Citation Nr: 1802542 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-19 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for the service-connected left femoral nerve paresthesias with mild drop foot, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for the service-connected shrapnel injury of the left thigh involving muscle group XIV, currently evaluated as 30 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from July 1944 to April 1946. The Veteran served in combat during World War II, and was awarded, among other medals and decorations, the Combat Infantry Badge and a Purple Heart. This case comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Court has held that a claim for a TDIU is part and parcel of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a November 2017 VA Form 646, the Veteran's representative raised a claim for a TDIU as part of the increased rating claims on appeal. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claims and has accordingly listed the raised TDIU claim as an issue. 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 claim for increased ratings for shrapnel injury of the left thigh 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 the Veteran's left femoral nerve paresthesias with mild drop foot was manifested by symptoms more closely approximating moderately severe incomplete paralysis of the sciatic nerve, but is not shown to have been manifested by symptoms more closely approximating severe, incomplete paralysis with marked muscular atrophy, or complete paralysis. 2. The service-connected disabilities, standing alone, are shown to be of such severity as to effectively preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for left femoral nerve paresthesias with mild drop foot, have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Rating 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. § 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 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 contends that his left femoral nerve paresthesias with mild drop foot is more disabling than currently evaluated. The Veteran has been assigned a disability rating of 30 percent under 38 C.F.R. § 4.124a, Diagnostic Codes 8599-8526. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and "99." Hence, the Veteran's disability is rated by analogy, using the criteria for under Diagnostic Code 8526, paralysis of the anterior crural nerve (femoral). However, given the evidence of sciatic nerve involvement, the Board finds that Diagnostic Code 8520 is a more appropriate Diagnostic Code than Diagnostic Code 8526. Under Diagnostic Code 8526, incomplete paralysis of the femoral nerve warrants a 10 percent evaluation when mild, a 20 percent evaluation when moderate, and a 30 percent evaluation when severe. Complete paralysis of the femoral nerve warrants a 40 percent evaluation where there is paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2017). Under Diagnostic Code 8520, a 10 percent rating requires mild incomplete paralysis of the sciatic nerve; a 20 percent rating requires moderate incomplete paralysis of the sciatic nerve; a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating requires severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating requires complete paralysis, whereby the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). Neuritis and neuralgia are to be rated as incomplete paralysis. Neuritis, "characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating," shall not be rated higher than severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for "neuritis not characterized by organic changes referred to in this section" is moderate, or with sciatic nerve involvement, moderately-severe incomplete paralysis. Id. Neuralgia, "characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve," shall not be rated higher than moderate incomplete paralysis. 38 C.F.R. § 4.124. The Rating Schedule further clarifies that "when the [neural] involvement is wholly sensory, the rating should be for mild, or at most, [ ] moderate" incomplete paralysis. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. During the appeal, a rating of 40 percent, but no more, is warranted for the left lower extremity pathology. Based on examination findings in August 2008 the Veteran reported an intermittent burning pain in his left lateral thigh that radiated down his thigh to the ankle and radiated back up to his back. Thus his symptoms encompass his entire left lower extremity. Medication did not help with these symptoms. On VA peripheral nerves examination in September 2013, he reported left femoral nerve paresthesias with intermittent foot drop. While the examiner noted mild incomplete paralysis of the left sciatic nerve, sensation in the upper anterior thigh was absent, which reflects more moderate impairment. Thus given that the symptoms affect the entire left lower extremity, the Board finds that the disability picture is consistent with a moderately severe nerve injury under Diagnostic Code 8520. A higher rating is not warranted, however, as findings approximating severe incomplete paralysis have not been shown. In this regard, clinical findings revealed no muscle atrophy associated with nerve impairment For these reasons, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the weight of the lay and medical evidence supports a finding for a disability rating of 40 percent, but no higher, for left femoral nerve paresthesias with mild drop foot, throughout the entire rating period on appeal. TDIU The Veteran contends that his service-connected disabilities prevent him from obtaining gainful employment. In order to establish a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the purpose of determining one 40 percent or one 60 percent disability, there are certain circumstances where the combination of certain related disabilities may be aggregated, such as for multiple injuries sustained in combat. 38 C.F.R. § 4.16. The Veteran's service personnel records show that he served in combat during World War II, and was awarded, among other medals and decorations, the Combat Infantry Badge and a Purple Heart. Service connection for a shrapnel injury of the left thigh involving muscle group XIV, and left femoral nerve paresthesias with mild drop foot, was established as due to an April 1945 injury sustained when shrapnel wound penetrated the anterior lateral aspect mid portion of left thigh. Additionally, service connection for bilateral hearing loss and tinnitus was granted as due to combat related noise exposure. Service connection is in effect for a shrapnel injury of the left thigh involving muscle group XIV (30 percent disabling from March 16, 1998), left femoral nerve paresthesias with mild drop foot (30 percent disabling from November 24, 2004), bilateral hearing loss (10 percent disabling from January 25, 2011), and tinnitus (10 percent disabling from January 25, 2011). The combined rating that covers the appeal period is 60 percent and the Veteran meets the schedular TDIU criteria under 38 C.F.R. § 4.16 (a). His multiple service-connected injuries were incurred in combat during World War II. 38 C.F.R. § 4.16 (a)(4). Thus, aggregating his service-connected disabilities, his disabilities meet the schedular requirements for a TDIU. The evidence shows that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The Veteran, a retired dairy plant engineer, experiences considerable occupational limitations due to his service connected disabilities. His mobility is restricted and he requires assistive devices for ambulation. He reported difficulty walking up and down stairs, with occasional left foot drop which caused him to drag the foot when walking. Sensation in the left upper anterior thigh was absent. He also endorsed muscle spasms, numbness, pain and weakness, which caused him to be very unsteady in his feet, and thus prone to falls. His service-connected musculoskeletal disorders preclude prolonged standing and walking, and preclude work in a physically demanding capacity. The Board also finds the Veteran's hearing loss precludes him from maintaining sedentary employment involving work with the public or coworkers. On VA audio examination in 2011, the examiner noted that the Veteran's hearing was productive of occupational impairment because the Veteran would not be able to hear efficiently in work setting. As such, the Veteran's tinnitus and hearing loss further complicate his ability to engage in effective interpersonal communication. Accordingly, the Board finds that the combined effects of the Veteran's service-connected disabilities preclude employment. In light of these symptoms, the Veteran would not be capable of more than marginal employment in any type of work setting, whether physical or sedentary. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016). Thus, resolving reasonable doubt in his favor and find that he has been unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. A TDIU is granted. ORDER Subject to the law and regulations governing payment of monetary benefits, a 40 percent disability rating, but no higher, is granted for the service-connected left femoral nerve paresthesias with mild drop foot. Subject to the law and regulations governing payment of monetary benefits, a total disability rating based on individual unemployability due to service-connected disabilities is granted. REMAND In a statement in October 2017 the Veteran's son, K.C., reported that the pain in the Veteran's leg from the service-connected wound had gotten substantially worse. K.C. stated that the Veteran's left leg symptoms interfered with his sleep and increasingly impaired his mobility. The Veteran had become very unsteady on his feet and currently required a walker or a cane for ambulation, at all times. In a December 2017 Appellate Brief, the Veteran's representative indicated that the new examinations were appropriate given that the Veteran was most recently examined in 2013. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). In light of the contentions that the Veteran's service-connected shrapnel injury of the left thigh has increased in severity, and as the most recent examination of record is now four years old, new examination to evaluate the severity of the Veteran's disability is warranted. Accordingly, the case is REMANDED for the following action: (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. Obtain all relevant outstanding ongoing VA treatment records. 2. After the development requested above has been completed, schedule the Veteran for a VA examination to determine the severity of his service-connected to address the current severity and extent of the service-connected shrapnel injury of the left thigh. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. All pertinent symptomatology and findings must be reported in detail, and all indicated tests and studies must be performed. The examiner is asked to determine whether the shrapnel injury of the left thigh involving muscle group XIV is moderately severe or severe, to include commenting on the presence or absence of the cardinal signs and symptoms of muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement. The examiner must also consider and describe the functional effects of the Veteran's the service-connected shrapnel injury of the left thigh on his activities of daily living, including his occupational functioning. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved. 3. Then, readjudicate the Veteran's claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs