Citation Nr: 22005352 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 18-14 707 DATE: February 1, 2022 ORDER Entitlement to an increased rating of 50 percent but no higher for peripheral neuropathy of the right upper extremity (major) secondary to diabetes mellitus, type 2, is granted. Entitlement to an increased rating of 40 percent but no higher for peripheral neuropathy of the left lower (minor) secondary to diabetes mellitus, type 2 is granted. Entitlement to an increased rating of 40 percent but no higher for peripheral neuropathy of the right lower extremity secondary to diabetes mellitus, type 2 from February 28, 2013 to October 7, 2019 is granted. Entitlement to an increased rating of 40 percent for peripheral neuropathy of the left upper extremity from February 28, 2013 to October 7, 2019 is granted. Entitlement to an increased rating in excess of 40 percent for peripheral neuropathy of the right lower extremity from October 7, 2019 and thereafter is denied. Entitlement to an increased rating in excess of 40 percent for peripheral neuropathy of the left lower extremity from October 7, 2019 and thereafter is denied. FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, his peripheral neuropathy of the right upper extremity manifested in severe axonal sensory motor polyneuropathy. 2. Resolving doubt in the Veteran's favor, his peripheral neuropathy of the left upper extremity manifested in severe axonal sensory motor polyneuropathy. 3. Resolving doubt in the Veteran's favor, his peripheral neuropathy of the right lower extremity manifested in moderately severe paralysis of the sciatic nerve from February 28, 2013 to October 7, 2019. 4. Resolving doubt in the Veteran's favor, his peripheral neuropathy of the left lower extremity manifested in moderately severe paralysis of the sciatic nerve from February 28, 2013 to October 7, 2019. 5. From October 7, 2019 to the date of the Veteran's death, his peripheral neuropathy of the right lower extremity did not manifest in severe incomplete paralysis with marked muscular dystrophy or complete paralysis of the sciatic nerve. 6. From October 7, 2019 to the date of the Veteran's death, his peripheral neuropathy of the left lower extremity did not manifest in severe incomplete paralysis with marked muscular dystrophy or complete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 50 percent but no higher for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. 2. The criteria for an increased rating of 40 percent for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. 3. The criteria for an increased rating of 40 percent for peripheral neuropathy of the right lower extremity from February 28, 2013 to October 7, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for an increased rating of 40 percent for peripheral neuropathy of the left lower extremity February 28, 2013 to October 7, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for an increased rating in excess of 40 percent for peripheral neuropathy of the right lower extremity from October 7, 2019 to the date of the Veteran's death have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. The criteria for an increased rating in excess of 40 percent for peripheral neuropathy of the left lower extremity from October 7, 2019 to the date of the Veteran's death have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1970 to December 1993. The Veteran died during the pendency of the appeal. The Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs VA Regional Office. In October 2019, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. In a February 2020 Board decision, the Veteran's disability ratings for these disabilities on appeal were restored. Thereafter, the Board remanded the Veteran's claims for a VA examination to determine the current severity of his peripheral neuropathy disability of the bilateral upper and lower extremity. Shortly after the Board's decision, the Veteran died. The VA Regional Office readjudicated the issues on appeal based on the evidence prior to his death in an October 2020 SSOC. While the VA Regional Office denied an increased rating in excess of 40 percent for peripheral neuropathy of the right upper extremity and in excess of 30 percent for peripheral neuropathy of the left upper extremity, it granted separately an increased rating of 40 percent for peripheral neuropathy of his left and right lower extremity. As this is not a full grant of benefit, the issues remain on appeal. In December 2020, additional VA treatment records were associated with the claims file. However, no supplemental statement of the case which considered the newly associated VA treatment records was not issued. In June 2021, the Appellant was notified of the additional VA treatment records and requested to decide whether she would like to waive the Agency of Original Jurisdiction's review of those VA treatment records in the first instance. In July 2021, the Appellant indicated that she would like to have the case remanded back to the Agency of Original Jurisdiction for additional review of the new evidence. Thus, in August 2021, the Board remanded the claims. These issues were again denied in a November 2021 supplemental statement of the case. Increased Rating In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is 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 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." 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). 1. Peripheral neuropathy of the right upper extremity associated with diabetes mellitus, type II 2. Peripheral neuropathy of the left lower extremity associated with diabetes mellitus, type II During his lifetime, the Veteran sought an increased rating for peripheral neuropathy of his right and left upper extremity. Specifically, the Veteran asserted that his peripheral neuropathy was worsening because he is unable to eat with his hand, hold utensils, drink coffee with both hands, brush his teeth, comb his hair, scratch his back, or bath himself. He was assigned a 40 percent disability rating for his right upper extremity (major) and a 30 percent for his left upper extremity (minor) under Diagnostic Code 8510 for moderate incomplete paralysis of the upper radicular group. Paralysis of the upper radicular group is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code DC 8510. Under these criteria, 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 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis of the upper radicular group such that all shoulder and elbow movements are lost or severely affected but hands and wrist movements are not affected is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a. 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). Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. Upon review of the record, the Board resolves doubt in favor of the Veteran and find that an increased rating of 50 percent for the Veteran's peripheral neuropathy of his right upper extremity (major) and an increased rating of 40 percent for his left upper extremity (minor) is warranted. In a June 2013 VA treatment record, a doctor noted the Veteran had worsening neuropathy glove and stocking distribution and difficulty with proprioception and balance due to pain. A review of his system was positive for motor deficit and decreased pinch strength. His sensation was not intact to 5-0 and he exhibited painful to touch altered proprioception. In an October 2013 VA examination, a VA examiner noted he had mild functional limitation of his bilateral upper extremity peripheral neuropathy. A neurological evaluation revealed no gross motor deficit of his bilateral upper extremity and muscle strength testing of his elbow flexion and extension, wrist flexion and extension, grip, and pinch were normal. There was no trophic changes or muscle atrophy. However, he experienced decreased sensation on light touch and pin prick was apparent and diffuse along his upper extremity bilaterally. Deep tendon reflex of his biceps, triceps, and brachioradialis were also hypoactive. Although sensory examination of his shoulder area was normal, he had decreased sensory of his inner/outer forearm and hand/fingers. The VA examiner indicated that he had mild incomplete paralysis of his upper, middle, and lower radicular group, bilaterally. In a February 2014 VA treatment record, the Veteran reported worsening neuropathy glove and stocking distribution and that he was having more difficulty with proprioception and balance due to his neuropathy. As such, he was scheduled for a consultation to assess the worsening of his condition. In an October 2014, a VA doctor indicated that the electrodiagnostic evidence were consistent with electrodiagnostically severe axonal sensory motor polyneuropathy with some demyelinating features. There was also a finding of a small syrinx at the C7 level. On evaluation of his musculoskeletal system, he had full range of motion of all joints and normal muscle strength of the upper extremity. However, he had decreased pinch strength. Despite having normal muscle strength of his upper extremities in a March 2016 VA treatment record, a VA doctor indicated he had diminished monofilament of his hands. Further, during an August 2019 VA treatment record, a doctor further indicated that he had motor deficit of his upper extremity due to his Syrinx. His sensation was not intact to 5-0 and that he had a weak grip. During an October 2019 Board hearing, the Veteran testified that he was unable to use his hands to perform activities of daily living such as eating, holding utensils, brushing his teeth, scratching his back, combing his hair, or bathing himself. He testified that his peripheral neuropathy causes sharp pain on a level of 9 out of 10 and the lowest at 7 out of 10. Despite stating that his stamina and strength has been mostly reduced due to his cancer treatment, the Veteran testified that he gets totally exhausted when holding something in his hands due to numbness and tingling. During the pendency of his appeal and before the Board remanded his claim on February 27, 2020, the Veteran passed away on February 12, 2020. In the February 2020 Board remand, his claim was remanded for a VA examination to determine the current severity of his disability. As such, in December 2020, a VA examiner provided an addendum opinion stating that the Veteran's polyneuropathy was sensorial, and that any weakness or decreased range of motion or inability of mobility is less likely associated to his polyneuropathy. However, the VA examiner subsequently states that it is impossible to establish which symptom belongs to the Veteran's conditions such as left knee surgery, Dupuytren's contracture, age, natural deconditioning, diabetes, diabetes neuropathy, carpal tunnel, cancer, and therapy. As the VA examiner provided conflicting statements regarding the symptoms that are attributed to the Veteran's peripheral neuropathy, the Board does not afford much probative weight to the December 2020 VA medical addendum. Considering the foregoing medical evidence and the Veteran's lay statements regarding the severity of his peripheral neuropathy of his bilateral upper extremity, the Board finds that his symptoms of more nearly approximates severe incomplete paralysis of the upper radicular group. The Veteran's peripheral neuropathy of the upper extremity disability was primarily manifested by impairment of motor functions, sensory disturbance, and pain. Although an October 2013 VA examiner indicated that he had mild incomplete paralysis of his upper radicular group and the December 2020 VA examiner stated his weakness or decreased range of motion was less likely related to his neuropathy, the subsequent medical treatment records demonstrated that he had severe axonal sensory motor polyneuropathy with some demyelinating features. The evidence further demonstrates continuous diminished monofilament testing, reduced sensation of his hands, and reduced strength. The Veteran has further competently and credibly testified that he has been unable to perform activities of daily living due to pain, numbness, and tingling of his upper extremities. Layno v. Brown, 6 Vet. App. 465, 471 (1994). The Board notes that the Veteran's August 2019 VA treatment records and December 2020 VA examination indicates some motor deficits of his upper extremities are due to the syrinx in his cervical spine, a December 2020 VA examiner ultimately stated that it was impossible to establish what symptoms belong to which condition. As the Veteran was not service connected for a cervical spine disability and the motor deficits has not been conclusively determined to be related solely to the cervical syrinx, the Board finds that it should be rated as part of his service-connected peripheral neuropathy of his bilateral upper extremity. See Mittledier v. West, 11 Vet. App. 181, 182 (1998) (holding that where the nonservice-connected symptoms cannot be distinguished from the service-connected symptoms, they should be rated as part of the service-connected disability). The Board has considered whether the Veteran would have been entitled to a higher disability rating for complete paralysis of his bilateral upper extremity. However, the medical and lay evidence only demonstrate decreased sensation and motion of his hands. Although his VA treatment records in April 2019 indicated right shoulder pain with limited abduction, it was attributed to mild osteoarthritis of the glenohumeral and acromioclavicular joints and not his peripheral neuropathy. The medical also demonstrate that he had normal muscle strength throughout the period on appeal. As such, the Board finds that his peripheral neuropathy of the bilateral upper extremity does not more nearly approximate complete paralysis. The Board has considered all other potentially applicable Diagnostic Codes. While the Veteran's October 2013 VA examination reflects mild incomplete paralysis of his middle and lower radicular group, the evidence does not demonstrate that he experiences symptoms sufficient to meet the criteria for a higher rating under those radicular group. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, during his lifetime, the Board finds that the Veteran's peripheral neuropathy of his bilateral upper extremity more closely approximates severe incomplete paralysis of his upper radicular group. Thus, an increased rating of 50 percent but no higher is warranted for his right upper extremity and an increased rating of 40 percent but no higher is warranted for his left upper extremity. 3. Peripheral neuropathy of the right lower extremity associated with diabetes mellitus from prior to February 28, 2013 to October 7, 2019 4. Peripheral neuropathy of the left lower extremity associated with diabetes mellitus from prior to February 28, 2013 to October 7, 2019 5. Peripheral neuropathy of the right lower extremity from October 7, 2019 and thereafter 6. Peripheral neuropathy of the right lower extremity from October 7, 2019 and thereafter The Veteran further sought an increased rating for peripheral neuropathy of his bilateral lower extremity. He asserted that his peripheral neuropathy of the bilateral lower extremities has worsened causing him to be in a wheelchair as of 2018. The Veteran's peripheral neuropathy of his bilateral extremity is rated under Diagnostic Code 8520. During the pendency of the appeal, the VA regional office staged the Veteran's ratings for his bilateral extremity. Prior to October 7, 2019, the VA regional office continued a 20 percent rating for both his bilateral lower extremity. From October 7, 2019, he was separately assigned a 40 percent disability. 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. From February 28, 2013 to October 7, 2019 For the period from February 28, 2013 to October 7, 2019, the Board finds that a 40 percent disability but no higher is warranted for peripheral neuropathy of his bilateral lower extremity. As indicated above, he reported worsening neuropathy glove and stocking distribution and difficulty with proprioception and balance due to pain in August 2013. During the October 2013 VA examination, he exhibited moderate paresthesias and/or dysesthesias and numbness of the right and lower extremity but did not experience constant or intermittent pain. His deep tendon reflexes for his knees and ankles were hypoactive and he had decreased sensation of the upper anterior thigh, thigh/knee, lower leg/ankle, and foot and toes. Muscle strength testing of his left and right knee extension, ankle plantar flexion, and ankle dorsiflexion were normal. There was also no evidence of muscle atrophy, trophic changes, or gross motor deficit. The VA examiner noted that his lower radicular group of the right and left lower extremity had mild incomplete paralysis. His lower extremity nerves to include his sciatica nerve were all normal indicating no incomplete or complete paralysis. In February 2014 VA treatment record, he continued to report that he was having more difficulty with proprioception and balance due to his neuropathy and that he fell down when stepping down from a curb. The VA doctor noted his proprioception was not intact bilaterally. In October 2014, the Veteran's electromyograph/nerve conduction test showed electrodiagnostic evidence consistent with an electro diagnostically severe axonal sensory motor polyneuropathy. Although he exhibited no motor deficit, decreased muscle strength, or abnormal gait, his deep tendon reflexes were 1+ and equal (indicating a hypoactive or slight be present response) and his sensation was not intact 5-0. In an October 2015 VA treatment record, the Veteran exhibited an unsteady gait and was ambulating with a cane. A neurological evaluation indicated he had diminished monofilament in his hands and feet with decreased vibratory sensation below his ankles. The Veteran continued to experience decreased vibratory sensation below his ankles and diminished monofilament of his feet in a June 2017 VA treatment record. However, the VA doctor further noted that he was experiencing motor deficit of his upper and lower extremities which were secondary to a syrinx in his cervical spine. In a December 2019 Board hearing, the Veteran further testified that he has been confined to a wheelchair in 2018. He further testified that he experiences severe pain when leaning forward and rotating his hips. Based on the above, the Board finds that his disability is primarily manifest by impairment of motor functions, loss of reflexes, severe sensory motor disturbance, and pain. Although the October 2013 VA examination demonstrated his symptoms were consistent with moderate incomplete paralysis, the October 2014 VA treatment record indicated his condition was more severe as he was diagnosed with severe axonal sensory motor polyneuropathy of his bilateral lower extremity. His subsequent VA treatment records and lay statements also supports a finding that his peripheral neuropathy of his bilateral lower extremity has manifested in moderately severe incomplete paralysis. Specifically, the Veteran began to exhibit abnormal gait and was using a cane to ambulate. He also demonstrated diminished monofilament and decreased sensation of his lower extremity. The Board further finds the Veteran's lay statements regarding the severity of his pain of his bilateral lower extremity to be competent and credible. As such, the Board resolves doubt in favor of the Veteran and finds that he met the criteria for moderately severe incomplete paralysis of the sciatic nerve from February 28, 2013 to October 7, 2019. The Board has considered whether he met the criteria for a higher rating under DC 8520. However, the Veteran's VA treatment record does not reflect that he has been diagnosed with marked muscular atrophy. There is also no evidence of any trophic changes of his bilateral lower extremities. Notably, his muscle strength of his bilateral lower extremities has been normal throughout this period on appeal. The Board acknowledge that the Veteran testified that his left foot is totally immobile and that his right leg has very limited motion. However, the Board finds that the evidence showed that his total immobility of the left knee was related to his left knee sarcoma. As indicated in a January 2019 VA treatment record, he underwent 21 treatment radiation therapy of his left knee and had a resection of the mass. It was noted during that VA treatment record that his left leg was non-weight bearing. The Veteran further testified during the October 2019 Board hearing that his inability to move his left leg was the result of three surgeries on his left leg. With regards to his right lower extremity, the Board acknowledge that he experiences motor deficits and decreased sensation. The Veteran also testified to having limited range of motion of his right knee. However, the evidence does not reflect that he has marked muscular dystrophy or that he experiences complete paralysis of his right lower extremity. As such, he is not entitled to a disability rating of 60 percent or higher for peripheral neuropathy of his bilateral lower extremity. Based on the foregoing reasons, the Board finds that the Veteran is entitled to 40 percent disability rating from February 28, 2013 to October 7, 2019, but no higher. From October 7, 2019 With regards to the period from October 7, 2019, the Veteran is assigned a 40 percent disability rating under DC 8520. For the same reasons stated above, the Board finds that he is not entitled to a disability rating in excess of 40 percent for the period beginning on October 7, 2019. Although he continued to experience pain in his left leg, weakness, and inability to stand for a prolonged period, he was still able to walk to the bathroom using his walker. There is no evidence demonstrating severe incomplete paralysis with marked muscular atrophy or complete paralysis. As such, the Board finds that the Veteran's symptoms from October 7, 2019 to the date of his death does not meet the criteria for a disability rating of 60 percent or higher. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran had 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. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent from October 7, 2019. As the evidence of record persuasively weighs against a rating in excess of 40 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, Associate 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.