Citation Nr: 21026918 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-02 607 DATE: May 4, 2021 ORDER Entitlement to an initial 20 percent rating, and no higher, for right upper extremity peripheral neuropathy, prior to December 28, 2020, is granted. Entitlement to an initial 20 percent rating, and no higher, for left upper extremity peripheral neuropathy, prior to December 28, 2020, is granted. Entitlement to a disability rating in excess of 40 percent from December 28, 2020 for right upper extremity peripheral neuropathy is denied. Entitlement to a disability rating in excess of 30 percent from December 28, 2020 for left upper extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. Prior to December 28, 2020, the Veteran's bilateral upper extremity peripheral neuropathy was manifested by symptoms most comparable to mild incomplete paralysis of all upper radicular nerve groups. 2. Beginning December 28, 2020, the Veteran's bilateral upper extremity peripheral neuropathy was manifested by symptoms comparable to moderate incomplete paralysis of all upper radicular nerve groups. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 20 percent for right upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8613 2. The criteria for entitlement to an initial disability rating of 20 percent for left upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.124a, DC 8613 3. The criteria for entitlement to a disability rating in excess of 40 percent from December 28, 2020 for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.124a, DC 8613. 4. The criteria for entitlement to a disability rating in excess of 30 percent from December 28, 2020 for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.124a, DC 8613. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by a VA Regional Office (RO). These matters were before the Board in May 2020 and were remanded for additional development. A review of the claims file now shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Thereafter, in a March 2021 rating decision, the disability rating for the Veteran's right upper extremity peripheral neuropathy was increased to 40 percent and his left upper extremity peripheral neuropathy was rated at 30 percent effective December 28, 2020. As this does not constitute a full grant, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating 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 civil 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. When 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. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Entitlement to an initial 20 percent rating, and no higher, for right upper extremity peripheral neuropathy, prior to December 28, 2020, is granted. Entitlement to an initial 20 percent rating, but no higher, for left upper extremity peripheral neuropathy, prior to December 28, 2020, is granted. The Veteran contends that he is entitled to a compensable initial disability rating for his bilateral upper extremity peripheral neuropathy. The appeal period now before the Board begins September 20, 2013, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's bilateral upper extremity peripheral neuropathy is rated under DC 8613, for paralysis of all radicular groups. This diagnostic code provides ratings for both the major and the minor upper extremity. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. In this case, the record reflects that the Veteran is dominant in the right hand. Diagnostic Code 8613 allows for a 20 percent rating for mild incomplete paralysis of both the major and minor upper extremity. Moderate incomplete paralysis warrants a 40 percent rating in the major upper extremity; 30 percent in the minor upper extremity; severe incomplete paralysis of the median nerve is awarded a 70 percent rating for the major upper extremity; 60 percent for the minor upper extremity; and complete paralysis of all radicular groups is assigned a 90 percent rating for the major upper extremity and 80 for the minor upper extremity. See 38 C.F.R. § 4.124a. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis of 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. The words "mild," "moderate," and "severe" as used in the various DCs 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. See 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. In February 2014 the Veteran was afforded a VA examination as part of the development for his initial claim for service connection for bilateral upper extremity peripheral neuropathy. The Veteran reported mild, intermittent, usually dull, pain in both hands. He denied having any paresthesias or numbness, and a neurologic examination of the upper extremities was normal. Deep tendon reflexes were normal, and light touch testing was normal. The Veteran also did not have muscle atrophy or trophic changes attributable to diabetic peripheral neuropathy. There was no functional impacted noted. However, the VA examiner concluded that the Veteran had mild incomplete paralysis of the radial, median, and ulnar nerves in the right and left upper extremities. Subsequent VA medical records indicate the Veteran continued to experience mild bilateral peripheral neuropathy symptoms. A November 2017 primary care follow-up noted that the Veteran reported having some tingling in his hands and feet. However, the Veteran denied any numbness and lack of sensation. He further reported aches and pains in his hands and feet. Again, in July 2018, the Veteran's reports of mild diabetic neuropathy symptoms in his hands and feet were documented in another primary care visit note. In August 2018, a neurology outpatient note reported the results of a neurology examination which showed the Veteran's sensation to light touch was "intact", his other sensations and reflexes were reported as normal. The Veteran was afforded another VA examination for his bilateral upper extremity peripheral neuropathy in July 2019. During this examination, the Veteran reported having bilateral hand numbness and tingling which began one year earlier. Upon conducting the neurologic exam, all results were noted as normal except the Veteran's deep tendon reflexes were found to be hypoactive in the upper extremities at +1. Nevertheless, the examiner found there were no symptoms of upper extremity neuropathy and therefore no diagnosis was rendered. Subsequent medical records further indicated mild symptoms of peripheral neuropathy. See October 2019 and October 2020 Primary Care Notes. The Board notes, that the July 2019 examination alone, is inadequate for adjudicative purposes. The Board specifically remanded this case to acquire a new VA examination to address the apparent inconsistency with the July 2019 examiner's findings of no diagnosis with that of earlier treatment records and VA examinations that did reflect a diagnosis. In compliance, an addendum opinion was provided in July 2021 in which the examiner opined that she could not, without resorting to speculation, explain why the July 2019 examiner did not diagnosis the Veteran with upper extremity neuropathy. However, she did confirm that the Veteran does in fact have upper extremity neuropathy and the "diagnosis is appropriate". Therefore, the July 2019 VA examination and opinion are given little probative weight and is found to be inadequate for adjudicative purposes. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). Even so, the remainder of the July 2019 examination can be used to assist the Board in weighing the other evidence in the record. See Mozingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight...[I]f the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains."). Upon review of the evidence, the Board finds that prior to December 28, 2020, the evidence showed mild incomplete paralysis of the upper extremities. Specifically, the 2014 VA examiner noted symptoms of mild intermittent pain in the upper extremities. The examiner then concluded definitively that the Veteran had mild incomplete paralysis of the median and ulnar nerves. This finding is further supported by subsequent treatment records indicating the Veteran continued to experience mild symptoms including intermittent pain, tingling and numbness. Therefore, a disability rating of 20 percent, but no higher, is warranted for mild incomplete paralysis for both the right and left upper extremities pursuant to DC 8613. The Board notes, that the Veteran's symptoms appear to have progressed over time to include tingling and numbness along with evidence of hypoactive reflexes in the biceps, triceps and brachioradialis as indicated in the July 2019 VA examination. However, these symptoms are also considered to be mild and the evidence does not indicate any more moderate or severe symptoms indicative of a higher disability rating until December 2020, as will be discussed below. The Board has also considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. As such, the current ratings consider his functional loss, along with the severity of his symptoms, and the preponderance of the evidence is against ratings in excess of those assigned herein. Therefore, an initial rating of 20 percent, but no higher, effective September 20, 2013, is granted bilaterally for upper extremity peripheral neuropathy. Entitlement to a disability rating in excess of 40 percent from December 28, 2020 for right upper extremity peripheral neuropathy is denied. Entitlement to a disability rating in excess of 30 percent from December 28, 2020 for left upper extremity peripheral neuropathy is denied. As noted above, the RO in a March 2021 rating decision, awarded a disability rating of 40 and 30 percent respectively for the Veteran's right and left upper extremity peripheral neuropathy effective December 28, 2020. The 40 percent rating is due to the fact the right hand is the Veteran's dominate hand, which allows for the higher rating. Otherwise, there was no differentiation between the upper extremities. The effective date of this award was based on the December 28, 2020 VA examination afforded to the Veteran as ordered by the Board's prior remand in May 2020. This examiner confirmed the Veteran's diagnosis of bilateral upper extremity peripheral neuropathy and noted the onset was gradual beginning with intermittent pain and tingling. The examiner noted that the Veteran was right hand dominant and currently experienced moderate bilateral constant pain, paresthesias and/or dysesthesias and numbness. Muscle strength was noted as reduced to a 4 out of 5 with no atrophy. Reflex testing indicated evidence of hypoactivity in the biceps, triceps and brachioradialis at +1. Sensory testing showed decreased sensation in shoulder area, inner/outer forearm, and "absent" in the hand and fingers. There were no tropic changes noted nor assisted devices used. The Veteran was noted as being a retired salesman and his condition would result in less than one week of lost time from work. The examiner concluded that the Veteran had moderate bilateral incomplete paralysis in the radial, median, and ulnar nerves. Upon review of the evidence, the Board finds that as of December 28, 2020 the evidence showed no more than moderate incomplete paralysis of all radicular groups of the bilateral upper extremities. The evidence showed moderate constant pain, tingling and numbness, hypoactive reflexes, decreased muscle strength and loss of sensation in the hands and fingers. In addition, the Board finds the December 2020 examiner's opinion to be highly probative and persuasive. The examiner, after a thorough in person examination, consideration of the Veteran's medical history and lay statements opined that the Veteran had moderate bilateral incomplete paralysis. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Therefore, the rating of 40 percent for major right and 30 percent for minor left upper extremity peripheral neuropathy under DC 8613 is found to be appropriate. As the evidence does not show more severe symptoms and there is no medical opinion to the contrary, a higher rating is not warranted. In reaching such conclusions, the Board acknowledges the Veteran's belief that his symptoms of bilateral upper extremity peripheral neuropathy are more severe than as reflected by the currently assigned disability ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of such in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his service-connected bilateral upper extremity peripheral neuropathy in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disabilities. The Board has also considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the current ratings consider functional loss, along with the severity of his symptoms and the preponderance of the evidence is against ratings in excess of those assigned here and the benefit-of-the-doubt doctrine is not for application. Therefore, a disability rating in excess of 40 percent for right upper extremity peripheral neuropathy and 30 percent for left upper extremity peripheral neuropathy from December 28, 2020 must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). (Continued on the page) T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.