Citation Nr: 1805166 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-15 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for the Veteran's diabetic peripheral neuropathy of the left and right lower extremities each prior to June 16, 2016, and in excess of 40 percent from June 16, 2016. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to June 16, 2016. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1960 to December 1960 and August 1961 to February 1981. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2017, this appeal was remanded to the Agency of Original Jurisdiction for further development. Specifically, the appeal was remanded to afford the Veteran a new VA examination to assess the current level of severity of his bilateral peripheral neuropathy of the lower extremities. As the Veteran underwent a new VA examination for his diabetic peripheral neuropathy in September 2017, the Board determines that there has been substantial compliance with the July 2017 remand directives, and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). In an October 2017 rating decision, the Veteran's rating for peripheral neuropathy of the left lower extremity was increased to 20 percent effective April 18, 2011, and increased to 40 percent effective June 16, 2016. In the same rating decision, the same staged ratings were assigned for the Veteran's peripheral neuropathy of the right lower extremity. However, as the assigned ratings do not represent a full grant, the matters remain on appeal. Also during the appeal period, the Veteran has been assigned a total rating of 100 percent effective June 16, 2016. As the Veteran was granted a total 100 percent rating effective June 16, 2016, his claim for a TDIU is moot from that date. See Colayong v. West, 12 Vet. App. 524 (1999) (holding that a grant of TDIU does not moot a schedular or extraschedular claim, but a 100 percent schedular or extraschedular rating does moot a TDIU claim). Therefore, the Board will only address the Veteran's claim for a TDIU prior to June 16, 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. For the entire appeal period, prior to June 16, 2016, and after that date, the Veteran's symptoms of diabetic peripheral neuropathy of the right and left lower extremities manifested in moderately severe symptoms, but without muscle atrophy or trophic changes suggesting severe symptoms. 2. Prior to June 16, 2016, the Veteran's service-connected conditions of diabetes and bilateral peripheral neuropathy of the lower extremities rendered him unable to engage and retain substantially gainful employment. CONCLUSIONS OF LAW 1. Throughout the appeal period, both before and after June 16, 2016, the criteria for a 40 percent rating for diabetic peripheral neuropathy of the both the right and left lower extremities have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.13, 4.123, 4.124, Diagnostic Code 8520 (2017). 2. The criteria for a TDIU prior to June 16, 2016, have been met. 38 U.S.C. §§ 1155, 5110 (West 2012); 38 C.F.R. §§ 3.155, 3.340, 3.341, 3.400, 4.15, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. For the issues decided herein, VA provided adequate notice in a letter sent to the Veteran in June 2011. The Board finds VA has satisfied its duty to assist the Veteran in the development of the claims as well. VA has obtained all identified and available service and post-service treatment records. The Board notes that VA inquired whether the Veteran received Social Security benefits for his service-connected disabilities. In a September 2017 response, the Social Security Administration indicated that records do not exist for the Veteran. The VA examination afforded the Veteran in September 2017 is also adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). The examiner considered the Veteran's symptoms and history, performed appropriate testing, and addressed all relevant rating criteria. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 and that the Veteran will not be prejudiced as a result of the Board's adjudication of this claim. Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times since the claim was filed when the disability may have been more severe than at other times during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In the instant case, the Veteran was granted service connection for diabetic peripheral neuropathy of the right and left lower extremities in July 2007 and filed a claim for increase in April 2011. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. Accordingly, as the Veteran filed his claim for increase on April 18, 2011, the period under consideration for the Veteran's claims for increased ratings for peripheral neuropathy begins on April 18, 2010. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The Veteran's peripheral neuropathy of the lower extremities has been evaluated under Diagnostic Code 8520 for the sciatic nerve. 38 C.F.R. 4.124a (2016). Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve; foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. While the rating schedule does not define terms such as "mild," "moderate," or "severe," it does provide some guidance regarding neurological disabilities. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The rating schedule provides that cranial or 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. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized 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. Evidence The Veteran contends that his diabetic peripheral neuropathy of the right and left lower extremities are more severe than the rating initially assigned. The relevant medical evidence of record includes VA examination and treatment reports, which the Board will discuss chronologically. A March 2011 diabetic foot exam from Asheville VA Medical Center (VAMC) indicates an abnormal sensory exam. The examiner specified there was no sensation in the Veteran's toes and heels. The examiner also indicated that the foot exam revealed loss of protective sensation. The August 2011 VA examiner indicated that the Veteran's right and left lower extremities were of normal temperature and color with no trophic changes. The examiner indicated that the Veteran had symptoms of sensory loss; the examiner specified that the Veteran had decreased sensation on pinpoint and vibration for both feet. The examiner also indicated decreased sensation from the Veteran's ankles to toes bilaterally. In June 2016, the Veteran underwent another VA examination for his bilateral peripheral neuropathy of the lower extremities. In the July 2017 decision, the Board determined that this VA examination was inadequate as there were two conflicting Disability Benefits Questionnaires (DBQs) provided for the exam. Following remand, the Veteran underwent a new VA examination in September 2017. The September 2017 examiner indicated diagnoses for left and right diabetic peripheral neuropathy of the lower extremities and diabetes mellitus type II. As to symptoms attributable to diabetic peripheral neuropathy for the right and left lower extremities, the examiner indicated severe constant pain and absent vibration sense. As to the severity of the Veteran's right and left lower extremity diabetic peripheral neuropathy, the examiner indicated moderately severe incomplete paralysis for the sciatic nerve. The examiner indicated that the Veteran did not have muscle atrophy or trophic changes. Muscle strength testing for the right and left lower extremities were all normal. Deep tendon reflexes for the Veteran's right and left knees and ankles were absent. The examiner indicated there were no other pertinent findings, complications, conditions, signs, or symptoms related to the Veteran's peripheral neuropathy of the lower extremities. The examiner also indicated there were no associated scars. As to lay statements, in his April 2011 claim for increase the Veteran indicated that he feels his disability rating should be 100 percent or at least increased. He indicated that the pain in his feet and other joints had been gradually increasing as well as the dosage of medicine he takes to control it. He indicated that he has difficulty walking and often needs the assistance of canes, shopping carts, railings, counters, etc. He indicated that he still drives but has to use the cruise control to prevent undue wear on his feet. He indicated he has difficulty putting on his socks and shoes and trimming his toe nails. He also indicated that he has slipped and fallen trying to do basic things. In July 2011 and April 2014statements, the Veteran indicated that he had problems going up and down steps or walking any distance without assistance. He indicated that he had difficulty kneeling and standing. He indicated that he tires easily and that his medications cause him to become sleepy. He also indicated that he has to have a podiatrist clip his toe nails and an aid assist him in putting on his socks. In a February 2016 statement, the Veteran indicated that he thinks his medication masks the neuropathy of his lower extremities. Merits Having reviewed the evidence of record, medical and lay, the Board finds that a 40 percent rating is warranted for the Veteran's diabetic peripheral neuropathy of the right and left lower extremities throughout the appeal period. Prior to June 16, 2016, clinical findings indicate symptoms of numbness and loss of sensation in the Veteran's lower extremities due to his diabetic peripheral neuropathy. See August 2011 VA examination report and Asheville VAMC treatment reports. As the medical evidence is based on physical examination of the Veteran and application of accepted medical standards, the Board finds it probative. The Veteran also reported difficulty standing and falling and an inability to help himself back up due to his peripheral neuropathy of the lower extremities. The Board notes that the Veteran is competent to report his physical symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a lay person is competent to report observable symptoms). The Veteran's assertions regarding the severity of his symptoms are also in line with the medical evidence of record prior to June 2016 as the March 2011 examiner indicated that the Veteran had loss of protective sensation. As such, the Board also finds the Veteran's reports probative. While there is no medical evidence during this period of the appeal characterizing the severity of the Veteran's symptoms in terms of mild, moderate or severe, given the Veteran's disability picture during this period of the appeal, the Board determines that his condition cannot be said to have been wholly sensory (numbness and tingling). As such, the Board finds that a rating higher than that commensurate with wholly sensory symptoms is warranted. The maximum rating for wholly sensory symptoms is that for moderate incomplete paralysis. Accordingly, the Board determines that the Veteran's symptoms during this period of the appeal more nearly approximate the next highest level under Diagnostic Code 8520, which is moderately severe incomplete paralysis. 38 C.F.R. § 4.124a; 38 C.F.R. § 4.7. The Board therefore grants a 40 percent rating for the Veteran's diabetic peripheral neuropathy of the right and left lower extremities each prior to June 16, 2016. Having determined that a 40 percent rating for each lower extremity is warranted for the period prior to June 16, 2016, the Veteran now has a 40 percent rating throughout the appeal period. Accordingly, the question is whether a higher rating is warranted for any part of the appeal period. The Board finds that a higher rating is not warranted. A higher rating of 60 percent for severe incomplete paralysis is not warranted as the record does not suggest marked muscle atrophy of the Veteran's lower extremities. In fact, the record does not suggest any muscle atrophy. The September 2017 VA examiner explicitly indicated that the Veteran does not have muscle atrophy. Nor has the Veteran alleged such. Lacking competent evidence of marked muscle atrophy, the Veteran's paralysis of the sciatic nerve cannot be described as severe. Thus, a 60 percent rating is not warranted. Nor is a higher rating warranted when considering 38 C.F.R. § 4.123. As the symptoms listed in 38 C.F.R. § 4.123 are listed conjunctively, all of the symptoms (loss of reflexes, muscle atrophy, sensory disturbances, and constant pain) must be present to warrant a higher rating than moderately severe incomplete paralysis for the sciatic nerve. While the record reflects that the Veteran experienced sensory disturbances, absent deep tendon reflexes, and constant pain of the sciatic nerve during the appeal period, as discussed, the record does not reflect any muscle atrophy. As such, the maximum rating the Veteran may receive for incomplete paralysis of the sciatic nerve is that for moderately severe, which is 40 percent. The Veteran also did not suffer from complete paralysis of the sciatic nerve during the appeal period. While the Veteran reported difficulty standing, the record does not suggest nor has the Veteran indicated that either foot dangled or dropped, that there was no active movement below either knee or that his flexion was weakened. Lacking competent medical evidence of complete paralysis of the sciatic nerve, an 80 percent rating is not warranted. The Board has also considered whether a higher rating is warranted under other potentially applicable diagnostic codes regarding the Veteran's condition. Trophic changes, scars, and amputation with the need for prosthesis are also relevant when rating neurological conditions. However, the probative evidence is consistent that the Veteran did not suffer any of these conditions. The August 2011 and September 2017 examiners explicitly indicated that the Veteran did not have trophic changes of either lower extremity. As such, application of Diagnostic Code 7115 for trophic changes is not warranted. 38 C.F.R. § 4.104. The record also does not suggest nor has the Veteran alleged that he has scars associated with his peripheral neuropathy of the lower extremities. To the contrary, the September 2017 examiner explicitly indicated there were no associated scars. As such, application of Diagnostic Codes 7800-7805 for scars is not warranted. 38 C.F.R. § 4.118. As the record also does not suggest nor has the Veteran alleged amputation with the need for prosthesis, Diagnostic Codes 5056 and 5160-5173, which apply to the lower extremity, is not applicable. 38 C.F.R. § 4.71a. Given the evidence, the Board finds that the Veteran's overall disability picture for his peripheral neuropathy of the lower extremities does not warrant application of other diagnostic codes. In light of the evidence, the Board grants a rating of 40 percent, but no higher, for the Veteran's diabetic peripheral neuropathy of the right and left lower extremities for the entire period on appeal. TDIU As mentioned in the Introduction, given the award of a 100 percent schedular rating from June 16, 2016, the question of entitlement to a TDIU after this date is moot. Pursuant to the above increase in the evaluation of the Veteran's peripheral neuropathy of the lower extremities, the Veteran's new combined rating will be sufficient to satisfy the threshold schedular requirements for section 4.16(a) with a combined 70 percent. 38 C.F.R. § 4.16(a). As such, the remaining issue is whether the Veteran was able to secure or follow substantially gainful employment as a result of his service-connected disabilities prior to June 16, 2016. In the instant case, there are no medical opinions prior to June 2016 addressing the Veteran's ability to work. However, the September 2017 VA examiner reviewed the record, considered the history of the Veteran's symptoms, and provided an opinion as to the effect of the Veteran's peripheral neuropathy of the lower extremities on his ability to work. The examiner opined that peripheral neuropathy sufferers are often incapable of performing even sedentary work. The examiner indicated that besides the fact that nerve damage can cause sitting for long periods of time to be very painful, the condition often affects fine motor skills, making it impossible to do many of the tasks required in sedentary jobs. As to physical work, the examiner indicated that ataxia associated with peripheral neuropathy can affect your ability to walk, bend, lift, or perform many of the actions required for physical labor. The examiner also indicated that touch sensitivity, if it is severe enough, can make it impossible to do any job in which you may be bumped or jostled. The examiner indicated that therefore, it is at least as likely as not that the Veteran's peripheral neuropathy of the bilateral sciatic nerves renders him unable to secure and maintain substantially gainful employment. As the September 2017 examiner considered the history and nature of the Veteran's symptoms and ways his symptoms would affect both physical and sedentary work, the Board finds the assessment probative. Additionally, the September 2017 opinion is in line with the Veteran's assertions prior to June 2016. In April and July 2011 statements, the Veteran indicated that he cannot stand or walk for long periods of time and also that he has issues when he falls and is unable to get up. He indicated that he could not put on socks without assistance and had to use canes, rails, and carts to get around. He has also indicated that he has complications from his diabetes that render him unable to concentrate and that his medications make him sleepy. As the Board has no reason to doubt the credibility of the Veteran's assertions and they have been consistent, the Board finds his reports probative. Given the probative evidence, the Board determines that the Veteran's overall disability picture prior to June 16, 2016, involved sensory loss, difficulty sitting or standing, sleepiness, and lack of concentration. In light of the Veteran's overall disability picture, the Board finds that during this period of the appeal the Veteran would have been unable to perform physical labor at a level that allowed him to maintain substantially gainful employment, if at all. While the Veteran has a college education and employment history in office work, the evidence, particularly his difficulty concentrating and sitting, suggests that he would also have been unable to perform sedentary work at an effective level. As such, the Board determines that the Veteran's overall disability picture prior to June 16, 2016, rendered him unable to maintain substantially gainful employment. The Board acknowledges that the Veteran's Application for Increased Compensation Based on Unemployability indicates that he did not retire due to service-connected disabilities. However, the Veteran also indicated in this application that he retired in 2003. The period on appeal for the TDIU begins in 2011. As the record suggests that the Veteran's peripheral neuropathy of the lower extremities progressed, the Board finds that as of 2011, his symptoms were worse than those at the time of his retirement in 2003. Accordingly, the Board finds that the Veteran's overall disability picture impaired his ability to obtain and follow substantially gainful employment prior to June 16, 2016. (CONTINUED ON NEXT PAGE) ORDER For the entire appeal period, entitlement to a rating of 40 percent for diabetic peripheral neuropathy of both the left and right lower extremities, but no higher, is granted. Entitlement to a TDIU prior to June 16, 2016, is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs