Citation Nr: 1418870 Decision Date: 04/29/14 Archive Date: 05/06/14 DOCKET NO. 11-27 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a rating in excess of 20 percent for left lower peripheral neuropathy. 2. Entitlement to a rating in excess of 20 percent for right lower peripheral neuropathy. 3. Entitlement to a rating in excess of 40 percent for left lower peripheral neuropathy. 4. Entitlement to a rating in excess of 40 percent for right lower peripheral neuropathy. 5. Entitlement to service connection for a skin condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD L. Buchs, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, in which the RO, in pertinent part, denied increased ratings for peripheral neuropathy of bilateral lower extremities and denied service connection for a skin condition. The Veteran testified in a June 2012 Travel Board hearing before the undersigned Veterans Law Judge, and a copy of the transcript has been associated with the record. In light of the fact that the Veteran testified that his peripheral neuropathy had worsened since his last VA examination in April 2010, and he therefore should be afforded another VA examination to evaluate his current disability, the Board finds it appropriate to bifurcate the claims for higher ratings for left lower and right lower peripheral neuropathy. Bifurcation of the issues permit a grant of benefits under 38 C.F.R. § 4.124(a) to which the evidence of record shows the Veteran is entitled, without delay of this grant of benefits awaiting compliance with procedural adjudication of the remainder of the peripheral neuropathy appeals under 38 C.F.R. § 3.159. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately). The Board has reviewed the Veteran's physical claims file and both the Veterans Benefits Management System and "Virtual VA" files to ensure a complete review of the evidence in this case. The issues of a skin condition and ratings in excess of 40 percent for left and right lower peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT 1. For the entire rating period on appeal, the Veteran's peripheral neuropathy of bilateral lower extremities has been moderately severe. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for left lower peripheral neuropathy have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.123, 4.124, 4.124(a), Diagnostic Codes 8520, 8620, 8720 (2013). 2. The criteria for a 40 percent rating for right lower peripheral neuropathy have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.123, 4.124, 4.124(a), Diagnostic Codes 8520, 8620, 8720 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). Notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, a VCAA notice letter sent in March 2010 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claims; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Vazquez-Flores. The Board finds that all necessary assistance has been provided to the Veteran. In April 2010, the RO provided the Veteran with a VA peripheral nerves examination to assist in determining the extent of the Veteran's disability. As the examination report was written after an interview with the Veteran, and contained specific findings indicating the nature of the Veteran's peripheral nerve disability and symptomatology, the VA examination is adequate for VA purposes. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran and statements from the Veteran and representative. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Rating Laws and Regulations Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. The Veteran is in receipt of separate 20 percent disability ratings for left and right peripheral neuropathy under Diagnostic Code 8520. A 20 percent rating is assigned for moderate, incomplete paralysis of the foot. A 40 percent rating is awarded for moderately severe, incomplete paralysis of the foot. A 60 percent rating is granted for incomplete, severe, with marked muscular atrophy, paralysis of the foot. For an 80 percent rating, there must be a showing of complete paralysis of the foot; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124(a). Disease of the sciatic nerve can also be rated under Diagnostic Code 8620 for neuritis and Diagnostic Code 8720 for neuralgia. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury to the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section with sciatic nerve involvement will be that for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Peripheral Neuropathy Analysis The Veteran contends the burning in his feet is unbearable and that it is worse on his left lower extremity than his right lower extremity. The Veteran stated that the burning in his left lower extremity is so bad sometimes he wants to cut it off, and that he has throbbing pain in his right big toe and the two toes next to it. The Veteran testified in June 2012 that his peripheral neuropathy is much worse than mild and that it has worsened since his last VA examination. A VA examiner in April 2010 opined that the Veteran's peripheral neuropathy in bilateral lower extremities was moderately severe. Upon examination in April 2010, sensory testing revealed moderately decreased pinprick and light touch sensation on both lower extremities, more so on the left than right. Timed vibration sense was moderately decreased on both big toes, and Romberg's test was slightly positive. There was no significant atrophy of the lower extremities; motor strength was normal; and reflexes were two plus bilaterally for knee jerks, one plus bilaterally for ankle jerks, and plantars were flexor. The VA examiner stated that the Veteran's peripheral neuropathy was initially of gradual onset but had been chronically and gradually progressive, and that the Veteran had painful neuropathy symptoms of both lower extremities that had been worsening for the last two months. After review of the evidence, lay and medical, the Board finds that for the entire rating period on appeal, the Veteran's peripheral neuropathy of bilateral lower extremities has been moderately severe. Therefore, ratings of 40 percent for left lower and right lower peripheral neuropathy are warranted. The Board notes that this is not a full grant of the benefit; however, additional procedural development is needed before the issues of entitlement to ratings in excess of 40 percent for left lower and right lower peripheral neuropathy can be adjudicated. The Board is remanding these portions of the Veteran's claims, which are addressed in further detail below in the Remand section of this decision. (CONTINUED ON NEXT PAGE) ORDER For the entire rating period on appeal, a 40 percent rating for left lower peripheral neuropathy is granted. For the entire rating period on appeal, a 40 percent rating for right lower peripheral neuropathy is granted. REMAND The Board notes that allowance of 40 percent ratings for left lower and right lower peripheral neuropathy are not the highest ratings available under 38 C.F.R. § 4.124(a). As such, the Veteran's claims for entitlement to disability ratings in excess of 40 percent for left lower and right lower peripheral neuropathy remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). A review of the claims file reflects that the Veteran should be provided another VA examination to assess the current level of disability due to left lower and right lower peripheral neuropathy. The Veteran testified in a June 2012 Travel Board hearing that his peripheral neuropathy had worsened since his last VA examination in April 2010. In addition, the Board finds that additional development is needed to adjudicate the Veteran's claim for service connection for a skin condition. The record indicates that the Veteran's skin condition could be related to his exposure to herbicides in active service either directly or secondary to his diabetes mellitus. As such, the Veteran should be afforded a VA skin examination. Accordingly, the case is REMANDED for the following action: 1. Obtain any pertinent, outstanding VA treatment records from February 2010 regarding a skin condition, and associate them with the record. The Veteran reported he receives treatment for his skin condition at East Orange VAMC. 2. Thereafter, schedule the Veteran for a VA skin examination to assist in determining the nature and etiology of the Veteran's skin condition. The VA examiner should provide opinions based on the available evidence of record: a. Is it at least as likely as not that the Veteran's skin condition incurred in or was caused by active service (to include exposure to herbicides)? b. Is it at least as likely as not that the Veteran's skin condition is caused or aggravated by the Veteran's service-connected diabetes mellitus? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a rationale for his or her opinion with reference to the evidence of record. 3. Schedule the Veteran for VA peripheral nerves examination to assist in determining the Veteran's current level of impairment due to left lower and right lower peripheral neuropathy. For each extremity, the examiner should specify the nerves involved; note whether there is associated atrophy or weakness; and express an opinion as to the severity of the disability (moderately severe, or severe) for each nerve involved. 4. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran with a supplemental statement of the case, and should give the Veteran and representative a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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 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. 2013). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs