Citation Nr: 1806985	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-10 375	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for sleep apnea.

2.  Entitlement to an evaluation in excess of 40 percent for alcoholic neuropathy of the left lower extremity.

3.  Entitlement to an evaluation in excess of 40 percent for alcoholic neuropathy of the right lower extremity.

4.  Entitlement to an effective date prior to October 12, 2011, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

5.  Entitlement to an effective date prior to October 12, 2011, for the grant of entitlement to Dependents' Educational Assistance (DEA).
 


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney


ATTORNEY FOR THE BOARD

H. Fisher, Associate Counsel


INTRODUCTION

The Veteran had honorable active duty service with the United States Army from November 1964 to November 1967.

These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2012 and April 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  The Veteran timely perfected his appeals to the Board.

In December 2015, the Board, in relevant part, remanded the issues of entitlement to an earlier effective date for TDIU and DEA for reconsideration in light of a grant of an earlier effective date for erectile dysfunction that increased the Veteran's overall schedular evaluation to 70 percent effective June 2, 2010.

The issues of entitlement to service connection for sleep apnea, entitlement to extraschedular TDIU and an earlier effective date for DEA are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



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FINDINGS OF FACT

1.  The Veteran's alcoholic neuropathy of the left lower extremity approximated no more than severe incomplete paralysis of the sciatic nerve.

2.  The Veteran's alcoholic neuropathy of the right lower extremity approximated no more than severe incomplete paralysis of the sciatic nerve.

3.  Between June 2, 2010, and October 12, 2011, evidence of record does not reflect that the Veteran's service-connected disabilities prevented him from obtaining or maintaining a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 40 percent for alcoholic neuropathy of the left lower extremity have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. 4.124a, Diagnostic Code 8520 (2017).

2.  The criteria for an evaluation in excess of 40 percent for alcoholic neuropathy of the right lower extremity have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. 4.124a, Diagnostic Code 8520 (2017).

3.  The criteria for an effective date prior to October 12, 2011, for the assignment of schedular TDIU have not been met.  38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.3157, 3.3159, 3.340, 3.341, 4.16 (2017).






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REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VCAA Notice

VA has completed the necessary steps in order to meet its duties to notify and assist in this case.  The Veteran has not raised any procedural arguments regarding the notice or assistance provided.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The Board also finds that the December 2015 remand directives have been substantially complied with.  Stegall v. West, 11 Vet. App. 268 (1998).

II.  Alcoholic Neuropathy

The Veteran contends that his alcoholic neuropathy of the right and left lower extremities warrants an evaluation in excess of 40 percent.  

Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2017).  The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017).  However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered.  In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2 (2017).  VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disabilities must be reviewed in relation to their entire history.  38 C.F.R. § 4.1.  VA must also interpret 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.  38 C.F.R. § 4.2.  VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity.  38 C.F.R. § 4.10.  Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion.  Functional impairment may be due to pain, including during flare-ups, or from repetitive use.  Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011).  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465.  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

Diseases of the peripheral nerves are rated based on the degree of paralysis, neuritis, or neuralgia.  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.  The Veteran's alcoholic neuropathy of the bilateral lower extremities is rated under Diagnostic Code 8520 for incomplete paralysis of the sciatic nerve.  Under these criteria, a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy.  A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

The Veteran's March 2016 VA examination assessed the present nature and severity of his bilateral alcoholic neuropathy.  The Veteran was found to have moderate paresthesias and/or dysesthesias of the right and left lower extremities.  He did not have constant pain, intermittent pain, or numbness of the bilateral lower extremities.  No muscle atrophy was found on examination.  Deep tendon reflexes were hypoactive, and sensation of the bilateral lower extremities was either decreased or absent.  The Veteran's gait was normal.  The examiner determined that the Veteran exhibited moderately severe incomplete paralysis of the sciatic nerve in the bilateral lower extremities.  The examination did not find foot dangling and dropping, and the Veteran retained active movement in the muscles below the knee.  The Veteran did report occasional use of a cane, and the ability to walk and stand for short durations.

The Veteran's medical treatment records since the date of his claim, November 2, 2015, do not reflect that he experienced muscle atrophy, foot dangling or dropping, or no active movement in the muscles below the knee due to his alcoholic neuropathy.  Treatment records similarly did not reflect symptoms of neuropathy so severe as to approximate the criteria for a higher evaluation.  In the Veteran's April 2016 Notice of Disagreement, he reported being unable to "walk very far" and the use of a cane "at times for balance."  His lay reports are consistent with the statements provided in the March 2016 VA examination.

The Board understands that the Veteran believes his alcoholic neuropathy to be more severe than assessed with his present evaluation.  The Veteran is certainly competent to report the onset and recurrence of observable symptomatology.  He is not, however, competent to provide testimony as to the occurrence of medical symptoms, nor is he medically qualified to prove a matter requiring medical expertise.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).  The severity of the Veteran's neuropathy is a medical determination that must be made by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The March 2016 VA examiner provided a detailed assessment of the extent and severity of his neuropathy, and considered the Veteran's lay reports of observable symptomatology.  Thus, although the Board has carefully considered the Veteran's lay contentions suggesting that his alcoholic neuropathy is more severe than previously assessed, the Board ultimately affords the objective medical evidence of record greater probative weight than the lay opinions.
	
The Board has also considered whether the Veteran is entitled to a higher or separate rating under any other applicable Diagnostic Code related to the nerves.  The competent evidence of record does not show that any other nerves in the lower extremities have been affected.  The Veteran's symptoms are adequately contemplated under the currently assigned ratings.  Therefore, a higher or separate rating under any other diagnostic code pertaining to the impairment of nerves is not warranted.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to an evaluation in excess of 40 percent for right and left lower extremity alcoholic neuropathy must be denied.

III. TDIU
	
The Veteran was assigned an effective date of October 12, 2011 for the grant of entitlement to TDIU, which was primarily based upon his service-connected post-traumatic stress disorder.  In December 2015, the Board remanded this issue for consideration in light of its grant of an earlier effective date for erectile dysfunction that afforded the Veteran a 70 percent overall evaluation from June 2, 2010 to October 12, 2011.

The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110.  Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. 

The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection.  See Lalonde v. West, 12 Vet. App. 377 (1999); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  The mere presence of a disability does not establish intent on the part of a claimant to seek service connection for that disability.  See KL v. Brown, 5 Vet. App. 205 (1993); Crawford v. Brown, 5 Vet. App. 33 (1995); Brannon v. West, 12 Vet. App. 32 (1998).

Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.  

Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

Where schedular requirements are not met, entitlement to 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 disabilities.  38 C.F.R. § 4.16(b).  The Board does not have the authority to assign an extraschedular TDIU in the first instance.  Id.; Bowling v. Principi, 15 Vet. App. 1, 10 (2001).  

The Veteran's initial claim of entitlement to TDIU was filed in February 2008.  For the purposes of this decision, the period of time has been limited to the time in which the Veteran met the initial requirements for schedular TDIU.  Consideration of extraschedular TDIU is addressed in the remand instructions below.  

For the period of June 2, 2010 to October 12, 2011, Veteran was service connected for: prostate cancer status post retropubic prostatectomy with residuals (60 percent), erectile dysfunction (20 percent), tinnitus (10 percent), and hearing loss in the left ear (noncompensable).  The Veteran's overall evaluation for this period was 70 percent.  As such, the Veteran initially meets the requirements for consideration for schedular TDIU.

Evidence of record from this period, however, does not reflect that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities.

The Veteran started receiving Social Security Disability in January 1993 due to mental impairments, for which he was not service-connected until October 2011.  In a June 2010 VA examination, the examiner determined that the residuals from his prostate surgery caused incontinence that required multiple pad changes per day.  Leakage occurred with laughter, straining, and at about hourly intervals.  VA Medical Center (VAMC) treatment records indicate that the Veteran was independent in all of his activities of daily life in June 2010.  In August 2010, the Veteran requested smaller pads for mild urinary leakage.  In April 2011, the Veteran reported that he was doing well, and he used 6 pads per day for leakage.

Medical evidence of record from June 2, 2010 to October 12, 2011 does not address the nature or severity of the Veteran's erectile dysfunction, left ear hearing loss, and tinnitus.  In a previous VA examination in January 2008, the Veteran reported that he felt his hearing to be fine, and his chief complaint was ringing in his ears that interfered with sleep.

Competent medical evidence of record indicates that the Veteran was not rendered incapable of obtaining or maintaining substantially gainful employment due to his service-connected disabilities during this period.  VAMC records state that he was fully independent in the activities of daily life.  While incontinence was certainly a frequent issue due to his prostate surgery, evidence of record does not reflect that it was so severe as to prevent substantially gainful employment.  The Veteran was able to be fully independent in his activities, and reported improving leakage in August 2010 that required a smaller pad.  

As the probative evidence of record does not reflect that, between June 2, 2010 and October 12, 2011, the Veteran's service-connected disabilities prevented him from obtaining or maintaining substantially gainful employment, a grant of schedular TDIU for this period is not warranted.  


ORDER

1.  Entitlement to an evaluation in excess of 40 percent for alcoholic neuropathy of the left lower extremity is denied.

2.  Entitlement to an evaluation in excess of 40 percent for alcoholic neuropathy of the right lower extremity is denied.

3.  Entitlement to an effective date prior to October 12, 2011 for the grant of entitlement to schedular TDIU is denied.




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REMAND

Unfortunately, remand is necessary to properly adjudicate the remaining issues on appeal.

The Veteran's March 2016 VA examination to determine the etiology of his sleep apnea failed to opine as to whether the condition may be directly related to service, and instead only concluded that sleep apnea was not caused by his service-connected post-traumatic stress disorder (PTSD).  While the Veteran contends that his sleep apnea is secondary to his PTSD, the Board has an obligation to consider all reasonably raised theories of entitlement to service connection, even if not specifically raised by the claimant.  See Douglas v. Derwinski, 2 Vet. App. 435 (1992) (evidence reasonably raising a service-connection theory not specifically raised by the claimant must be considered in adjudicating a claim).  In the context of a service connection claim, theories of entitlement such as direct service connection, secondary service connection and presumptive service connection are deemed as part of the appeal regardless of when the issue has been raised in the record.  See Bingham, supra.  As such, an addendum medical opinion is necessary to determine if there is a relationship between the Veteran's sleep apnea and active duty service.

Furthermore, as noted above, the Veteran did not meet the schedular requirements for consideration for TDIU from the date of his claim in February 2008 until October 12, 2011.  An October 2008 VA examination stated that the Veteran was limited with respect to both physical and sedentary employment due to residuals from his prostate surgery.  The examiner reported that physical and sedentary employment activity increased intra-abdominal pressure, which caused incontinence.  This included coughing or sneezing.  The Veteran would have to be near a bathroom to prevent accidents and to change his pads frequently.  Furthermore, the examiner reported that odors or skin breakdown of the genital region were likely to result if he could not frequently clear the area.  Additionally, the Veteran was chronically sleep deprived as he regularly awoke during the night to use the bathroom, which caused fatigue that impaired his concentration.

Thus, this remaining period on appeal must be referred for extraschedular consideration.  Evidence of record suggests that the Veteran has been unemployed and was unemployable for this remaining period on appeal.  Therefore, the Board is remanding the remaining matter on appeal for additional development, to include referral of the claim to VA's Chief Benefits Director or the Director of VA's Compensation Service for a determination as to the Veteran's entitlement to an extra-schedular TDIU. 

Prior to undertaking the above-noted action, to ensure that all due process requirements are met, and the record is complete, the AOJ should also give the Veteran another opportunity to provide pertinent information and/or evidence pertinent to matter of his entitlement to an extra-schedular TDIU.  The letter to the Veteran should explain that he has a full one-year period for response.  See 38 U.S.C.A. § 5103 (b)(1); but see 38 U.S.C.A. § 5103 (b)(3) (West 2014) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). 

Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159.

The actions identified herein are consistent with the duties imposed by the VCAA.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining matter on appeal.

Finally, the issue of an earlier effective date for DEA must be readjudicated following completion of the evidentiary development in the remand instructions as it is inextricably intertwined with the determination regarding extraschedular TDIU.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran and his representative a letter requesting that the Veteran provide any additional information, and if necessary, authorization to enable the AOJ to obtain any additional evidence pertinent to the matter of his entitlement to an extraschedular TDIU and entitlement to service connection for sleep apnea that is not currently of record, including but not limited to records pertaining to medical records and work history.

2.  If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159.  All records and responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

3.  Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file regarding the Veteran's sleep apnea.  If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e).  All attempts to contact the Veteran should be documented in the record.

4.  Once the aforementioned development is complete, obtain a supplemental medical opinion from the previous examiner, if possible, regarding the etiology of the Veteran's sleep apnea.  A new examination may be ordered if the examiner deems it necessary.  The examiner must review the entire claims file, including a copy of this remand and the treatise evidence offered by the Veteran's representative.  The examiner must address the treatise evidence of record in his or her report.  The examiner should opine as to the following:

(a)  Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea began during active service, is related to an incident of service, or began within one year after discharge from active service, to include his service in Vietnam?

(b)  Otherwise, is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused by or aggravated by a service-connected disability?

The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report.  If the above requested opinion cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion.  The examiner should also identify what additional information or evidence (if any) may allow for a more definitive opinion.

5.  After all records and/or responses from each contacted entity are associated with the claims file, or a reasonable time period for the Veteran's response has expired, submit to VA's Chief Benefits Director or the Director of VA's Compensation Service, the matter of the Veteran's entitlement to an extraschedular TDIU from February 2008 to October 12, 2011 under the provisions of 38 C.F.R. 4.16(b).

6.  Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal.  If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs