Citation Nr: 25003592 Decision Date: 03/14/25 Archive Date: 03/14/25 DOCKET NO. 18-06 005 DATE: March 14, 2025 ORDER The claim of entitlement to an effective date of January 21, 2003, for the award of service connection for diabetic peripheral neuropathy of the right upper extremity is granted. The claim of entitlement to an effective date of January 21, 2003, for the award of service connection for diabetic peripheral neuropathy of the left upper extremity is granted. The claim of entitlement to a disability rating higher than 20 percent from October 12, 2011, to August 31, 2023, and higher than 40 percent from August 31, 2023, for service-connected diabetic peripheral neuropathy of the right upper extremity, is denied. The claim of entitlement to a disability rating higher than 20 percent from October 12, 2011, to August 31, 2023, and higher than 30 percent from August 31, 2023, for service-connected diabetic peripheral neuropathy of the left upper extremity, is denied. FINDINGS OF FACT 1. A May 2004 rating decision denying service connection for upper extremity diabetic peripheral neuropathy of the right extremity did not become final because unaddressed new and material evidence was received prior to the expiration of the appeal period. 2. A May 2004 rating decision denying service connection for upper extremity diabetic peripheral neuropathy of the left extremity did not become final because unaddressed new and material evidence was received prior to the expiration of the appeal period. 3. From October 12, 2011, to August 31, 2023, the Veteran's right (major or dominant) upper extremity peripheral neuropathy manifested with no more than mild incomplete paralysis of all radicular nerve groups. 4. From October 12, 2011, to August 31, 2023, the Veteran's left (minor or non-dominant) upper extremity peripheral neuropathy manifested with no more than mild incomplete paralysis of all radicular nerve groups. 5. From August 31, 2023, Veteran's right upper extremity peripheral neuropathy manifested with no more than moderate incomplete paralysis of all radicular nerve groups. 6. From August 31, 2023, Veteran's left upper extremity peripheral neuropathy manifested with no more than moderate incomplete paralysis of all radicular nerve groups. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of January 21, 2003, for the award of service connection for diabetic peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. § 3.156(b), 3.400. 2. The criteria for an earlier effective date of January 21, 2003, for the award of service connection for diabetic peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. § 3.156(b), 3.400. 3. From October 12, 2011, to August 31, 2023, the criteria for entitlement to a disability rating higher than 20 percent, for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8513. 4. From October 12, 2011, to August 31, 2023, the criteria for entitlement to a disability rating higher than 20 percent, for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8513. 5. From August 31, 2023, the criteria for entitlement to a disability rating higher than 40 percent, for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8513. 6. From August 31, 2023, the criteria for entitlement to a disability rating higher than 30 percent, for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1969 to June 1971. He had service in Vietnam and received the Vietnam Service Medal, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). The Board notes at the outset that the procedural history of the issues on appeal is unusual and the Board has endeavored to clarify this history in section two, below. As an initial matter, the Board notes that the Veteran requested a Board hearing on his December 2017 VA Form 9. In its March 2023 remand, the Board found that the Veteran had failed to attend a scheduled hearing and deemed the request waived. The Board clarifies here that prior to the scheduled hearing, in a February 2023 VA 21-4138 Statement in Support of Claim, the Veteran's representative submitted a request to cancel the hearing. As such, the Board clarifies that the Veteran properly withdrew his request for a hearing. The Board also concludes that there has been substantial compliance with its prior remand directives as the AOJ obtained an addendum opinion regarding the likely onset date of the Veteran's upper extremity neuropathy. See Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges the Veteran's contention that this effective date opinion is inadequate; however, as the Board is granting the Veteran's appeal from the earliest available effective date, any shortcomings in this opinion are not prejudicial to the Veteran. 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). 1. The claim of entitlement to an effective date prior to October 12, 2011, for the award of service connection for diabetic peripheral neuropathy of the right upper extremity. See section two, below. 2. The claim of entitlement to an effective date prior to October 12, 2011, for the award of service connection for diabetic peripheral neuropathy of the left upper extremity. The Veteran seeks an effective date prior to October 12, 2011, for the award of service connection for bilateral upper extremity diabetic peripheral neuropathy. Having considered the evidence of record, and in resolving all reasonable doubt in favor of the Veteran, the Board finds that a prior May 2004 rating decision did not become final and that an effective date of January 21, 2003, is warranted. Earlier Effective Dates In general, the effective date of an award of service connection will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). While "the date entitlement arose" is not defined in statute or regulation, the Court has interpreted this term as the date the claimant met the requirements for the benefit sought. See 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Under VA's Legacy appeal system (which governs this case), a rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.32, 19.52, 20.1103. However, exceptions to finality exist. New and material evidence received prior to the expiration of the appeal period (i.e., within one year of the issuance of a rating decision or within 60 days of the issuance of a statement of the case) will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If an AOJ renders a decision but receives new and material evidence within the time the claimant has to appeal, such decision does not become final until the AOJ acts on the evidence. Lang v. Wilkie, 971 F.3d 1348, 1350 (Fed. Cir. 2020). That provision requires VA to assess evidence submitted during the relevant appeal period, even if no appeal is filed, and determine whether it constitutes new and material evidence relating to the claim. Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Until VA makes a "determination that is directly responsive to the new submission," the finality of the pending claim is suspended, regardless of how VA characterizes that later submission of evidence or whether such submission supports a new claim. Beraud v. McDonald, 766 F.3d 1402, 1405-1407 (Fed. Cir. 2014). While "VA's obligation under § 3.156(b) is mandatory," such a determination may be implicit "so long as there is some indication that the VA determined whether the submission is new and material evidence and, if so, considered such evidence in evaluating the pending claim." Pickett v. McDonough, 64 F.4th 1342, 1347 (Fed. Cir. 2023); see Hampton v. McDonough, 68 F.4th 1376, 1380 (Fed. Cir. 2023). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. While new and material evidence must raise a reasonable possibility of substantiating the claim, this threshold is low, and the Court has interpreted the phrase as "enabling rather than precluding opening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). New and material evidence may include VA treatment records constructively received during the relevant appeal period. Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020). For legacy appeals, evidence is constructively received by the VA adjudicator post-decision if it was generated by the VA or was submitted to the VA and can reasonably be expected to be connected to the Veteran's claim; there is no requirement that the VA adjudicator have actual knowledge of VA-generated evidence to establish constructive receipt. In the case of VA treatment records, the Veteran's own medical records, generated by VA itself, are always related to his or her claim. When new and material evidence is received within the appeal period, the "effective date will be as though the former decision had not been rendered." 38 C.F.R. § 3.400(q). Procedural History Turning to the procedural history of the instant appeals, on January 21, 2004, the Veteran filed an informal claim for service connection for (in relevant part) diabetes mellitus and diabetic peripheral neuropathy of the upper and lower extremities. In May 2004, the AOJ denied the claim as to the upper extremities, finding that the Veteran did not have a current diagnosis of peripheral neuropathy; however, it granted service connection for diabetes mellitus and secondary lower extremity peripheral neuropathy. The AOJ assigned an effective date of January 21, 2003, (one year prior to receipt of the claim) based on applicable liberalizing legislation in effect at that time. In August 2004, the Veteran submitted July 2004 VA treatment records, which showed that he had complained of hand and arm pain with upper extremity symptoms of "aching, sharp, burning, numbness, throbbing." On May 23, 2006, the AOJ issued a Statement of the Case (SOC), continuing to deny service connection for upper extremity neuropathy. In its SOC, the AOJ noted that it had considered VA treatment records created through August 2004. There is no indication that the Veteran submitted a substantive appeal (VA Form 9) of that decision to the Board; however, contemporaneous VA treatment records show that he continued to seek medical treatment for symptoms of arm and hand pain in the months following the rating decision and SOC. See, e.g., December 2005 to July 2006 VA treatment records. The AOJ did not reopen or otherwise reconsider whether those additional treatment records constituted new and material evidence in support of the Veteran's claim. In subsequent years, the Veteran sought and was awarded a total (100 percent) disability rating based on individual unemployability (TDIU or IU), effective September 14, 2006, based on other service-connected conditions. See March 2008 rating decision. On October 12, 2011, the Veteran filed a VA 21-526b, Supplemental Claim, seeking an increased rating for "neuropathy." At the time of that claim, the Veteran was service connected for (among other things) diabetes mellitus with secondary diabetic peripheral neuropathy of the bilateral lower (but not upper) extremities. On March 28, 2012, he filed a VA 21-526b Supplemental Claim seeking "reopening" of the previously denied condition of bilateral upper extremity neuropathy. In an April 2013 rating decision, the AOJ declined to reopen the upper extremity claims, finding that the May 2004 rating decision was final, and that the Veteran had failed to present new and material evidence, particularly regarding a current diagnosis. However, the Board finds no indication that the AOJ actually considered whether the VA treatment records associated with the claims file prior to expiration of the appeal period for the 2004 claim were new and material to the upper extremity condition. It further appears to the Board that no VA treatment records for the period from approximately August 2004 to September 2005 were ever associated with the evidence of record. It is unclear whether such records do not exist or whether the AOJ failed to obtain them as the Veteran's lay statements suggest to the Board that he had continued to seek VA treatment during this period. In June 2013, the Veteran timely submitted a Notice of Disagreement (NOD) with this rating decision and continued to assert that his VA treatment records would verify his current disability. Next, rather than issuing an SOC, the AOJ appears to have referred the Veteran for a new VA examination, which confirmed that the Veteran had a current diagnosis of upper extremity peripheral neuropathy. In October 2015, the AOJ issued the rating decision on appeal granting service connection for the bilateral condition from May 2, 2013, considering that to be the date when the Veteran complained of relevant symptoms that were later diagnosed as neuropathy. This rating decision did not expressly address whether new and material evidence had been received to reopen the previously denied upper extremity claims; rather, it appears that the AOJ implicitly considered the new VA examination to constitute such evidence. The Veteran again timely filed an NOD seeking an earlier effective date. See February 2016 NOD. The AOJ continued to deny an earlier effective date in a November 2017 SOC, and the Veteran timely appealed that SOC to the Board. As noted above, after these matters were certified to the Board, the Veteran, through his representative, submitted a February 2023 Statement in Support of Claim requesting to cancel his Board hearing. The same correspondence also included a request to withdraw the Veteran's pending upper extremity appeals. Specifically, the Statement of the Veteran's representative reads: "My client would like to drop his appeal for his upper limb neuropathies and cancel his hearing scheduled for 2/28/23. He now understands that the reason his pay did not increase when he was granted [service connection] for these conditions was because he was already getting paid at the 100 percent rate due to the IU program." The Board's March 2023 remand was issued less than two weeks after receipt of the February 2023 withdrawal request, and the Board regrettably did not acknowledge or address the withdrawal request in its remand. Instead, the Board issued a decision remanding entitlement to effective dates earlier than May 2, 2013, for upper extremity neuropathy, and remanding entitlement to disability ratings in excess of 20 percent. The Board did not expressly acknowledge whether the prior May 2004 rating decision became final; however, it directed the AOJ to determine whether the upper extremity condition manifested prior to May 2, 2013, and specifically identified the July 2004 VA treatment records as potentially relevant to that determination. In October 2023 and December 2023, the AOJ issued a Supplemental SOC (SSOC) and rating decision denying entitlement to effective dates prior to May 2, 2013, but awarding an increase in the Veteran's disability rating for the right upper extremity to 40 percent from August 31, 2023, and to 30 percent for the left extremity from the same date. In February 2024, the Board again remanded these matters. While it did not expressly address the withdrawal request or the finality of the 2004 rating decision, the Board continued to direct the AOJ to consider historical medical evidence, including evidence that the Veteran had complained of upper extremity symptoms since 2003. In October 2024, the AOJ issued a rating decision granting entitlement to an earlier effective date of October 12, 2011, for the award of service connection for upper extremity neuropathy, based on the date of receipt of the Veteran's Supplemental claim for an increased neuropathy rating, finding the claim had been "continuously prosecuted" from that date. The AOJ assigned an initial 20 percent disability rating for each upper extremity from October 12, 2011. Contemporaneously, the AOJ issued an SSOC in which it denied upper extremity disability ratings higher than 20 percent "prior to August 31, 2023," and denied ratings higher than 40 percent (right) and 30 percent (left) thereafter. As the AOJ appears to have considered October 2011 to be the earliest available effective date, the Board considers the AOJ to have implicitly denied entitlement to any earlier date. In December 2024, the Veteran's representative submitted an Appellate Brief, asserting that the effective dates for his upper extremities should be closer to the January 21, 2003, effective date assigned for his lower extremity disabilities. This Brief did not address the past appeal withdrawal request or address the potential finality of the May 2004 rating decision. Analysis First, as for the effect of the February 2023 Statement regarding withdrawal of the appeals, the Board notes that an unambiguous written withdrawal is effective upon receipt. See Martinez v. McDonough, 36 Vet. App. 320 (2023); see also 38 C.F.R. § 20.205. In this case, as the finality of the May 2004 rating decision had not been addressed at the time of the withdrawal statement, and as the statement only clearly addressed the period after September 2006 (when the TDIU was awarded), the withdrawal statement was ambiguous as to the period between the date the Veteran filed his claim and the date that he was awarded a TDIU. Further, as the Board ordered additional development following receipt of the February 2023 withdrawal statement and the Veteran's representative continued to submit substantive argument in support of the appeals, additional ambiguity now clouds the statement. In January 2025, the Board sent the Veteran a letter seeking to clarify whether he still wished to withdraw any or all pending matters on appeal; however, as of the date of this decision, no response has been received. The Board resolves any remaining ambiguity in favor of the Veteran and concludes that the February 2023 Statement did not constitute a valid withdraw of the Veteran's appeals. The Board will therefore proceed to the merits of the claims on appeal. Next, the Board concludes that the May 2004 rating decision did not become final because new and material evidence was received prior to the expiration of the appeal period that was never substantively considered by the AOJ. As outlined below, the Veteran's VA treatment records during the pending appeal period show that he continued to seek treatment for upper extremity symptoms and that these symptoms (and their exact etiology) continued to be reassessed during that time. While existing records do not expressly include a diagnosis of the claimed condition, as noted above, it appears that approximately one year of VA treatment records were never obtained by the AOJ for the period between approximately August 2004 to September 2005, and such records would have been new and could certainly have contained additional relevant evidence pertaining to his symptoms. Resolving all reasonable doubt on this issue in the Veteran's favor, the Board finds that the May 2004 rating decision was not final, and the Veteran's upper extremity service connection claim remained pending. As for the appropriate effective date for the conditions, the Board notes that the Veteran has continually maintained that he has experienced symptoms of upper extremity peripheral neuropathy since the filing of his claim in January 2004. Review of the Veteran's VA treatment records shows that he was routinely seen for complaints of pain in his hands and arms, and his records include report of numbness, burning, and decreased grip strength. See e.g., VA treatment records dated July 2004 (describing pain and numbness), January 2005 (describing an occasional burning sensation going up his bilateral forearms), August 2006 (reporting pain in hands and feet). His records also indicate that VA clinicians made varying and often tentative diagnoses regarding the cause of his symptoms, at times considering his symptoms to be related to "probable" rheumatoid arthritis or secondary to hepatitis B (a condition that is also now service-connected), but clinicians often noted that the Veteran's symptoms were not fully responding to prescribed medications for those conditions. See January 2005 Rheumatology Note. In October 2006, a VA clinician decided to give the Veteran a "trial" on gabapentin "for presumed neuropathic pain in his hands/feet." Subsequent EMG testing later confirmed his upper extremity neuropathy in June 2013. According to the August 2023 VA examination opinion, the VA treatment records did not confirm a diagnosis of peripheral neuropathy until 2007. However, the examiner opined that the Veteran's right-hand pain developed in 2003, noting that this pain was initially diagnosed as rheumatoid arthritis but that the Veteran "continued to have pain in hands, especially in the right hand." The examiner concluded that the onset of the left upper extremity neuropathy was "at least as likely as not in 2006," again reasoning that VA treatment records showed the Veteran continued to have pain in both hands "despite the treatment for [rheumatoid arthritis]." The exact basis for the discrepancy in onset date between the left and right hands is unclear from the examiner's stated rationale, though it appears they relied on a January 2006 record in which an evaluating clinician continued to puzzle over the cause of the Veteran's bilateral upper extremity symptoms. Given the Veteran's consistent reports of both right and left hand and arm pain (as well as numbness, and burning sensations) throughout the period on appeal, the Board finds the evidence in approximate balance as to whether both the left- and right-hand neuropathy had onset in 2003. The Board will thus resolve all reasonable doubt in favor of the Veteran and find that the criteria for service connection for diabetic peripheral neuropathy of the bilateral upper extremities was met from January 21, 2003. As noted above, this effective date is consistent with the date assigned for the Veteran's diabetes mellitus and lower extremity neuropathy. 1. The claim of entitlement to a disability rating higher than 20 percent from October 12, 2011, to August 31, 2023, and higher than 40 percent from August 31, 2023, for service-connected diabetic peripheral neuropathy of the right upper extremity. See section two, below. 2. The claim of entitlement to a disability rating higher than 20 percent from October 12, 2011, to August 31, 2023, and higher than 30 percent from August 31, 2023, for service-connected diabetic peripheral neuropathy of the left upper extremity. The Veteran seeks a higher disability rating for his service-connected bilateral upper extremity peripheral neuropathy. Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. For the period on review, the Veteran's bilateral upper extremity neuropathy is rated under DC 8513, which evaluates all radicular groups. Under these criteria, mild incomplete paralysis is rated as 20 percent disabling for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent disabling for the major extremity and 30 percent disabling for the minor extremity. Severe incomplete paralysis is rated as 70 and 60 percent disabling for the major and minor extremities, respectively. 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. The Board acknowledges the VA Adjudicative Procedures Manual M21-1 (hereinafter M21-1) contains provisions regarding rating peripheral nerve disabilities. While the Board is not bound by these decisions, the Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision." Overton v. Wilkie, 30 Vet. App. 257, 264 (2018); see also Wilson v. McDonough, 35 Vet. App. 75, 80 (2021). Pursuant to Wilson, the Board finds that VA's M21-1 does contain guidance relevant to the adjudication of the issue currently on appeal. Under the M21-1, "mild" is described as the lowest level of evaluation based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment. Generally, "mild" is limited to a disability limited to sensory deficits that are lower graded, less persistent, and affecting a small area and/or a very minimal reflex or motor abnormality. "Moderate" in the M21-1 is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment. The M21-1 further elaborates that the following "sign/symptom combinations" may fall into the moderate category: combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. "Severe," in general, is expected to include motor and/or reflex impairment (for example atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen with severe longstanding neuropathy. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. 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). Turning to the evidence in this case, and with the foregoing descriptions in mind, the Board concludes that from October 12, 2011, to August 31, 2023, the Veteran's bilateral upper extremity neuropathy manifested with no more than mild incomplete paralysis of all radicular nerve groups, and that from August 31, 2023, Veteran's bilateral upper extremity neuropathy manifested with no more than moderate incomplete paralysis of all radicular nerve groups. During an October 2015 VA examination, the Veteran reported that his peripheral neuropathy manifested with tingling and pain in his hands. Constant pain was not present, but the Veteran reported severe intermittent (dull) pain in both upper extremities. The examiner noted that abnormal sensations of numbness and paresthesias and/or dysesthesias were of a severe level. Light touch/monofilament testing was decreased on the inner and outer forearms. Position sense was normal, but cold and vibration sense was decreased bilaterally. Deep tendon reflexes were normal. Strength testing was normal with no muscle atrophy. The examiner determined that the neuropathy resulted in incomplete paralysis of the radial, median, and ulnar nerves and opined that the severity of the condition overall was of a mild level. In describing the functional impact of the condition, the examiner noted that the Veteran was retired from construction work for several years but would have had difficulty with a task such as using his hands to finish concrete. The examiner noted that while only the right upper extremity was tested during Nerve Conduction Studies (NCS)/Electromyography (EMG) in 2013, both upper extremities were affected equally by the diabetic neuropathy. The examiner noted that this testing showed the Veteran's upper extremity neuropathy was less severe than in his lower extremities. The Veteran received an additional VA examination in August 2023. During this examination, no constant or intermittent pain was noted, but abnormal sensations of numbness and paresthesias and/or dysesthesias were present at a mild level. Muscle strength testing was normal regarding elbow and wrist extension and flexion and in pinch testing; however, grip strength showed less than normal strength (rated four out of five total). No muscle atrophy was noted, and no trophic changes were observed. Deep tendon reflexes were normal in triceps and biceps but decreased in brachioradialis. Light touch/monofilament testing was normal on examination in all upper extremity areas. Position, vibration, and cold sense was normal. As clarified in an October 2023 addendum, the examiner determined that the neuropathy resulted in incomplete paralysis of the radial, median, and ulnar nerves, and opined that the overall severity of the condition was of a mild level. In describing the functional impact of the condition, the examiner noted that holding and gripping for long periods would be impaired. Based on this examination, the AOJ considered the Veteran's overall bilateral upper extremity disability to have increased to a moderate level of severity due to evidence of decreased reflexes in brachioradialis and less than normal grip strength. In considering the above, the Board finds that the disability evaluations as currently assigned are appropriate. In so finding, the Board acknowledges that the 2015 examiner marked "severe" for certain symptoms; however, the relevant symptoms were sensory in nature and were not noted in terms of reflex abnormality, weakness, or muscle atrophy. Further, it is clear from the examination report that in addition to conducting an in-person evaluation and inquiring as to the functional impact of the condition, the examiner considered the findings of past NCS/EMG testing in assessing the overall severity of the Veteran's upper extremity condition to be mild. The Board finds this opinion persuasive and adequate to describe the Veteran's disability picture during this period. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran's VA treatment records and lay statements during the period on appeal do not contain evidence to support assignment of higher disability ratings. The Veteran has not specifically identified any medical evidence showing a higher severity of symptoms during the rating period on appeal. See, e.g., December 2024 Appellate Brief. The Board also finds the date of assignment of the increase in disability ratings from the date of the August 31, 2023, VA examination appropriate because it is only from that date that the increase in severity was factually ascertainable. In the Board's March 2023 remand, it determined that an updated examination was warranted to obtain an adequate disability picture because of the length of time that had passed since the 2015 examination. The Board did not specifically cite any records or lay statements suggesting that the condition had in fact worsened in the intervening years. The Board finds no lay or medical evidence to show that the Veteran's disability increased to a moderate level prior to the date of the evaluation. For example, a September 2020 VA treatment record reviewing the Veteran's diabetes only noted the Veteran's report of numbness in his hands and feet. February and August 2020 VA appointment notes include only his report of numbness in his feet. These records do not include reports of pain or other complaint of neuropathy symptoms that are other than wholly sensory in the Veteran's upper extremities. Based on the above, the Board finds that higher evaluations than already assigned for the Veteran's bilateral upper extremity peripheral neuropathy affecting all radicular groups is not warranted during any point in the appeal period. The Board finds that for the period between October 12, 2011, and August 31, 2023, the medical and lay evidence of record shows that the severity of the Veteran's bilateral neuropathy was mild in nature. For the period from August 31, 2023, the severity of the Veteran's bilateral neuropathy was best described as moderate in nature. (Continued on the next page) ? 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 for bilateral upper extremity neuropathy for the period between October 12, 2011, and August 31, 2023, and in excess of 40 percent (right extremity) and 30 percent (left extremity) for the period from August 31, 2023. As the persuasive evidence of record is against increased ratings during any period on appeal, is not in approximate balance, and 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, 21 F.4th 776 (Fed. Cir. 2021). 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.