Citation Nr: 21029021 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-38 887 DATE: May 12, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for left upper extremity (LUE) peripheral neuropathy prior to September 26, 2019, and in excess of 30 percent thereafter is remanded. Entitlement to an initial rating in excess of 20 percent for right upper extremity (RUE) peripheral neuropathy prior to September 26, 2019, and in excess of 40 percent thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity (LLE) peripheral neuropathy prior to September 26, 2019, and in excess of 20 percent thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity (RLE) peripheral neuropathy prior to December 8, 2016, and in excess of 30 percent thereafter is remanded. Entitlement to special monthly compensation (SMC) based on loss of use of the upper and lower extremities. REASONS FOR REMAND The Veteran served on active duty from July 1970 to November 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the Veteran's claims. During the pendency of the appeal, the Veteran's RLE peripheral neuropathy with intermittent foot drop (sciatic) rating was increased from 10 to 40 percent, effective December 8, 2016; RUE peripheral neuropathy (all radicular) rating was increased from 20 to 40 percent effective September 26, 2019; LUE peripheral neuropathy (all radicular) rating was increased from 20 to 30 percent effective September 26, 2019; and LLE peripheral neuropathy (sciatic) rating was increased from 10 to 20 percent effective September 26, 2019. Separate ratings were assigned under 38 C.F.R. § 4.124a for peripheral neuropathy of femoral nerve of bilateral lower extremities at 20 percent, effective September 26, 2019 (Diagnostic Code 8526). The claim has been recharacterized above to reflect the staged rating on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Regarding the Veteran's increased rating claims, as the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim remains in appeal status. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an initial rating in excess of 20 percent for LUE peripheral neuropathy prior to September 26, 2019, and in excess of 30 percent thereafter, is remanded. 2. Entitlement to an initial rating in excess of 20 percent for RUE peripheral neuropathy prior to September 26, 2019, and in excess of 40 percent thereafter, is remanded. 3. Entitlement to an initial rating in excess of 10 percent for LLE peripheral neuropathy prior to September 26, 2019, and in excess of 20 percent thereafter, is remanded. 4. Entitlement to an initial rating in excess of 10 percent for RLE peripheral neuropathy prior to December 8, 2016, and in excess of 30 percent thereafter. 5. Entitlement to SMC based on loss of use of the upper and lower extremities. Issues 1-5: The Veteran contends that his bilateral upper and lower extremity peripheral neuropathy warrants higher ratings. Specifically, he most recently stated that, while his disability ratings were increased, his disabilities worsened prior to the September 2020 VA examinations. See NOD (September 2020). He reported undergoing physical therapy between 2015 and 2016, until he was told that he had reached the maximum benefit. Id. He stated that he was issued various equipment due to his inability to grasp objects, power seat lift, stairlift, cane, power wheelchair and special toilet equipment. Id. He stated that his pain medication dosage was continuously increased until he reached the maximum dosage. Id. He argues that his extremities should be considered as having loss of use as his condition continues to worsen. Id. In November 2018, the Board remanded the appeal so that the Veteran could be afforded a new VA examination to assess his RUE, LUE, LLE and RLE peripheral neuropathy symptomatology with an opinion "supported by a complete rationale." Although the requested examination was obtained, the Board finds that there has not been substantial compliance with the remand directives; as such, remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). As an aside, with regard to the change of Diagnostic Code in the most recent rating decision, the Board notes that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the diagnostic code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Here, the August 2020 rating decision assigned rating under different Diagnostic Codes and afforded him higher ratings. Neither the Veteran nor his representative has raised any contention as to the change of Diagnostic Code. The Board finds that a remand for another VA examination of the Veteran's bilateral upper and lower extremity peripheral neuropathy is necessary in view of incongruous medical evidence and the absence of the requested "full description" of effects of the service-connected disability upon the Veteran's ordinary activity, including employment. See BVA Decision (November 2018); Stegall, supra. It is noted that the Veteran's bilateral lower extremity peripheral neuropathy is rated under diseases of the peripheral nerves. 38 C.F.R. § 4.124a. Diagnostic Code 8520 provides that mild incomplete paralysis of the sciatic nerve is rated at 10 percent; moderate incomplete paralysis is rated at 20 percent; and severe incomplete paralysis with marked muscular atrophy is rated 60 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Veteran's bilateral upper extremity peripheral neuropathy is rated under Diagnostic Code 8513. Diagnostic Code 8513 provides ratings for paralysis of all radicular groups of nerves. Diagnostic Code 8513 provides that moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 70 percent disabling on the major side and 60 percent on the minor side. Complete paralysis of all radicular groups is rated 90 percent disabling on the major side and 80 percent on the minor side. 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. During the lengthy span of the appeal, the Veteran's VA treatment records, in October 2013, showed that there was "no significant atrophy" in his hands. See Medical Treatment Record - Government Facility (September 2014). An October 2014 VA examination showed less than normal muscle strength in shoulder abduction, elbow flexion, elbow extension, wrist flexion, wrist extension, right hip flexion, knee flexion, knee extension, ankle plantar flexion and ankle dorsiflexion. See C&P Exam (October 2014). Less than normal strength at 4/5 was noted, bilaterally, at elbow flexion, elbow extension, wrist flexion, wrist extension, grip, pinch, knee flexion, knee extension, ankle plantar flexion and ankle dorsiflexion. Id. The examination showed decreased knee and ankle reflexes; decreased light touch/monofilament testing in the shoulders, inner/outer forearm, hand/fingers, knee/thigh, ankle/lower leg and foot/toes. Id. Position sense was decreased in the right lower extremity (RLE), left upper extremity (LUE) and left lower extremity (LLE). Id. Vibration sensation was decreased in RUE, LUE and LLE, and was absent in RLE. Id. Cold sensation was absent in RUE, LUE and RLE absent, and was decreased in LLE. Id. Treatment records dating to November 2014 show muscle weakness in the upper and lower extremities, as well as numbness, tingling and difficulty walking. See VR&E-General (September 2017). An August 2016 VA treatment note shows the Veteran using cream for pain or muscle soreness. See CAPRI (April 2017). A December 2016 VA treatment note shows 4/5 manual muscle testing all 4 quadrants bilateral with twitching noted against resistance; gait exam revealed short strides, with decreased work of the right foot anterior muscle group, and late firing of the Tibialis anterior. Id. That note also shows the Veteran having dry flaky skin. Id. In September 2017, the Veteran reported aching muscles. See CAPRI (May 2019). In January 2019, the Veteran reported worsening neuropathy resulting in frequent falls and decreased muscle strength. Id. He reported that his wrist hurt, and he wore a brace for numbness and pain in wrist and hand. Id. Bilateral upper extremity muscle strength was noted as 3/5. Id. Manual muscle testing in April 2019 showed bilateral elbow flexion at 4; right elbow extension at 4-; left elbow extension at 3; right wrist extension at 4-; left wrist extension was deferred due to pain; right grasp at 3; left grasp was deferred due to pain; bilateral knee extension at 4; right dorsiflexion at 1; left dorsiflexion at 3; right plantar flexion at 2; left plantar flexion at 3; right extension hallucis at 1; and left extension hallucis at 3. Id. The Veteran most recently underwent a VA examination in September 2019, at which time the Veteran reported experiencing numbness, tingling, and heaviness to bilateral upper and lower extremities constantly. See C&P Exam (September 2019). The Veteran reported that his left arm is worse than his right, and that he cannot lift his left arm and can hardly lift his fingers. Id. He reported taking the maximum dose of Lyrica and muscle relaxers with little relief. Id. He also stated that he has right foot drop and broke his left ankle in November 2018 trying to take a shower. Id. He reported wearing an ankle brace on his left ankle to help with stability. Id. He provided that EMG was not completed due to him experiencing severe pain. Id. The examination showed reflex exam normal in biceps, triceps, right brachioradialis, and knees; and decreased in the left brachioradialis and bilateral ankles. Id. Sensory exam was normal in the shoulder area, inner/outer forearm, and knee/thigh; and decreased in hand/fingers, ankle/lower leg, and foot/toes. Id. Position sense was normal at RUE, RLE and LLE; and decreased in LUE. Vibration sensation was normal in RUE; and decreased in LUE, LLE and RLE. Id. Cold sensation was normal in RUE; and decreased in LUE, LLE and RLE. Id. The examination showed moderate incomplete paralysis of radial nerve, median nerve and ulnar nerve in the RUE; severe incomplete paralysis of radial nerve, median nerve and ulnar nerve in the LUE; moderately severe incomplete paralysis of sciatic nerve and moderate incomplete paralysis femoral nerve in the RLE; and moderately severe incomplete paralysis of sciatic nerve and moderate incomplete paralysis femoral nerve in the LLE. Id. Given the medical evidence prior to the September 2019 VA examination, although the examiner provided the above conclusions in regard to the severity of the Veteran's peripheral neuropathy, it is unclear if the findings as to reflexes and sensory examination, as well as notation for no atrophy, are correct as there was no acknowledgement of the earlier findings contained in the record, to include those annotated above. With regard to the requested opinion as to functional impact, the examination restated some, but not all, of the Veteran's reports of limitations without providing the requested "full description" of the impact on ordinary activity to include employment. Additionally, the Veteran reported continuing worsening of his upper and lower peripheral neuropathy. See NOD (September 2020). Unfortunately, VA treatment records from January 2019 to the present have not been associated with the Veteran's file. Nevertheless, the Board finds that, given the Veteran's reports of worsening symptoms and a need for a new examination, the Veteran's current symptomatology should also be addressed in detail. Thus, reexamination is necessary. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Regarding the Veteran's claim for SMC based on loss of use of the upper and lower extremities, this claim is inextricably intertwined with the pending claims for increased ratings for the bilateral upper and lower peripheral neuropathy disabilities. As such, the issue of entitlement to a SMC based on loss of us is inextricably intertwined with the increased rating issues and must be deferred pending the proposed development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Lastly, VA treatment records indicate the Veteran received medical treatment from both VA and private providers. A February 2019 private treatment record included with VA treatment records shows that the Veteran was scheduled for 12 sessions at St. Francis for physical therapy involving his LLE. Although some copies of these records were included with VA treatment records, these do not appear to be substantially complete, because they include one physical therapy session only. See Medical Treatment Record - Government Facility (May 2019). As relevant outstanding private treatment records are identified by the record, a remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for bilateral upper and lower extremity peripheral neuropathy since February 2011, to include St. Francis. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records dated from January 2019 to the present. 3. Thereafter, schedule the Veteran for a VA examination of the upper and lower extremities to ascertain the severity of his service-connected bilateral upper and lower extremity peripheral neuropathy using the most recent Disability Benefits Questionnaire for Peripheral Nerve Conditions. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must (a.) determine the current severity of his service-connected RLE, LLE, RUE and LUE peripheral neuropathy. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the separate rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, identify any symptoms and functional impairments due to peripheral neuropathy alone and discuss the effect on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, each examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (b.) Retrospective Opinion: looking back at the prior VA examinations, and considering any other lay/medical evidence of record to include interview of the Veteran at this examination, attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups including during 2014 and 2019 VA examinations. The examiner should specifically acknowledge the findings outlined above, to include a March 2013 finding of "no significant atrophy" in his hands, dry flaky skin noted in December 2016, decreased muscle strength, decreased sensation and decreased reflexes, and indicate whether physical examination disclosed muscular atrophy and, if so whether it is "marked" muscular atrophy. Explain. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.