Citation Nr: 21027277 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-14 280 DATE: May 5, 2021 ORDER Service connection for squamous cell carcinoma is denied. An effective date earlier than March 12, 2012 for the grant of service connection for right upper extremity peripheral neuropathy is denied. An effective date earlier than March 12, 2012 for the grant of service connection for left upper extremity peripheral neuropathy is denied. An effective date earlier than March 12, 2012 for the grant of service connection for right lower extremity peripheral neuropathy is denied. An effective date earlier than March 12, 2012 for the grant of service connection for left lower extremity peripheral neuropathy is denied. An initial rating higher than 10 percent for right upper extremity peripheral neuropathy prior to December 18, 2013, and higher than 30 percent, thereafter, is denied. From January 29, 2018, a separate 10 percent rating for right upper extremity ulnar nerve neuropathy is granted. From January 29, 2018, a separate 10 percent rating for right upper extremity radial nerve neuropathy is granted. An initial rating higher than 10 percent for left upper extremity peripheral neuropathy prior to December 18, 2013, and higher than 20 percent, thereafter, is denied. From January 29, 2018, a separate 10 percent rating for left upper extremity ulnar nerve neuropathy is granted. From January 29, 2018, a separate 10 percent rating for left upper extremity radial nerve neuropathy is granted. An initial rating higher than 10 percent for right lower extremity peripheral neuropathy prior to December 18, 2013, and higher than 20 percent, thereafter, is denied. An initial rating higher than 10 percent for left lower extremity peripheral neuropathy prior to December 18, 2013, and higher than 20 percent, thereafter, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that squamous cell carcinoma began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's claims for service connection for peripheral neuropathy of all four extremities was filed on May 20, 2013. 3. Prior to December 18, 2013, moderate incomplete paralysis of the right or left median nerve was not shown; from that date, severe incomplete paralysis of the right or left median nerve was not shown. 4. From January 29, 2018, the Veteran had mild incomplete paralysis of the right and left ulnar nerves. 5. From January 29, 2018, the Veteran had mild incomplete paralysis of the right and left radial nerves. 6. Prior to December 18, 2013, moderate incomplete paralysis of the right or left sciatic nerve was not shown; from that date, moderately severe incomplete paralysis was not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for squamous cell carcinoma are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for an effective date earlier than March 12, 2012 for the grant of service connection for right upper extremity, left upper extremity, right lower extremity, and left lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an initial rating higher than 10 percent for right upper extremity peripheral neuropathy prior to December 18, 2013, and higher than 30 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8515. 4. From January 29, 2018, the criteria for a separate 10 percent rating for right upper extremity ulnar nerve neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8516. 5. From January 29, 2018, the criteria for a separate 10 percent rating for right upper extremity radial nerve neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8514. 6. The criteria for an initial rating higher than 10 percent for left upper extremity peripheral neuropathy prior to December 18, 2013, and higher than 20 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8515. 7. From January 29, 2018, the criteria for a separate 10 percent rating for left upper extremity ulnar nerve neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8516. 8. From January 29, 2018, the criteria for a separate 10 percent rating for left upper extremity radial nerve neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8514. 9. The criteria for initial ratings higher than 10 percent for right or left lower extremity peripheral neuropathy prior to December 18, 2013, and higher than 20 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from February 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision. It was previously remanded for additional development in February 2019. The Veteran testified at a Board hearing in June 2018 before a Veterans Law Judge who is no longer at the Board. In March 2021, the Veteran was notified of this fact and afforded the opportunity to testify at an additional hearing. However, no response to this notice has been received, and therefore the Board will proceed with adjudicating the Veteran's appeal. During the pendency of his appeal, the Veteran filed a claim for a total disability rating based on individual unemployability (TDIU). That claim was granted effective January 1, 2015. The evidence shows that he stopped working on December 31, 2014. Therefore, the TDIU award was a full grant of the benefit being sought and is not part of the current increased rating claims on appeal. Service Connection Squamous cell carcinoma The Veteran contends that he has squamous cell carcinoma that is associated with his exposure to herbicide agents during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. The Board concludes that, while the Veteran has a June 2013 diagnosis of squamous cell carcinoma of the mouth, and he is presumed to have been exposed to herbicide agents during service, the preponderance of the evidence weighs against finding that the Veteran's current disability began during service or is otherwise related to an in-service injury, event, or disease. Certain disabilities are presumed to be associated with herbicide agent exposure from service. However, squamous cell carcinoma is not among those presumed conditions. See 38 C.F.R. § 3.309(e). While the Veteran may still present direct evidence of a link between his squamous cell carcinoma and herbicide agent exposure, no such evidence has been presented. Service treatment records are negative for any findings related to squamous cell carcinoma of the mouth, and his September 1970 separation examination was normal. An additional induction examination from June 1976 was also normal. The evidence does not establish the presence of squamous cell carcinoma until 2013, several decades after the Veteran's period of service. To the extent that the Veteran has asserted a connection between his carcinoma and herbicide agent exposure, he does not have the necessary medical knowledge or training to provide a competent medical opinion linking the two. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For these reasons, service connection is not appropriate. The Board has considered whether a VA examination was warranted to determine the relationship, if any, between the current disability and the in-service herbicide agent exposure. However, because there is nothing to support such a relationship beyond the Veteran's bare assertion, the evidence does not "indicate" that the disability may be associated with service, and therefore a VA examination or opinion is not necessary. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). Effective Dates Right upper extremity, left upper extremity, right lower extremity, and left lower extremity peripheral neuropathy Section 5110(a), Title 38, United States Code, provides that the effective date of an award based on an original claim of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Here, the Veteran filed his claim for peripheral neuropathy of all four extremities on May 20, 2013. Service connection was granted effective March 12, 2012, the date in which an electromyography study diagnosed polyneuropathy. The Veteran contends that an earlier date is warranted because he had neuropathy prior to March 2012. However, the effective date of an award of service connection is not solely based upon the date of the earliest medical evidence, such as a diagnosis or report of symptoms, which establishes entitlement, but instead on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377 (1999). Here, the evidence establishing entitlement was from March 2012, and the underlying claim was filed May 2013. The above statute and regulation state that the later of the two dates is the effective date to be assigned. Because May 20, 2013 was the appropriate effective date, an effective date earlier than March 12, 2012, is not warranted. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When rating peripheral nerve disabilities, 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. Right and left upper extremity peripheral neuropathy The Veteran's right and left upper extremity neuropathy are both rated under DC 8515. He is right-hand dominant, and therefore the right arm is the major extremity for rating purposes. For both arms, prior to December 18, 2013, he is assigned 10 percent ratings. From that date, he is assigned a 30 percent rating for the right arm and 20 percent for the left arm. Paralysis of the median nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8515. Under these criteria, 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. 38 C.F.R. § 4.124a. Prior to December 18, 2013, ratings higher than 10 percent is not warranted for either arm. Aside from the March 2012 electromyography study documenting the presence of neuropathy, the only evidence addressing the rating criteria is VA records from November 2012, which document that normal sensation was present based on monofilament testing. Therefore, "moderate" incomplete paralysis has not been shown prior to December 18, 2013. From December 18, 2013, ratings higher than 30 percent and 20 percent are not warranted for the right and left arms, respectively. A December 2013 VA examination documented mild intermittent pain, mild paresthesias and moderate numbness. Strength was normal, except pinch strength was 4/5. Reflexes were diminished. Sensation was normal, except vibration sense was decreased. The examiner assessed an overall mild level of incomplete paralysis of the median nerve bilaterally. An August 2015 VA examination documented moderate constant pain, moderate paresthesias and mild numbness. Strength was normal, except pinch strength was 4/5. Reflexes were diminished. The right arm had diminished cold sensation, and the left arm had decreased position sense in the hand and fingers. No trophic changes were present. The examiner stated that the Veteran had mild incomplete paralysis of the median nerves. A January 2018 VA examination noted moderate intermittent pain, moderate paresthesias and moderate numbness. Strength was normal, except grip strength was 4/5. Reflexes were normal. Sensation was generally normal but decreased in the forearms. No trophic changes were present. The examiner noted that moderate incomplete paralysis of the medial nerves was present. VA records from May 2019 document normal sensation using monofilament testing. In sum, none of the Veteran's symptoms (pain, paresthesias, numbness) were characterized as worse than "moderate" during this period. Strength was generally normal, with only minor impairments in specific instances, such as grip or pinch. Similarly, sensation was reduced only in specific forms, such as cold or vibration. The examiners, having reviewed the Veteran's subjective complaints and the objective examination findings, found that he had no more than moderate incomplete paralysis overall. While examiners' assessments are not dispositive in establishing a rating, the Board nonetheless finds them persuasive. Therefore, ratings higher than 30 percent and 20 percent for right and left upper extremity neuropathy, respectively, are not warranted from December 18, 2013. In addition to the Veteran's median nerve impairment, the January 2018 VA examiner diagnosed moderate incomplete paralysis of the ulnar nerve and mild incomplete paralysis of the radial nerve, bilaterally. Because these diagnoses represent impairment not contemplated by the rating assigned for median nerve paralysis, separate ratings are warranted. However, as noted above, peripheral nerve disabilities are rated on factors such impairment of motor function, trophic changes, sensory disturbance, loss of reflexes, pain, and muscle atrophy. These factors were used in assigning the higher 30 and 20 percent ratings for median nerve impairment bilaterally and cannot also be used to rate ulnar or radial nerve impairment. See 38 C.F.R. § 4.14. Therefore, the Board will assign a separate 10 percent rating for ulnar nerve neuropathy and a separate 10 percent rating for radial nerve neuropathy for each extremity based on mild incomplete paralysis, effective from January 29, 2018, the date of the VA examination. See 38 C.F.R. § 4.124a, DCs 8514, 8516 (mild incomplete paralysis warrants a 10 percent rating). Right and left lower extremity peripheral neuropathy The Veteran's right and left lower extremity neuropathy are each rated under DC 8520. Prior to December 18, 2013, he was assigned 10 percent ratings. From that date, he is assigned 20 percent ratings. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. Prior to December 18, 2013, ratings higher than 10 percent is not warranted for either leg. Aside from the March 2012 electromyography study documenting the presence of neuropathy, the only evidence addressing the rating criteria is VA records from November 2012, which document that normal sensation was present based on monofilament testing. Therefore, "moderate" incomplete paralysis has not been shown prior to December 18, 2013. From that date, ratings higher than 20 percent are not warranted because "moderately severe" incomplete paralysis is not shown. A December 2013 VA examination documented the presence of severe numbness. Otherwise, only moderate intermittent pain and moderate paresthesias were present. Knee reflex was diminished, ankle reflex was absent, and sensation was decreased in the feet and toes. Sparse hair was noted on the shins. The examiner assessed an overall mild level of sciatic nerve incomplete paralysis. An August 2015 VA examination documented moderate intermittent pain, moderate paresthesias and moderate numbness. Knee reflex was diminished, ankle reflex was absent, and sensation was decreased in the foot and toes. No trophic changes were noted. The examiner again assessed mild incomplete paralysis of the sciatic nerve. During a January 2018 VA examination, moderate intermittent pain, moderate paresthesias and moderate numbness were noted. Strength was normal, except ankle strength was 4/5. Knee reflex was normal and ankle reflex was diminished. Sensation was normal in the thigh but decreased below the knee. No trophic changes were documented, and the examiner assessed an overall moderate level of incomplete paralysis. VA records from May 2019 document normal sensation using monofilament testing. While the Board acknowledges the "severe" numbness documented in December 2013, is not sufficient to establish an overall "moderately severe' level of impairment, particularly given that the remainder of the evidence shows the Veteran's symptoms, including subsequent evaluations of numbness, were no more than "moderate." In addition, the examiners, having reviewed the Veteran's subjective complaints and the objective examination findings, found that he had no more than moderate incomplete paralysis overall. These assessments included consideration of the diminished sensation and reflexes shown on examination. While examiners' assessments are not dispositive in establishing a rating, the Board nonetheless finds them persuasive. Therefore, ratings higher than 20 percent for right or left lower extremity neuropathy are not warranted from December 18, 2013. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.