Citation Nr: 18140604 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 09-43 077 DATE: October 3, 2018 ORDER Entitlement to an extraschedular evaluation under 38 C.F.R. 3.321 for peripheral neuropathy of the right lower extremity is denied. Entitlement to an extraschedular evaluation under 38 C.F.R. 3.321 for peripheral neuropathy of the left lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy of the right lower extremity does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. 2. The Veteran’s peripheral neuropathy of the left lower extremity does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. As to peripheral neuropathy of the right lower extremity, application of the extraschedular rating provisions is not warranted. 38 C.F.R. § 3.321(b). 2. As to peripheral neuropathy of the left lower extremity, application of the extraschedular rating provisions is not warranted. 38 C.F.R. § 3.321(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1961 to January 1967. In a March 2016 decision, the Board denied ratings in excess of 20 percent for peripheral neuropathy of the left and right lower extremities, as well as extraschedular consideration. The Veteran appeal to the Court of Appeals for Veterans’ Claims (Court). The Court affirmed the Board’s decision with respect to the schedular evaluations, but remanded the matter of extraschedular evaluations to the Board. The Board remanded the matter in February 2018. The matter is again before the Board. The Board acknowledges the representative’s statements regarding a total disability rating based on individual unemployability (TDIU). The Veteran was in receipt of a TDIU during the entirety of the period on appeal. His TDIU was granted effective May 3, 2012, and the instant appeal was submitted May 17, 2012. To the extent that the Veteran seeks an earlier effective date for the grant of TDIU, that issue is not properly before the Board. Increased Rating 38 C.F.R. § 3.321(b) provides that ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the steps necessary to determine whether referral for extraschedular consideration is warranted. The RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran’s disability level and symptomatology. Id. at 115. If the answer is no, the RO or the Board must determine whether the Veteran’s exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Noting that the Veteran alleged multiple emergency department (ED) visits due to peripheral neuropathy of his lower extremities, the Board remanded for the RO to obtain all records of ED visits to determine if an extraschedular evaluation is warranted. Records obtained showed that the Veteran had in fact visited the ED on multiple occasions, but only one visit was for his bilateral peripheral neuropathy of the lower extremities. Other visits were primarily for bilateral pedal edema and hypertension. Upon receipt of all medical records, the RO referred the Veteran’s case to the Director of the Compensation of Pension Service for review. The matter has now returned to the Board. The Board finds that the Veteran’s bilateral peripheral neuropathy of the lower extremities does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Board’s right and left lower extremity peripheral neuropathy are each separately evaluated as 20 percent under the provisions of 38 C.F.R. § 4.124(a), Diagnostic Code 8520. The schedular criteria for a 40 percent evaluation is moderately severe incomplete paralysis of the sciatic nerve, which is not present in either lower extremity as noted by the March 2016 Board decision. The Veteran alleged in a July 2013 statement that his bilateral lower extremity peripheral neuropathy is so severe that it causes severe fatigue and has resulted in several visits to the ED. During a August 2013 VA examination the examiner found that the Veteran’s peripheral neuropathy of the lower extremities did not interfere with the Veteran’s ability to work. At that examination, the Veteran denied any symptoms of peripheral neuropathy. A November 2015 VA examination noted numbness and paresthesias/dysesthesias of the bilateral lower extremities, but again noted that the Veteran’s ability to work was not affected. The Veteran is currently in receipt of a TDIU as the combination of his service-connected disabilities prevents him from working. However, the evidence of record does not show that his peripheral neuropathy of the bilateral lower extremities alone causes interference with work. The August 2013 examiner found no symptoms of peripheral neuropathy in the lower extremities, and the November 2015 examiner noted only mild incomplete paralysis of the sciatic nerve. Neither examiner noted chronic fatigue or related the Veteran’s chronic fatigue to his bilateral peripheral neuropathy of the lower extremities. Further, there is evidence of only one ED visit and no other hospitalizations due to his peripheral neuropathy of the bilateral lower extremities. The symptoms which the Veteran argues warrant an extraschedular rating do not result in marked interference with employment or frequent periods of hospitalization. There is no exceptional disability picture to render the available schedular ratings inadequate. Extraschedular evaluations are denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel