Citation Nr: 1805938 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-23 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a higher initial rating for chronic obstructive pulmonary disease (COPD), status-post surgery for lung cancer, and chronic bronchitis, rated 30 percent prior to December 18, 2015, and 60 percent as of December 18, 2015. 1. Entitlement to a higher initial rating for peripheral neuropathy of the right lower extremity, rated 10 percent prior to December 30, 2015, and rated 30 percent as of December 30, 2015. 2. Entitlement to a higher initial rating for peripheral neuropathy of the left lower extremity, rated 10 percent prior to December 30, 2015, and rated 30 percent as of December 30, 2015. 3. Entitlement to an initial rating higher than 10 percent for polycythemia vera on an extraschedular basis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, S.S., and L.L. ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to March 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2008 and July 2011 rating decisions by the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board, and in a September 2016 decision, the Board granted a higher 30 percent rating for peripheral neuropathy of each lower extremity, effective December 30, 2015. The Board also denied the issue of entitlement to an initial rating higher than 10 percent for polycythemia, and remanded the claim for increased rating for COPD. The Veteran appealed the September 2016 decision to the United States Court of Appeals for Veterans Claims. In a September 2017 Order, the Court granted a Joint Motion of the parties and remanded the case to the Board for action consistent with the Joint Motion. In September 2017, the Board again remanded the claim for increased rating for COPD. REMAND Concerning the claims for higher ratings for peripheral neuropathy of the bilateral lower extremities, Diagnostic Code 8521 compensates for complete or incomplete paralysis of the external popliteal or common peroneal nerve, for which complete paralysis includes such symptoms as foot drop and slight droop of the first phalanges of all toes, weakened adduction of the foot, anesthesia of the entire dorsum of the foot and toes, and loss of dorsiflexion of the foot, extension of proximal phalanges of the toes, and/or abduction of the foot. Diagnostic Code 8522 compensates for complete or incomplete paralysis of the musculocutaneous or superficial peroneal nerve, for which complete paralysis constitutes weakened eversion of the foot. Diagnostic Code 8523 compensates for complete or incomplete paralysis of the anterior tibial or deep peroneal nerve, for which complete paralysis constitutes lost dorsal flexion of the foot. Diagnostic Code 8524 provides for complete or incomplete paralysis of the internal popliteal or tibial nerve, for which complete paralysis includes an inability to perform plantar flexion, frank adduction of the foot, flexion and separation of toes and/or movement of the muscles in soles of feet. Diagnostic Code 8525 provides for complete or incomplete paralysis of the posterior tibial nerve, for which complete paralysis includes such symptoms as paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature, the inability to flex the toes, and weakness and impairment of adduction and plantar flexion. Finally, Diagnostic Code 8526 provides for complete or incomplete paralysis of the anterior crural nerve, for which complete paralysis constitutes paralysis of the quadriceps extensor muscles. The Veteran's peripheral neuropathy of the lower extremities has been assigned an initial 10 percent rating prior to December 30, 2015 pursuant to Diagnostic Code 8522, used for rating disabilities of the musculocutaneous or superficial peroneal nerve. In a September 2016 decision, the Board held that a higher rating was not warranted prior to December 30, 2015, and awarded a higher 30 percent rating from December 30, 2015 pursuant to Diagnostic Code 8521, used for rating disabilities of the external popliteal or common peroneal nerve. The Board changed the Diagnostic Code employed to rate the Veteran's neuropathy as of December 30, 2015, as the evidence showed that as of that date, a higher rating was available for the Veteran's symptoms pursuant to a different Diagnostic Code. The Board explained that medical personnel had attributed the Veteran's peripheral neuropathy symptoms of the bilateral lower extremities to more than one nerve. Specifically, at a December 2009 VA examination, the examiner specifically identified involvement of the bilateral femoral nerve, bilateral tibial nerve, and bilateral peroneal nerve, with motor and sensory dysfunction. At a December 2015 VA examination, the examiner found severe incomplete paralysis in the external popliteal (common peroneal), musculocutaneous (superficial peronea), anterior fibial (deep peroneal), internal popliteal (tibial), and posterior tibial nerves. The Board explained that the Rating Schedule specifically provides a prohibition against pyramiding, and the rating of the same manifestation under different diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). Although medical examiners had indicated that multiple nerves were involved, the Board found that the prohibition against pyramiding allowed only a single rating for the overlapping symptoms. The parties to the Joint Motion acknowledged the prohibition against pyramiding, but emphasized that both examiners identified multiple different nerves that contribute to the Veteran's neuropathy. The parties suggested that it may be medically possible to identify which of the Veteran's neuropathic symptoms are attributable to each individual nerve, and thus award the Veteran separate disability ratings under separate Diagnostic Codes for each affected nerve without violating the prohibition against pyramiding. In light of the concerns expressed in the Joint Motion, the Board finds that additional VA examination is necessary to more clearly determine the particular nerves involved and the effects attributable to each nerve present throughout the period of appeal. The Joint Motion further stipulated that the parties did not find error in the determination that a schedular rating higher than 10 percent for polycythemia vera was not warranted. The parties indicated that polycythemia vera is rated under Diagnostic Code 7704, which contemplates only myelosupressant therapy and phlebotomy treatment, but does not consider symptoms such as fatigue, shortness of breath, and dyspnea on mild exertion. The Joint Motion recounted the findings of the December 2015 VA examiner, in which the examiner attributed the Veteran's easy fatigability, shortness of breath with activities, and dyspnea on minimal exertion due to a heatologic or lymphatic disorder. As such, the Joint Motion suggested that extraschedular consideration may be appropriate. In accordance with the Joint Motion, the Board finds that the case should be referred to the Director of the Compensation and Pension Service for consideration of the assignment of an extraschedular rating for the service-connected polycythemia vera. The development requested in the September 2017 Board remand with regard to the claim for increased rating for COPD has not been completed. Therefore, that claim is being remanded for completed of the requested development. Accordingly, the case is REMANDED for the following action: 1. Complete the development for the claim for an increased rating for COPD as requested in the September 2017 Board remand. 2. With any necessary authorization from the Veteran, obtain any outstanding VA or private treatment records. All attempts to locate records must be documented in the claims file. 3. Then, schedule the Veteran for a VA neurological examination with a medical doctor. The examiner must review the claims file and should note that review in the report. All indicated tests and studies should be accomplished, and all clinical findings must be reported in detail. The examiner should state all examination findings, with the rationale for opinions expressed. (a) The physician must identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the neuropathy of bilateral lower extremities. (b) Concerning the neurological findings, the examiner must state what nerve or nerves are affected and whether there is complete or incomplete paralysis of each nerve. If incomplete paralysis is present, the examiner should provide an opinion as to whether it is mild, moderate, moderately severe, or severe, and should state whether there are sensory, motor, or strength loss manifestations. Any relevant muscle atrophy should be identified. The examiner should reconcile the findings of which nerves are affected with the findings of previous VA examinations. (c) The examiner is requested to provide a retrospective medical opinion as to the nature and severity of peripheral neuropathy of the bilateral lower extremities dating from June 29, 2007, through the present, based on examination and review of the medical evidence of record. The examiner is asked to consider the December 2009 VA examination which identified involvement of the bilateral femoral nerve, bilateral tibial nerve, and bilateral peroneal nerve, with motor and sensory dysfunction, and the December 2015 VA examination report which identified severe incomplete paralysis in the external popliteal (common peroneal), musculocutaneous (superficial peronea), anterior fibial (deep peroneal), internal popliteal (tibial), and posterior tibial nerves. To the extent possible, the examiner is requested to separate which of the Veteran's symptoms are attributable to each individual affected nerve. If a symptom overlaps, the examiner should so state. The examiner is requested to address whether the Veteran's service-connected peripheral neuropathy symptoms have been static or dynamic. If dynamic, the examiner should identify the dates at which symptoms increased in severity to the extent possible, for each individual nerve. The Board acknowledges that it may not be possible for the examiner to offer the requested opinion. However, if the physician is unable to offer the requested opinions, that must be so stated and an explanation must be provided as to why. 4. Then, refer the case to the Director of Compensation and Pension for a determination as to whether the Veteran is entitled to the assignment of an extraschedular rating for polycythemia in accordance with the provisions of 38 C.F.R. § 3.321(b). The rating board should include a full statement of all factors having a bearing on the issue. 5. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).