Original Jurisdiction (AOJ) effectuated an August 2018 Board decision that granted service connection for peripheral neuropathy of the right and left upper and lower extremities. The AOJ assigned each upper extremity a 10 percent rating effective October 5, 2010, and each lower extremity a 10 percent rating from October 5, 2010, to April 13, 2016, and a 20 percent rating thereafter. The AOJ also granted DEA benefits under Chapter 35 United States Code, effective January 25, 2017. The Board notes that there is a pending motion for reconsideration regarding an April 2020 Board decision that denied an initial rating greater than 30 percent for non-obstructive coronary artery disease, and a rating greater than 30 percent for PTSD prior to January 25, 2017. Also in this decision the Board remanded the issue of entitlement to compensation under 38U.S.C. §1151 for lower back residuals secondary to VA medical treatment (which the Veteran withdrew in June 2020), and the issue of entitlement to an effective date earlier than January 25, 2017, for a total disability rating based on individual unemployability due to service-connected disability (TDIU). The motion for reconsideration and the TDIU issue are currently pending and will be the subject of separate Board decisions. I. Pertinent Criteria The neuropathies of the upper extremities have been rated as neuritis of the median nerve under 38 C.F.R. § 4.124a, DC 8615. The Veteran is noted to be right-handed, making his right arm the major extremity, and his left arm the minor one. The neuropathies of the lower extremities have been rated as neuritis of the sciatic nerve under 38 C.F.R. § 4.124a, DC 8620. VA provides ratings between 10 and 50 percent for impairment of the median nerve. Mild impairment of the major or minor extremity warrants a 10 percent rating, moderate impairment warrants a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity, and severe impairment warrants a 50 percent rating for the major extremity and 40 percent for the minor extremity. Complete paralysis of the median nerve is described as 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. For complete paralysis, a 70 percent rating is warranted for the major extremity and a 60 percent rating is warranted for the minor extremity. VA provides ratings between 10 and 80 percent for impairment of the sciatic nerve. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate, or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a 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. 38 C.F.R. § 4.124a. The Board observes that the terms “mild,” “moderate” and “severe” are not defined in the 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. Neuritis, which is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is rated on the scale provided for injury of the nerve involved. The maximum rating for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124.   II. Facts The Veteran reported at a VA peripheral neuropathy examination in August 2011 that he experienced symptoms of numbness, tingling and pain in both feet and in both hands that started to worsen several years earlier. The examiner stated that the Veteran probably had peripheral neuropathy. He also noted that the Veteran had a history of carpal tunnel syndrome. Examination findings revealed decreased position sense in the left lower extremity, decreased vibration sensation in the right and left lower extremities, and decreased sensation to touch in the right hand/fingers. Strength was normal in the upper and lower extremities as were reflexes. The results of EMG studies performed in July 2010 were noted as being abnormal with moderate to severe chronic bilateral median neuropathies at the wrists (CTS) worse on the right, with severe demyelination (worse on the right) and secondary chronic axonal loss. Mild acute axonal loss was noted to be present only on the right. The Veteran was assessed as having moderate to severe chronic bilateral median neuropathies at the wrists due to carpal tunnel syndrome with severe demyelination (worse on the right) and secondary chronic axonal loss on the right. The Veteran reported in a statement received in May 2013 that he continued to suffer with sometimes unbearable pain in his hands and feet as well as numbing and tingling sensations and loss of feeling in his hands. He said that this has affected his ability to read a newspaper, get dressed and drive a car. The Veteran reported at an August 2014 diabetes examination that he wears wrist splints at night for bilateral CTS and that he has been dropping forks, knives, dishes, and could barely open jars. He also reported that both of his hands hurt making it difficult for him to cut meat. He said that his spouse did most of the household chores. He also noted that despite peripheral neuropathy he could tolerate walking a half a block, standing for10 minutes, driving for 20 minutes, and handling steps. An August 2014 VA peripheral nerve examination report shows the Veteran’s report of pain, tingling and numbness in the hands for many years which was worse at night and with driving. He also reported numbness and tingling in his lower extremities for several years. The examiner noted that the Veteran had a diagnosis of carpal tunnel syndrome and diabetes mellitus, but he did not find that the Veteran had diabetic neuropathy. Upper extremity strength was normal (5/5) bilaterally with the exception of reduced grip and pinch strength (4/5) bilaterally. Knee flexion and extension strength were normal (5/5) bilaterally, and ankle plantar flexion and dorsiflexion were reduced (4/5) bilaterally. Reflexes were normal (2+) with the exception of diminished reflexes of the ankles (1+). Light touch/monofilament testing results were normal in the upper extremities and decreased in the lower extremities. Trophic changes of less hair on the legs was noted. There was no muscle atrophy. The examiner assessed the Veteran as having mild incomplete paralysis of the left and right sciatic nerves. The Veteran reported in a November 2014 statement that he was not able to walk more than 50 yards without stopping to rest his legs and feet. He also said that he had an orthopedic glove on both hands and had trouble with certain tasks such as getting an egg out of the carton and writing. A February 2016 pain medicine clinic follow up record for Veteran’s neck and low back pain reflects his report of bilateral, all fingers, and upper extremity numbness and tingling. Another VA outpatient record in February 2016 shows that the Veteran requested new gloves for his neuropathy. April 2016 EMG studies revealed evidence of a severe chronic axonal polyneuropathy involving both lower extremities which had worsened slightly since an October 2013 study. The abnormalities were noted to be primarily due to the neuropathy in the distal muscles, but there was evidence of at least mild chronic L4 and L5 radiculopathies, bilaterally. An April 2016 private treatment record indicates the Veteran had severe chronic axonal polyneuropathy involving the lower extremities. The Veteran reported in a December 2016 statement that he was in “constant and chronic” pain in both hands due to his neuropathy and CTS. A private hand and finger specialist in April 2017 reviewed the EMG results above, reported the Veteran’s symptoms of numbness and tingling in both hands, and assessed him as having right and left CTS. An April 2017 VA outpatient record shows that the Veteran had diminished sensation in both feet which was consistent with peripheral neuropathy. The Veteran reported in November 2017 that his neuropathy in his hands and feet was getting worse. A VA EMG report in May 2018 shows that the Veteran had pain and numbness in both legs, primarily from the hips down. Test results were abnormal and consistent with severe/advanced PN (axonal/demyelinating) seen in both legs and feet equally. Private physician, H. Skaggs, M.D., informed VA in May 2018 that he agreed with the EMG report findings in May 2018. At an August 2018 VA neurological consultation, the Veteran was assessed as having upper and lower bilateral extremity pain and numbness that was chronic. He was noted to be on maximal medical therapy. Findings revealed decreased sensation throughout the upper and lower extremities that was severe along the left median nerve distribution. Findings at an October 2020 VA examination revealed intermittent pain that was mild in the upper and lower extremities. Paresthesias and/or dysesthesias and numbness were mild in the upper extremities and moderate in the lower extremities. Strength and reflexes were normal in the upper and lower extremities, Regarding the median nerve, this nerve was noted to be normal on the right and left sides with no paralysis, either incomplete or complete. There was no muscle atrophy. Regarding the sciatic nerve, the Veteran had moderate incomplete paralysis on the right and left sides. The examiner remarked that the Veteran’s sensory impairment of the upper right and left extremity was mild and moderate for the lower right and left extremity. Findings at a January 2021 VA examination revealed constant pain, numbness and paresthesias and/or dysesthesias that was moderate in the upper and lower extremities. The Veteran was noted to be independent in his activities of daily living and lived with his wife and son. He said that he did some cooking/cleaning/shopping for himself and that he drove himself. He was assessed as having mild incomplete paralysis of the median and sciatic nerves on the left and right sides. III. Analysis In addition to the Veteran’s service-connected peripheral neuropathy of the upper and lower extremities, he also has nonservice-connected bilateral carpal tunnel syndrome and radicular symptoms from a nonservice connected back disability. To the extent that it is not possible to separate the effects of the service-connected disabilities from the nonservice-connected conditions, then 38 C.F.R. § 3.102, which requires the Board to employ reasonable doubt, dictates that such signs and symptoms be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). A. Upper Extremities Based on the pertinent evidence outlined above, the Board finds that the Veteran’s impairment of the median nerve bilaterally for the entire period of this appeal is somewhere between mild and moderate. Evidence that supports mild impairment includes the fact that the Veteran has been noted consistently to have normal or near normal strength, to include in elbow flexion, elbow extension, wrist flexion, and wrist extension of the right and left upper extremities, as well as normal reflexes. Also, the October 2020 VA examiner assessed the Veteran’s sensory impairment of the upper right and left extremity as mild, and the January 2021 VA examiner assessed the Veteran as having mild incomplete paralysis of the median nerve. Evidence that supports moderate impairment includes the Veteran’s reports of numbness and tingling and unbearable pain at times which made performing certain tasks difficult such as opening an egg carton, reading a newspaper, getting dressed, and driving a car. Objective findings include the August 2011 VA examiner’s finding of decreased sensation to touch in the right hand/fingers, and the August 2018 neurologist’s notation of decreased sensation throughout the Veteran’s upper extremities that was severe along the left median nerve distribution. In instances such as this where the evidence is in relative equipoise, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that the symptoms of the Veteran’s peripheral neuropathy of the right upper extremity approximates a 30 percent disability rating for moderate incomplete paralysis of the median nerve of the major extremity, and a 20 percent disability rating for moderate incomplete paralysis of the minor extremity, for the entire rating period on appeal. B. Lower Extremities Prior to April 13, 2016 For the period prior to April 13, 2016, the Board finds that the Veteran’s impairment of the sciatic nerve bilaterally does not more nearly support moderate impairment. As noted, examination findings in August 2011 revealed decreased position sense in the left lower extremity and decreased vibration sensation in the right and left lower extremities. Findings also revealed that strength was normal in the lower extremities as were reflexes. Unfortunately, this examiner did not comment on the severity of the Veteran’s peripheral neuropathy as he did not find that he had diabetic peripheral neuropathy. However, there is the assessment of a subsequent examiner in August 2014 who opined that the Veteran had mild incomplete paralysis of the right and left sciatic nerves. This examiner took into consideration the Veteran’s ankle plantar flexion and dorsiflexion strength of 4/5 bilaterally, diminished reflexes of the ankles (1+) and decreased light touch/monofilament testing in the lower extremities. He also considered trophic changes of less hair on the legs, and the Veteran’s report of numbness, tingling and pain, and that he could tolerate walking a half a block, standing for 10 minutes, driving for 20 minutes and stairs despite his peripheral neuropathy. In light of the foregoing evidence, the Board finds that the preponderance of the evidence is against a higher than 10 percent rating for peripheral neuropathy of the lower right and left extremities for the period prior to April 13, 2016. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. From April 13, 2016 For the period from April 13, 2016, the Board finds that the Veteran’s impairment of the sciatic nerve bilaterally is somewhere between mild and moderately severe. In this regard, there is an April 13, 2016, private treatment record indicating that the Veteran had severe chronic axonal polyneuropathy involving the lower extremities. It also includes an EMG report in May 2018 showing that the results were abnormal and consistent with severe/advanced peripheral neuropathy (axonal/demyelinating) in both legs and feet equally. A private physician, Dr. Skaggs, indicated in a May 2018 report that he agreed with the EMG findings. However, the VA examiner in October 2020 assessed the Veteran had moderate incomplete paralysis of the sciatic nerve on the right and left sides, and the January 2020 VA examiner assessed him as having mild incomplete paralysis of the sciatic nerve on the right and left sides. In instances such as this where the evidence is in relative equipoise, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, in consideration of the foregoing evidence and the lack of evidence showing marked muscular atrophy, the Board finds that a preponderance of the evidence supports an increased rating, to 40 percent, for moderately severe incomplete paralysis of the sciatic nerve, bilaterally. The rating is effective the date of the April 13, 2016, report showing that the condition had worsened.   REASONS FOR REMAND Effective Date Earlier than January 25, 2017, for DEA Benefits The Veteran’s claim for an earlier effective date for the grant of eligibility to DEA benefits under 38 U.S.C. Chapter 35 is inextricably intertwined with the pending issue of entitlement to an effective date earlier than January 25, 2017, for a TDIU as noted above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, consideration of the earlier effective date claim for DEA benefits must be deferred pending resolution of the TDIU claim. The matter is REMANDED for the following action: Readjudicate the issue of entitlement to an effective date earlier than January 25, 2017, for DEA benefits after the issue of entitlement to an effective date earlier than January 25, 2017, for a TDIU is resolved. If the benefits sought are not fully granted, furnish the Veteran a supplemental statement of the case (SSOC), before the electronic claims file is returned to the Board, if otherwise in order. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shawkey, Anne M. 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.