Citation Nr: 1719782 Decision Date: 06/05/17 Archive Date: 06/21/17 DOCKET NO. 11-05 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability rating for peripheral neuropathy of the left lower extremity, currently evaluated as 10 percent disabling from June 4, 2010, and as 20 percent disabling from August 22, 2011. 2. Entitlement to an increased disability rating for peripheral neuropathy of the right lower extremity, currently evaluated as 10 percent disabling from June 4, 2010, and as 20 percent disabling from August 22, 2011. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which awarded the Veteran a 10 percent disability rating for peripheral neuropathy of the left and right lower extremities each, effective June 4, 2010. A subsequent December 2012 rating decision awarded the Veteran a 20 percent rating for each disability, effective August 22, 2011. As these ratings are less than the maximum benefits available, and the Veteran has not indicated satisfaction with the ratings assigned, the appeal remains pending at this time. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. For the period of June 4, 2010 to August 21, 2011, the Veteran's disabilities were productive of mild incomplete paralysis of the lower extremities. 2. For the period of August 22, 2011, to the present, the Veteran's disabilities were productive of moderately severe incomplete paralysis of the lower extremities. CONCLUSIONS OF LAW 1. For the period of June 4, 2010 to August 21, 2011, the criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.124(a), Diagnostic Code 8520 (2016). 2. For the period of June 4, 2010 to August 21, 2011, the criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.124(a), Diagnostic Code 8520 (2016). 3. For the period of August 22, 2011, to the present, the criteria for a disability rating of 40 percent, but no higher, for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.124a, Diagnostic Code 8520 (2016). 4. For the period of August 22, 2011, to the present, the criteria for a disability rating of 40 percent, but no higher, for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.124a, Diagnostic Code 8520 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159(b) (2016). Per the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the veteran and his or her representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2016); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The United States Court of Appeals for Veterans Claims (Court) has interpreted this to mean that VA must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Here, VA has satisfied its duty to notify the Veteran. In a July 2010 letter, the Veteran was notified of the information and evidence necessary to substantiate his claims; the information and evidence that VA would seek to provide; and the information and evidence that he was expected to provide. A subsequent January 2011 Statement of the Case (SOC) provided further notice regarding the issue of entitlement to an increased rating. At no time has the Veteran alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). Further, VA has satisfied its duty to assist the Veteran. The claims file includes the Veteran's service and VA treatment records, and the Veteran has not identified any additional evidence to be obtained. Further, the Veteran has undergone several VA examinations in connection with these claims. The accompanying reports reflect that the VA examiners reviewed the Veteran's claims file, recorded his current complaints, conducted appropriate examinations, rendered appropriate diagnoses and opinions consistent with the evidence of record, and provided sufficient information to evaluate the Veteran's disabilities. As such, the examination reports are adequate for purposes of rendering a decision in this appeal. See 38 CF.R. § 4.2 (2016); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Veteran has not stated, nor is there evidence indicating otherwise, that there has been a material change in the severity of his service-connected disability since he was last examined in October 2015. See 38 C.F.R. § 3.327(a) (2016). Accordingly, the Board finds that VA has satisfied its duties to notify and assist the Veteran under governing laws and regulations, and will thus review the merits of the Veteran's claims. Legal Criteria and Analysis The Veteran is currently seeking entitlement to increased disability ratings for peripheral neuropathy of the left and right lower extremities, currently rated as 10 percent disabling from June 4, 2010, and as 20 percent disabling from August 22, 2011. Generally, disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2016); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for an increased disability rating, VA has a duty to consider the possibility of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran's peripheral neuropathy of the left and right lower extremities is each separately rated under Diagnostic Code 8520. 38 C.F.R. § 4.124(a) (2016). Under the criteria of Diagnostic Code 8520 for rating impairment of the sciatic nerve, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is assigned for "complete" paralysis, where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2016). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. As such, the Board will analyze the evidence of record against the criteria set forth above. Before doing so, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, placing an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. As the Veteran's claims are divided into two distinct timeframes, the Board will address each period in turn. June 4, 2010 to August 21, 2011 The Board first turns to the period of June 4, 2010 to August 21, 2011, for which the Veteran is currently in receipt of 10 percent disability ratings. The Veteran first underwent VA examination in August 2010. At that time, the Veteran demonstrated normal distal pulses without the presence of peripheral edema. His feet were not swollen upon examination. However, neuritis was recorded in both feet, as was a slight decrease in both feet to a pinprick test, with accompanying complaints of tingling. Bilateral atrophy was explicitly denied. As such, the examiner classified the Veteran's disability as mild bilateral lower extremity peripheral neuropathy. In a September 2010 lay statement, the Veteran reported that he was barely able to walk as a result of his disabilities. Upon review of the above, the Board finds that the evidence does not reflect that the Veteran's peripheral neuropathy of the left and right lower extremities more nearly approximates moderate incomplete paralyses for the period of June 4, 2010 to August 21, 2011. VA treatment records do not indicate that the Veteran solicited ongoing or even repeated treatment to assist with managing his symptoms during this time. Instead, the Veteran presented in August 2010 with minor complaints of tingling and decreased sensation at that time. As such, the reviewing VA examiner assessed the Veteran's disabilities to be mild. Such a disability picture is most properly embodied by the rating criteria for a 10 percent rating, such that increased ratings are not warranted at this time. In making this determination, the Board does not disregard the Veteran's September 2010 representation that his disabilities rendered him nearly unable to walk. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, without appropriate medical training and expertise, which he has not demonstrated, the Veteran is not competent to assess his symptoms against the General Rating Formula in determining his overall disability picture. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Instead, the Board turns to the additional evidence of record to corroborate the Veteran's testimony. In doing so, the Board notes that the evidence of record suggests only minor impairment of the Veteran's capacity to ambulate during the rating period on appeal, as presented by mild symptoms including tingling and decreased sensation. As such, the Board finds that the current 10 percent ratings for the period of June 4, 2010 to August 21, 2011 are proper, and do not warrant adjustment at this time. August 22, 2011, to the Present The Board now turns to the period of August 22, 2011, to the present, for which the Veteran is currently in receipt of 20 percent disability ratings. The Veteran underwent VA examination in August 2011. At that time, the Veteran reported pain in both thighs with radiation to both feet. The pain was described as "sharp," followed by a period of numbness, and was typically onset by walking a distance of less than 100 feet. The Veteran indicated that he was unable to walk as a result of said pain, which required him to sit down. Thus, the Veteran reported the use of muscle relaxants and pain medications to assist with managing his symptoms, with little impact. Upon examination, the Veteran presented with decreased sensory response. Active movement against some resistance was observed upon bilateral knee flexion and extension, bilateral ankle dorsiflexion and plantar flexion, and bilateral great toe extension. Muscle tone was described as normal, and no muscle atrophy was noted. However, a gait abnormality was observed, such that the Veteran required the use of a cane to assist with ambulation. Accordingly, the Veteran was diagnosed with peripheral neuropathy with nerve dysfunction, neuritis, and neuralgia, but absent paralysis, at that time. VA treatment records spanning January 2013 to June 2015 reveal the Veteran's ongoing complaints of peripheral neuropathy of the lower extremities. In April 2015, the Veteran underwent an electromyogram and nerve conduction studies which revealed mild sensory polyneuropathy. Around that same time, the Veteran was assessed as a "high risk" patient demonstrating peripheral neuropathy with sensory loss, diminished circulation, and foot deformity or minor foot infection. In June 2015, the Veteran conveyed absent sensory exam results upon using monofilament. The Veteran underwent additional VA examination in March 2015. At that time, the Veteran reported increased numbness and tingling, accompanied by diminished cold and vibratory sensation. As a result, the Veteran was limited in his ability to ambulate comfortably and for any prolonged distance, and required the use of multiple medications to assist with managing his symptoms. Upon examination, the Veteran presented with moderate paresthesias and/or dysesthesias, and moderate numbness, of the bilateral lower extremities. Decreased results were observed upon light touch/monofilament testing. Further, vibration sensation was absent in the Veteran's right lower extremity, and decreased in the left lower extremity. Cold sensation was also decreased bilaterally. However, muscle atrophy was explicitly denied at that time. Accordingly, the VA examiner classified the Veteran's disabilities as incomplete paralysis of moderate severity bilaterally. An additional VA examination was administered in October 2015. At that time, the Veteran reported pain and tingling in his feet upon prolonged standing, and pain upon prolonged walking. Upon examination, the Veteran demonstrated moderate paresthesias and/or dysesthesias of the lower extremities, but no numbness. Normal light touch/monofilament results were recorded for the feet and toes, but decreased results for the bilateral ankles and lower legs. However, vibration and cold sensation was absent in the bilateral lower extremities. Muscle atrophy was explicitly denied. As such, the VA examiner classified the Veteran's disability as moderate paralysis of the lower extremities. In assessing the severity of the Veteran's symptoms, the Board finds that a 40 percent disability rating is warranted for peripheral neuropathy of the left and right lower extremities for the period of August 22, 2011, to the present. In offering this conclusion, the Board acknowledges that the March 2015 and October 2015 VA examiners classified the Veteran's disabilities as moderate upon examination. However, the VA examination reports of record are indicative of a greater level of impairment than that encompassed by the criteria for a 20 percent disability rating. Specifically, the August 2011 VA examiner reported that the Veteran required the use of a cane to ambulate. Without said cane, there was gait "instability with tandem gait assessment." As such, the Veteran was only able to traverse a few steps and was very unstable, which nearly resulted in a fall. Said impairment limited the Veteran's capacity to less than 100 feet. Similarly, the March 2015 VA examiner diagnosed the Veteran with "significant" bilateral peripheral neuropathy, which interfered significantly with his gait. Said assessment was seemingly confirmed by the October 2015 examiner, who noted that the Veteran experienced pain and tingling upon prolonged standing, and pain upon prolonged walking. As such, the Board finds that the Veteran's bilateral peripheral neuropathy of the lower extremities has caused such marked interference with his capacity to ambulate that the near-constant use of a cane is required for the Veteran to traverse even short distances. Accordingly, the Veteran's disability picture most nearly approximates moderately severe incomplete impairment, such that an increased rating for each disability is warranted at this time. In the total absence of evidence speaking to severe and incomplete paralysis with marked muscular atrophy, a rating in excess of 40 percent is not currently justified by the evidence of record. Total Disability Rating Based on Individual Unemployability (TDIU) The Court has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the Board has jurisdiction to consider a veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disabilities in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). During the pendency of this appeal, the Veteran has not asserted, nor does the record otherwise suggest, that he was totally unemployable as the result of his service-connected disabilities. As such, the Board concludes that a claim for a TDIU has not been raised by the record at this time. Additionally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER For the period of June 4, 2010 to August 21, 2011, entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. For the period of June 4, 2010 to August 21, 2011, entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied. For the period of August 22, 2011 to the present, entitlement to a disability rating of 40 percent, but no higher, for peripheral neuropathy of the left lower extremity is granted subject to the regulations governing the award of monetary benefits. For the period of August 22, 2011 to the present, entitlement to a disability rating of 40 percent, but no higher, for peripheral neuropathy of the right lower extremity is granted subject to the regulations governing the award of monetary benefits. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs