Citation Nr: 20004670 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 15-24 412 DATE: January 21, 2020 ORDER An initial rating of 40 percent, but not higher, for peripheral neuropathy (PN), right lower extremity (RLE), is granted. An initial rating of 40 percent, but not higher, for PN, left lower extremity (LLE), is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s PN, bilateral lower extremities (BLE), was manifested by symptoms that were moderately severe. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but not higher, for PN, RLE, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for a rating of 40 percent, but not higher, for PN, LLE, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from September 1967 to October 1970, including service in the Republic of Vietnam. His awards and decorations included the Combat Action Ribbon. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. In August 2019, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to issue a supplemental statement of the case (SSOC) and to provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Board notes that a VA Form 21-8940 was sent to the Veteran in September 2016, and the requested SSOC was issued in October 2019. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). 1. Increased Ratings – PN, Right and Left Lower Extremities The Veteran filed a service connection claim for diabetes in May 2013. That claim was granted in an April 2014 rating decision which also granted entitlement to service connection for BLE PN which assigned 20 percent disability ratings effective the date of the claim. The Veteran seeks entitlement to increased initial ratings. In April 2014, the Veteran was afforded a VA examination. He reported a three-year history of progressive pain, burning, and pins and needles sensation in his bilateral foot. His intermittent pain was mild and his paresthesias and/or dysesthesias was moderate. On physical examination, his deep tendon reflexes (DTR) in both ankles were decreased. There was no evidence of muscle atrophy. Cold sensation in his BLEs were decreased. He had trophic changes characterized by loss of extremity hair to the lower third of his legs and some dermal changes consistent with venous stasis of both feet and ankles. His BLE sciatic nerve PN was found manifested by mild, incomplete paralysis. The Veteran underwent private EMG/NCS testing in June 2015. His neurologist indicated that the Veteran had decreased sensation, tingling, and numbness in his bilateral lower extremities, including his feet. He found that the Veteran had moderate to severe sensory PN. In October 2015, the Veteran was provided a VA examination. The Veteran indicated that he experienced mild and constant pain, moderate paresthesias and/or dysesthesias, mild numbness, burning, and tingling sensations in his bilateral lower extremities. Further, he reported that he could not stand or walk for prolonged periods of time or operate heavy equipment. He used a cane to aid unsteadiness and poor balance. On physical examination, his DTR in both knees and ankles were decreased. There was no evidence of muscle atrophy. Light touch and vibration sensations in his bilateral lower extremities were decreased. Additionally, he had moderate, incomplete paralysis of the sciatic nerves and mild, incomplete paralysis of the femoral nerves. The Veteran had an additional VA examination in August 2016. He indicated that he experienced mild intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness in his bilateral lower extremities. On physical examination, his DTR were normal and there was no evidence of muscle atrophy. Light touch sensations were decreased in his bilateral knees but absent in both ankles and feet. Position sensation was absent in his bilateral lower extremities. He had trophic changes characterized by loss of extremity hair, bilaterally. Additionally, he had moderately severe, incomplete paralysis of the sciatic nerves and severe, incomplete paralysis of the femoral nerves. A review of post-service private and VA treatment records showed that the Veteran has received additional treatment for his bilateral PN. However, there is no indication from the record that the Veteran’s symptoms were manifestly different than the findings discussed above. Based on the foregoing evidence, the Board finds that the Veteran is entitled to a 40 percent rating for PN of each lower extremity. In so finding, the Board acknowledges that the evidence has varied at various times throughout the appeal period. However, the Board notes that the Veteran’s symptomatology demonstrated more than sensory findings, such as decreased or, in some instances, absent sensation, diminished reflexes, trophic changes, and difficulty with balance. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that a 40 percent rating for PN, bilateral lower extremities, is warranted for the entire period on appeal. 38 C.F.R. § 4.124a, Diagnostic Code 8520; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board has considered the Veteran’s lay assertions regarding the severity of his symptoms. In this regard, the Board notes that the Veteran filed a July 2015 and November 2015 VA Form 9, Substantive Appeal, both of which show the Veteran asserted that his BLE PN was manifested by moderately severe symptomatology warranting 40 percent evaluations. Certainly, laypersons are competent to attest to physical symptoms that are experienced or observed. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As noted above, the Board agrees with the Veteran as to the severity of his BLE PN. The Veteran has not asserted more severe symptomatology. Consideration has further been given to assigning a rating in excess of 40 percent for PN of the BLEs. However, there is no indication from the record that the Veteran has severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. The Veteran’s muscle strength was normal and there was no evidence of muscle atrophy throughout the appeal period. Further, neither the VA examiners or the Veteran’s private neurologist have found that the Veteran had severe, incomplete paralysis of the sciatic nerve. Accordingly, the Board finds that an initial 40 percent rating, but no higher, is warranted for the Veteran’s service-connected RLE and LLE sciatic nerve PN, and those claims are granted. REASONS FOR REMAND 1. TDIU Pursuant to the August 2019 Board Remand, the issue of entitlement to a TDIU was found raised by the record and, therefore, was found part and parcel to the current increased rating claims on appeal. As noted above, the RO sent the Veteran a notice letter in September 2019, advising him of the criteria needed to substantiate a TDIU claim. Additionally, the RO requested that the Veteran complete VA Form 21-8940, Application for Increased Compensation Based on Unemployability, for the purpose of obtaining relevant employment information. To date, the Veteran has not provided the requested information. A review of the medical evidence of record includes an August 2016 VA PTSD examination which noted the Veteran was currently working full time as a heavy equipment operator, and that he had had a long 30-year career as a commercial driver. The Veteran reported that he was planning on retiring soon because “he wished to no longer work.” This is the most recent record contained in the claims file relevant to the Veteran’s employment. The Veteran is advised that in order to properly adjudicate this issue on appeal, he should complete and return VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Veteran is further advised that the duty to assist is not a one-way street; if a claimant wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board further notes that VA medical records also include the Veteran’s employment information. In this regard, a September 2014 VA medical record noted the Veteran was currently employed as a heavy equipment operator. The most recent VA medical record contained in the claims file is dated October 2014. The Board further notes that the August 2016 PTSD VA examination noted symptoms which might be found to interfere with the Veteran’s ability to be gainfully employed. Jurisdiction over entitlement to a TDIU also extends TDIU based on more than one disability. See Payne v. Wilkie, 31 Vet. App. 373 (2019). Accordingly, the Board finds that updated VA medical records should be obtained. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, with instructions to complete and return the form as to the period of time to the present the Veteran has been working. The Veteran should be specifically requested to provide information as to the income earned from his employment, specify the number of hours per week for any part-time employment, and any special circumstances attendant to such employment. CHRISTOPHER LAMB Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.