Citation Nr: 1801517 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-14 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bilateral cataracts. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy. 3. Entitlement to an initial rating in excess of 10 percent for a skin disability, to include acanthosis nigrican and tinea cruris. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel INTRODUCTION The Veteran had active military service from October 1967 to September 1970. This case 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 Houston, Texas. The issue of entitlement to TDIU is REMANDED to the Agency of Original Jurisdiction (AOJ) and is addressed in the REMAND section of this decision. FINDINGS OF FACT 1. The Veteran's bilateral cataracts have not resulted in a decrease in visual impairment that would warrant a rating higher than 10 percent. 2. The Veteran's right lower extremity peripheral neuropathy has not been manifested by more than mild incomplete paralysis. 3. The Veteran's skin disability is manifested by 5 percent coverage of the Veteran's entire body and no coverage of the exposed areas affected. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for bilateral cataracts have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.79, Diagnostic Codes 6027, 6080 (2017). 2. The criteria for an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for an initial rating in excess of 10 percent for a skin disability, to include acanthosis nigrican and tinea cruris, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Neither the Veteran nor the representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). Entitlement to an Initial Rating in Excess of 10 Percent for Bilateral Cataracts The Veteran has asserted that he should have a higher rating for his bilateral cataracts as his symptoms are worse than those contemplated by the currently assigned rating. At a February 2010 VA examination, the Veteran reported that his eyesight was impacted by a condition characterized by pain, distorted vision, redness, glare, sensitivity to light, watering, and blurred vision. The Veteran noted that his eye disability had been present since 2007. The Veteran said that he had not had any incriminating episodes over the 12 months prior to the examination due to his eye disability. Upon examination, the Veteran was noted not to have any corneal pathology, eye or lacrimal duct disease or injury, and scarring or pterygium of the eyes. The intraocular pressure of the Veteran's eyes was found to be within normal limits. The examiner found no evidence of glaucoma and noted that examination of the optic nerves, vessels, and maculas were normal. The examiner further found that examination of the lens of the Veteran's eyes was abnormal and that the Veteran had minimal peripheral anterior cataracts in both of his eyes. The examiner diagnosed the Veteran with bilateral cataracts and opined that the Veteran's cataracts were at least as likely as not secondary to his diabetes mellitus. At a February 2017 VA examination, the Veteran said that he continued to have blurry vision and glare when driving at night and was on no current treatment for this condition. Upon examination, the Veteran's cataracts were characterized as preoperative. The examiner found no aphakia or dislocation of the crystalline lenses. The examiner further found no decrease in visual acuity or visual impairment as a result of the Veteran's cataracts. There was no visual field defect shown. Corrected vision was at 20/40 or better at distance and 20/50 at near bilaterally. The examiner opined that the Veteran's bilateral cataracts did not impact his ability to work and affirmed the Veteran's prior diagnosis of bilateral cataracts. The Board notes that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the record that the Veteran has symptoms of his bilateral cataracts that are worse than those found at his VA examinations. The Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for his bilateral cataracts. In this regard, the Board notes that the February 2017 VA examination found that the Veteran's bilateral cataracts did not result in a decrease in visual acuity or visual impairment, including a visual field defect, such as would warrant a . Therefore, the Board finds that an initial rating in excess of 10 percent for bilateral cataracts is not warranted. 38 C.F.R. §§ 4.59, 4.79, Diagnostic Codes 6027, 6080 (2017). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted higher schedular ratings than those assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an Initial Rating in Excess of 10 Percent for Right Lower Extremity Peripheral Neuropathy The Veteran has asserted that he should have a higher rating for his right lower extremity peripheral neuropathy, as his symptoms are worse than those contemplated by the currently assigned ratings. At a February 2010 VA examination, the Veteran reported experiencing progressive loss of strength that was generalized but most severe in his arms and legs. The Veteran also stated that he had tingling and numbness in both of his hands, lower legs, and feet. Upon examination, motor function of the Veteran's lower extremities was within normal limits. However, the examiner found that sensory function of the Veteran's lower extremities was abnormal with findings of decreased protective sensory reflexes. The examiner further found that the Veteran's right lower extremity reflexes revealed a normal ankle jerk and an increased knee jerk without clonus. The examiner stated that involvement of the Veteran's peripheral nerves was not evident during the examination. The examiner diagnosed the Veteran with peripheral neuropathy. The examiner opined that the peripheral neuropathy was a complication of diabetes. The examiner noted that the Veteran's functional capacity was impacted by the pain and discomfort caused by his peripheral neuropathy. At an October 2012 VA examination, the Veteran reported that his peripheral neuropathy had worsened and that as a result he had to walk very slowly and occasionally sit down until his pain dissipated. The Veteran described feeling pain as a result of walking or his feet swelling. Upon examination, the examiner found that the Veteran had mild numbness, and mild paresthesias or dysesthesias in his right lower extremity. The examiner noted that, while the Veteran had normal muscle strength and normal deep tendon reflexes in his right knee, he had decreased deep tendon reflexes in his right ankle. The examiner further found that the Veteran had a decreased response to light touch or monofilament testing in his right ankle, lower leg, foot, and toes. The Veteran was also found to have decreased position sense, decreased vibration sensation, and decreased cold sensation in his right lower extremity. The examiner opined that the Veteran did not have diabetic peripheral neuropathy in his right lower extremity. The examiner explained that the Veteran's posture and gait were normal and that the Veteran's sensation to light touch for the right anterior thigh was normal. The examiner further explained that the Veteran's sensory abnormalities were in the line of glove distribution rather than the product of specific individual nerves. The Board notes that the Veteran receives VA treatment for various disabilities. However, there is no indication from the record that the Veteran has symptoms of his right lower extremity peripheral neuropathy that are worse than those found at his VA examinations. In this regard, the Board notes that June 2015 and 2016 treatment notes found that the Veteran was able to move all his extremities and that the coordination of his lower extremities was adequate. Additionally, in an October 2016 neurology note, the Veteran denied noticeable weakness in his arms or legs but detailed being bothered by back pain along with cramps in his calf muscles or feet. Of record are June 2011 and February 2014 statements submitted by the Veteran. In his June 2011 statement, the Veteran explained that he had difficulty standing or walking because of the pain in his lower legs and feet. The Veteran described experiencing constant pain at work, needing to have more rest, and feeling like he would eventually have to quit working as a result of the pain. In his February 2014 statement, the Veteran indicated that his back pain had worsened and had been present since his time in active service. The Board finds the Veteran competent to testify as to the lower extremity pain he has experienced and finds his testimony and statements to be credible. See Falzone v. Brown, 8 Vet. App. 398 (1995). However, the Veteran's statements do not describe symptoms that are worse than those shown on VA examination. The Veteran was scheduled for a further VA examination to address this disability in February 2017, but he failed to report for this examination, which presumably would have provided more contemporaneous information as to the severity of this disorder. The Board must therefore reach a decision based on the evidence of record. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (VA's duty to assist the Veteran is not a one-way street). The Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for his right lower extremity peripheral neuropathy. In this regard, the Board notes that the October 2012 VA examination revealed that the Veteran did not have right lower extremity peripheral neuropathy that approximated moderate incomplete paralysis. In fact, the October 2012 VA examiner found that the Veteran did not have diabetic peripheral neuropathy in his right lower extremity. Moreover, the Veteran denied weakness in his lower extremities in an October 2016 treatment note. Therefore, the Board finds that an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy is not warranted, as this disability has not been shown to be more than mild in severity. 38 C.F.R. §§ 4.59, 4.124a, Diagnostic Code 8520 (2017). Entitlement to a Rating in Excess of 10 Percent for a Skin Disability The Veteran has asserted that he should have a higher rating for his skin disability, to include acanthosis nigrican and tinea cruris, as his symptoms are worse than those contemplated by the currently assigned ratings. At a February 2010 VA examination, the Veteran reported that he had dry skin, a rash, and discoloration in his groin and armpits. The Veteran explained that his skin problems had been present for the 20 years prior to the examination and was treated with dermatology creams, although he provided no further information as to the nature (e.g., steroidal or non-steroidal) of the creams. Upon examination, the examiner found that the Veteran had signs of skin disease. The examiner identified the Veteran as having tinea cruris located on his groin area. The examiner found the Veteran's tinea cruris to be characterized by hyperpigmentation of more than six square inches. The examiner noted that the Veteran had no ulceration, exfoliation, crusting, disfigurement, tissue loss, induration, inflexibility, hypopigmentation, abnormal texture, and limitation of motion. The examiner found that the Veteran's skin lesion was present in 0 percent of the exposed area and the coverage of the Veteran's skin lesion relative to his whole body was 5 percent. The examiner diagnosed the Veteran with acanthosis nigrican and tinea cruris and opined that they were associated with his diabetes mellitus. The Board notes that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the record that the Veteran has symptoms of his skin disability that are worse than those found on examination. The Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for his skin disability. In this regard, the Board notes that the February 2010 VA examination found that the Veteran did not have a skin disability that covered between 20 to 40 percent of either his entire body or the exposed areas affected. his 38 C.F.R. § 4.118, Diagnostic Code 7806. In fact, the Veteran's skin disability was found to cover 5 percent of the Veteran's entire body and none of the exposed areas affected. Additionally, the February 2010 VA examination contains no suggestion that the Veteran used any skin treatments, including creams, that constituted a systemic therapy. The Board does not dispute that additional information on this matter would have been helpful in adjudicating this appeal, to ascertain whether a higher evaluation would be warranted. Indeed, the Veteran was scheduled for a further VA examination to address this disability in February 2017, but he failed to report for this examination, which presumably would have provided more complete and contemporaneous information as to the severity of this disorder. The Board must therefore limit its analysis to the evidence currently of record. See Wood v. Derwinski, supra. Accordingly, the Board finds that an initial rating in excess of 10 percent for a skin disability, to include acanthosis nigrican and tinea cruris, is not warranted. 38 C.F.R. §§ 4.59, 4.118, Diagnostic Code 7806 (2017). ORDER Entitlement to a rating in excess of 10 percent for bilateral cataracts is denied. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy is denied. Entitlement to a rating in excess of 10 percent for a skin disability, to include acanthosis nigrican and tinea cruis, is denied. REMAND In his February 2014 appeal to the Board, the Veteran requested to reopen a prior claim of entitlement to TDIU. In his request, the Veteran explained that his various disabilities, including his bilateral cataracts, right lower extremity peripheral neuropathy, and skin disability, impacted his ability to work. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating is inferred in a claim for increase where the Veteran claims his disability affects his employability or such a claim is reasonably raised by the record. The Board finds that a claim of entitlement to TDIU has been properly raised by the Veteran's February 2014 appeal to the Board. Accordingly, the VA must provide the Veteran with appropriate notice as to how to substantiate his TDIU claim and consider whether the Veteran is entitled to TDIU. Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) notice letter as to his claim of entitlement to TDIU. This letter should explain, in terms of 38 U.S.C. §§ 5103 and 5103A, the need for additional evidence regarding TDIU claim under 38 C.F.R. § 4.16 for schedular and extra-schedular considerations. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.16 (2017). Any additional development should be undertaken as necessary. 2. Then, adjudicate the claim for entitlement to TDIU. The adjudication of the TDIU claim should include consideration for a referral to VA's Director of Compensation and Pension (C&P) for consideration under 38 C.F.R. § 4.16 (b). 38 C.F.R. § 4.16 (2017). If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow an appropriate time for response. Then, if in order, this case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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. §§ 5109B, 7112 (2012). ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs