Citation Nr: 1324095 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 11-18 858 ) DATE ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for residuals of perforating gunshot wounds to the left knee, including incomplete paralysis of the tibial nerve with intermittent swelling and weakness of the left leg and disturbance of sensation of the sole of the left foot. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from October 1943 to October 1945. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran's claims were previously before the Board and remanded in March 2012. In August 2012, the Board denied the Veteran's claims. He timely appealed to the United States Court of Appeals for Veterans Claims (Court). In April 2013 the Court granted the parties' joint motion for remand, returning the appeal to the Board for compliance with the terms of the joint motion. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran's left leg disability is manifested by moderate incomplete paralysis of the posterior tibial nerve, left knee flexion to 30 degrees and extension to 10 degrees; there is no evidence of muscle atrophy, foot drop, muscle group injury, or painful or unstable scars. 2. The Veteran's service-connected disabilities consist of the left leg disability, evaluated as 40 percent disabling; and a right leg disability, evaluated as 60 percent disabling; his combined disability rating is 80 percent. 3. The Veteran's service-connected disabilities do not render him unable to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for residuals of perforating gunshot wounds to the left knee, including incomplete paralysis of the tibial nerve with intermittent swelling and weakness of the left leg and disturbance of sensation of the sole of the left foot are not met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 2. The criteria for entitlement to a TDIU are not met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). A June 2010 letter informed the Veteran of the evidence needed to substantiate his claims for an increased rating and a TDIU. Thereafter, his claims were initially adjudicated in June 2010. In an April 2012 letter, the RO provided the Veteran with the rating criteria used to evaluate his left leg disability. Thereafter, his claim for an increased rating was readjudicated in a May 2012 supplemental statement of the case. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Finally, the Veteran was advised of the status of his claim in a June 2013 letter from the Board. He responded in July 2013 that he had no further evidence to submit, and that he wished the Board to proceed with the readjudication of his appeal. Next, VA has a duty to assist the Veteran in the development of the claims. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2011). VA has obtained all VA outpatient treatment records identified by the Veteran. He has not identified any private treatment records or any outstanding evidence that is pertinent to the claims being decided herein. Furthermore, the Veteran was afforded VA examinations regarding the claims decided herein in June 2010 and April 2012. The examinations were conducted by a medical professional, who solicited symptomatology from the Veteran, conducted a thorough examination, and provided conclusions and diagnoses based upon the examination. The Board thus finds that they are adequate for the purpose of deciding this appeal. In the March 2012 remand, the Board directed the RO to specifically state under which diagnostic code the Veteran's left leg is rated. It is clear from the discussion contained in the May 2012 supplemental statement of the case that the Veteran is rated under Diagnostic Code 8520. Therefore, the Board finds that the RO has complied with the remand instructions, and the Board may proceed with this decision. Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Analysis Increased Rating for the Left Leg Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 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); Fenderson v. West, 12 Vet. App. 119, 126 (2001). Under 38 C.F.R. §§ 4.40 and 4.45, a Veteran's pain, swelling, weakness, and excess fatigability must be considered when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). Pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995), that all complaints of pain, fatigability, etc., shall be considered when put forth by a veteran. Therefore, consistent with DeLuca and 38 C.F.R. § 4.59 (which requires consideration of painful motion with any form of arthritis), the Veteran's complaints of pain have been considered in the Board's review of the diagnostic codes for limitation of motion. The rating sheet that accompanies the June 2010 rating decision on appeal here indicates that the Veteran is rated 40 percent disabled for his residuals of perforating gunshot wounds to the left knee, including incomplete paralysis of the tibial nerve with intermittent swelling and weakness of the left leg and disturbance of sensation of the sole of the left foot, under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8525 (2012). That diagnostic code provides the criteria for rating a disability of the posterior tibial nerve. A maximum schedular evaluation of 30 percent is warranted for complete paralysis of the posterior tibial nerve, with paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature, where the toes cannot be flexed, adduction is weakened, and plantar flexion is impaired. However, the narrative portion of the June 2010 rating decision indicates that the Veteran's disability was, instead, rated under the criteria of Diagnostic Code 8520, for paralysis of the sciatic nerve. This was also reiterated in the May 2012 supplemental statement of the case. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. An 80 percent evaluation is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. The June 2010 rating decision specifically states that a 40 percent rating is assigned for incomplete paralysis below the knee, which is moderately severe. A higher 60 percent rating was not warranted because there was not severe incomplete paralysis below the knee with marked muscular atrophy. This was also noted in the May 2012 supplemental statement of the case. April 2010 VA outpatient treatment records indicate that the Veteran had severe left knee osteoarthritis and received an injection of corticosteroid in his left knee. He was able to walk without falls. In June 2010, the Veteran underwent VA examination. His left knee disability was manifested by intermittent swelling and weakness of the left leg and disturbance in sensation in the sole of the left foot. He stated that he was able to perform prolonged standing or walking. He denied wearing a knee brace, but stated that his left knee locked and gave way. He indicated that he did not take medication but that he had cortisone shots in his left knee every three months. He indicated that he could walk approximately 100 feet and stand for approximately fifteen minutes. He related that he used a rolling walker and an electric wheelchair for longer periods of ambulation. He endorsed flare-ups every two months. He indicated that he did not know if he lost range of motion during flare ups. He stated that he had difficulty putting on his shoes and socks. On physical examination, range of motion was reported to be 10 degrees of flexion to 30 degrees of flexion. The examiner noted that there was pain at 10 degrees of extension and 30 degrees of extension. Extension was from 10 degrees to 10 degrees. There was no change in range of motion with repetition. There was some warmth and swelling but no crepitus. There was no evidence of ligamentous laxity. Sensory examination revealed absent light touch and absent sensation to sharp/dull below the knee. They were intact above the knee. The left toe is equivocal. The impression was compound fracture of the left femur. In April 2012, the Veteran underwent an additional VA examination. He complained of pain in the left knee. He reported that he was not taking any medication but received cortisone injections every six months. He indicated that he used a walker and electric wheelchair. He denied that flare-ups affected the function of his knee. On examination, flexion of the knee was to 100 degrees with no evidence of pain on motion. Extension was to 0 degrees with no evidence of painful motion. Repetitions resulted in no more functional impairment. There was no pain on palpation. Muscle strength was normal for left knee flexion but was diminished to 4/5 for left knee extension. All stability testing was normal. There was no evidence of subluxation or dislocations. While the Veteran had scars related to his knee, they were not painful, unstable, or exceeded six square inches. The Veteran reported that he regularly used a wheelchair and a walker. There was X-ray evidence of arthritis. On examination of the foot, there was evidence of absent left ankle reflex, loss of superficial and pin prick sensation on the dorsum of the foot and sole of the foot, loss of vibration sense at the ankle, an inability to move the toes of the left foot, and weakness of the dorsiflexion and plantar flexion of the left foot (strength 4/5). On examination for peripheral nerves, the Veteran reported moderate left lower extremity numbness and denied all other symptoms. Muscle strength testing was normal except for knee extension, ankle plantar flexion, and ankle dorsiflexion, which were all 4/5. The examiner indicated that there was no muscle atrophy. Reflexes were normal, except for the left ankle, which were absent. Sensory examination was normal, except for the left lower leg and ankle and left foot and toes, which were absent. There was also a loss of vibration of the left ankle. All nerves were normal, including the sciatic nerve, with the exception of the left posterior tibial nerve, which was noted to have moderate incomplete paralysis. The examiner noted that tibial nerve dysfunction was a loss of movement or sensation in the foot. He further indicated that it was an unusual form of peripheral neuropathy and occurred when there was damage to the tibial nerve, one of the lower branches of the sciatic nerve of the leg. He related that the tibial nerve supplied movement and sensation to the calf and foot muscles. The diagnosis was left knee gunshot wound, with residual osteoarthritis and left tibial nerve injury and scars. Initially, the Board notes that Diagnostic Code 8525, which provides the criteria used to rate impairment of the posterior tibial nerve, has a maximum schedular rating of 30 percent, lower than the rating already assigned to the Veteran's disability. However, this diagnostic code only contemplates impairment of the foot, to include paralysis of all muscles of the sole of the foot, an inability to move the toes, weakened adduction, and impaired plantar flexion of the ankle. The Veteran has also demonstrated osteoarthritis of the left knee with limitation of motion. While the April 2012 VA examiner noted that there was no impairment to the Veteran's sciatic nerve, he also stated that impairment of the posterior tibial nerve was related to the lower sciatic nerve. However, evaluating the Veteran's disability under the criteria of Diagnostic Code 8520, the Board concludes that a rating in excess of 40 percent is not warranted. The VA examiner specifically indicated that impairment of the Veteran's nerve was moderate and that there was no muscle atrophy. Furthermore, there was no evidence of foot drop, and the Veteran was able to move his foot. In addition, while there is evidence of weakened knee extension, there is no evidence of weakened knee flexion. Therefore, the criteria for either the 60 or 80 percent rating under Diagnostic Code 8520 are not met. The Board has alternately considered evaluation of the Veteran's left knee arthritis and limitation of motion under Diagnostic Codes 5003, 5260, and 5261. The Board notes that vastly different results were demonstrated on examination in June 2010 and April 2012. As to extension, the June 2010 VA examination report is somewhat unclear and confusing as to what was demonstrated on range of motion testing. In addition, that examination revealed flexion to 30 degrees. However, even assuming these values are an accurate characterization of the range of motion of the Veteran's left knee at the time of the 2010 examination, such would warrant only a 20 percent evaluation for limitation of flexion and a 10 percent evaluation for limitation of extension. The combined evaluation for the left knee under these criteria would be equal to the 40 percent rating assigned to the left leg disability under diagnostic code 8520 effective from April 29, 2010 (prior to the June 2010 examination). See 38 C.F.R. § 4.25, Table I. In addition, the Board observes that diagnostic code 8520 contemplates movement of the foot, toes, ankle, and knee. Therefore, the Board may not separately rate limitation of motion of the left knee in this instance without violating the rule against pyramiding. 38 C.F.R. § 4.14. Thus there is no possibility that a rating in excess of the currently assigned 40 percent would be available for any period on appeal even under the most liberal interpretation of the evidence, including the June 2010 examination. In addition, while scars of the left knee, related to the gunshot wound during service, were noted, they were nontender, less than six square inches in size, stable, and did not cause any disabling effects. Furthermore, while the cause of the Veteran's current left leg disability is a gunshot wound in service, there is no evidence of a muscle group injury. In addition, while the Veteran complained of some instability in his left leg, the evidence shows that he incurred no falls, and thorough examination in April 2012 determined that no instability of the left leg was demonstrated. Therefore, evaluation under any diagnostic codes appropriate to these manifestations is inappropriate. As such, the Board concludes that the evidence preponderates against the Veteran's claim, and it is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether referral for extraschedular consideration is suggested by the record. There is neither evidence nor allegation of symptoms of and/or impairment due to the left leg disability that are not encompassed by the schedular rating assigned. The functional impairment shown is fully encompassed by the schedular rating criteria, and higher ratings are available for additional symptomatology. Therefore, those criteria are not inadequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). TDIU A total disability rating may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a) (2012). In this case, the Veteran has a combined disability rating of 80 percent, and his two service-connected disabilities are rated 60 and 40 percent. Therefore, he meets the schedular requirements for consideration of entitlement to a TDIU. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or intercurrent disability. 38 C.F.R. §§ 3.341, 4.19 (2012). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2012). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and maintain employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). On his April 2010 claim of entitlement to a TDIU, the Veteran asserted that his left knee disability prevented him from securing or following substantially gainful employment. He stated that he last worked on January 1, 1985, at which time he became too disabled to work. He worked from 1967 to 1978 as a truck checker for a freight carrier. He worked from 1978 to 1985 in shipping for a heavy machinery company. He stated that he did not leave his last job due to his disability, and he has not attempted to obtain employment since then. He indicated that he completed three years of high school and has had no post-school training. The Veteran then stated that he had not tried to obtain work since 1985 due to his service-connected left knee disability. When examined in June 2010, the Veteran indicated that he had trouble putting his shoes and socks on. He indicated that he retired in 1985 from a position in a shipping department. He indicated that his job was sedentary, and he reported no effect from his knees on his job. In a July 2010 written statement, the Veteran asserted that he was unable to work. He has had to stop taking steroid injections for his knees and was now in constant pain. The April 2012 VA examination report indicates that the Veteran's left leg disability does affect his ability to do physical work. He was unable to walk more than 100 yards and needed the assistance of a walker for ambulation. He was unable to stand more than five minutes at a time, squat, climb more than three steps without assistance, or lift and carry more than five pounds. However, the examiner stated that there was no impact on the Veteran's ability to perform sedentary employment, as the Veteran only needed a high chair on which to sit. The April 2012 VA examination report also addressed the Veteran's service-connected right knee, which is rated as residuals, status post total right knee replacement. The Veteran stated that he underwent this surgery in 1990. He denied any symptoms in the right knee. Right knee flexion was to 110 degrees, and extension was to 0 degrees, with no evidence of painful motion or additional impairment following repetitions. Muscle strength and joint stability of the right knee was normal. When asked about any residuals, the examiner stated that the only residual was a scar on the right knee. The Veteran denied any symptoms attributable to any peripheral nerve conditions in the right knee or leg. Right knee reflex examination was hypoactive. Sensory examination of the right leg was normal. All nerve examination of the right lower extremity was normal. An x-ray of the right knee done in 2006 shows a total arthroplasty without evidence of failure or loosening and right synovial osteochondritis. Therefore, while the Veteran's right knee is rated as 60 percent disabled, the most recent examination demonstrates that the left knee disability is productive of more symptomatology. In fact, while the Veteran's right knee flexion was less than normal, and reflex of his right knee was hypoactive, no other residuals of the right knee were found, other than a surgical scar that was nontender, less than six square inches, and stable. The Veteran specifically denied any pain or other symptoms attributable to his right knee. However, the examiner provided an opinion regarding the Veteran's employability after examining both the left and right leg disabilities and found that sedentary employment was possible. Based on the evidence of record, the Board finds that the Veteran's service-connected disabilities do not render him unable to obtain or sustain substantially gainful employment. The evidence of record supports a finding that the Veteran, without regard to advancing age, could perform sedentary employment. His previous employment, before he retired, was sedentary in nature, and he denied that his service-connected disabilities were the reason for leaving this employment. Furthermore, the evidence shows that, while the Veteran had impairment of both of his lower extremities, he was on no pain medication that might impact his mental functioning. Finally, the April 2012 VA examiner opined that his disabilities had no impact on his ability to perform sedentary employment. This opinion provided by a physician with a medical education and training is more probative than the Veteran's lay statements to the contrary and is supported by the record. As such, the Board concludes that the evidence preponderates against a finding that entitlement to a TDIU is warranted, and the Veteran's claim must be denied. Gilbert. ORDER A disability rating in excess of 40 percent for residuals of perforating gunshot wounds to the left knee, including incomplete paralysis of the tibial nerve with intermittent swelling and weakness of the left leg and disturbance of sensation of the sole of the left foot, is denied. Entitlement to a TDIU is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs