Citation Nr: 18147665 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 13-25 187 DATE: November 5, 2018 ORDER Entitlement to service connection for left upper extremity peripheral neuropathy, to include secondary to residuals of a left rotator cuff tear, tendonitis and an anterior glenoid labrum tear with shoulder arthritis, is denied. Entitlement to service connection for right upper extremity peripheral neuropathy, to include secondary to residuals of a right rotator cuff tendonitis with glenohumeral joint dislocation and shoulder arthritis, is denied. Entitlement to an increased rating for residuals of a right rotator cuff tendonitis with glenohumeral joint dislocation and shoulder arthritis is dismissed. Entitlement to a total disability rating due to individual unemployability is denied. FINDINGS OF FACT 1. Left upper extremity peripheral neuropathy was not manifest during service, it was not compensably disabling within one year of separation from active duty, it is not etiologically related to service and it is not secondary to a service-connected condition. 2. Right upper extremity peripheral neuropathy was not manifest during service, it was not compensably disabling within one year of separation from active duty, it is not etiologically related to service and it is not secondary to a service-connected condition. 3. The preponderance of the evidence shows that the Veteran does not have peripheral neuropathy of the upper extremities. 4. The Veteran is service connected for a dysthymic disorder, currently rated as 50 percent disabling; residuals of a right rotator cuff tendonitis with glenohumeral joint dislocation and shoulder arthritis, currently rated as 20 percent disabling; residuals of a left rotator cuff tear, tendonitis with an anterior glenoid labrum tear and shoulder arthritis; currently rated as 20 percent disabling; and for hypertension, currently rated as 10 percent disabling. His combined evaluation is 70 percent. 5. The Veteran has been working at various jobs during the period on appeal, and last worked full time on in May 2017 when he voluntarily left his employment. 6. The Veteran has been found able to perform light physical and sedentary activities. 7. The Veteran’s service-connected disabilities alone do not preclude him from engaging in substantially gainful employment. 8. In January 2018 at his hearing before the Board, the Veteran, through his representative, requested to withdraw his appeal regarding entitlement to a higher rating for residuals of a right rotator cuff tendonitis with glenohumeral joint dislocation and shoulder arthritis. CONCLUSIONS OF LAW 1. Left upper extremity peripheral neuropathy was not incurred in or aggravated by active service, it may not be presumed to have been so incurred or aggravated; and it is not proximately due to any service-connected disorder. 38 U.S.C. §§ 1101, 1112, 1116, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 2. Right upper extremity peripheral neuropathy was not incurred in or aggravated by active service, it may not be presumed to have been so incurred or aggravated; and it is not proximately due to any service-connected disease. 38 U.S.C. §§ 1101, 1112, 1116, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for a total disability evaluation based on individual unemployability due to service connected disorders have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.16. 4. The criteria for withdrawal of the claims of entitlement to an increased rating for residuals of a right rotator cuff tendonitis with glenohumeral joint dislocation and shoulder arthritis have been met. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to January 1984. A December 2016 rating decision granted entitlement to service connection for residuals of a left rotator cuff tear, tendonitis with an anterior glenoid labrum tear and shoulder arthritis. An August 2017 rating decision granted the Veteran service connection for an adjustment disorder with anxiety and depressed mood (claimed as post-traumatic stress disorder.) As these rating decisions constitute a full grant of service connection for his left shoulder and an acquired psychiatric disorder claims, those issues are no longer in appellate status. In May 2018, the Veteran testified at a Board hearing before the undersigned. A transcript of that hearing is of record. On June 28, 2018, the Veteran requested that the record be held open for an additional 90 days to permit the Veteran to obtain a medical opinion to support his claim. The Board provided correspondence granting the 90-day extension on August 10, 2018. The period was set to expire on September 26, 2018. On September 26, 2018, the Veteran requested another extension in light of an examination scheduled for October 29, 2018. That October 29, 2018 date has since passed and no evidence has been received. The Board finds that the appellant has been granted sufficient time, i.e., more than five months, to obtain any additional opinions or indicate any additional relevant medical records that can be obtained to support his claims. As such, the Board will proceed to adjudicate the claims. With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Increased rating for a right shoulder disability. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105 (a); 38 C.F.R. § 20.200. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn at any time before the Board promulgates a decision and must be in writing except for appeals withdrawn on the record at a hearing. 38 C.F.R. § 20.204. At a May 2018 hearing the Veteran and his representative stated that the appellant wished to withdraw his claim of entitlement to an increased rating for residuals of a right rotator cuff tendonitis with glenohumeral joint dislocation and shoulder arthritis. There is no evidence suggesting that the appellant did not understand the ramifications of his decision to withdraw his claim, and he was represented at the hearing by a national Veterans Service Organization that is well versed in advising and assisting claimants with their VA benefits. Therefore, the Board finds that the claim has been withdrawn. As such, the Board does not have jurisdiction to review the appeal on this issue. The claim is therefore dismissed. Service Connection Generally, to provide service connection, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303 (a). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the Veteran’s claim for service connection includes peripheral neuropathy, a chronic disease, the Board will consider whether 38 C.F.R. § 3.303 (b) is for application. A key element in establishing service connection is evidence showing that the Veteran currently has a diagnosis or symptoms of the disability for which service connection is sought. See 38 U.S.C. § 1131; 38 C.F.R. 3.303. In this case, there is no persuasive clinical evidence in the claims file diagnosing bilateral upper neuropathy in accordance with applicable law. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Peripheral neuropathy The Veteran seeks entitlement to service connection for bilateral upper extremity peripheral neuropathy. As noted the first question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of peripheral neuropathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The November 2016 VA examiner evaluated the Veteran and determined that, while the appellant experienced subjective symptoms of intermittent pain, paresthesias and numbness in his upper extremities at times, he did not have a diagnosis of peripheral neuropathy. A 2014 treatment note related to the Veteran’s non-service connected diabetes noted that the claimant had no history of neuropathy. Further, despite treatment from July 2009 to March 2018, VA treatment records do not contain a diagnosis of neuropathy. This Veteran was not diagnosed with peripheral neuropathy during service and there is no evidence that peripheral neuropathy was compensably disabling within a year of separation from active duty. Finally, the preponderance of the evidence shows that the Veteran does not currently suffer from upper extremity peripheral neuropathy. The Veteran has reported pain, numbness, weakness and tingling in his extremities intermittently throughout the appeal period. These symptoms have not been clinically diagnosed as peripheral neuropathy. While the Veteran is competent to report symptoms, he is not competent to self-diagnose peripheral neuropathy, because such a diagnosis falls outside the realm of common knowledge of a lay person. That is, a diagnosis of peripheral neuropathy cannot be made based on mere personal observation, which comes through sensory perception. See 38 C.F.R. § 3.159 (a). Evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Besides the Veteran’s own testimony, there is no evidence classifying the Veteran’s complaints as peripheral neuropathy. Further there is no competent evidence connecting these complaints to service or a service connected disability. Ultimately, the weight of the evidence is against a finding of peripheral neuropathy affecting the upper extremities. Hence, the claims must fail because there is no current disability. As the preponderance of the evidence is against the claims the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107. Total disability due to individual unemployability The Veteran claims that he is unable to work due to his service connected disabilities. A total disability evaluation based on individual unemployability due to service connected disorders 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 due to a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 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. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service connected for a dysthymic disorder, currently rated as 50 percent disabling; residuals of a right rotator cuff tendonitis with glenohumeral joint dislocation and shoulder arthritis, currently rated as 20 percent disabling; residuals of a left rotator cuff tear, tendonitis with an anterior glenoid labrum tear and shoulder arthritis; currently rated as 20 percent disabling; and for hypertension, currently rated as 10 percent disabling. His combined evaluation is 70 percent. Thus, the Veteran meets the criteria to be eligible for a schedular total disability evaluation based on individual unemployability due to service-connected disorders under 38 C.F.R. § 4.16 (a). Remaining for resolution is the question of whether there is probative evidence of his unemployability on account of his service-connected disabilities. Blackburn v. Brown, 4 Vet. App. 395 (1993) (VA must assess whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total disability rating due to individual unemployability). As the United States Court of Appeals for Veterans Claims explained in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the schedular rating assigned for a disability is, itself, recognition that industrial capabilities are impaired as a consequence of the disability. The mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough. Id. Rather, the question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The resolution of this appeal ultimately turns on whether his service-connected disabilities alone preclude the Veteran from obtaining and maintaining substantially gainful employment. As suggested by the United States Court of Appeals for the Federal Circuit, the test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). Notably, in a claim for a total disability rating due to individual unemployability, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate total disability rating due to individual unemployability determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that “medical examiners are responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity,’ 38 C.F.R. § 4.10 (2013), but it is the rating official who is responsible for ‘interpret[ing] 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 present.”). The Veteran has a self-reported work history stretching back to 2008. He worked part time dealing with truancy issues and these duties extended to full time work until the program was shutdown. Following that work, the Veteran worked as a driver and load technician. Most recently the Veteran worked full time as a case manager from December 2016 to May 2017. The Veteran’s December 2017 shoulder and arm disability benefit questionnaire noted that, although his functionality was impaired, the claimant could perform light physical and/or sedentary employment. The Veteran stated during his hearing that he was terminated from his last job due to questionable issues, but that his injuries did not affect his job. The Veteran also stated that he would be able to work in the social work field and that his disabilities would not interfere with his employment there. After a thorough review of the evidentiary record, the Board finds that the functional limitations imposed by the Veteran’s service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. The most probative evidence of record is against finding that the Veteran’s service-connected disabilities preclude him from being able to engage in substantially gainful employment. In reaching this decision the Board considered all relevant and probative evidence. Therefore, it is clear that while the Veteran has experienced some impairment due to his service-connected disabilities, the assigned schedular ratings adequately compensate the Veteran for the symptomatology associated with each of his service-connected disabilities. Thus, impairment of industrial capacity due to service-connected disabilities has already been taken into consideration via the disability ratings assigned. The evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due solely to his service-connected disabilities. As such, the evidence weighs against finding that his service-connected disabilities have combined to cause unemployability. Entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is not established. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel