Citation Nr: 1751165 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 16-21 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a disability rating in excess of 60 percent for multiple sclerosis with urinary frequency. 2. Entitlement to a disability rating in excess of 30 percent for multiple sclerosis residuals, right lower extremity muscular atrophy with decreased strength. 3. Entitlement to a disability rating in excess of 30 percent for multiple sclerosis residuals, left lower extremity muscular atrophy with decreased strength. 4. Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Z. C. ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to March 2000. This case is before the Board of Veterans Appeals (Board) on appeal from a March 2015 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. During the Board hearing, the Veteran testified that she had to retire as a direct result of her service-connected disabilities. Accordingly, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) had been raised by the record and was added as part of the appeal for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In an April 2017 decision, the Board found that the reductions in evaluation of multiple sclerosis (MS) and associated residuals of right and left lower extremity muscular atrophy with decreased strength were improper and restored the prior evaluations. The Board remanded the issues of increased ratings for the disabilities as of August 20, 2011 for further development. Here, the Board notes that it erred in citing August 20, 2011 as the date of claim for increase. Another review of the claims file shows that the August 20, 2011 claim for increase lead to a July 2012 rating decision that increased the rating for MS to the current 60 percent and granted separate ratings for right and left lower extremity muscular atrophy with decreased strength, assigning each the current 30 percent rating from August 20, 2011. The Veteran did not file a notice of disagreement to that rating decision. A February 19, 2014 claim for increase lead to the March 2015 rating decision on appeal that reduced the evaluation for these disabilities, which the Board has restored. Thus, the rating period on appeal is from February 19, 2014. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to a total disability rating based on individual unemployability (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. The Veteran's MS with urinary frequency requires the wearing of absorbent materials which must be changed more than 4 times per day. 2. Right lower extremity muscular atrophy with decreased strength has not been manifested by moderately severe incomplete paralysis of the sciatic nerve. 3. Left lower extremity muscular atrophy with decreased strength has not been manifested by moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 60 percent for MS with urinary frequency have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.27, 4.115a, 4.115b, Diagnostic Code 7517; 4.124a, Diagnostic Code 8018 (2016). 2. The criteria for a disability rating in excess of 30 percent for MS residuals, right lower extremity muscular atrophy with decreased strength, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8520 (2016). 3. The criteria for a disability rating in excess of 30 percent for MS residuals, left lower extremity muscular atrophy with decreased strength, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8520 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, VA provided the Veteran with 38 U.S.C.A. § 5103(a)-compliant notice in April 2014. VA also has a duty to assist a claimant in the development of a claim. That duty includes providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The Veteran asserted that an October 2014 VA examination report was inadequate as it did not correctly capture the severity of her urinary frequency or right and left lower extremity muscular atrophy with decreased strength. In the prior decision, the Board agreed that the examination report did not correctly capture the severity of her disabilities. Thus, the Board will not use the findings of that examination in adjudicating the increased rating claims on appeal. Rather, the Board will focus on the findings of a June 2017 VA examination report, the adequacy of which has not been questioned. As such, the Board finds that there is no prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). The terms mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, all of the evidence must be evaluated to the end that all decisions are equitable and just. 38 C.F.R. § 4.6 (2016). Use of such descriptive terms by medical examiners, although an element of the evidence to be considered, is not dispositive of an issue. Such evidence must be interpreted in light of the whole recorded history, reconciling the evidence into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2016). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the Veteran is requesting an increased rating for a service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. Powell v. West, 13 Vet. App. 31 (1999). Nevertheless, the Board acknowledges that the Veteran 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. In this case, VA essentially received a claim for an increased rating for MS with urinary frequency in February 2014. Historically, a February 2012 VA examination revealed a diagnosis of MS with voiding dysfunction causing urine leakage and urinary frequency, muscle weakness in the lower extremities, blurring of vision, and memory loss. At that time, the Veteran reported that the urinary frequency associated with her MS required the wearing of absorbent materials which must be changed more than 4 times per day, and resulted in a daytime voiding interval less than 1 hour and nighttime awakening to void 5 or more times. Examination revealed decreased strength of 2/5 in hip flexion, knee extension, and ankle plantar flexion and dorsiflexion; decreased sensation from the thigh down to the toes; and muscle atrophy at the thighs. VA medical records show that the Veteran has MS but do not contain any pertinent findings. During the rating period on appeal, at a June 2017 VA examination, the Veteran reported fatigue with walking or any type of exertion, intermittent weakness in the legs, and intermittent dizziness. While the examiner stated that the Veteran has voiding dysfunction attributable to MS that causes urine leakage, the examiner indicated that the Veteran does not require the use of absorbent materials. The Veteran reported a daytime voiding interval between 1 and 2 hours and nighttime awakening to void 3 to 4 times. Examination of the lower extremities revealed decreased strength of 4/5 in hip flexion bilaterally and decreased deep tendon reflexes at the ankles. Strength and deep tendon reflexes were otherwise normal. Sensation testing results were normal throughout. The examiner noted that formal strength testing showed initial normal strength followed by giveway weakness. The examiner stated that there was no muscle atrophy attributable to MS. The examiner concluded that there was mild muscle weakness in the lower extremities attributable to MS. The examiner indicated that there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to MS. The examiner further indicated that there were no signs or symptoms of depression, cognitive impairment or dementia, or any other mental disorder attributable to MS. The examiner stated that the Veteran would have difficulty performing strenuous duties and would be ill-suited for heavy lifting or carrying, or prolonged walking, standing, running, or climbing. The examiner added that the Veteran's urinary frequency and bilateral lower extremity problems may have an impact on her ability to secure or follow a substantially gainful occupation if strenuous and/or heavy work were required. The examiner commented that the Veteran has weakness in her legs that is mild, does not limit her functionally, and may in fact be subjective. The examiner noted that the Veteran's main complaints were of vertigo and fatigue. The examiner then commented that there were no objective findings for vertigo or fatigue. The Veteran's MS with urinary frequency has been rated at 60 percent under Diagnostic Code 8018-7517. 38 C.F.R. § 4.124a (2016). Her disability has been evaluated as residuals under Diagnostic Code 7517 for voiding dysfunction. 38 C.F.R. § 4.27 (2016). Under Diagnostic Code 8018 for MS, the minimum rating for the disability is 30 percent. 38 C.F.R. § 4.124a. A parenthetical note preceding the rating criteria shows that MS and its residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., are to be especially considered referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, the disability is to be rated by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. 38 C.F.R. § 4.124a. Diagnostic Code 7517 pertains to injuries of the bladder and provides that such disabilities should be evaluated based on voiding dysfunction. 38 C.F.R. § 4.115b (2016). Voiding dysfunction includes urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a (2016). For urine leakage, including continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a maximum 60 percent rating is warranted for the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a. For urinary frequency, a maximum 40 percent rating is warranted for a daytime voiding interval less than one hour or awakening to void five or more times per night. 38 C.F.R. § 4.115a. For obstructed voiding, a maximum 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. Despite the Veteran's report at the June 2017 VA examination, her oral and written statements otherwise of record indicate that her MS with urinary frequency requires the wearing of absorbent materials which must be changed more than 4 times per day. That finding warrants a 60 percent under Diagnostic Code 7517. As that is the maximum rating allowed for voiding dysfunction under the above rating criteria, the Board will consider whether any alternative diagnostic code may enable a higher rating in this case. See Butts v. Brown, 5 Vet. App. 532 (1993). With no evidence of renal dysfunction, a higher rating under those rating criteria is not warranted. There are no other relevant diagnostic codes for consideration. The Veteran's dizziness associated with MS has been separately rated at 30 percent under Diagnostic Code 6204. 38 C.F.R. § 4.87 (2016). While the Veteran reported fatigue with walking or any type of exertion at the June 2017 VA examination, the examiner commented that there were no objective findings for fatigue. With no indication that the Veteran's fatigue results in periods of incapacitation that require bed rest and treatment by a physician, a separate compensable rating for chronic fatigue syndrome under Diagnostic Code 6354 is not warranted. See 38 C.F.R. § 4.88b (2016). The Veteran's right and left lower extremity muscular atrophy with decreased strength have been rated at 30 percent each under Diagnostic Code 8023-8520. 38 C.F.R. § 4.124a. Her disabilities have been evaluated as residuals under Diagnostic Code 8520 for disability of the sciatic nerve. 38 C.F.R. § 4.27. Under Diagnostic Code 8520 for disability of the sciatic nerve, an 80 percent rating is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee and flexion of knee weakened or (very rarely) lost; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and a 40 percent rating is warranted for moderately severe incomplete paralysis. 38 C.F.R. § 4.124a. Peripheral neuritis, 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 of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123 (2016). Peripheral neuralgia, 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 a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (2016). Given the findings of the June 2017 VA examination, the Veteran's disability of the lower extremities associated with MS has only resulted in slightly decreased hip flexion strength and decreased deep tendon reflexes at the ankles. Moreover, the examiner stated that there was no muscle atrophy and concluded that there was only mild muscle weakness in the lower extremities, which the examiner commented does not limit the Veteran functionally and may in fact be subjective. As such, the Board finds that the Veteran's right and left lower extremity muscular atrophy with decreased strength have not been manifested by moderately severe incomplete paralysis of the sciatic nerve. Thus, a higher 40 percent rating is not warranted for either extremity. The Board has considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating. In conclusion, increased ratings for MS with urinary frequency and right and left lower extremity muscular atrophy with decreased strength are not warranted at any time during the rating period. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered whether the schedular evaluation is inadequate, thus requiring referral of the case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2016). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular rating is adequate, and referral is not required. Id.; 38 C.F.R. § 3.321(b)(1). In this case, the schedular evaluations are adequate. The Veteran has been assigned the maximum 60 percent rating for voiding dysfunction due to urinary frequency associated with MS. Evaluations in excess of those assigned are provided for certain manifestations of the right and left lower extremity muscular atrophy with decreased strength, but the medical evidence reflects that those manifestations are not present in this case. Also, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disabilities, which are urinary frequency requiring the wearing of absorbent materials and intermittent weakness of the lower extremities. As the rating schedule is adequate to evaluate the disabilities, referral for extra-schedular consideration is not in order. ORDER A disability rating in excess of 60 percent for MS with urinary frequency is denied. A disability rating in excess of 30 percent for MS residuals, right lower extremity muscular atrophy with decreased strength, is denied. A disability rating in excess of 30 percent for MS residuals, left lower extremity muscular atrophy with decreased strength, is denied. REMAND Regrettably, due process requires another remand of the claim for a TDIU. The Board raised the issue of entitlement to a TDIU in the April 2017 decision based on the Veteran's testimony at the February 2017 Board hearing that she had to retire as a result of her service-connected disabilities. In the remand portion of that decision, the Board requested that the issue be adjudicated on remand. While the AOJ adjudicated the issue in a September 2017 supplemental statement of the case, the AOJ neglected to provide 38 U.S.C.A. § 5103(a)-compliant notice as to the issue. Thus, such notice should be provided on remand. The Board notes that the grant of a 30 percent rating for dizziness associated with MS in a September 2017 rating decision resulted in a schedular combined rating of 100 percent effective August 30, 2011. However, the United States Court of Appeals for Veterans Claims has held that a claim for a TDIU is potentially not moot even when a schedular 100 percent rating has been granted. Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a Veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114(s) by having an "additional" disability of 60 percent or more ("housebound" rate)). 38 U.S.C.A. § 1114(s) (West 2014). At the Board hearing, the Veteran indicated that all of her service-connected disabilities prevent from securing or following any substantially gainful occupation. In addition to the MS with urinary frequency and associated bilateral lower extremity muscular atrophy with decreased strength and dizziness, she is also service-connected for traumatic brain injury and associated migraines, lumbago, and tinnitus. In the supplemental statement of the case, the AOJ only considered the Veteran's MS and associated disabilities in adjudicating the claim for a TDIU. Thus, the AOJ should readjudicate the issue of entitlement to a TDIU with consideration of all the Veteran's service-connected disabilities. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with 38 U.S.C.A. § 5103(a)- compliant notice as to the issue of entitlement to a TDIU. 2. Thereafter, and after undertaking any indicated development, readjudicate the claim for a TDIU with consideration of all the Veteran's service-connected disabilities. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs