Citation Nr: 18156146 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 14-35 366 DATE: December 7, 2018 ORDER 1. Entitlement to a disability rating in excess of 10 percent for right lower extremity peripheral neuropathy is denied 2. Entitlement to a disability rating in excess of 10 percent for left lower extremity peripheral neuropathy is denied. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s right lower extremity peripheral neuropathy did not manifest with an incomplete paralysis of the sciatic nerve that was moderate in severity during the appeal. 2. The Veteran’s left lower extremity peripheral neuropathy did not manifest with an incomplete paralysis of the sciatic nerve that was moderate in severity during the appeal. 3. The Veteran’s service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8720 (2017). 2. The criteria for entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8720. 3. The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1958 to May 1968. The Veteran initially requested a Board hearing in his February 2015 Substantive Appeal to the Board (VA Form 9). However, in an October 2018 written statement, the Veteran’s representative withdrew the hearing request prior to the scheduled hearing. Therefore, the request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702(e) (2017). Additional lay and medical evidence has been associated with the claims file since the issuance of the statement of the case (SOC) in September 2014; however, the Veteran’s representative waived review of this new evidence in the first instance by the Agency of Original Jurisdiction (AOJ) in a November 2018 statement. VA’s duty to assist includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded a VA examination for his bilateral lower extremity peripheral neuropathy symptoms in January 2014. In a November 2018 statement, the Veteran’s representative contended that the Veteran should be scheduled for a new examination because the January 2014 VA examination report was too old to adjudicate the Veteran’s claims. However, the mere passage of time between an examination and the Board’s review of a claim does not, in and of itself, trigger the need for a remand for another more contemporaneous examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). 1. - 2. Increased Ratings for Right and Left Lower Extremity Peripheral Neuropathy The Veteran contends that the disability ratings for his right and left lower extremity peripheral neuropathy should be rated higher than the currently-assigned 10 percent disability ratings. Because the evidence pertaining to these disabilities is located in the same or similar documents, the Board shall analyze the disabilities together below. VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” The Veteran filed increased rating claims for these disabilities on June 17, 2013; thus, the appeal period stems from that time. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran’s right and left lower extremity disabilities are rated under 38 C.F.R. § 4.124a, DC 8720, which rates neuralgia manifestations of the lower extremities associated with the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires evidence of moderate incomplete paralysis. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. Finally, the maximum 80 percent rating requires evidence of complete paralysis, where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8720. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, they should be combined with application of the bilateral factor. See 38 C.F.R. § 4.124a. The Veteran filed his current increased rating claims for peripheral neuropathy in June 2013. In June 2013 and July 2013 statements, the Veteran contended that his service-connected diabetes mellitus type II symptoms had progressed to the point that his feet, and especially the right foot, had numbness and sharp pain at the bottom of the feet. He asserted that he was unable to stand for any length of time or walk any distance. The Veteran stated that he was going to undergo podiatric surgery on the right foot and that he had received cortisone injections in his right foot. While the claims file includes numerous VA treatment records, including a July 2013 VA podiatry note, showing that the Veteran was treated for Morton’s neuroma of the right foot, the Board notes that the right foot Morton’s neuroma symptoms are not service connected. Thus, the Board shall not discuss this diagnosis further below. The Veteran underwent a VA examination in January 2014 for his bilateral peripheral neuropathy symptoms, during which he complained of progressively worse symptoms. He told the examiner that he had numbness to the bottom of the feet and pain in the feet that was very limiting. He reported difficulty with ambulation and stated that he used an electric cart to go to the store. He also reported significant discomfort when bedsheets covered his feet. He told the examiner that he was able to stand for 15 to 30 minutes to help with household chores and that he wheeled the trash to the curb. He also reported that he occasionally walked to the mail box and back, which was approximately half a block distance, but that he did not use his car. He reported that he used Tylenol and Gabapentin medication, but that Gabapentin was not effective in alleviating his discomfort. He complained of severe, constant pain, numbness, and paresthesias and/or dysesthesias in both lower extremities. A physical examination showed that his muscle strength in his lower extremities was normal. He also had normal deep tendon reflexes in the bilateral brachioradialis and knees, but his bilateral ankle deep tendon reflexes were decreased. Similarly, light touch sensory testing showed normal results in the knees/thighs and ankles/lower legs, but his feet/toes had decreased light touch sensation. Vibration and cold sensation testing also showed decreased sensation in the bilateral lower extremities. The examiner noted that the Veteran had minimal hair distribution but no muscle atrophy in the lower extremities. After reviewing the Veteran’s pertinent records, performing an in-person examination, and noting the Veteran’s self-reported symptoms and history, the examiner determined that the Veteran had incomplete paralysis of the bilateral sciatic nerve that was mild in severity. The examiner noted that the diabetic peripheral neuropathy symptoms would impact his ability to work because he would be required to take frequent breaks and make positional changes, and he would need to take an increased amount of time off from work for his bilateral foot pain. In an April 2014 notice of disagreement (NOD), the Veteran’s representative reiterated the Veteran’s complaints to the January 2014 VA examiner and noted that the Veteran’s bilateral lower extremity peripheral neuropathy also affected his ability to concentrate. In a March 2018 statement, the Veteran contended that he had a difficult time walking around a grocery store because of diabetic nerve pain. He indicated that he had to use an electric cart to ambulate while shopping. In a November 2018 statement, the Veteran’s representative again reiterated the complaints and statements that the Veteran made to the January 2014 VA examiner. After a careful review of the evidence of record, the Board finds that the Veteran’s right and left lower extremity peripheral neuropathy did not manifest with an incomplete paralysis of the sciatic nerve that was moderate in severity during the appeal. The Board acknowledges the Veteran’s complaints throughout the appeal, as well as the statements from the Veteran’s representative, that he had sharp pain and numbness in his legs and feet due to his peripheral neuropathy symptoms. While the Veteran complained of severe numbness, paresthesias and/or dysesthesias, and constant pain during the January 2014 VA examination, the January 2014 VA examiner determined that his symptoms did not amount to moderate incomplete paralysis of the sciatic nerve in either leg. Additionally, this examiner considered the Veteran’s limitation in ambulation and his complaints of being unable to stand for longer than 30 minutes when the examiner assessed the Veteran’s symptoms as amounting to mild incomplete impairment of the sciatic nerve in each of the lower extremities. The Board finds this VA examiner’s findings and opinions as highly probative evidence of the severity of the Veteran’s peripheral neuropathy symptoms because of the examiner’s expertise, training, education, proper support and explanations, and thorough review of the Veteran’s records and self-reported symptoms. Accordingly, as the preponderance of the evidence is against entitlement to a disability rating in excess of 10 percent for right and left lower extremity peripheral neuropathy, the benefit of the doubt doctrine does not apply, and the Veteran’s claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, 4.124a, DC 8720; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. Entitlement to TDIU The Veteran contends that his service-connected disabilities prevents him from securing or following gainful employment. TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2017). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The central inquiry is “whether the veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. The Veteran receives VA compensation for posttraumatic stress disorder (PTSD), diabetes mellitus type II, tinnitus, right and left lower extremity peripheral neuropathy, and bilateral hearing loss. The Veteran’s PTSD is rated as 70 percent disabling, and the overall combined disability evaluation for his service-connected disabilities is 80 percent. See 38 C.F.R. § 4.16(a). Thus, the Veteran meets the criteria for establishing entitlement to a TDIU on a schedular basis, and the only question to be answered is whether his service-connected disabilities preclude him from attaining and maintaining gainful employment. In determining whether the Veteran is capable of obtaining and maintaining gainful employment due to his service-connected disabilities, the Board must consider the Veteran’s work history, education, and any special training. In a December 2013 application for increased compensation based on unemployability (VA Form 21-8940), the Veteran stated that his foot pain from diabetes mellitus type II, neuropathy, and PTSD disabilities prevented him from securing and following any substantially gainful occupation. He stated that these disabilities affected his full-time employment in October 1984 and in June 2013. However, the Board notes that the Veteran’s private treatment records from the 1980s, including August 1984 private progress notes, do not show symptoms or complaints of diabetes mellitus, PTSD, or peripheral neuropathy in the bilateral lower extremities. The Veteran reported that he last worked full time in October 1984. He indicated that he previously worked installing stores for an automotive supply company from July 1959 to October 1984; however, the Board notes that the Veteran was on active duty from July 1958 to May 1968. He also stated that he finished high school and that he had “some college” education; however, he reported in an October 1996 application for compensation or pension (VA Form 21-526) that he finished one year of college and that he worked as a display manager for the automotive supply company. He also noted in the December 2013 VA Form 21-8940 that he studied advertising management from 1971 to 1972 and that he studied business mathematics from 1975 to 1976. In a June 2013 statement, the Veteran contended that he was 100 percent unemployable because of his PTSD and diabetes mellitus type II symptoms. He described his bilateral lower extremity neurological symptoms and stated that he had trouble with ambulation, including having to stay in the car or use an electric motorized vehicle while he and his wife shopped. In a February 2014 statement, the Veteran stated that he began working for the automotive supply company in 1968 as a part-time salesman but that he soon went into retail store management. After 10 years, he was promoted to a retail store manager position and to a regional display manager thereafter. He stated that he was fired three times during his 15 years of employment at the automotive supply company but that he would get rehired by upper management right away. He stated that he was found to be unemployable by the Social Security Administration (SSA) and that he began receiving Social Security Disability (SSD) benefits in 1984. However, the Board notes that the Veteran was determined to be disabled by SSA, at least in part, due to his nonservice-connected headache disorder. In the October 2014 VA Form 9, the Veteran stated that he was unable to perform even sedentary work, but he again noted that this was due to his benign exertional headaches, which are not service connected. In a March 2016 statement, the Veteran contended that his service-connected disabilities, education, and work experience did not allow for gainful employment, even in a sedentary work environment. He reiterated these contentions in a March 2018 statement. The Veteran’s representative made similar contentions and statements regarding the Veteran’s employability in the April 2014 NOD, and the representative contended that the Veteran was clearly not able to obtain or maintain substantially gainful employment due to his PTSD and bilateral lower extremity peripheral neuropathy symptoms. The representative also noted in a November 2018 informal hearing presentation that the Veteran’s disabilities were of such severity that he would not be expected to be capable of performing the mental and physical acts required by employment. Apart from the lay statements noted above, the claims file includes opinions from VA examiners as to the impact of the Veteran’s service-connected disabilities on his ability to work. For example, a January 2014 VA examination for bilateral hearing loss showed that this disability impacted the Veteran’s conversation skills, but that the Veteran’s tinnitus symptoms did not impact his ordinary conditions of daily living, including his ability to work. A January 2014 VA examination for diabetes mellitus type II and bilateral lower extremity peripheral neuropathy symptoms showed that the Veteran’s diabetes was stable and the examiner was not recommending restrictions in the Veteran’s activity level. The examiner noted that the Veteran would require frequent breaks and position changes, as well as increased time off to treat his bilateral foot pain, but found that these disabilities would not preclude him from sedentary to minimal activity. The examiner did not recommend that the Veteran work in an environment that required stepping or balancing on ladders or operating machinery, such as lawn mowers, as his decreased sensation could increase the risk of a fall or injury. The examiner noted that the Veteran’s pain would decrease his concentration. Likewise, in a January 2014 VA examination for the Veteran’s PTSD symptoms, an examiner noted that the PTSD would interfere with the Veteran’s work if he were working. The Veteran reported that he had not worked since 1984 and that he was found to be unemployable by SSA. He told the examiner that he had been fired a few times for inappropriate, angry outbursts at work. This examiner determined that given the Veteran’s working history of being fired for his temper, and the fact that his temper was worse now than it was when he was fired, it would only be reasonable to conclude that the Veteran’s PTSD interfered with his ability to work. However, this examiner also determined that while the Veteran’s PTSD symptoms might negatively impact his productivity and working relationships, they would not render him unable to seek or maintain substantially gainful employment at that time. The Board has considered the opinions of the medical professionals; however, the ultimate question of whether a veteran is capable of substantial 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). Upon review of all lay and medical evidence, the Board finds that the Veteran’s level of disability, given his education, training, and experience, would not render it impossible for the average person to obtain or retain a substantially gainful occupation of some type based solely on his service-connected disabilities. Van Hoose, 4 Vet. App. at 363. While the Board has considered the Veteran’s statements that he is unable to work due to his service-connected diabetes mellitus, PTSD, and peripheral neuropathy symptoms, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation. While the record shows that the Veteran has been unemployed since 1984, the fact that he is unemployed or has difficulty obtaining employment is not enough. As noted above, the central inquiry is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Various medical treatment records, including the VA examination reports, show that the Veteran’s service-connected disabilities would render it difficult for him to work in a manual labor or physically intensive work environment. However, as noted by all of the January 2014 VA examiners, the Veteran’s service-connected disabilities would not impact his ability to find or maintain all types of employment, including sedentary work, which, in this case, the Board finds means work with limited physical activity avoiding substantial walking, carrying, and climbing. The Veteran has reported occupations that seemed to be centered around sedentary work, such as visual merchandizing or display management, in the past, and his education includes courses in advertising and business mathematics. Thus, although the Veteran’s service-connected disabilities cause functional impairment, as evidenced by his combined disability rating of 80 percent, they are not, in and of themselves, shown to preclude his participation in all forms of substantially gainful employment. Given these reasons, the preponderance of the evidence is against the claim of entitlement to a TDIU. The benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 55. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel