Citation Nr: 21048003 Decision Date: 08/05/21 Archive Date: 08/05/21 DOCKET NO. 16-45 146 DATE: August 5, 2021 ORDER Entitlement to a separate compensable rating for perineum/left heel ulcers, as secondary to service-connected diabetes mellitus is granted. Entitlement to an evaluation of 40 percent prior to August 3, 2020 for peripheral neuropathy, right upper extremity is granted. Entitlement to an evaluation in excess of 40 percent from August 3, 2020 for peripheral neuropathy, right upper extremity is denied. Entitlement to an evaluation of 30 percent prior to August 3, 2020 for peripheral neuropathy, left upper extremity is granted. Entitlement to an evaluation in excess of 30 percent from August 3, 2020 for peripheral neuropathy, left upper extremity is denied. REMANDED Entitlement to service connection for a skin condition other than perineum/left heel ulcers, to include as secondary to diabetes mellitus is remanded. FINDINGS OF FACT 1. The Veteran has had compensably disabling perineum/left heel ulcers aggravated by his diabetes mellitus, type 2, during the period on appeal. 2. Prior to August 3, 2020 the Veteran's right upper extremity peripheral neuropathy was manifested by a moderate nerve impairment. 3. Since August 3, 2020 the Veteran's right upper extremity peripheral neuropathy was not manifested by a severe nerve impairment. 4. Prior to August 3, 2020 the Veteran's left upper extremity peripheral neuropathy was manifested by a moderate nerve impairment. 5. Since August 3, 2020 the Veteran's left upper extremity peripheral neuropathy was not manifested by a severe nerve impairment. CONCLUSIONS OF LAW 1. The criteria for a separate, compensable rating for perineum/heel ulcers have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.119. 2. The criteria for entitlement to a rating of 40 percent for a right upper extremity peripheral neuropathy prior to August 3, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.7, 4.124a, DC 8513. 3. The criteria for entitlement to a rating in excess of 40 percent for a right upper extremity peripheral neuropathy since August 3, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.7, 4.124a, DCs 8512-8516. 4. The criteria for entitlement to a rating of 30 percent for a left upper extremity peripheral neuropathy prior to August 3, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.7, 4.124a, DC 8513. 5. The criteria for entitlement to a rating in excess of 30 percent for a left upper extremity peripheral neuropathy since August 3, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.7, 4.124a, DCs 8512-8516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1965 to November 1968. The issues are on appeal from a June 2014 rating decision. In August 2020, the Veteran testified at a virtual Board hearing before the undersigned Veteran's Law Judge (VLJ). A copy of the transcript is of record. These matters were remanded by the Board in January 2021 for additional development. They have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this case, additional VA treatment records were associated with the claims file. However, the Board finds that the additional VA treatment records are not relevant to the issue on appeal as they are redundant and cumulative of the evidence considered by the April 2021 supplemental statement of the case (SSOC). 1. Entitlement to a separate compensable rating for perineum/left heel ulcers, as secondary to service-connected diabetes mellitus The Veteran contends that he has a skin condition related to his active service which began shortly after service. As previously noted, in addition to seborrheic keratosis noted on his left cheek, the Veteran has been diagnosed with non-healing stage 3 pressure ulcer as well as cellulitis and right heel ulcer. The Veteran is currently service-connected for diabetes mellitus, type 2, with left stage 3 pressure ulcer left ischium, diabetic ulcer-perianal and with diabetic ulcer-right heel, which is rated under Diagnostic Code 7913. 38 C.F.R. § 4.119. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be separately rated unless they are part of the criteria used to support a 100 percent evaluation and that noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. In this regard, during a November 2018 VA examination, the examiner reported that the Veteran stated that the cellulitis and right heel ulcer and non-healing stage 3 pressure ulcer began with a diabetic ulcer from being in a nursing home. It was further noted that it had not healed and the condition on the buttock had gotten worse. According to the March 2021 VA examination report, the VA examiner stated that the decubitus ulcer diagnosed in January 2016 would be aggravated by the Veteran's diabetes, noting that it is well known in the medical community that diabetes leads to poor wound healing. The Veteran's VA treatment records show that he continues to be treated for the left heel and right buttock wounds/ulcers. According to VA treatment records dated in October 2020, dressing was applied over potential areas of breakdown. It was further noted that half of the heel wound was healing well covered granulation tissue whereas the other half probes to bone and covered with soft mushy devitalized tissue. The right buttock wound was described as chronic pressure ulcer stage 4 with breakdown of the quarter side outer wound and some discharge. Here, the Veteran's heel ulcer and buttock ulcer have been noted to be complications of diabetes and have been present during the period on appeal. While wound pain has not been shown, one was observed to have signs of skin breakdown, which is indicative of an unstable scar, i.e., frequent loss of covering of skin over the scar. See Note (1), supra. Therefore, resolving all doubt in the Veteran's favor, the Board finds the Veteran had separate, compensable ulcers for at least a portion of the period on appeal related to his service-connected diabetes mellitus, type 2. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, a separate, compensable rating is warranted for perineum/left heel ulcers. 2. Entitlement to an evaluation in excess of 10 percent prior to August 3, 2020 for peripheral neuropathy, right upper extremity 3. Entitlement to an evaluation in excess of 40 percent from August 3, 2020 for peripheral neuropathy, right upper extremity 4. Entitlement to an evaluation in excess of 10 percent prior to August 3, 2020 for peripheral neuropathy, left upper extremity 5. Entitlement to an evaluation in excess of 30 percent from August 3, 2020 for peripheral neuropathy, left upper extremity The Veteran contends that his bilateral upper extremity peripheral neuropathies are more severely disabling than represented by the ratings assigned. Prior to August 3, 2020, the Veteran's left and right upper extremity peripheral neuropathies were rated as 10 percent disabling each under DC 8616 based on paralysis of the ulnar nerve. Starting August 3, 2020, the left and right upper extremity peripheral neuropathies have been rated under DC 8513 based on paralysis of all radicular groups. Under 38 C.F.R. § 4.124a, Diagnostic Code 8516, ratings are available for impairment associated with paralysis of the ulnar nerve. For incomplete paralysis of the ulnar nerve to a mild degree warrants a 10 percent rating for both the major and minor upper extremities; 30 and 20 percent ratings are available for a moderate degree of incomplete paralysis for the major and minor upper extremities, respectively; 40 and 30 percent ratings are available for a severe degree of incomplete paralysis for the major and minor upper extremities, respectively; and 60 and 50 percent ratings are available for complete paralysis (the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened) for the major and minor upper extremities, respectively. 38 C.F.R. § 4.124a, Diagnostic Code 8516. Diagnostic Codes 8616 (neuritis) and 8716 (neuralgia) rate disability of the ulnar nerve with similar criteria and ratings. Under 38 C.F.R. § 4.124a, Diagnostic Code 8511, ratings are available for impairment associated with paralysis of the middle radicular group. Under 38 C.F.R. § 4.124a, Diagnostic Code 8512, ratings are available for impairment associated with paralysis of the lower radicular group. Under 38 C.F.R. § 4.124a, Diagnostic Code 8513, ratings are available for impairment associated with paralysis of the all radicular groups. For impairment of all radicular groups manifesting in incomplete paralysis to a mild degree warrants a 20 percent rating for both major and minor upper extremities; 40 and 30 percent rating are available for a moderate degree of incomplete paralysis for the major and minor upper extremities, respectively; 70 and 60 percent ratings are available for a severe degree of incomplete paralysis for the major and minor upper extremities, respectively; and 90 and 80 percent ratings are available for complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8513. Diagnostic Codes 8613 (neuritis) and 8713 (neuralgia) rate disability of the lower radicular group with similar criteria and ratings. 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 on 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. 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 of 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. § 4.124 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). An August 2011 private treatment EMG/NCV electrodiagnostic study clinical interpretation noted the Veteran to have bilateral moderate carpal tunnel syndrome intermixed with sensory/motor peripheral neuropathy. An October 2011 private treatment record noted the Veteran had significant neuropathy to his hands. According to a May 2014 VA Peripheral Nerve examination report, the Veteran was noted to have peripheral neuropathy of the upper extremities; however, no further evaluation of the upper extremities was completed. VA treatment records dated in 2015 reflect that the Veteran complained of tingling and pain in his upper extremities. In August 2015, he was shown to have active range of motion in the right shoulder within functional limits without pain. Active range of motion of the left shoulder was limited with pain in all directions. Active range of motion in the elbows was reportedly fairly good and pain free. He had mild puffiness and tenderness in the hands and active range of motion was panful in the thumbs. The Veteran was able to make full fists, but had some pain in the MCP and PIP joints in various fingers. Deep tendon reflexes were decreased in both upper extremities and grip strength was reported to be fair. See August 2015 VA treatment records. A September 2015 VA EMG study showed bilateral moderate carpal tunnel syndrome with chronic denervation and moderate sensory neuropathy most probably secondary to longstanding diabetes mellitus. At a March 2021 VA examination, the Veteran's bilateral upper extremities were manifested by moderate paresthesias and/or dysesthesias and numbness. Strength testing was normal for grip, pinch, and elbow and wrist flexion and extension bilaterally. Deep tendon reflexes were decreased in the biceps, triceps and brachioradialis bilaterally. Sensation to light touch was normal in the hands, fingers, forearm, and shoulder area bilaterally. Position sense and vibration sense were normal and cold sensation was decreased in the right upper extremity only. There was no muscle atrophy or trophic changes. The overall severity of the upper extremity neuropathies was described as moderate incomplete paralysis of the radial, median, and ulnar nerves bilaterally. The functional impact of the neuropathies was described as unable to hold small items in hand without fear of dropping them. As the Veteran has multiple nerve parts affected (radial, median, and ulnar), the Board finds that ratings under Diagnostic Code 8513 for all radicular groups is warranted for the entire period on appeal. Diagnostic Code 8513 also provides the highest ratings for diseases of the peripheral nerves. Here, the Board has credited the Veteran's lay statements as well as the medical evidence (private medical evidence and VA examination reports) regarding the severity of the Veteran's nerve disabilities. In that regard, the Board finds that the evidence indicates that the Veteran suffers from symptoms of numbness; tingling; pain; decreased reflexes difficulty holding small items. Based on these symptoms, the Board finds that the Veteran experiences moderate incomplete paralysis of his radial, median, and ulnar nerves for his left upper extremity and right upper extremity. The Veteran has consistently reported symptoms which the Board finds rises to the level of moderate incomplete paralysis during the entire period on appeal. VA and private records reflect varying symptoms of pain, paresthesias and dysesthesias, and decreased reflexes. This finding entitles the Veteran to an increased rating of 40 percent for his right upper extremity disability (major) and of 30 percent for the left upper extremity, as each is currently only rated as mild incomplete paralysis of the ulnar nerve. That being said, the Board finds that disability ratings in excess of 40 and 30 percent, respectively, are not warranted prior to or since August 3, 2020. Ratings in excess of 40 percent for the right upper extremity and 30 percent for the left upper extremity are not warranted as there is no evidence to suggest that either upper extremity has experienced severe incomplete paralysis. In this regard, the August 2011 private clinician and the March 2021 VA examiner found only a moderate impairment of the nerves bilaterally. Bilateral upper extremity symptoms noted throughout the appeal period were no more than moderate bilaterally. While upper extremity reflexes were decreased, upper extremity strength was normal. Sensation in the upper extremities was normal except for cold sensation on the right. There was no muscle atrophy or tropic changes related to the upper extremities. The next higher disability rating under Diagnostic Code 8513 contemplates severe paralysis, which has not been shown in this case for the either the left or right upper extremities. The evidence preponderates against finding more than a moderate impairment of the involved nerves. The Board has considered the October 2011 examiner's reports of "significant neuropathy to the hands." However, no further description of the impairment was provided and based on the severity of symptoms reported otherwise, the overall impairment of the upper extremity nerves has not been more than moderate. The evidence preponderates against finding a severe nerve impairment s under any applicable DC, to include 8512, 8513, 8514, 8515, or 8516. 38 C.F.R. § 4.124a. Therefore, ratings in excess of 40 percent for the major extremity and 30 percent for the minor extremity are not warranted. The Board has considered whether separate ratings may be assigned for the separate impairments of the radial, median, and ulnar nerves. However, the DCs 8510, 8511, 8512, and 8513 contemplate various levels of paralysis of the entire upper radicular group (shoulder and elbow movements), middle radicular group (adduction, abduction and rotation of arm, flexion of elbow and extension of wrist), lower radicular group (all intrinsic muscles of hand, and some or all of flexors of wrist and finger) and all radicular groups, respectively. The Veteran's currently assigned rating contemplates "all radicular groups" including the upper extremity functions contemplated by impairments of the radial, median, and ulnar nerves. Based on the availability of a combined rating under these diagnostic codes, separate ratings for individual upper extremity nerve impairments are not appropriate in this case. 38C.F.R. §4.124a. Based on the foregoing, increased ratings of 40 percent for his right upper extremity (major) and of 30 percent for the left upper extremity (minor) are warranted. However, the evidence preponderates against finding that ratings in excess of 40 percent for right upper extremity neuropathy or 30 percent for the left upper extremity are warranted for any period on appeal. REASONS FOR REMAND Entitlement to service connection for a skin condition other than perineum/heel ulcers, to include as secondary to diabetes mellitus is remanded. The Veteran was afforded VA skin examination in May 2014 and as well as an addendum opinion in March 2021. Although the examiner noted the Veteran's history of rosacea as well as more recent diagnoses of seborrheic keratosis/dermatitis, the March 2021 examiner opined the seborrheic keratosis/dermatitis was not incurred during or related to the Veteran's active duty service. While no opinion was provided regarding the Veteran's rosacea, with the examiner noting such was not present, an opinion regarding secondary service connection was also not provided regarding the Veteran's seborrheic keratosis/dermatitis. Additionally, VA treatment records reflect diagnosis of basal cell carcinoma of the cheek. Accordingly, remand is required for an addendum medical opinion regarding the etiology of the Veteran's skin conditions in existence during the appeal period, other than perineum/heel ulcers, which fully addresses the Veteran's contentions. The matters are REMANDED for the following action: Obtain an addendum opinion from the March 2021 VA skin examiner. If the examiner is no longer available, obtain an opinion from another appropriate examiner to determine the nature and etiology of the Veteran's claimed skin conditions. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. After the record review, and examination of the Veteran if deemed necessary by the examiner, the VA examiner is asked to respond to the following: Identify all diagnosed skin conditions present during the appeal period, regardless of whether they are diagnosed at the examination and/or have resolved, to include, but not limited to, rosacea, seborrheic keratosis/dermatitis, and/or basal cell carcinoma. Consider and discuss a VA treatment records listing "basal cell, left cheek, seborrheic dermatitis," "seborrheic keratosis," "basal cell carcinoma of the cheek", as well as any skin rash for which hydrocortisone is listed as an active medication. Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's currently diagnosed skin conditions, to include rosacea, seborrheic keratosis/dermatitis, and/or basal cell carcinoma, were either incurred in, or is otherwise related to, the Veteran's military service, to include his in-service herbicide agent exposure? A negative opinion based solely on the fact that the Veteran's skin condition is not presumptively associated with exposure to herbicide agents is not sufficient. Alternatively, the examiner should opine whether the Veteran's claimed skin condition, to include rosacea, seborrheic keratosis/dermatitis, and/or basal cell carcinoma, is at least as likely as not either (a) caused by; or (b) aggravated by the Veteran's service-connected diabetes mellitus. The complete rationale for all opinions should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.