Citation Nr: 18112488 Decision Date: 06/19/18 Archive Date: 06/19/18 DOCKET NO. 14-19 840A DATE: June 19, 2018 ORDER A rating in excess of 20 percent for service-connected left lower extremity peripheral neuropathy is denied. A rating in excess of 20 percent for service-connected right lower extremity peripheral neuropathy is denied. REMANDED Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected left lower extremity peripheral neuropathy is productive of no more than moderate incomplete paralysis of the sciatic nerve. 2. The Veteran’s service-connected right lower extremity peripheral neuropathy is productive of no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for service-connected left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8620 (2017). 2. The criteria for a rating in excess of 20 percent for service-connected right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8620 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2011 and February 2017 rating determinations from the Department of Veterans Affairs (VA) Regional Office (RO). The February 2017 RO decision increased the rating for the left and right lower extremity neuropathy to 20 percent disabling, effective July 15, 2015. In April 2015 Veteran gave testimony at a hearing at the RO before a local hearing officer. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In April 2015 the Veteran gave testimony (concerning primarily the TDIU claim) at the RO before a local hearing officer. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Laws and regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). 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 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran is currently rated for his peripheral neuropathy of the lower extremities under Diagnostic Code 8620, which provides ratings for neuritis of the sciatic nerve. Diagnostic Code 8620 provides that mild incomplete neuritis is rated 10 percent disabling; moderate incomplete neuritis is rated 20 percent disabling; moderately severe incomplete neuritis is rated 40 percent disabling; and severe incomplete neuritis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation with foot dangle and drop, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.123, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. The term “incomplete paralysis” 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. 38 C.F.R. § 4.124a. Analysis The Veteran was granted service connection for bilateral lower extremity neuropathy (associated with service-connected diabetes mellitus) in December 2009 and was assigned a rating of 10 percent, effective May 8, 2009. A February 2017 supplemental statement of the case increased the rating for the left and right lower extremity neuropathy to 20 percent disabling, effective July 15, 2015. The main evidence in this case is a July 2015 VA Diabetic Sensory-Motor Peripheral Neuropathy examination. At that examination, the Veteran was diagnosed with diabetic neuropathy of the bilateral lower extremities. The Veteran reported pain, numbness, and tingling in all extremities. Pain in the lower extremity was noted as none, with paresthesias and/or dysesthesias of the lower extremities noted as being moderate. Numbness of the lower extremities was also moderate. Strength testing of the knees and ankles was 5/5, and deep tendon reflexes (DTRs) were 2+ in the knees and 1+ in the ankles. Light touch/monofilament testing results indicated that the knees and ankles/lower leg were normal, with “decreased” noted for the toes. Position sense of the lower extremities was normal, with vibration sensation and cold sensation of the lower extremities noted as being decreased. The Veteran’s lower extremity diabetic peripheral neuropathy was characterized as mild incomplete paralysis of the sciatic nerve. There was no muscle atrophy and the Veteran had no other pertinent physical findings, complications, conditions, signs and/or symptoms related to his lower extremity peripheral neuropathy. As for the impact of the Veteran’s diabetic peripheral neuropathy on his work, the examiner indicated as follows: “Veteran reports he is able to walk up to 1/2 mile on even surface, but only 100 ft on uneven terrain. He reports he is able to stand for up to 10 minutes. He reports he is able to push/pull a cart on wheels. He reports he is able to lift up to 20 pounds and is able to carry the weight for a short distance. He reports he is able to climb stairs one at a time, is slow and requires a hand rail. He reports he avoids climbing a ladder. He reports he is able to sit for up to 30 minutes to all day. He reports he is able to keyboard (hunt and peck). He reports he is able to bend, but tries to avoid it, he reports he has difficulty getting back up to a standing position. He reports he is not able to kneel or squat. The veteran’s service connected diabetic neuropathy would prevent him from performing physical labor repetitive lifting, carrying, walking, standing, and/or climbing. He would be able to perform sedentary labor with frequent breaks.” After consideration of the medical and lay evidence, the Board finds that the Veteran is not entitled to higher ratings. To warrant a higher rating for his left and right lower extremity peripheral neuropathy, the evidence would have to show moderately severe incomplete paralysis. Although some of the Veteran’s symptoms have been marked as moderate, the evidence of record has not shown that the Veteran’s left or right lower extremity peripheral neuropathy has been manifested by symptoms that are moderately severe, and there has been no showing of muscular atrophy. As for evidence other than the July 2015 VA examination, while VA treatment records dated in April 2016, November 2016, and December 2016 noted some diminished pulses and vibratory sensation, and some varicosities of the ankles, lower extremity muscle strength was consistently 5/5. In sum, there is no evidence indicating moderately severe incomplete paralysis of the lower extremities. Conclusion The Board has been mindful of the “benefit-of-the-doubt” rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit favorable determinations. 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. Ap. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raisoed by the evidence of record). REASONS FOR REMAND As for the TDIU claim, the Veteran is currently service connected for the following disabilities: Posttraumatic stress disorder (PTSD) (rated at 30 percent); diabetes mellitus (rated at 20 percent); cervical spine degenerative disc disease (rated at 20 percent); left lower extremity peripheral neuropathy (rated at 20 percent); right lower extremity peripheral neuropathy (rated at 20 percent); left upper extremity peripheral neuropathy (rated at 20 percent); right upper extremity peripheral neuropathy (rated at 20 percent); tinnitus (rated at 10 percent); and bilateral hearing loss (rated as noncompensable). The Veteran’s combined rating is 90 percent. The Veteran has indicated that he has not worked since 2011 (and that was only part-time), and it is unclear whether the Veteran’s service connected disabilities, alone, render him unemployable. In this regard, the Veteran has indicated that he most recently stopped working due to nonservice-connected disability (shingles). Accordingly, the Board finds that the Veteran should be scheduled for appropriate VA examinations to determine the impact of the service connected disabilities on gainful employment. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after February 13, 2017. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination or examinations to determine the impact of the Veteran’s service-connected disabilities on his employability. An examination must be conducted for each service-connected disability. The entire claims file must be made available to and be reviewed by the examiners. Each examiner must elicit and set forth pertinent facts regarding the Veteran’s medical, education, and employment history. Following the appropriate examination, the examiner must provide a statement regarding the impact of the disability on the Veteran’s ability to obtain and maintain gainful employment. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Nelson