Citation Nr: 18144741 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 18-22 439 DATE: October 25, 2018 ORDER As new and material evidence to reopen the claim has not been received, the petition to reopen the issue of entitlement to service connection for astigmatism/presbyopia is denied. A 20 percent rating, but not higher, for right lower extremity peripheral neuropathy is granted, subject to the law and regulations governing the payment of monetary benefits. A 20 percent rating, but not higher, for left lower extremity peripheral neuropathy is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 20 percent for a right shoulder dislocation is remanded. FINDINGS OF FACT 1. Service connection for astigmatism/presbyopia was denied in a June 2013 rating decision in part on the basis that the conditions were not related to service. 2. The Veteran did not file a notice of disagreement for the June 2013 rating decision, nor submit new evidence within one year, and that decision became final. 3. The evidence associated with the claims file subsequent to the June 2013 denial consists of evidence that is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for astigmatism/presbyopia. 4. The evidence supports a finding that the Veteran’s right lower extremity peripheral neuropathy manifested by moderate incomplete paralysis of the sciatic nerve without diminished or absent muscle strength, absent deep tendon reflexes or muscle atrophy. 5. The evidence supports a finding that the Veteran’s left lower extremity peripheral neuropathy manifested by moderate incomplete paralysis of the sciatic nerve diminished or absent muscle strength, absent deep tendon reflexes or muscle atrophy. CONCLUSIONS OF LAW 1. The June 2013 rating decision that denied reopening of the Veteran’s claim of entitlement to astigmatism/presbyopia is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. The evidence received since the June 2013 denial is not new and material, and the claim for service connection for astigmatism/presbyopia is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for a 20 percent rating, but not higher, for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 8520 (2017). 4. The criteria for a 20 percent rating, but not higher, for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to February 1969. This case comes before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. New and Material Evidence Service connection for astigmatism/presbyopia was initially denied in a June 2013 rating decision. Evidence considered in this decision included the Veteran’s service treatment records, VA treatment records and May 2013 VA examination reports. The RO noted a current diagnosis in the post-service treatment records, but found that the records did not reveal a nexus or a link between current symptomology and an in-service disease or disability. Furthermore, the RO emphasized that defects of form or structure of the eye of congenital or developmental origin, such as astigmatism and presbyopia, would not, in themselves, be regarded as disabilities and may not be service connected on the basis of incurrence of natural progress during service. Consequently, the RO denied the claim. A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In June 2013, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until December 2013, when VA received his application to reopen such claim. Therefore, the June 2013 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran’s claim for service connection was received prior to the expiration of the appeal period stemming from the June 2013 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional evidence was received within the one-year appeal period, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156 (b), (c). Since the September 2013 decision, no new evidence has been submitted to VA, other than a request to reopen the claims. Therefore, the Board concludes the requirements to reopen the claim have not been met, and the appeal must be denied. As new and material evidence sufficient to reopen this finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Right Lower Extremity Peripheral Neuropathy, Left Lower Extremity Peripheral Neuropathy The Veteran’s degenerative disc disease of the lumbar spine radiculopathy is rated under Diagnostic Code 8520 for impairment of the sciatic nerve. Incomplete paralysis of the sciatic nerve warrants a 10 percent rating when mild, a 20 percent rating when moderate, a 40 percent rating when moderately severe, and a 60 percent rating when severe, with marked muscular atrophy. Complete paralysis of the sciatic nerve warrants an 80 percent rating. 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124. The Board observes that the words “slight,” “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 degree that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in order to arrive at a decision regarding an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. After careful review of the evidence, and with consideration of the benefit of the doubt doctrine, the Board finds that the evidence supports a rating of 20 percent for the Veteran’s right lower extremity peripheral neuropathy and 20 percent for left lower extremity peripheral neuropathy. Specifically, the Veteran received a VA examination on May 13, 2015 and exhibited symptoms of moderate parasthesias and/or dysesthesias, as well as moderate numbness, in his bilateral lower extremities. Muscle strength was normal, and his deep tendon reflexes were normal in the knees but decreased in the ankles. The Veteran’s position sense was normal, but his vibration sensation was decreased. Furthermore, the Veteran’s light touch/monofilament testing results were normal in the knees, but decreased in the ankle/lower leg and foot/toes. The examiner also noted that there was no muscle atrophy. Based on the results of the examination, the examiner indicated that the Veteran had mild incomplete paralysis of the sciatic nerve. Despite the examiner’s characterization of the incomplete paralysis as mild, the Board concludes that the symptoms are more accurately characterized as moderate. The Veteran’s parasthesias and numbness was moderate, and he experienced decreased deep tendon reflexes, light touch sensation, and vibration sensation in parts of his lower extremities. Accordingly, the Board concludes that the Veteran’s left and right peripheral neuropathy more nearly approximates moderate impairment, warranting a 20 percent rating. The Veteran has not alleged, and the record does not show, diminished or absent muscle strength, absent deep tendon reflexes or muscle atrophy. Therefore, a rating higher than 20 percent for left and/or right lower extremity peripheral neuropathy is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Right Shoulder Dislocation Regrettably, a remand is necessary for further evidentiary development of the Veteran’s appeal. The Veteran’s last VA examination of his right shoulder was in May 2015. The Board has reviewed that examination report and notes that it is not adequate, as it does not appear that any passive, weight-bearing or nonweight-bearing range of motion testing was conducted at that time. Consequently, the Board must remand the claims in order for another VA examination to be accomplished. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court also noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. Id. at 10. On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his service connected right shoulder dislocation. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination so as to determine the current severity of his right shoulder disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. The right shoulder must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel