Citation Nr: 21025640 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 12-20 918A DATE: April 28, 2021 ORDER A rating in excess of 20 percent for peripheral neuropathy of the right upper extremity is denied. A rating in excess of 20 percent for peripheral neuropathy of the left upper extremity is denied. A total rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy of the right upper extremity is manifest by no more than mild incomplete paralysis of the major extremity. 2. The Veteran’s peripheral neuropathy of the left upper extremity is manifest by no more than mild incomplete paralysis of the minor extremity. 3. Service connection is currently in effect for diabetes mellitus with erectile dysfunction, rated 20 percent disabling; diabetic peripheral neuropathy of the right upper extremity, rated 20 percent disabling; diabetic peripheral neuropathy of the left upper extremity, rated 20 percent disabling; diabetic peripheral neuropathy of the left lower extremity, rated 10 percent disabling; diabetic peripheral neuropathy of the right lower extremity, rated 20 percent disabling; and bronchial asthma, rated 10 percent disabling. The Veteran’s combined evaluation is 80 percent. 4. The Veteran reported that he had four years of high school education and work experience as a repairman for the phone company. 5. The service-connected disabilities, standing alone, are not shown to be of such severity as to render the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8513. 2. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8513. 3. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1971 to July 1973. In a November 2017 decision, the Board, in pertinent part, denied ratings in excess of 20 percent for peripheral neuropathy of each of the upper extremities as well as entitlement to TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Court issued an Order that granted the parties’ Joint Motion for Partial Remand (JMR) and vacated the Board’s November 2017 decision as to those issues and remanded the case to the Board. The Board remanded the issues for further development in December 2018 and July 2020. The requested development has been accomplished and the case has been returned for further appellate consideration. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Court has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Entitlement to ratings in excess of 20 percent, each, for peripheral neuropathy of the right and left upper extremities The Veteran contends that the peripheral neuropathy of each of his upper extremities is more disabling than currently evaluated. It is noted that the JMR found that the Board needed to provide reasons and bases as to why the specific Diagnostic code utilized, Code 8513, was the most applicable code for evaluation of the Veteran’s disabilities. Service connection for peripheral neuropathy of the upper extremities was granted in a December 2010 rating decision. The Veteran was rated under Diagnostic Code 8513 for paralysis of all the radicular nerves. The Veteran requested an increased rating in April 2013. An examination was conducted by VA in October 2013. At that time, the Veteran was noted to have diabetic peripheral neuropathy of the upper extremities. Regarding symptoms, the Veteran denied having constant or intermittent pain; paresthesias or dysesthesias; or numbness of either of his upper extremities. Muscle strength was noted to be 5/5 at both elbows, wrists, grip, or pinch. There was no muscle atrophy. Reflexes were 2+ (normal) at the biceps, triceps, and brachioradial. Sensory examination was normal. Testing of the median and radial nerves was normal. Testing of the ulnar nerve was normal on the right, but showed mild incomplete paralysis on the left. The musculocutaneous, circumflex, and long thoracic nerves were normal bilaterally. Evaluation of the upper radicular group showed mild incomplete paralysis on the right, with the left being normal. The middle radicular group showed mild incomplete paralysis on both the right and the left. The lower radicular group was shown to be normal, bilaterally. No functional impact related to the upper extremities was described. Private treatment records dated in November 2017 show that the Veteran had a history of numbness and tingling in the right hand, especially the little and ring fingers. This was found to be in the median and ulnar nerve distributions. The Veteran was advised to have EMG studies performed. Additional private treatment records dated in March 2018, show that the Veteran underwent a decompression of the ulnar nerve and transposition of the ulnar nerve at the right elbow, and release of the carpal tunnel syndrome of the right hand. The postoperative diagnoses were severe carpal tunnel syndrome of the right hand and compression of the ulnar nerve at the right elbow with ulnar nerve neuropathy. VA outpatient treatment records show that in April 2018 it was noted that the Veteran had had a right radius fracture in a fall in April 2017, could not grip tightly, and had constant numbness of the right little and ring fingers with some burning and tingling. An EMG was performed; this showed moderate to severe right carpal tunnel syndrome and moderate to severe right ulnar nerve entrapment at the elbow. A copy of the EMG was received by VA in January 2019. It was noted that the Veteran had undergone surgery in March 2018, which improved his ability to close his hand a bit, but he still had constant, dull pain. He denied burning pain and stated that the medication gabapentin helped. It was further noted that the Veteran had had a right MCA (middle cerebral artery) infarction in August 2016 that had resulted in left sided weakness. His strength had improved. In August and October 2018, the Veteran denied having new weakness, numbness or paresthesia. An examination was conducted by VA in November 2019. The diagnosis was bilateral upper extremity neuropathy. Symptoms included mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of both upper extremities. Strength was 5/5 throughout both upper extremities. There was no muscle atrophy. Deep tendon reflexes were 1+ at both biceps, triceps, and brachioradialis. Sensory examination was normal at the shoulders, forearms, hands, and fingers. The Veteran did have decreased sensation to light touch in the hands and fingers. Position sense was normal as was vibration and cold sensation. There were no trophic changes. Evaluation of specific nerves showed the radial nerves to be normal. There was mild incomplete paralysis of the median nerve on the right and normal median nerve evaluation on the left. The ulnar nerve also showed incomplete paralysis on the right, but was normal on the left. Evaluation of the musculocutaneous nerve, circumflex nerve, long nerve, and upper and middle radicular nerve groups was normal. The lower radicular group showed mild incomplete paralysis of both upper extremities. The examiner remarked that the Veteran’s bilateral upper extremity neuropathy did not impact his ability to function in an occupational environment. The examiner also stated that the diagnoses of right medial and right ulnar nerve neuropathy were related to non-service-connected carpal tunnel and ulnar nerve entrapment. However, the examiner further stated that the symptoms of the right hand could not be differentiated between these diagnoses and the neuropathy due to diabetic neuropathy without resorting to speculation. In an December 2020 addendum, the examiner reiterated an inability to differentiate which symptoms were due to peripheral neuropathy, a history of cerebrovascular accident (CVA), carpal tunnel syndrome, and ulnar nerve entrapment without resorting to speculation. The examiner noted, however, that the Veteran’s upper and lower extremity peripheral neuropathy did not impact his ability to function in any type of occupational environment. Paralysis of the radicular nerve group is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8513. Under these criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 80 percent for the major extremity and 60 percent for the minor extremity. 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). Where there is separate and distinct symptomatology of a single condition it should be separately rated. Where the symptomatology of a condition is duplicative or overlapping with symptomatology of another condition, it may not receive a separate evaluation. 38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran’s upper extremity peripheral neuropathy has been rated on incomplete paralysis of the radicular groups. While the JMR specified that the Board had failed to address an evaluation of the neuropathy under additional nerves such as the median, ulnar, circumflex, long thoracic, musculospiral, musculocutaneous, or long thoracic, the Board notes that ratings for incomplete paralysis of these nerves does not exceed the evaluation assigned for all radicular groups under Diagnostic Code 8513. See Diagnostic Codes 8510-8519. In this regard, it is noted that the examination report from 2013 does not demonstrate separate impairment of the musculocutaneous nerve, circumflex nerve, long nerve, and upper and middle radicular nerve groups. While mild incomplete paralysis is demonstrated in the left ulnar nerve and right middle radicular nerve group, the Board finds that the rating awarded under the overall provisions of Diagnostic Code 8513, for involvement of all radicular groups fully compensates the Veteran. Notable is the fact that mild impairment of the ulnar nerve would result in only a 10 percent rating for the upper extremity (Code 8516) and mild incomplete paralysis of the middle radicular group (Code 8511) is rated at the 20 percent rating that was assigned. At no time has either upper extremity demonstrated more than mild impairment of any of the nerves involved. Regarding the private treatment records that demonstrate non-service-connected ulnar entrapment and carpal tunnel syndrome of the right upper extremity, the VA examiners’ reports dated in 2019 and 2020 indicate that these may not be differentiated from the service-connected diabetic peripheral neuropathy. As a result, the Board will consider all upper extremity nerve impairment to be associated with the service-connected disability. Nevertheless, even after doing so, the Board can find no basis for a rating in excess of the currently assigned 20 percent ratings for each upper extremity. The 2019 evaluation report found mild impairment of the median nerve and ulnar nerves on the right, but not on the left. The lower radicular group showed mild incomplete paralysis of both upper extremities, but the radial nerves, musculocutaneous nerve, circumflex nerve, long nerve, and upper and middle radicular nerve groups were all found to be normal. Position sense, vibration and cold sensation were all found to be normal and there were no trophic changes. As such, the Board can find no basis for a rating in excess of the current 20 percent ratings based on the combination of nerve impairment of each upper extremity, which is shown to be no more than mild. As noted, there is no impairment of motor functions, trophic changes, or muscle atrophy. While there was some diminishment of reflexes on examination in 2019, this is not shown to have caused more than mild incomplete paralysis of any nerve or nerve group and clearly no demonstration of complete paralysis. Based on the above, the Board finds that the service-connected disabilities are primarily manifested by mild sensory disturbance and some loss of reflexes of each of the Veteran’s upper extremities. The Board also finds that the most probative evidence of record is against a finding that the disabilities are manifest by impairment of motor functions, trophic changes, significant pain, muscle atrophy or complete paralysis. The Board thus finds that the level of impairment for each upper extremity is most analogous to mild incomplete paralysis. The Board acknowledges the lay assertions of disability advanced by the Veteran but finds the medical of evidence of record to be more probative because of the consistency of mild impairment demonstrated throughout the record. While the Veteran’s representative has argued that impairment due to pain should provide a basis for an increased rating, the examinations of record show no more than mild intermittent pain in 2019 and no complaints of pain in 2013. As such, the Board finds there is no basis for a rating in excess of 20 percent for either upper extremity on the basis of pain. As noted, 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 and a separate or higher rating under a different Diagnostic Code would constitute pyramiding as there is no demonstration of separate disability arising from impairment of the ulnar or median nerves that has not been considered under the more generalized impairment of all of the radicular groups under Code 8513. As such, separate ratings are not warranted. 38 C.F.R. §§ 4.14, 4.25; Esteban 6 Vet. App. at 259. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for ratings in excess of 20 percent, each, for his peripheral neuropathy of the right and left upper extremities. In denying higher ratings, 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. TDIU The Veteran contends that his service-connected disabilities render him unable to secure or follow a substantially gainful employment. In his application for TDIU, the Veteran reported having had four years of high school education and work experience as a repairman for AT&T. In a March 2010 VA examination report, this was further described as working for the “phone company.” Service connection is currently in effect for diabetes mellitus with erectile dysfunction, rated 20 percent disabling; diabetic peripheral neuropathy of the right upper extremity, rated 20 percent disabling; diabetic peripheral neuropathy of the left upper extremity, rated 20 percent disabling; diabetic peripheral neuropathy of the left lower extremity, rated 10 percent disabling; diabetic peripheral neuropathy of the right lower extremity, rated 20 percent disabling; and bronchial asthma, rated 10 percent disabling. The Veteran’s combined evaluation is 80 percent. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U. S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (included but not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16. Medical evidence regarding the Veteran’s claim for entitlement to TDIU benefits includes a March 2010 VA examination of the respiratory system that included pulmonary function studies consistent with mild obstructive impairment. On VA general medical examination in August 2011, the Veteran’s service-connected diabetes mellitus, peripheral neuritis, erectile dysfunction and asthma were evaluated regarding the Veteran’s employability. It was noted that the Veteran had moderate and persistent symptoms of asthma that was improved by bronchodilator nasal spray; his diabetes mellitus was controlled by oral medication, without the need for insulin; and tingling and numbness of both hands and feet were noted to be exacerbated by moderate activities. The Veteran had no restriction on his daily routine of simple activities and no major incapacitating episodes or flare-ups. He was able to bowl and golf in the summer without the need for a cart. Following examination and review of the record, the examiner opined that the Veteran’s service-connected medical conditions did not likely prevent him from “doing his daily routine simple activities and light-duty sedentary jobs”. A peripheral nerve examination in March 2013 showed mild symptoms of the upper extremities and mild to moderate symptoms of peripheral neuropathy of the lower extremities. At that time, the examiner noted functional impairment as the inability to walk more than 150 years. On August 2015 VA diabetes mellitus examination, it was noted that the Veteran’s diabetes mellitus did not impact his ability to work. This opinion was repeated on examination of the Veteran’s diabetes mellitus and complications thereof in November 2019. At that time, the examiner stated that the service-connected diabetes mellitus did not impact the Veteran’s ability to function in an occupational environment. For a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). After review of the record, the Board finds that the Veteran’s service-connected disabilities do not take his case outside the norm so that the Veteran is eligible for TDIU benefits. The record shows that his diabetes mellitus is stable and controlled with medication. His peripheral neuropathy is shown to cause no more than mild impairment of the upper extremities and, while moderate impairment of the lower extremities is demonstrated on examination, the examiner noted that the only functional impact was an inability to walk more than 150 yards. The Veteran’s asthma is not shown to cause more than mild impairment of respiration on pulmonary function testing. As such, the Board does not find that the Veteran has been rendered unable to engage in substantially gainful employment consistent with his high school education and work experience as a phone company repairman. This activity is not found to be significantly impaired by an inability to walk more than 150 yards. Moreover, the medical opinions of record demonstrate no significant interference with employability. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for TDIU, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.