Citation Nr: 1822385	
Decision Date: 04/12/18    Archive Date: 04/25/18

DOCKET NO. 07-11 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to an increased disability rating for peripheral neuropathy of the right lower extremity, currently rated at 10 percent. 

2. Entitlement to an increased disability rating for peripheral neuropathy of the left lower extremity, currently rated at 10 percent prior to November 21, 2017, and 20 percent since November 21, 2017. 

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


ORDER

A disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied. 

2. Prior to November 21, 2017, a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. 

3. Since November 21, 2017, a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is denied. 

4. TDIU is granted. 


FINDINGS OF FACT

1. The Veteran's peripheral neuropathy of the right lower extremity has been manifested by mild incomplete paralysis. 

2. Prior to November 21, 2017, the Veteran's peripheral neuropathy of the left lower extremity was manifested by mild incomplete paralysis. 

3. Since November 21, 2017, the Veteran's peripheral neuropathy of the left lower extremity has been manifested by moderate incomplete paralysis. 

4, Pertinent to the period on appeal, the schedular criteria for TDIU have been met. 

5. The Veteran's combined service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. 


CONCLUSIONS OF LAW

1. The criteria for 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, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017).

2. Prior to November 21, 2017, the criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017).

3. Since November 21, 2017, the criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017).

4. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a veteran (the Veteran) who had active duty service from November 1966 to June 1969, and from July 1971 to October 1973. He served in the Republic of Vietnam from October 1967 to June 1969, and he was awarded the Combat Infantryman Badge. 

This appeal comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the RO in Detroit, Michigan.

In November 2016, the Board remanded these issues for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board also granted a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). That issue had been subject to the jurisdiction of the United States Court of Appeals for Veterans Claims (Veterans Court). The issues remaining on appeal were merged into that appeal and retain its docket number; however, they are not currently before the Veterans Court as the Board has not yet rendered a decision on appeal. 

In May 2017, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing is associated with the claims file.

The Veteran submitted additional medical evidence after the most recent Supplemental Statement of the Case and did not specify whether he wished to have the claim remanded to the RO for initial consideration of this evidence. The Board sent him a letter in December 2017 asking him whether he wanted to waive his right to initial consideration of this evidence by the RO. However, the RO readjudicated the pertinent claims in a December 2017 rating decision, which had not been loaded to the electronic repository at the time the Board ordered the waiver solicitation letter to be sent. Accordingly, there is no prejudice to the Board's consideration of that evidence. 

Rating Claims

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. 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).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54.

The appeal arises from a claim of entitlement to service connection for lower extremity peripheral neuropathy received at VA on February 13, 2008. In a January 2010 rating decision, VA granted service connection for peripheral neuropathy of the bilateral lower extremities and assigned initial disability ratings of 10 percent each under Diagnostic Code 8520, effective February 13, 2008. 

Under Diagnostic Code 8520, a rating of 80 percent is available for complete paralysis of the nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. A rating of 60 percent is available for incomplete paralysis that is severe, with marked muscular atrophy. A rating of 40 percent is available for incomplete paralysis that is moderately severe. A rating of 20 percent is available for incomplete paralysis that is moderate. A rating of 10 percent is available for incomplete paralysis that is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 

Words such as "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). It should also be noted that use of such terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of any question or issue. Application of the rating schedule is inherently an adjudicative matter for the Board to determine. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017).

The report of a December 2009 VA Diabetes and Neuropathy Examination reveals in the diabetes mellitus portion of the examination, the Veteran's report of decreased sensation on the soles of the feet, bilaterally, slightly decreased vibratory sense, bilaterally, and intact proprioception, bilaterally. There was no lower extremity muscle loss and reflexes were normal in the knees and ankles. In the peripheral neuropathy portion of the examination, the Veteran reported a pins-and-needles sensation in the feet. On the right, he reported discomfort in the right lateral thigh, extending to the right foot when he lies down. On the left, he reported noticing a tingling sensation over the lateral portion of the left thigh and this extended to the left foot. When sitting, he noticed discomfort in the outer portion of the left foot. However, when ambulating, he noticed that the whole foot would become numb. Reflexes were normal at the knees, ankles, and feet. There was no muscle atrophy and normal muscle tone and bulk. The impact on chores, shopping, exercise, and sports, was mild; the impact on recreation and traveling was moderate; and, there was no impact on feeding, bathing, dressing, toileting, and grooming.

The report of a December 2010 VA Neuropathy Examination reveals that reflexes were decreased in the right lower extremity, at the knee and ankle. Reflexes were absent at the ankle in the left lower extremity, but decreased at the knee. Sensation to vibration and light touch were moderately decreased in the right foot. There was a slight decrease in sensation to pinprick. Sensation to vibration and light touch was absent in the left foot, with a moderate decrease in sensation to pinprick. Muscle strength was normal at the hips, knees, and ankles with no muscle atrophy and normal tone. Employment limitations consisted of a limitation of standing to a few minutes at a time. Balance problems precluded use of ladders and other situations that would present a fall risk.

The report of a November 2017 VA Neuropathy Examination reveals the Veteran's account of no constant pain, but mild intermittent pain, bilaterally; mild paresthesias and numbness of the right lower extremity; and moderate paresthesias and numbness of the left lower extremity. Muscle strength was full in the knees and ankles. There was no muscle atrophy. Reflexes were decreased. Sensation was normal to light touch at the knees and ankles. Sensation was decreased to light touch at the feet and toes. Position sense was normal on the right lower extremity and absent on the left lower extremity. Vibration sense was absent on both lower extremities. The examiner assessed mild incomplete paralysis of the right lower extremity and moderate incomplete paralysis of the left lower extremity. The examiner opined that the peripheral neuropathy should not affect his ability to work.

After a review of all of the evidence, the Board finds that no higher ratings are warranted. For the entire period with respect to the right lower extremity, and prior to November 21, 2017, with respect to the left lower extremity, the Veteran's peripheral neuropathy has been manifested by no more than mild incomplete paralysis. Since November 21, 2017, with respect to the left lower extremity, the Veteran's peripheral neuropathy has been manifested by no more than moderate incomplete paralysis. 

The Board notes that the Veteran's disability picture is complicated by nonservice-connected lumbar radiculopathy with history of lumbar laminectomy, disc replacement, and fusion, a separate and distinct neurological disability of the lower extremities. The Board may compensate the Veteran only for service-connected disability. However, the Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Here, the November 2017 VA examiner provided medical evidence distinguishing the service-connected and nonservice-connected symptomatology, separately assessing the severity of each disorder. Moreover, the December 2009 VA examiner also acknowledged that the lumbar radiculopathy was superimposed upon diabetic neuropathy, which the examiner characterized as "mild" and "minimal." 

Here, the medical evidence establishes that the nonservice-connected lumbar radiculopathy is the major contributor to the Veteran's lower extremity symptoms and disability picture. While not dispositive, the Board finds the characterizations of the severity of these conditions by the VA examiners, which are broadly consistent, to be persuasive evidence, as it is based on a review of medical evidence, including imaging showing the nature and extent of the lumbar disc pathology and resulting scar formation and its effect on the sciatic nerves.

In sum, the Board finds that no higher ratings are warranted than currently assigned. Moreover, the criteria for any higher rating are not more nearly approximated than are the criteria for the currently assigned ratings. In light of these findings, the Board concludes that increased ratings are not warranted for either lower extremity during any portion of the period on appeal. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.

TDIU Claim

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15.

A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a).

A total disability rating for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a).

In this case, the combined disability rating is 100 percent from February 13, 2008, to December 6, 2010, 70 percent from December 6, 2010, to November 21, 2017, and 80 percent since November 21, 2017. Accordingly, the schedular TDIU requirements are met. 

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Veterans Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91.

The Veteran's work history includes work as a carman for a railroad, self-employment, and work in sales. Pertinent to any of these positions is the Veteran's reported use of pain medications which affect his alertness, reactions, thinking, and personality. See Mingo v. Derwinski, 2 Vet. App. 51 (1992) (in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability).

The question of whether an individual is capable of obtaining and maintaining employment must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975).

In light of the Veteran's limited work history, which involves occupations requiring either physical capacity or direct social contact, the Veteran's combined service-connected psychiatric, cardiovascular, neurological, and endocrine disabilities, have had a significant impact on his ability to engage in a substantially gainful occupation. The Board finds that the evidence in favor of the claim has attained relative equipoise with the evidence against the claim. With resolution of all reasonable doubt in favor of the claim, the Board finds that the criteria for TDIU have been met. 

In sum, the Board finds that the Veteran's combined service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. In light of these findings, the Board concludes that TDIU is 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, 371 (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).




____________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals

ATTORNEY FOR THE BOARD	L. Cramp, Counsel

Copy mailed to: Michael R. Viterna
 

Department of Veterans Affairs