Citation Nr: 18149922 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 13-31 068 DATE: November 14, 2018 ORDER 1. A 10 percent rating for left lower extremity peripheral neuropathy is granted for the period prior to November 17, 2015, subject to regulations governing payment of monetary awards. 2. A 10 percent rating for is granted for right lower extremity peripheral neuropathy for the period prior to November 17, 2015, subject to the regulations governing payment of monetary awards. 3. A schedular total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied for the period prior to November 17, 2015. REMANDED 4. Entitlement to a TDIU rating prior to November 17, 2015, on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Prior to November 17, 2015, the Veteran’s left lower extremity peripheral neuropathy was manifested as mild incomplete paralysis. 2. Prior to November 17, 2015, the Veteran’s right lower extremity peripheral neuropathy was manifested as mild incomplete paralysis. 3. Prior to November 17, 2015, the Veteran’s service-connected disabilities were: residuals of a right knee injury, post total knee arthroplasty (rated 30 percent), type 2 diabetes mellitus (rated 20 percent), hypertension (rated 10 percent), and peripheral neuropathy of the left and right lower extremities (associated with type 2 diabetes mellitus), (rated 10 percent, each); the combined rating was 60 percent, and the disabilities did all share a common etiology. CONCLUSIONS OF LAW 1. A 10 percent, and no higher, rating is warranted for left lower extremity peripheral neuropathy for the period prior to November 17, 2015. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code (Code) 8520. 2. A 10 percent, and no higher, rating is warranted for right lower extremity peripheral neuropathy for the period prior to November 17, 2015. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Code 8520. 3. Prior to November 17, 2015, the schedular rating requirements for TDIU were not met, and a schedular TDIU rating was not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1961 to February 1991. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 Department of Veterans Affairs rating decision which granted service connection for peripheral neuropathy of both lower extremities, rated 0 percent, each, effective August 26, 2010. A June 2017 Board decision granted an initial rating of 20 percent for the peripheral neuropathy of the left lower extremity and an initial rating of 10 percent for the peripheral neuropathy of the right lower extremity, both effective November 17, 2015, and denied a compensable rating for either disability prior to November 17, 2015. The Board also determined in a conclusory paragraph that a TDIU rating was not warranted on the basis that the Veteran did not contend, and the evidence did not show, that his service-connected disabilities rendered him unemployable. The Veteran appealed the Board’s decision regarding the denial of compensable ratings for the peripheral neuropathy of the lower extremities prior to November 17, 2015, to the United States Court of Appeals for Veterans Claims (CAVC). In a February 2018 Order, the CAVC granted a February 2018 Joint Motion for Partial Remand (Joint Motion) of the parties, thereby vacating the Board’s decision as to the denial of compensable ratings for the peripheral neuropathy of the lower extremities prior to November 17, 2015, and remanding the matters to the Board for action consistent with the Joint Motion. (The matter of a TDIU was not addressed.) The Veteran through his attorney (in an October 2018) statement argues that the issue of a TDIU is part and parcel of the underlying claims for an increased rating for peripheral neuropathy of the lower extremities, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and has submitted additional evidence in support the claim. The Board will thus address it for the period under consideration for the evaluation of peripheral neuropathy of the lower extremities, i.e., prior to November 17, 2015. [The issue of entitlement to a TDIU rating is currently on appeal, together with additional issues of service connection and seeking increased ratings that arose from June 2017 and July 2018 RO rating decisions; those matters are pending further actions by the originating agency, and are not now properly before the Board.] Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. For the period covered in this appeal, from the effective date of service connection on August 26, 2010 to November 17, 2015, when higher ratings were assigned by the Board in its June 2017 decision, the Veteran’s service-connected peripheral neuropathy of the right and left lower extremities, associated with type 2 diabetes mellitus, have been rated 0 percent, each, under 38 C.F.R. § 4.124a, Code 8520. Sciatic nerve impairment is rated under Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia). 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” 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. See 38 C.F.R. § 4.124a. When involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Id. Under Code 8520, for incomplete paralysis, a 10 percent disability rating is assigned for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. (The ratings under Code 8520 are equivalent to or higher than the ratings under codes pertaining to other peripheral nerves of the lower extremities.) The descriptive words “mild,” “moderate” and “severe”, as used in the various diagnostic codes, are not defined in VA’s Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Board has considered whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). On review of the record, the Board finds that for the entire appeal period, the evidence supports the award of a 10 percent (and no higher) rating, each, for peripheral neuropathy both lower extremities. 1., 2. Entitlement to compensable ratings for left and right lower extremity peripheral neuropathy prior to November 17, 2015. VA and private medical records reflect that the Veteran has had lower extremity neurological complaints for many years. Before the period considered in this appeal, electrodiagnostic studies in May 2006 were abnormal, reflecting symmetric, predominantly axonal sensorimotor polyneuropathy involving both lower extremities; clinical findings then included questionable dysesthesias on sensory evaluation and decreased deep tendon reflexes. On March 2009 VA diabetes mellitus examination, neurological evaluation showed no motor loss, deep tendon reflexes that were normal (2+), and no sensory loss. Such objective findings are consistent with those noted in outpatient treatment records in January 2009 and February 2009 and on numerous VA podiatry reports in July 2008, January 2009, July 2009, January 2010, and July 2010. Despite the normal findings, the podiatrist also indicated that on each of the neurological examinations the Veteran noted occasional tingling sensations. Beginning in August 2010 (the effective date of award of service connection for lower extremity peripheral neuropathy), the evidence shows continuing neurological complaints of a sensory nature. On September 2010 VA examination the Veteran reported tingling in his feet and legs for a long period of time that has limited his ability to walk over the last several years; he stated he continued to have dysesthesias in the lower extremities, which were observed at the time of a May 2006 EMG. On examination, there was peripheral edema (3+, which is a sign of deep pitting) in the lower extremities, and sensation to monofilament testing was normal (i.e., there was no loss of protective sensation). The examiner did not explain the etiology of the edema, nor specifically attribute it to peripheral neuropathy. A private November 2010 report of nerve conduction testing noted findings of bilateral sciatica. A February 2012 VA outpatient record indicates that on a review of systems, there was numbness, burning, or tingling in the extremities, but on examination extremities had 2+ reflexes and intact sensation. In August 2012, the Veteran was seen with complaints of occasional numbness of the knees and legs (but no calf/leg swelling). The diagnoses included leg paresthesias, mostly with ambulation. A diabetic foot examination at that time showed no loss of protective sensation and pulses were present. Findings on a podiatry visit in February 2013 were consistent with those in 2008-10, reflecting normal deep reflexes, muscle strength, and sensation, but with occasional tingling sensations observed by the Veteran. In March 2013, the diagnosis was diabetic neuropathy with complaints of numbness in both lower extremities; the Veteran was started on gabapentin (a prescription medication used for nerve pain) at bedtime. A podiatry examination in July 2013 reflected findings similar to those noted in February 2013. A VA examination on November 17, 2015 identified the Veteran’s lower extremity diabetic peripheral neuropathy as affecting the sciatic nerve. The Board is mindful that where there is a question of which of two ratings are to be applied, the higher rating is to be assigned when the disability picture more nearly approximates the criteria for that rating. As described above, the medical evidence presents a somewhat unclear picture of the Veteran’s lower extremity peripheral neuropathy. On the one hand, he consistently complained of lower extremity neurological manifestations of numbness and tingling sensations. On the other hand, the objective clinical findings for the most part show that his lower extremities were normal on motor, reflex, and sensory evaluation. The minor exception was the occasional tingling sensations noted by the Veteran on examination. The results of diagnostic (nerve conduction) testing were abnormal, so presence of lower extremity peripheral neuropathy is established. The essential questions are how (if at all) signs and symptoms of peripheral neuropathy manifest, and the nature and degree of lost or impaired function attributable to any such neurological manifestations. The records show that the Veteran’s lower extremity neurological symptoms are entirely sensory in nature. He has consistently throughout the period reported complaints, but there were no objective, measurable findings on motor, reflex, and sensory testing. Nevertheless, his healthcare providers acknowledge that despite the normal testing, the Veteran experiences numbness in his lower extremities that impairs function, such as noted in August 2012 when he had a diagnosis of leg paresthesias on ambulation. Moreover, the manifestations of the peripheral neuropathy can be viewed as more than negligible or trivial, because in March 2013 medication was prescribed for relief of symptoms. Thus, the Board will recognize the Veteran as having peripheral nerve involvement in both lower extremities that is productive of at least mild impairment. Further, given that it is shown to be wholly sensory, the impairment cannot be more than moderate in degree under 38 C.F.R. § 4.124a. The rating criteria do not mark the defining line between what neurological impairment constitutes mild and what can be deemed moderate. In reviewing the evidence of the Veteran’s complaints and the objective findings on evaluation, the Board finds that in terms of the duration, frequency, and severity of the symptoms of peripheral neuropathy, his loss of function is not more than mild. It was noted that his symptoms were occasional, and there was no clear evidence (complaints or otherwise) of how long the symptoms persisted once they were felt. Moreover, that numerous evaluations found little outward sign of sensory deficit in the lower extremities is persuasive evidence that the disabilities are no more than mild. For a moderate degree of severity, which is the highest rating possible for disease that is wholly sensory, it would be reasonable to expect consistent, objective signs on examination, and in this case the Veteran was typically found to have intact sensation. The Veteran’s attorney argues (in an October 2018 statement) that the Veteran was entitled to a 10 percent rating for his right lower extremity peripheral neuropathy and a 20 percent rating for his left lower extremity peripheral neuropathy. The medical evidence of record for the appeal period does not present a basis for distinguishing the severity of left lower extremity sensory deficits from those in the right lower extremity, and the attorney has not offered any justification for rating the lower extremities differently based on the evidence during the appeal period. The November 17, 2015 examination is the first clear evidence that shows the severity of the lower extremity deficits differed, and from that date the lower extremities have been rated accordingly. In the Board’s judgment, the degree of impaired function due to peripheral neuropathy is no more than mild in each lower extremity. Accordingly, the evidence supports a 10 percent rating, and no higher, for each lower extremity manifested by mild incomplete paralysis. 3. Entitlement to a TDIU rating prior to November 17, 2015 A TDIU claim is part of an increased rating claim when such claim is raised by the record. As earlier noted, the Board in its June 2017 decision found that the issue of a TDIU was neither raised by the Veteran nor shown by the evidence. Since the CAVC vacated the Board’s decision regarding the ratings for peripheral neuropathy of the lower extremities prior to November 17, 2015, the Veteran through his attorney argues that a TDIU is warranted for the period before November 17, 2015 (and continuing), and has submitted supporting evidence. TDIU 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 as a result of a single service-connected disability ratable at 60 percent or more, or as a result 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). Where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). Prior to November 17, 2015, the Veteran’s service-connected disabilities included: residuals of a right knee injury post total knee arthroplasty (rated 30 percent), type 2 diabetes mellitus (20 percent), hypertension (10 percent), and peripheral neuropathy of the left and right lower extremities associated with type 2 diabetes mellitus (10 percent, each). Under 38 C.F.R. § 4.25, the combined rating was 60 percent (with bilateral factor considered; see 38 C.F.R. § 4.26). Such 60 percent rating does not meet the threshold minimum schedular rating requirement for a TDIU rating under 38 C.F.R. § 4.16(a); he does not have a single service-connected disability rated 60 percent or more (even considering the disabilities that result share common etiology, and are considered as one, such as with diabetes mellitus lower extremity peripheral neuropathy), and the combined schedular rating for service-connected disabilities was not 70 percent or more. Accordingly, prior to November 17, 2015, a schedular TDIU rating was not warranted. REASONS FOR REMAND 4. Entitlement to a TDIU prior to November 17, 2015, on an extraschedular basis, is remanded. Where, as here prior to November 17, 2015, schedular rating requirements for a TDIU rating are not met, an extraschedular rating may be considered when a veteran is unable to secure and maintain a substantially gainful occupation due to service-connected disability. In such circumstances, the claim is to be referred to VA’s Compensation Director for extraschedular consideration. 38 C.F.R. § 4.16(b). The Veteran through his attorney has submitted additional evidence to include a report of an August 2018 vocational assessment, by a private vocational consultant, who opined that based on the Veteran’s symptoms and limitations from his service-connected right knee disability in combination with diabetes, bilateral peripheral neuropathy, and hypertension, it was “at least as likely as not that [the Veteran] has been unable to secure and follow substantially gainful employment since at least 2010, and continuing.” Accordingly, referral of the case to VA’s Director of Compensation is warranted. The matter is REMANDED for the following: Arrange for any further development indicated; prepare an appropriate summary; and refer the claim for a TDIU prior to November 17, 2015 to VA’s Director of Compensation for extraschedular consideration under 38 C.F.R. § 4.16(b). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel