Citation Nr: 22016107 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-12 722 DATE: March 21, 2022 ORDER The claim of entitlement to disability ratings in excess of 20 percent prior to March 30, 2018, and in excess of 40 percent thereafter for right upper extremity peripheral neuropathy is denied. The claim of entitlement to disability ratings in excess of 20 percent prior to March 30, 2018, and in excess of 30 percent thereafter for left upper extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. Prior to March 30, 2018, the Veteran's right upper extremity peripheral neuropathy has been manifested by no more than mild, incomplete paralysis of all radicular groups. 2. Prior to March 30, 2018, the Veteran's left upper extremity peripheral neuropathy has been manifested by no more than mild, incomplete paralysis of all radicular groups. 3. From March 30, 2018, the Veteran's right upper extremity peripheral neuropathy has been manifested by no more than moderate, incomplete paralysis of all radicular groups. 4. From March 30, 2018, the Veteran's left upper extremity peripheral neuropathy has been manifested by no more than moderate, incomplete paralysis of all radicular groups. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent prior to March 30, 2018, and in excess of 40 percent thereafter, for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8513. 2. The criteria for a disability rating in excess of 20 percent prior to March 30, 2018, and in excess of 30 percent thereafter, for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Army from June 1967 to October 1969. These matters come before the Board of Veterans' Appeals (Board) from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's April 2019 Form 9 appeal, he requested a videoconference hearing before the Board. In a December 2020 letter submitted by his representative, the Veteran requested to waive his hearing request and cancel his hearing before the Board. As such, the Board finds the Veteran's hearing request withdrawn. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.902(c). Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes; however, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The benefit-of-the-doubt rule applies if the competing evidence is "nearly equal" or in "approximate balance." This rule does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Specific to the Veteran's appeal, disease of the peripheral nerves of the upper extremities are rated under 38 C.F.R. § 4.124a, DCs 8510 to 8719. The Veteran's right side is his dominant side, and thus is considered the "major" extremity. His left side is his "minor" side. DC 8510 applies to the upper radicular group, DC 8511 to the middle radicular group, and DC 8512 to the lower radicular group. DC 8513 applies to complete or incomplete paralysis of all radicular groups. 38 C.F.R. § 4.124a. Under Diagnostic Code 8513, mild incomplete paralysis of all radicular groups warrants a 20 percent rating for both the minor and major extremity; moderate incomplete paralysis of all radicular groups warrants a 30 percent rating for the minor extremity and a 40 percent rating for the major extremity; severe incomplete paralysis of all radicular groups warrants a 60 percent rating for the minor extremity and a 70 percent rating for the major extremity; and complete paralysis of all radicular groups warrants an 80 percent rating for the minor extremity and a 90 percent rating for the major extremity. DCs 8514-8519 apply to complete or incomplete paralysis of specific nerves: musculospiral (radial) nerve (DC 8514); median nerve (DC 8515); ulnar nerve (DC 8516); musculocutaneous nerve (DC 8517); circumflex nerve (DC 8518); and long thoracic nerve (DC 8519). 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. 38 C.F.R. § 4.124. 1. The claim of entitlement to disability ratings in excess of 20 percent prior to March 30, 2018, and in excess of 40 percent thereafter for right upper extremity peripheral neuropathy. See section 2, below. 2. The claim of entitlement to disability ratings in excess of 20 percent prior to March 30, 2018, and in excess of 30 percent thereafter for left upper extremity peripheral neuropathy. The Veteran contends he is entitled to higher disability ratings for peripheral neuropathy of his bilateral upper extremities. Specifically, he contends, through his representative, that he has moderate incomplete paralysis bilaterally of radial, median, and ulnar nerves and that he is "entitled to separate compensable ratings for each nerve group under their corresponding Diagnostic Codes (8514, 8515, 8516), not a single rating for the 'upper radicular group[.]'" See April 2019 Form 9. The period on appeal dates from May 30, 2017, which is the effective date of the grant of service connection for peripheral neuropathy of the upper extremities. Bilaterally, the upper extremities were assigned initial 20 percent disability ratings. These ratings were increased to 40 and 30 percent for the right and left upper extremities, respectively, effective March 30, 2018. The Veteran received an in-person VA examination in July 2017. The Veteran did not report experiencing intermittent or constant pain but did experience mild numbness and paresthesias and/or dysesthesias, bilaterally. The Veteran's strength testing and reflexes were normal in each category, bilaterally, and he had no muscle atrophy. Evaluation showed the Veteran had decreased light touch/monofilament testing in his left inner and outer forearm and in his right hand and fingers. Position sense and vibration sensation was normal, bilaterally. Cold sensation was decreased bilaterally. No trophic changes were observed. Evaluation showed the Veteran had mild, incomplete paralysis of the radial, median, and ulnar nerves, bilaterally. The Veteran received a second in-person VA examination in March 2018. This evaluation shows that the Veteran reported experiencing mild, intermittent pain in his bilateral upper extremities. He experienced moderate numbness and paresthesias and/or dysesthesias, bilaterally. The Veteran's strength testing and reflexes were normal in each category, bilaterally, and he had no muscle atrophy. Evaluation showed the Veteran had decreased sensory testing in his hands and fingers. This examination showed moderate, incomplete paralysis of the radial, median, and ulnar nerves, bilaterally. The Board finds the above examinations probative as they are based on consideration of in-person examination and review of clinical and lay evidence. There is no contradictory medical evidence of record to weigh against these findings. The evidence of record contains a November 2018 VA examination of peripheral nerve conditions; however, this examination pertains to the severity of the Veteran's lower extremities. See October 2018 VA Form 21-2507a Request for Physical Examination (requesting evaluation of lower extremities); April 2019 VA Form 9 (requesting that the Board disregard this examination for rating of the Veteran's upper extremities). Accordingly, while this examination appears to include "normal" findings for the Veteran's upper extremities, the Board assigns no probative value to this data. The Board further notes that a June 2021 rating decision cited to a private disability benefits questionnaire (DBQ) completed by a provider with the initials D.D., received in October 2020. Review of that record revealed that the examination pertained to a separate Veteran's appeal. As such, that anomalous record has been removed from the Veteran's claims file and the Board has not considered it as part of the Veteran's claim. The Veteran received an additional in-person VA examination in May 2021. This evaluation shows that the Veteran reported experiencing no pain in his right upper extremity but had moderate, intermittent pain on the left side. He continued to experience moderate numbness and paresthesias and/or dysesthesias, bilaterally. Strength testing showed some decrease to four out of five (maximum) strength bilaterally in elbow extension, wrist flexion and extension, and in grip strength. Right thumb pinch strength decreased to four out of five. No muscle atrophy was present. Reflexes were normal for the bilateral upper extremities. Evaluation showed the Veteran had decreased sensory testing in his shoulders and hands and fingers, bilaterally. No trophic changes were observed for the upper extremities. This evaluation showed normal radial nerves, bilaterally, but moderate, incomplete paralysis of the median and ulnar nerves, bilaterally. Specific nerve testing showed normal musculocutaneous, circumflex, and long thoracic nerves. The examiner concluded there was moderate, incomplete paralysis of the upper, middle, and lower radicular groups. The examiner noted that the Veteran's condition caused difficulty grasping things. The Board again finds this examination probative as is it based on in-person examination and review of the evidence of record. Based on the above, the Board finds that the Veteran's bilateral upper extremity disability is primarily manifest by, at most, mild sensory disturbance and mild, incomplete paralysis prior to March 30, 2018. From March 30, 2018, the disability is primarily manifest by, at most, moderate sensory disturbance, and moderate, incomplete paralysis, with intermittent pain. The Board acknowledges the lay assertions of record that the Veteran experiences numbness, tingling, intermittent pain, and other sensory changes, and finds that his statements support ratings as currently assigned. Further, the Veteran and his representative have not asserted that the examinations provided have been inadequate. Instead, according to his October 2017 notice of disagreement and April 2019 Form 9, the Veteran asserted that his bilateral upper extremity peripheral neuropathy had worsened during the period on appeal, as reflected by his March 2018 examination. As such, the Board finds this worsening adequately quantified by the March 2018 VA examination, as outlined above. The Veteran's upper extremity peripheral neuropathy has been shown to involve multiple nerves, namely the radial, median, and ulnar nerves. The Board acknowledges the Veteran's contention that he should be assigned increased ratings for each of these nerves; however, the Board finds that separate ratings are not warranted, as the DCs applicable to each nerve make clear that they involve overlapping symptomatology. Assigning multiple ratings for the same or overlapping symptoms would constitute impermissible pyramiding. See 38 C.F.R. § 4.14 ("The evaluation of the same disability under various diagnoses is to be avoided."). The Board is aware that the radial, median, and ulnar nerves make up the lower radicular group; as such, consideration of DC 8512 has been considered. However, as noted above, "mild" incomplete paralysis of the lower radicular group warrants a 20 percent rating for each extremity prior to March 30, 2018, was already assigned for the Veteran. The Veteran is already in receipt of separate 40 and 30 percent ratings, effective March 30, 2018. Thus, DC 8512 does not provide a path to an increased rating. Based on the foregoing, the Board finds that severe incomplete paralysis of all upper radicular nerve groups has not been shown such that higher ratings would be warranted prior to or from March 20, 2018. Therefore, ratings in excess of 40 and 30 percent for right and left upper extremity peripheral neuropathy, respectively, are not warranted. See 38 C.F.R. § 4.124a , DC 8513. The Board has 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. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent prior to March 30, 2018, and against the claim for ratings in excess of 40 and 30 percent for the right and left upper extremities, respectively, thereafter. As the evidence of record persuasively weighs against the claims for increase, the benefit-of-the-doubt rule does not apply, and the appeals are denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.