Citation Nr: 1801979 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-02 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement an increased rating on an extraschedular basis for bilateral peripheral neuropathy of the lower extremities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This case comes before the Board of Veterans' Appeals (the Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The May 2008 rating decision awarded service connection for peripheral neuropathy of the lower left and lower right extremities. The Veteran appealed the decision stating, in pertinent part, that he was entitled to a higher rating for his peripheral neuropathy of the lower left and lower right extremities. The Veteran appeared at a Travel Board hearing at the RO in September 2014 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In December 2014, the Board determined that the Veteran's claim for a higher rating also encompassed a claim for extraschedular benefits for peripheral neuropathy of the lower right and lower left extremities and remanded the matter to the RO for further development. In September 2016, the matters returned to the Board and were again remanded to the RO. Upon remand, the claims were referred to the Director of Compensation for an extraschedular evaluation. The Director of Compensation denied a claim for extraschedular benefits. A supplemental statement of the case was prepared in April 2017, and the matters are before the Board, once again. FINDINGS OF FACT 1. The combined effects of the Veteran's bilateral peripheral neuropathy of the lower extremities and other service-connected disabilities have resulted in sleep disruptions that cause extreme fatigue. 2. The resulting occupational impairment caused by the Veteran's extreme fatigue is consistent with that caused by a chronic sleep impairment. CONCLUSION OF LAW The criteria for an extraschedular rating of 30 percent, but no higher, for service-connected bilateral peripheral neuropathy of the lower extremities have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.321 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Stegall Considerations The Veteran's claim was remanded in September 2016 for the RO to determine an extraschedular rating for the Veteran's bilateral peripheral neuropathy of the lower extremities. Upon remand the matter was referred to the Director of Compensation. In April 2017, the Director of Compensation made a determination regarding the referred matter. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria Generally, disability rating are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). However, to accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. 38 C.F.R. § 3.321 (b)(1) (2017). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service (Director). See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Regarding the assignment of a particular extraschedular rating, because the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there logically is no guidance as to the specific rating that should be assigned in any particular case. Id. at 454 n.7; see also Floyd v. Brown, 9 Vet. App. 88, 97 (1996). Nevertheless, the Board has the requisite experience necessary to assign an extraschedular rating. Kuppamala at 457. Analysis Here the Veteran's claim was referred to the Director of Compensation by the RO for consideration of an extraschedular rating for the Veteran. The Director of Compensation determined that no increased rating on an extraschedular basis was warranted. The Veteran has continued his appeal, and the Board will consider if an increased rating on an extraschedular basis is warranted. The Veteran was rated under DC 8520 for peripheral neuropathy the lower left and lower right extremities. DC 8520 provides ratings for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a (2017). DC 8520 considers the effects of complete or incomplete paralysis of the sciatic nerve. An assessment is made by observing symptoms such as foot drop, active movement of muscles below the knee, muscular atrophy, sensory deficits, and pain. Id. The terms "mild," "moderate," and "severe" are used in rating the disability, but are not defined in the Rating Schedule. Here the Veteran reported symptoms of sensory deficits, pain, and sleep disturbances due to pain. Examinations in July 2008, March 2010, and September 2014 supported the Veteran's reports. He demonstrated decreased sensitivity and his reports of pain were considered credible and consistent with his condition. Additionally, the Board notes that the Veteran testified at his September 2014 hearing that the combined effects of his disability result in a decreased quality of life, but he did not further elaborate. Such a statement is not probative for determining a disability rating. However, that statement was made prior to the September 2014 examinations, therefore, any symptoms that may have resulted in the decrease in quality of life, could have been observed. The only such symptoms noted were in the September 2014 examination, were that the Veteran reported the combined pain caused by peripheral neuropathy of the upper and lower extremities caused difficulty sleeping resulting in "extreme fatigue" during the day. The Board must consider these symptoms as they are due to the combined effects of the Veteran's bilateral peripheral neuropathy of the lower extremities and other service-connected disabilities. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). While the schedular criteria contemplates that the Veteran would experience pain, weakness, and decreased sensitivity, it does not consider symptoms of "extreme fatigue" due to sleep disturbances. As such the Board must address what increased rating, if any is warranted by the additional symptomatology. To assign such a rating, the Board has considered the additional symptomatology not contemplated by the schedular rating, and its similarities to symptoms caused by other disabilities. In doing so, the Board has concluded that the additional occupational impairment due to Veteran's lost sleep and resulting fatigue would be similar to that caused by a chronic sleep impairment, such as insomnia or sleep apnea. Under DC 9410, insomnia that results in chronic sleep impairment is rated at 30 percent. A higher rating for insomnia requires additional psychological symptoms that are not documented as due to the Veteran's peripheral neuropathy of the lower left and lower right extremities alone or in combination with any other service connected disability. 38 C.F.R. § 4.130 (2017). Similarly, DC 6847, provides a 30 percent rating for sleep apnea, when it results in persistent daytime hypersomnolence. A higher rating is awarded if the condition requires the use of an assistive breathing device. 38 C.F.R. § 4.97 (2017). Here, the Veteran's condition does not result in the use of any additional assistive devices. Therefore, the Board concludes that the additional impairment of fatigue due to sleep disturbances caused by the combination of the Veteran's peripheral neuropathy of the upper and lower extremities warrants an additional disability rating on an extraschedular basis of 30 percent. This additional rating is not for each lower extremity, but is the total additional rating due to the resulting symptoms from the combined effects of the Veteran's peripheral neuropathy of the lower left and lower right extremities and other service-connected disabilities. Further, this rating is not in substitution for the Veteran's ratings for peripheral neuropathy of the lower left and lower right extremities. The additional 30 percent rating is for the additional occupational impairment that results from the symptomatology not contemplated by the rating schedule, and thus should be combined with schedular ratings. (CONTINUED ON NEXT PAGE) ORDER An extraschedular rating of 30 percent, but no higher, for the combined extraschedular effects of the Veteran's bilateral peripheral neuropathy of the lower extremities and other service-connected disabilities is granted in addition to the schedular ratings already in place. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs