Citation Nr: 20005727 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 09-43 077 DATE: January 23, 2020 ORDER Entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321 for peripheral neuropathy of the right lower extremity is denied. Entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321 for peripheral neuropathy of the left lower extremity is denied. Entitlement to a TDIU from September 15, 2008 to May 3, 2012 is granted. FINDINGS OF FACT 1. The Veteran’s service connected peripheral neuropathy of the right lower extremity is not so exceptional or unusual, due to such related factors as marked interference with employment or frequent periods of hospitalization, that application of the regular rating criteria is impractical. 2. The Veteran’s service connected peripheral neuropathy of the left lower extremity is not so exceptional or unusual, due to such related factors as marked interference with employment or frequent periods of hospitalization, that application of the regular rating criteria is impractical. 3. As of September 15, 2008, the Veteran’s service-connected disabilities have a combined rating of 80 percent, with at least one service-connected disability rated 40 percent disabling. 4. For the rating period from September 15, 2088 to May 3, 2012, the Veteran has been rendered unable to maintain substantially gainful employment due to the service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321 for peripheral neuropathy of the right lower extremity have not been met. 2. The criteria for entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321 for peripheral neuropathy of the left lower extremity have not been met. 3. From September 15, 2008 to May 3, 2012, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1961 to December 1967. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Board granted an increase rating for the Veteran’s right and left lower extremity to 20 percent. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2017 decision, the Court affirmed the schedular rating and remanded the case to the Board for extraschedular analysis. In February 2018, the Board remanded the issues to the AOJ for further development associated with the Court decision. In October 2018, the Board denied entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321 for peripheral neuropathy of the right and left lower extremities. Before the Court issued a decision, in July 2019, the parties filed a joint motion for remand (JMR). In the JMR, the parties agreed that the Board erred when it determined that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 3, 2012, was not before it. The joint motion would vacate and remand to the Board the issues of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321 for peripheral neuropathy of the right and left lower extremities and consider the issue of entitlement to TDIU for readjudication consistent with the remand instructions. The Court granted the joint motion in July 2019. The case returned to the Board. Increased Rating The Veteran seeks higher evaluation for peripheral neuropathy of the right and leg lower extremities on an extraschedular basis. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities. According to 38 C.F.R. § 3.321 (b)(1), ratings are to be based as far as practicable upon the average impairment of earning capacity. However, in those exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation can be provided commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. Initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for a given disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms' (including marked interference with employment and frequent periods of hospitalization). If so, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation Service, for a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008). Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. The Board cannot award an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Here, however, the Veteran's claim was already referred for consideration of an extraschedular rating by the Director, Compensation Service (Director). In May 2018, the Director issued an advisory opinion finding that an extraschedular rating was not warranted. The Board is not bound by this decision and will conduct its own de novo analysis. Ray v. Wilkie, 31 Vet. App. 58, 63 (2019) (citing Wages v. McDonald, 27 Vet. App. 233, 238 (2015)). Based on consideration of all evidence of record, the Board finds that an extraschedular rating is not warranted. 1. Entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321 for peripheral neuropathy of the right lower extremity 2. Entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321 for peripheral neuropathy of the left lower extremity The Veteran’s right and left lower extremity peripheral neuropathy are each separately evaluated as 20 percent under the provisions of 38 C.F.R. § 4.124 (a), Diagnostic Code 8520. The schedular criteria for a 40 percent evaluation is moderately severe incomplete paralysis of the sciatic nerve, which is not present in either lower extremity as noted by the March 2016 Board decision. The schedular criteria further contemplates higher levels of incomplete paralysis and complete paralysis as manifested by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. In a July 2013 statement, the Veteran asserted that his bilateral lower extremity peripheral neuropathy is so severe that it causes severe fatigue and has resulted in several visits to the ED. Medical record shows several visits to the emergency department. In January 2013, July 2016, and December 2016 the Veteran visited the ED with chief complaints of fatigue, sleepiness, increase frequency of urination, lack of appetite and nausea. In January 2017 the Veteran was seen again at the emergency department with complaints of difficulty breathing, generalized weakness and shortness of breath. However, there has been only one visit to the ED where he was prescribed medication for neuropathic pain in November 2015. In an August 2013 VA examination, the examiner found that the Veteran's peripheral neuropathy of the lower extremities did not interfere with the Veteran's ability to work. At that examination, the Veteran denied any symptoms of peripheral neuropathy. A November 2015 VA examination noted mild numbness and paresthesias/dysesthesias of the bilateral lower extremities, but again noted that the Veteran's ability to work was not affected. The Veteran has reported that his peripheral neuropathy of the lower extremities causes numbness, pain, and fatigue. These complaints are the types of symptoms that are contemplated by a peripheral neuropathy diagnosis. Indeed, these complaints describe the difficulties of having nerve damage in the lower extremities, for which he is being compensated for appropriately under the Rating Schedule. In regard to the first element of Thun, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Board acknowledges the Veteran’s assertion that his symptom of fatigue is not contemplated under the schedular criteria. However, given the broad nature of § 4.124, finding symptoms not contemplated by ‘impairment of motor, sensory or mental function’ language presents quite a challenge.” Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. The Veteran is currently in receipt of TDIU. However, the evidence of record does not show that his peripheral neuropathy of the bilateral lower extremities alone causes interference with work. An extraschedular rating is intended to fill any gap between the Rating Schedule and a TDIU. Johnson, 762 F.3d at 1362. The symptoms which the Veteran argues warrant an extraschedular rating do not result in marked interference with employment or frequent periods of hospitalization. There is no exceptional disability picture to render the available schedular ratings inadequate. The Board finds an extraschedular consideration is not warranted, because the Veteran's bilateral peripheral neuropathy of the lower extremities does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 3. Entitlement to a TDIU prior to May 3, 2012 is granted. The Board acknowledge that, in Rice v. Shinseki, 22 Vet. App. 447 (2209), the Court held that a claim for a total disability rating based on individual employability due to service connected disabilities (TDIU) is considered a component of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. A TDIU was granted by the RO in an August 2013 rating decision, effective May 3, 2012. Because, however, this award was not made effective for the entirety of the appeals period, the issue of entitlement to a TDIU prior to May 3, 2012 remains before the Board. A total disability evaluation based on unemployability is warranted when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Generally, a total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a veteran is found to be unemployable solely due to his service connected disabilities, then the case is to be referred to the Director of the Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). Factual Background & Analysis Initially, the Board notes that although the Veteran filed a formal application for entitlement to TDIU in May 2012, his claim for TDIU is part and parcel of his September 2008 increased rating claim for peripheral neuropathy of the lower extremities. See Rice v. Shinseki, Id. During the pendency of his appeal, the Veteran alleged being unemployable since 2000 when he was forced to an early retirement. See March 2018 Statement. More recently, the Veteran contends that TDIU is warranted from September 15, 2008 due to his service connected disabilities. See November 2019 Letter from the Veteran’s representative. For the period from September 15, 2008 until May 3, 2012, the Veteran has been service connected for his PTSD at 30 percent from December 27, 2006, diabetes mellitus type II with erectile dysfunction at 20 percent from May 8, 2001, bilateral upper peripheral neuropathy at 20% each extremity from September 15, 2008, and bilateral lower peripheral neuropathy at 10 percent for each extremity from September 8, 2006 to September 15, 2008 and 20% for each extremity from September 15, 2008. His combined disability rating is 80 percent since September 15, 2008 and 90 percent since May 3, 2012. After reviewing all the evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether the service-connected disabilities prevented the Veteran from obtaining or maintaining substantially gainful employment from September 2008. From the medical records available on file, the Board notes that the Veteran has a Bachelor’s degree in Fine Arts. The Veteran has worked as case social worker, and prior to that he worked as sales representative, engineering assistant, and janitor. The record show that the Veteran salary from work until 2002 and his earnings in 2001 and 2002 were marginal. The Veteran asserted that he had to quit his job with the Census Bureau in 2002 because he was unable to see properly due to his diabetic retinopathy. See May 2012 VA Form 21-8940. In July 2008, the Veteran reported been more depressed, anergic and sleeping more due to his PTSD. In a July 2009 statement, the Veteran states that he cannot obtain work of any kind that requires writing due to numbness and limited use of his right hand. An October 2017 TDIU Assessment, vocational consultant, C.B., opined “that the Veteran has been unable to secure and follow substantially gainful employment since at least 2008, when the combination of his service connected PTSD, DMII and PN of all four extremities rendered him unable to work in even an unskilled sedentary position.” The Consultant further opined that the Veteran early retirement in 1998 is attributable to his, later diagnosed, PTSD as severe, disabling and permanent; his bilateral lower PN symptoms that seriously compromised the Veteran’s employability until around 2007-2008. Vocationally, he considered the Veteran to have been a fall risk after January 2008, in addition to being totally disabled by his PTSD. The Veteran’s was afforded a VA examination for PTSD in August 2011, the examiner then opined that his symptoms create mild impairment in social function, when working the Veteran have no significant conflicts with co-workers or supervisors. In a September 2011 Addendum, the examiner opined that his PTSD causes mild to moderate impairment in social and occupational functioning. (Continued on the next page)   The Veteran's service-connected disabilities preclude the type of employment for which the Veteran is trained and for which he has experience, beginning in September 2008. Considering statements from the Veteran, as well as the VA examination reports, and other private and VA treatment records, the Board finds that the Veteran's service-connected disabilities render him unable to maintain substantially gainful employment, regardless of occupation, from September 2008; thus, the Board finds that TDIU is warranted under 38 C.F.R. § 4.16 (a) from October 2010. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.