Citation Nr: 1637235 Decision Date: 09/22/16 Archive Date: 09/30/16 DOCKET NO. 12-05 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased rating for service-connected left lower extremity peripheral neuropathy, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for service-connected right lower extremity peripheral neuropathy, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for posttraumatic stress disorder (PTSD). 4. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to March 1970. These matters come before the Board of Veterans' Appeals (Board) from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In June 2014, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the proceeding appears in the claims file. Following a December 2014 Board decision which, in part, denied the Veteran's claims for increased ratings for left and right lower extremity peripheral neuropathy, the Secretary of VA and the Veteran's representative filed a Joint Motion for Partial Remand (JMR) with the United States Court of Appeals for Veterans Claims (Court). In the JMR, the parties agreed that the decision regarding increased ratings for lower extremity peripheral neuropathy should be vacated and remanded because it did not contain a discussion of other possibly relevant diagnostic codes and no examiner had yet explained which nerve or nerves were implicated by the Veteran's peripheral neuropathy. Pursuant to the October 2015 Court Order, the Board remanded the claims in January 2016. The Board also observes that in the December 2014 Board decision, the issues of entitlement to an increased rating for PTSD and to a TDIU were remanded. In a March 2015 rating decision, a higher 70 percent rating was granted for PTSD. As discussed further below, the Veteran expressed satisfaction with that award and withdrew his appeal as to that issue in March 2015 correspondence. However, there is no indication that the Veteran withdrew his TDIU claim, and thus, it remains on appeal. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's service-connected lower left extremity peripheral neuropathy has been primarily manifested by subjective symptoms of decreased sensation, numbness and burning; evidence of loss of muscle strength or muscle atrophy has not been shown; the Veteran's disability is productive of no more than moderate incomplete paralysis. 2. Throughout the appeal period, the Veteran's service-connected right lower extremity peripheral neuropathy has been primarily manifested by subjective symptoms of decreased sensation, numbness and burning; evidence of loss of muscle strength or muscle atrophy has not been shown; the Veteran's disability is productive of no more than moderate incomplete paralysis. 3. In a March 2015 statement, prior to the promulgation of a decision by the Board, the Veteran indicated that he is satisfied with a March 2015 award of a 70 percent rating for PTSD and that he does not wish to continue his appeal. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for service-connected left lower extremity peripheral neuropathy have not been met. 38 U.S.C.A. § 1155, 5103, 5103A (West 2014); 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8525 (2015). 2. The criteria for an increased rating in excess of 10 percent for service-connected right lower extremity peripheral neuropathy have not been met. 38 U.S.C.A. § 1155, 5103, 5103A (West 2014); 38 C.F.R. § 4.124a, DCs 8520, 8525 (2015). 3. The criteria for withdrawal of appeal of the claim for an increased rating for PTSD have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). In this case, the duty to notify was satisfied by way of August 2009 and September 2009 pre-adjudication letters, which notified the Veteran of the information and evidence necessary to establish higher ratings, as well as how VA determines effective dates and disability ratings, and the types of evidence which impacts those determinations. This case was last readjudicated in March 2016, and the Veteran has not alleged any prejudicial error in the content or timing of the VCAA notice he received. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The record also reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the matters on appeal, including the Veteran's service treatment records and VA treatment records through January 2016. The Veteran has not identified any outstanding medical evidence. Appropriate VA examinations were conducted in connection with the claims, including as recently as February 2016. Furthermore, inasmuch as the February 2016 examiner identified and evaluated the severity of the specific nerves involved with the Veteran's neuropathy, and ongoing VA treatment records were obtained, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Increased Ratings The Veteran contends that the peripheral neuropathy affecting his lower extremities is more disabling than as currently evaluated. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found--a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's peripheral neuropathy of the left and right lower extremities has been rated as 10 percent disabling for each extremity pursuant to Diagnostic Code 8525, which provides ratings for paralysis of the posterior tibial nerve. However, as discussed further below, a February 2016 VA examiner determined that the Veteran's bilateral lower extremity neuropathy involves the external popliteal (common peroneal) nerve, which is expressly contemplated by Diagnostic Code 8521. Under DC 8521, ratings of 10, 20, and 30 percent are assigned for incomplete paralysis that is respectively mild, moderate, and severe. A higher 40 percent rating is assigned for complete paralysis, which is defined as foot drop and slight drop 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 dorsum of foot and toes. 38 C.F.R. § 4.124a. A note to the Schedule of ratings for Diseases of the Peripheral Nerves indicates that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than complete paralysis. The section also states that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Following a review of the record, the Board finds that a rating in excess of 10 percent is not warranted for peripheral neuropathy of either the left or right lower extremity, as the evidence more nearly approximates mild paralysis of the external popliteal nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8525. VA treatment notes generally show that the Veteran experiences pain and burning in his feet, and in March 2009, he exhibited diminished sensation. However, he has also remained generally active. For example, in December 2008, he reported that he works in a warehouse and is on his feet all day. In February 2009, the Veteran reported participation in a regular exercise program involving walking or dancing for one hour. In August 2009, he affirmed that he is walking one hour every day. In September 2009, the Veteran underwent a VA examination of the peripheral nerves. He indicated the numbness and burning in both his palms and the soles of his feet was worse and more constant. No flare-ups of his neuropathy were noted. The "aggravating factor" was continued standing. It was indicated the Veteran was not taking medication; there was no weakness or fatigue or functional loss of either the hands or the feet. It was indicated that the neuropathy had not interfered with or impacted his activities of daily living or any physical tasks. No gross motor or sensory deficit was noted and it was noted the Veteran had only subjective complaints of numbness and burning; there was no paralysis, no neuritis and no neuralgia. There was no muscle wasting or atrophy due to nerve damage. Evidence since the September 2009 examination indicates the Veteran cannot walk as far as he used to because the neuropathy in his feet had gotten worse; that when sitting he has to move around more and that now he is taking medication to relieve his symptoms. Additionally, ongoing VA treatment notes document some diminished sensation, such as in May 2011, but also show bilateral foot sensation to be intact at times, including in December 2009, July 2010, October 2010, February 2011, August 2011, and January 2012. In a March 2012 VA treatment record, the Veteran indicated that he still had burning in his feet, but did not wish to increase the dosage of his medication. It was also noted he was walking daily to help lose weight. A treatment letter dated in March 2013 indicated the presence of diabetic neuropathy with lack of protective sensation. The examiner indicated that the Veteran declined an increase in medication for better pain control yet asked for a letter stating he is unable to do any work secondary to his pain. The examiner stated she did not agree that he could not do any work and was unable to write the requested letter in good faith. Thereafter, VA treatment notes show further loss of sensation in the bilateral foot, including in February, March, July, and September 2013. However, in March 2013, the Veteran reported that he was walking and staying busy, and that his foot pain was improved some with gabapentin increase. He also reported that he used to walk longer but is now limited to one hour. In July 2013, the Veteran walked with a nonantalgic gait and reported sensation loss in both feet; however, neurological examination was grossly intact to soft touch bilaterally. In September 2013, he reported that he walks and does chores around the house, and he exhibited a normal gait. While sensation was decreased or absent at that time, in December 2013 it was described as intact. In February 2014, the Veteran reported that he walks regularly and is involved in church choir and a band. At his June 2014 hearing before the Board, the Veteran indicated that he used to work in a warehouse where he was on his feet almost all day and he had to go out about once an hour to take his boots off to "release the tension." He indicated he was still taking medication. He also submitted February 2013 lay statements from coworkers attesting to their observations of the Veteran's foot problems at work. VA treatment notes dating from April 2015 to December 2015 show symptoms of pain and diminished sensation to the level of midfoot. However, the Veteran continued to walk up to six times a week, reporting one hour or 2-3 miles in May 2015, and 45 to 60 minutes a day in November 2015. His gait was normal, and in April 2015, muscle strength was 5/5 to all muscles of the lower limbs. Those records also show that the Veteran was using creams in addition to Gabapentin to control his symptoms. The Veteran was afforded another VA examination in February 2016 to evaluate the severity of his peripheral nerve disability and to identify the specific nerve involved. The examiner indicated that the Veteran's neuropathy involves the external popliteal (common peroneal) nerve, which the Veteran reports causes constant pain in his feet. However, the Veteran reported that since his first C&P exam for peripheral neuropathy in 2005, he has experienced no changes or increase of bilateral feet neuropathy. He reported that the tops and bottoms of all toes on both feet and half of plantar surfaces of both feet (from toes to arch)are chronically numb and burn. He stated that the numbness does not affect the posterior portion of the soles near the heels. He reported that he is taking gabapentin to relieve the burning which he says is somewhat helpful. He can walk without assistive device, and has no numbness or burning sensation in the ankles or legs. He also denied buttock pain and back pain, though he did report intermittent left lateral hip pain with movement or at rest. He stated that he tries to walk a mile and half daily. His feet hurt all the time, but he can still walk. Regarding symptoms, the Veteran reported constant (possibly excruciating) pain, intermittent (usually dull) pain, paresthesias and/or dysthesias, and numbness in the bilateral lower extremity, all mild in severity. On examination, the Veteran exhibited full muscle strength, normal bilateral knee reflexes, and absent bilateral ankle reflexes. Sensation was normal throughout the lower extremities except for in the bilateral foot/toes, where it was decreased. The examiner also noted trophic changes in the form of loss of hair on the bilateral shins. The examiner concluded that the Veteran's neuropathy of the lower extremities involving the external popliteal (common peroneal) nerves causes incomplete paralysis that is mild. There was no other nerve involvement. Upon review of the foregoing, the Board concludes that throughout the appeal period, the Veteran's service-connected bilateral lower extremity peripheral neuropathy has been primarily manifested by some decreased sensation of the feet, and subjective symptoms of pain, numbness, and burning, that are productive of no more than mild incomplete paralysis. As noted, pursuant to DC 8521, to warrant a higher schedular rating than 10 percent moderate incomplete paralysis or complete paralysis must be shown. Here, while the record reflects pain, numbness, loss of sensation, and burning, the symptoms are not noted to be severe. On the contrary, the February 2016 VA examiner expressly determined the Veteran's symptoms to be mild in nature. Significantly, in finding that the Veteran's neuropathic symptoms are mild in severity and involve the external popliteal nerve (Diagnostic Code 8521), the examiner considered the absence of ankle reflexes, which were found on neurologic examination. Moreover, despite the foregoing symptosm, the record shows that the Veteran has exercised regularly throughout the appeal period, walking up to an hour or 2-3 miles at times, has been found to have full muscle strength, and has been noted to walk with a normal gait. Even acknowledging the Veteran's complaints of pain and burning and the objective evidence of loss of sensation and ankle reflexes, the most probative evidence does not show impairment sufficient to more nearly approximate a moderate disability. While the Veteran may contend that his symptoms are more severe, the Board concludes that the medical findings of record, and in particular, the February 2016 VA examiner's severity determination, are of greater probative value than the Veteran's lay assertions, and that the 10 percent ratings assigned for each the left and right lower extremity the entire period under review adequately addresses his symptomatology. In sum, the Board finds that the evidence of record is consistent with mild incomplete paralysis of the external popliteal nerves, and does not more nearly approximate moderate incomplete paralysis of the external popliteal nerve to warrant a higher 20 percent rating for either lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8521. Thus, higher ratings are denied. Finally, the Board has considered whether the Veteran's bilateral lower extremity neuropathy has presented an exceptional or unusual disability picture at any time during the period on appeal so as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology for his neuropathy, and provide for additional or more severe symptoms than currently shown by the evidence. As detailed, the Veteran's neuropathic complaints and symptoms are contemplated by the Rating Schedule's established criteria for evaluation of the external popliteal nerve, including providing for impairment in movement and sensation of the toes and feet. The Board has considered the Veteran's other complaints such as pain and burning, as well as the overall impact of his disability, in finding that a higher rating is not warranted. The record shows that the Veteran has continued to walk and exercise throughout the appeal period. The record does not show frequent hospitalizations or marked interference with employment related to the Veteran's peripheral neuropathy. While the Veteran has reported problems at his prior work due to his bilateral neuropathic foot problems, and further indicated that his bilateral foot problems impacted his decision to opt for early retirement during a reduction in force, some occupational impairment is contemplated by his schedular disability ratings. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Furthermore, while a December 2005 VA examiner noted that pain would have a significant effect on occupational functioning, that examination predates the period on appeal, and in the comments describing the impact on occupational functioning and activities of daily living, the examiner wrote that the symptoms are "an annoyance for the Veteran." In any event, VA examiners in February 2016 and September 2009 found no significant occupational or functional impairment due to service-connected peripheral neuropathy. The assigned ratings are adequate, and the Board finds that no further analysis is necessary under Thun, 22 Vet. App. 111. Referral under 38 C.F.R. § 3.321 is not warranted. In sum, as the preponderance of the evidence is against the claims for increase, the benefit of the doubt doctrine is not applicable, and the increased rating claims above must be denied. Gilbert, 1 Vet. App. at 54. III. Withdrawal of Appeal In March 2015, the Veteran submitted a written stating expressing his satisfaction with a March 2015 rating decision granting a higher 70 percent rating for PTSD, and indicating that he does not wish to continue his appeal. In a separate March 2015 statement, the Veteran's representative indicated that the Veteran wishes to withdraw his appeal. Under 38 C.F.R. § 20.204, an appeal may be withdrawn on the record during a hearing or in writing at any time before the Board promulgates a decision. Thus, the March 2015 written statements satisfied the criteria for withdrawal of the Veteran's substantive appeal as to the issue of entitlement to an increased rating for PTSD. 38 C.F.R. § 20.204 (2015). The Board is cognizant that, after the criteria for withdrawal were met, the Veteran's representative submitted a written argument in November 2015 addressing the issue of entitlement to an increased rating for PTSD. However, as that communication was not received within one year of the November 2009 rating decision on appeal that denied an increased rating for PTSD, or within 60 days of the February 2012 SOC addressing the issue of increased rating for PTSD, it cannot serve to reinstate the appeal. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5) (West 2014). As the claim of entitlement to an increased rating for PTSD has been withdrawn, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to that issue, and it is dismissed. ORDER A rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied. A rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. The appeal on the issue of entitlement to an increased rating for PTSD is dismissed. REMAND The Board finds that an addendum opinion regarding TDIU is necessary. Specifically, the Board finds that an opinion is necessary regarding the combined impact of the Veteran's service-connected disabilities on his occupational functioning. Therefore, on remand, an opinion should be obtained from a vocational specialist, if available, addressing the combined impact of his service connected disabilities. The Board recognizes that a March 2015 VA examiner found that the Veteran's PTSD, alone, causes moderate to severe impairment in occupational functioning, to include in both sedentary and physical work settings. It appears that determination was based on findings of moderate to severe impairment in coping skills, and severe impairment in social interaction due to anger and irritability. However, the Board finds the symptoms documented in the examination report to be inconsistent with other evidence of record. For example, with reference to social interaction and specifically, reports of physical altercations with coworkers and subordinates in the workplace, the Board observes that during an October 2004 VA examination, the Veteran reported that his last physical "fight" occurred 20 years prior, and subsequent records do not otherwise document physical altercations and show the Veteran denied assaultiveness. Furthermore, ongoing VA treatment notes, including as recently as November 2015 show that the Veteran is close with his immediate family members, visits with friends and family regularly, is in the church choir, and is in a band. Thus, given the inconsistencies, to the extent that the March 2015 VA examination could support entitlement to a TDIU based upon PTSD, the Board finds it of limited probative value. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to a VA vocational specialist, to obtain an opinion as to the combined effects of the Veteran's PTSD, diabetes mellitus, fungal infection of the feet and toenails, peripheral neuropathy of the lower extremities, hypertension, shrapnel wound residuals of the left wrist, and erectile dysfunction. Following review of the claims file, the vocational specialist should address the functional impact of the Veteran's service-connected disabilities (PTSD, diabetes mellitus, fungal infection of the feet and toenails, peripheral neuropathy of the lower extremities, hypertension, shrapnel wound residuals of the left wrist, and erectile dysfunction) on his day-to-day functioning and ability to maintain a substantially gainful occupation. The specialist may consider the Veteran's education but may not consider the effects of age or nonservice-connected disabilities. A rationale for the opinion should be provided. 2. After completion of the above and any additional development deemed necessary, review the expanded record and determine if the claim can be granted. If the claim remains denied, issue a supplemental statement of the case and afford the appellant and her representative an opportunity to respond. Thereafter, return the case to the Board for appellate review, if in order. 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 2014). ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs