Citation Nr: 1337254 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-13 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE 1. Entitlement to an evaluation in excess of 30 percent for partial left peroneal nerve neuropathy. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran, his caretaker ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from June 1968 to January 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which continued the 30 percent disability rating for partial left peroneal nerve neuropathy. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has stated that he was laid off from his job due to his left leg condition; a claim for TDIU is therefore considered on appeal as part and parcel of his claim for an increased evaluation. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence. The issue of entitlement to 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, DC. FINDING OF FACT The Veteran's service-connected partial left peroneal nerve neuropathy is shown to have most nearly approximated complete paralysis of the left external popliteal nerve. CONCLUSION OF LAW An increased 40 percent rating for partial left peroneal nerve neuropathy, but no higher, is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8521 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In his notice of disagreement (NOD) dated February 2010, the Veteran stated that he felt he should be rated at 40 percent rating for his condition, so therefore, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. Legal Criteria In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. 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. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered staged ratings in this case, but, as will be further discussed below, the evidence shows that the Veteran's service-connected neuropathy symptoms have remained fairly consistent throughout the appeal period. As such, staged ratings are not for application in this case. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2013). The Veteran's partial left peroneal nerve neuropathy is rated under Code 8521 for impairment of the external popliteal nerve (common peroneal). 38 C.F.R. § 4.124a. Incomplete paralysis warrants a 30 percent rating when severe. A (maximum) 40 percent rating is assigned when there is complete paralysis; foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsom of foot and toes. III. Analysis The Veteran is seeking an increased rating of 40 percent for his service-connected partial left peroneal nerve neuropathy. In his February 2010 NOD, he contended that he suffers from some of the conditions that would warrant an increase to a 40 percent disability rating. The Veteran underwent VA examinations in February 2009 for joints, peripheral nerves, and scars. During the joints examination, the Veteran denied any pain or flare-ups in his left leg, but complained of swelling in his left calf and in his left ankle. With regard to the left lower leg, a muscle defect was noted with mild edema and tenderness on palpitation. Left ankle showed no tenderness or swelling, and ankle dorsiflexion was to 5 degrees and nonpainful. Plantar flexion as to 15 degrees and nonpainful. The Veteran could stand on one leg, but lost his balance when attempting to walk on his toes or heels. Gait was unaided and very slow. The Veteran was also noted to occasionally drag his right foot with a slight steppage gait pattern on his left leg. Diagnosis was status post shrapnel injury to left lower leg with residual advanced arthritis of the left knee and left ankle contracture. A peripheral nerves examination showed that the Veteran reported a corn on his left foot and a lot of pain in the foot; but denied numbness or weakness in the leg. Examination revealed a normal gait and station, defect in the left upper calf, decreased sensory in a patch over the left lateral calf below the scar to nearly the ankle, no sensation above the web space of the great and 2nd toe of the left foot, and vibration mildly diminished in both ankles. The Veteran had incomplete sensory loss lateral cutaneous nerve of the calf. There was loss of function of tibialis anterior muscle but no other peroneal innervated muscles. During the examination for his scars and muscles, the Veteran reported weakness of his left knee and leg, and stated that his knee would give way on occasion, especially when he is standing for an extended time. He used a cane for ambulation, but denied being incapacitated at any time. He stated he was issued a knee and ankle brace in 2007, but lost them. The Veteran also stated that he is not limited in doing chores, and is independent in activities of daily living. An examination showed the Veteran walked with the aid of a cane, had difficulty donning/doffing his shoes and socks, and was unable to walk on his heels or toes and balance on one leg at a time without loss of balance or support. X-ray impression showed status post shrapnel injury to the left leg with a stable scar. The examiner indicated that he could not estimate any additional loss of range of motion during a flare-up, and also indicated that the Veteran did not complain of fatigue. The examiner found no objective evidence of weakness, incoordination, fatigue or lack of endurance. VA treatment records from February 2009 to March 2009 show the Veteran complaining of left foot and toe pain, and requesting a brace for his left leg. The records note that the Veteran walked with a shuffled gait and appeared to be very unsteady. In January 2009 he rated his left foot pain as 8 out of 10 and described it as being dull, and affecting his ability to walk. In February 2009 he complained of pain in his toe on his left foot, rating it a 9 out of 10. The Veteran underwent a VA examination in January 2010. The Veteran reported that the joints in his left leg hurt when the weather changes and he can't move it. He denied any numbness or weakness. Examination revealed normal motor strength but the Veteran was unable to dorsiflex/extend or evert/invert the left ankle with normal tone and bulk. There was a muscle defect in the left calf. Heel cord was somewhat foreshortened, and the Veteran was able to extend the toes but not flex them very well. Sensory was decreased to temperature over the later calf from about the knee to 2/3 down to the ankle, primarily in the area around the scar and muscle defect. The examiner's assessment was near complete paralysis about the left ankle partly due to peroneal nerve damage, partly due to muscle defect from trauma; and moderate incomplete sensory loss about the left leg in superficial peroneal distribution. VA treatment records from May 2010 to October 2010 show that in May 2010, the Veteran was seen for a rehabilitation consultation, in which it was noted that the Veteran stated that he used to wear a brace to prevent foot drop but that he no longer has it. In June 2010, the Veteran was seen in the emergency room for complaints of left leg pain for four days. He rated the pain as 8 out of 10. Also in June 2010, the Veteran was seen for chronic leg pain, intermittently getting throbbing pain in his left leg, sometimes radiating down from his back. In September 2011, an examination report for housebound status or permanent need for regular aid and attendance (VA Form 21-2680) was submitted. In the report, it was stated that the Veteran could not prepare his own meals, and needs assistance with most activities of daily living. It was also noted that the Veteran has occasional difficulty bending to wash his own feet due to his left leg, and that he ambulates with care and wears a leg brace. The report also stated that the Veteran has weakness to his left side and uses a cane, and needs assistance with all transportation. A hearing before a decision review officer at the RO was held in October 2011. The Veteran stated that his left leg gives out on him, and that he uses a cane, walker and brace to help him walk. He rated his pain as a nine on a scale of one to ten. The Veteran stated that he had numbness in his left leg starting below the knee, and that he could not move his foot up and down. The Veteran's caregiver testified that he receives daily care, and that he falls on many days, in which he gets sent to the hospital. When the Veteran gets prescribed pain pills and muscle relaxers they give them to the Veteran until it runs out. The caregiver also stated that they had not seen a doctor until January 2010. She also stated that the best the Veteran could do to stay balanced is to "pick his leg up to stay balanced, because once the leg is down there is no feeling, it's just down there." The Veteran underwent a VA examination in December 2011. The Veteran reported numbness from the left knee to the left ankle. He stated that he falls 2 to 3 times a month due to imbalance, and wears a left ankle brace constantly for support. Muscle strength testing was normal, except for left ankle dorsiflexion, which was noted as having active movement against some resistance. Reflex examination of the knees showed hyperactivity without clonus. There was decreased sensation to light touch in the lower leg/ankle area, and the Veteran's gait was described as favoring his right side and slow ambulation. External popliteal (common peroneal) nerve and musculocutaneous (superficial peroneal) nerve on the left were described as having mild incomplete paralysis. The Veteran was noted to have surgical scars, but they were not painful or unstable, or totaling grater than 39 square centimeters (6 square inches). The examiner also stated that the Veteran's condition did impact his ability to work, and stated that he quit his last job after being placed on disability for his left leg. He then concluded that there did not seem to be a significant change since his last examination in January 2010, and then he would not be able to maintain gainful employment mostly due to mental health issues and not due to his peroneal nerve damage. The Veteran submitted a statement in January 2012, in which he stated that his left lower leg was painful and hurt all the time. The Veteran underwent an aid and attendance or housebound VA examination in February 2012. The examiner noted that the Veteran had a left lower extremity foot drop for which he used a brace to aid ambulation. He also noted that combined with cognitive impairment, his neuropathy causes him to be unsteady on his feet. The examiner stated that the Veteran walks with a single prong cane held in his right hand, has a foot drop on the left and pain with weight-bearing on the right. Also noted was that the Veteran's gait was deliberate, as he has central and peripheral nerve issues complicating balance and coordination. The Veteran was diagnosed with several disabilities, including left lower extremity foot drop. The examiner stated that the Veteran's service-connected disabilities left him with near complete paralysis about the left ankle partly due to peroneal nerve damage and muscle defect from trauma; and his ambulation was assisted by a brace used for his foot drop and by a single prong cane. Regarding the Veteran's statements about his partial left peroneal nerve neuropathy, the Board acknowledges that the Veteran is competent to report things he experiences or observes through his five senses. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has stated that he cannot move his foot up and down, that his left lower leg was painful, and that he wears a brace constantly to stabilize himself and to prevent foot drop. The Veteran has also stated that he falls 2 to 3 times a month due to imbalance. The Board finds the Veteran's statements to be credible in that they have remained consistent throughout the appeal period, and are corroborated by the medical evidence of record. After a full consideration of the evidence of record, the Board finds that an increased rating to 40 percent is warranted. The Veteran's overall disability picture more closely approximates the criteria for the 40 percent rating. The Veteran's manifested symptoms throughout the appeal period include foot drop, which is evidence of a symptom associated with complete paralysis of nerves. In addition, in February 2009 treatment records, the Veteran requested a brace for his left leg and was noted to be walking with a shuffled gait and appeared to be unsteady. In his January 2010 VA examination, the Veteran was unable to dorsiflex his left ankle. The Veteran also stated in May 2010 VA treatment records that he used to wear a brace to prevent foot drop. The Veteran's caretaker testified at the October 2011 hearing at the RO that the Veteran has "to pick his leg up to stay balanced, because once the leg is down there is no feeling, it's just down there." The Veteran also testified that he could not move his foot up and down. And in the most recent February 2012 VA examination the Veteran was diagnosed with left lower extremity foot drop. The examiner stated that the Veteran had a deliberate gait, due to central and peripheral nerve issues complicating balance and coordination. And while the December 2011 VA examiner indicated that the Veteran had mild incomplete paralysis of the common peroneal nerve, the Board finds that the overall evidence of record still merits an increase to 40 percent. Accordingly, based upon this evidence, and resolving any reasonable doubt in the Veteran's favor, the Board grants the Veteran a 40 percent rating. The only rating higher than 40 percent for peripheral nerve involvement of the lower extremity is for impairment of the sciatic nerve under Diagnostic Code 8520. The Board has considered whether this diagnostic code may be applicable to the Veteran's service-connected partial left peroneal nerve neuropathy. However, there is no evidence of any diagnoses involving the sciatic nerve. Accordingly, this diagnostic code is not for application. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a Veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Schedular criteria are sufficient and adequate in this case. The Veteran's partial left peroneal nerve neuropathy is manifested by symptoms that are contemplated in the rating criteria, such as foot drop and the inability to dorsiflex his ankle. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. ORDER An evaluation of 40 percent, but not greater, for partial left peroneal nerve neuropathy is granted. REMAND With respect to the inferred issue of entitlement to TDIU, remand is required for compliance with VA's duties to notify and assist the Veteran in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. As discussed above, the Veteran has stated that he was laid off from his job due to his left leg condition. Inference of the claim is therefore required as part of the claim for increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). A finding of TDIU is dependent upon a determination of the impact of service connected disabilities on the ability obtain and retain substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16. However, because the record does not include sufficient evidence as to whether all of the Veteran's service-connected disabilities, either singly or together, render the Veteran unemployable, the issue must be remanded. Friscia v. Brown, 7 Vet. App. 294 (1994). On remand, the Veteran should be provided with and asked to complete a VA Form 21-8940 (Veteran's Application for Increased Compensation based on Unemployability). Additionally, a VA examination, in which the examiner describes in detail the impact of the Veteran's service connected disabilities on his occupational functioning, particularly in terms of an ability to obtain and retain substantially gainful employment, is required. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and provide him fully compliant notice as required under applicable laws, regulations, and legal precedents. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must include information regarding TDIU, to include a specific request for a properly completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Schedule the Veteran for an appropriate VA examination. The examiner must fully describe all current manifestations of each of the Veteran's service-connected disabilities (residual of injury to muscle group XI due to shell fragment wounds, partial left peroneal neuropathy, residual injury to left muscle group XIII due to shell fragment wounds, left thigh scars, and keloid, multiple, shoulders, anterior chest wall, left arm, thighs and left knee scars), with specific commentary regarding the impact of such manifestations on the Veteran's occupational functioning. The entire claims folder (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) must be made available to and reviewed by the examiner. The examiner must address whether the Veteran's service-connected disabilities, either singly or taken together, without regard to any non service-connected disabilities or his age, render him unable to obtain or retain substantially gainful employment. Consideration may be given to his education and occupational experience. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the claim for entitlement to TDIU. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 of Veterans' Appeals 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 Supp. 2012). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs