Citation Nr: 1331358 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07- 31 124A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to special monthly compensation (SMC) based on the loss of use of the left lower extremity. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1957 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter has previously been before the Board, most recently in March 2013, at which time the Board remanded the claims for additional development of the evidence of record. As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that there has been substantial compliance with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) Please note 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 issue of entitlement to service connection for a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if additional action is required on his part. FINDINGS OF FACT 1. The Veteran is service-connected for peripheral neuropathy of the left lower extremity. 2. The weight of the competent evidence is against a finding that the Veteran's service-connected disability of the left lower extremity manifests symptoms that are analogous to the loss of use of the left lower extremity. CONCLUSION OF LAW The criteria for SMC based on loss of use of the left lower extremity have not been met. 38 U.S.C.A. §§ 1114(l)(k), 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.350 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but it does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated November 2006. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the most recent April 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that it has fulfilled its duty to assist the Veteran. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained several examinations with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. The Veteran declined the opportunity to present testimony before a Veterans Law Judge. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). SMC The Veteran is currently in receipt of a 20 percent evaluation for peripheral neuropathy affecting the left lower extremity. The Veteran contends that he is additionally entitled to SMC as the result of the loss of use of his left lower extremity. SMC is a statutory award, payable in addition to awards based on the schedular evaluations provided by the diagnostic codes in the VA Rating Schedule. SMC is payable at the (k) rate for, among other things, anatomical loss or loss of use of one foot as the result of a service-connected disability. 38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. § 3.350(a) (2012). The loss of use of a foot exists when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a prosthesis. 38 C.F.R. § 4.63 (2012). The determination will be made on the basis of the actual remaining function of the foot, considering, for example, whether the acts of balance and propulsion could be accomplished equally well by an amputation stump with a prosthesis. Id. Extremely unfavorable complete ankylosis of the knee, complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3.5 inches or more, each constitutes loss of use of the foot. Additionally, complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, constitute loss of use of the foot. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. §§ 3.350, 4.63(a), (b) (2012). Turning to the facts in the instant case, the Veteran underwent a total left knee replacement in September 2005. Nursing notes from the day after the surgery indicate that the Veteran's left foot was cold to touch, and ultrasound testing revealed weak pulses at the left foot. The Veteran complained of decreased sensation of the left foot. In January 2006, the Veteran complained of left lower extremity paresthesias just proximal to the ankle since the date of his left knee surgery. The Veteran denied experiencing any loss of strength, and he had no other complaints. The clinician noted that the Veteran had decreased sensation in a stocking pattern proximal to the left ankle, and on the top, side, and plantar aspect of the foot. The Veteran had 5/5 strength with ankle dorsiflexion, plantar flexion, great toe extension, and with flexion and extension of the left knee. In a July 2006 clinical record, the Veteran complained of decreased sensation to the plantar aspect of his left foot. The Veteran stated that the lack of sensation impaired his ability to feel balanced, and the Veteran stated that he felt the need to sit down after 45 minutes to an hour of standing. The clinician noted that the Veteran had some decreased sensation to the plantar aspect of the foot. In November 2006, the Veteran stated that he had no feeling in his left foot since the time of his left knee arthroplasty. The clinician could not detect distal pulses in the Veteran's left foot. In January 2007, a VA orthopedist noted that the Veteran had experienced paresthesias in the left foot since the time of his left knee replacement. A February 2007 electromyography (EMG) study revealed no response of the left sural sensory nerve. A February 2007 clinical note indicated that the Veteran had normal tone in the left lower extremity. Light touch sensitivity was decreased over the entire left foot below the ankle. Pinprick sensitivity was intact, but decreased over the entire left foot below the ankle. Vibration sensitivity was intact but decreased at the left ankles, and intact at the knees. Proprioception was abnormal in the left lower extremity. The clinician noted that no response was seen on the left sural sensory nerve. No responses were seen in the left tibial and peroneal motor nerves. EMG testing of the muscles of the left lower extremity showed only slightly decreased recruitment in the medial gastrocnemius; otherwise, all of the other muscles showed normal insertional activity, morphology, amplitude, and no abnormal spontaneous activity. In September 2008, Dr. J.A., a private neurologist, noted that the Veteran had abnormal findings on examination. The Veteran had decreased light touch and pinprick sensation on his left foot, from the tip of his toes to just above the ankle. No motor weakness was noted. The Veteran underwent a VA examination in September 2010. The examiner noted that the Veteran had a left leg nerve impairment with an onset in September 2005. The examiner noted that Veteran's complaint that after the surgery, the Veteran noticed that he had decreased left foot sensation, and his left foot felt cold to the touch and numb. The Veteran took medication in treatment of his condition, and his response to the treatment had been good. The Veteran stated that he could only walk about ten steps, but he associated this impairment with joint problems and neuropathy and numbness in the right foot (rather, the Board notes, than the left foot). The Veteran complained of paralysis, weakness, numbness, paresthesias, dysesthesias, and aching, burning pain on the left side. The Veteran had a hypoactive knee jerk reflex and an absent ankle jerk reflex. The Veteran had normal plantar flexion. Sensory examination of the Veteran's left lower extremity indicated that the Veteran's left lower extremity had no vibration, pinprick, or light touch sense from the mid-ankle distal, common fibular nerve, and saphenous nerve. Position sense was normal, and temperature sense was normal. No dysesthesias were noted. The Veteran had active movement against some resistance as to hip flexion, hip extension, knee flexion, and knee extension. All other muscle movement was normal. Muscle tone was normal, and no muscle atrophy was noted. The Veteran received a VA examination in February 2012. The Veteran complained of moderate constant pain in the left lower extremity. The Veteran had no paresthesias or dysesthesias, and he complained of moderate numbness in the left lower extremity. Muscle strength testing was normal, and no muscle atrophy was present. Reflex testing revealed a hypoactive knee deep tendon reflex and an absent ankle reflex. Sensory testing was normal on the upper anterior thigh and the thigh and knee. The Veteran had a decreased sensory response in the left lower leg and ankle, and a normal sensory response on the left foot and toes. The Veteran's sciatic nerve, external popliteal nerve, anterior tibial nerve, internal popliteal nerve, posterior tibial nerve, anterior crural nerve, internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and ilio-inguinal nerve were all normal. The examiner found that the Veteran had a mild incomplete paralysis of the musculocutaneous (superficial peroneal) nerve. The Veteran used a walker for ambulation. The examiner found that there was not functional impairment of an extremity such that no effective function remains other than that which would be equally well-served by amputation with prosthesis. The Veteran received a VA examination in November 2012. At that time, the examiner diagnosed the Veteran with left sural sensory neuropathy. The Veteran complained of moderate constant pain affecting his left lower extremity. The Veteran had mild paresthesias and dysesthesias affecting his left lower extremity, and the Veteran complained of severe numbness of the left lower extremity. Muscle strength testing was normal, and no muscle atrophy was present. Reflex testing revealed normal knee deep tendon reflex and absent ankle reflex. Sensory testing was normal on the upper anterior thigh and the thigh and knee. The Veteran had a decreased sensory response in the left lower leg and ankle, and an absent sensory response on the left foot and toes. The Veteran's sciatic nerve, external popliteal nerve, musculocutaneous nerve, anterior tibial nerve, internal popliteal nerve, posterior tibial nerve, anterior crural nerve, internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and ilio-inguinal nerve were all normal. The Veteran did not use any assistive devices for ambulation. The examiner found that there was not functional impairment of an extremity such that no effective function remains other than that which would be equally well-served by amputation with prosthesis. Upon review of this evidence, the Board finds that the symptoms associated with the Veteran's service-connected peripheral neuropathy of the left lower extremity do not amount to loss of use of the left foot. In other words, the Board finds that the evidences does not demonstrate that no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a prosthesis. No clinician has characterized the Veteran's symptoms as analogous to extremely unfavorable ankylosis of the left knee. Furthermore, the Veteran has not shown complete ankylosis of two major joints of the left lower extremity, or shortening of the lower extremity of 3.5 inches or more. See 38 C.F.R. § 4.71a Diagnostic Codes 5256, 5275. Moreover, the Veteran's service-connected left lower extremity disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8521. The Veteran has not shown symptoms commensurate with the maximum rating allowed under this code of 40 percent for complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Instead of complete paralysis of the common peroneal nerve accompanied by foot drop, the Veteran's nerve impairment has been sensory in nature and commensurate with the currently assigned 20 percent rating. While the Veteran has complained of numbness and impaired sensory function, the Veteran's left lower extremity has consistently shown normal motor function without muscle atrophy. Furthermore, the February 2012 and November 2012 VA examiners concluded that the Veteran did not demonstrate functional impairment of an extremity such that no effective function remained other than that which would be equally well-served by amputation with prosthesis. In sum, the evidence simply does not demonstrate that the Veteran has loss of use of his left lower extremity. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER SMC based on the loss of use of the left lower extremity is denied. REMAND To establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching that determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2008); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU may be assigned when the schedular rating is less than total if it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 4.16(a) (2012). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the percentage requirements for consideration for an award of a TDIU are not met, entitlement to benefits on an extra-schedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background, including his or her employment and educational history. 38 C.F.R. § 4.16(b) (2012). The Board does not have the authority to assign a TDIU pursuant to 38 C.F.R. § 4.16(b) in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Turning to the facts in the instant case, the Veteran is in receipt of a 20 percent rating based on a single service-connected disability. The Veteran therefore does not meet the above-described percentage requirements for consideration for award of TDIU. Failure to satisfy the percentage standards is not, however, an absolute bar to a grant of a TDIU. If the record demonstrates that the Veteran is unemployable by reason of service-connected disabilities but otherwise fails to meet the percentage standards, the case must be submitted to the Director of the VA Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16(b) (2012). Throughout the current appeal, the Veteran has contended that his service-connected disability has resulted in his unemployability. In September 2010, a VA examiner found that the Veteran was no longer employed as a car parts salesman, and the examiner found that the cause of retirement was the Veteran's left lower leg peripheral nerve problem. In February 2012, a VA examiner found that the Veteran's peripheral nerve condition had an impact on his ability to work, and the examiner noted that the Veteran had not worked since the time of his left total knee replacement. In November 2012, however, a VA examiner found that the Veteran's peripheral nerve condition would have no impact on his ability to work. The examiner noted that while the Veteran claimed that he had been unable to work since having the knee surgery, there were many other factors besides the mild neuropathy involving his left foot. The authority to assign TDIU ratings pursuant to 38 C.F.R. § 4.16(b) has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service in the first instance. 38 C.F.R. § 4.16(b) (2013). Upon review of this evidence, the Board finds that a referral of the claim to the Director of the VA Compensation and Pension Service for consideration is warranted. This is because the evidence concerning the impact on the Veteran's ability to work is in conflict. In this regard, the Board notes that the November 2012 VA examination and opinion did not resolve the conflict because it did not adequately explain what were many other factors besides the mild neuropathy involving his left foot that may impact on the Veteran's ability to obtain employment. Accordingly, the case is REMANDED for the following actions: 1. Refer the claim for TDIU under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service for a written decision that explains the reasons and bases for the conclusion reached. 2. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs