Citation Nr: 21063779 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 11-00 164A DATE: October 15, 2021 ORDER Resolving reasonable doubt in the Veteran's favor, a 20 percent rating for reflex sympathetic dystrophy (RSD) of the right foot and ankle is granted. Resolving reasonable doubt in the Veteran's favor, a 20 percent rating for RSD of the left foot and ankle is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's service-connected disability of RSD of the right and left foot and ankle is manifested by no more than moderate, incomplete paralysis of the external popliteal nerve. 2. The Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating for reflex sympathetic dystrophy of the right foot and ankle have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8521. 2. The criteria for entitlement to a 20 percent rating for reflex sympathetic dystrophy of the left foot and ankle have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8521. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in September 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018 the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. In an April 2020 decision, the Board, in pertinent part, denied entitlement to a rating in excess of 10 percent for RSD of the right foot and ankle; denied entitlement to a rating in excess of 10 percent for RSD of the left foot and ankle; and denied entitlement to TDIU. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated and remanded the portions of the April 2020 Board decision which denied entitlement to a rating in excess of 10 percent for RSD of the right foot and ankle; denied entitlement to a rating in excess of 10 percent for RSD of the left foot and ankle; and denied entitlement to TDIU. Increased Ratings Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C. § 1155. Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a 20 percent rating for reflex sympathetic dystrophy (RSD) of the right foot and ankle is granted. 2. Entitlement to a 20 percent rating for RSD of the left foot and ankle is granted. The Veteran is currently assigned separate 10 percent ratings for RSD of the left and right foot and ankles under Diagnostic Code 8521 since March 2008. That code pertains to paralysis of the external popliteal nerve (common peroneal). Under DC 8521, mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis is rated 40 percent disabling and is exemplified by symptoms, such as foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; and anesthesia covers entire dorsum of foot and toes. 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 ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The terms "mild," "moderate," and "severe" are not defined in the rating schedule. 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. On VA neurological examination in February 2009, the examiner noted no change of the skin color of either foot compared with either ankle or lower extremities. The skin was warm. Deep tendon reflexes were 1+ and equal bilaterally. On the dorsal skin of the right foot, there was a numbness on pinprick examination. On the plantar skin, the pinprick test was very painful. He had hypersensitivity and pain during this examination. There was normal pulse on the right dorsalis pedis artery. On examination of the left foot, there was numbness of the dorsal skin on pinprick examination. There was hypersensitivity of the plantar skin of the left foot. The examination showed hypersensitivity with increased pain during pinprick examination. The Veteran was able to do tiptoeing and to stand on his heels. The weight-bearing on both feet was very painful because of increased pain of both plantar feet and the Veteran was using crutches for ambulation because of his severe pain in both feet. There was no paralysis of the lower extremities. The Veteran reported pain and paresthesias of the skin of both lower extremities. He had normal muscles of both lower extremities. There was no atrophy. There was normal skin color and normal skin temperature. The examiner noted that the Veteran was continuing to be in severe pain because of his bilateral foot condition with reflex sympathetic dystrophy. On VA nerves examination in September 2017, the Veteran reported constant pain in the feet and tenderness. The Veteran did not want to be touched due to pain. The examiner noted moderate numbness and moderate paresthesias or dysesthesias of the lower extremities. The examiner noted no swelling or skin changes characteristic to RSD. It was the examiner's opinion that the Veteran's diagnosis of RSD of bilateral ankle/feet rendered in 1991 was "questionable since he was evaluated at the same time by Orthopedic specialist who did not diagnose him with RSD and diagnosed with plantar fasciitis. Currently he does not have characteristic observable limb swelling or skin changes to support RSD diagnosis." The examiner also noted that the Veteran had other diagnoses, including diabetic polyneuropathy and degenerative disc disease (spinal stenosis) with probable radiculopathy, which may also cause peripheral neuropathy symptoms. The examiner further noted that relative age-related B12 deficiency and idiopathic neuropathy may also contribute to the Veteran's current symptoms. The examiner stated that there was "no evidence that current symptoms in feet are due to RSD." EMG testing noted bilateral lower extremity distal polyneuropathy that was consistent with diabetes mellitus. The Veteran's current 10 percent ratings for his left and right foot/ankle RSD disability are based on a finding that his bilateral incomplete paralysis of the external popliteal nerve was of mild severity. Resolving reasonable doubt in favor of the Veteran, the Board assigns 20 percent ratings for moderate, incomplete paralysis. The disability manifests with subjective symptoms of pain and numbness. Indeed, during the 2009 VA examination there was evidence of numbness in both feet on pinprick testing and pain increased during such testing. There also was hypersensitivity of the plantar skin of both feet. During the 2017 examination, the Veteran reported constant pain in the feet and tenderness, and on objective evaluation, the examiner considered the severity of the service-connected disability to be no more than moderate. He expressly indicated there was moderate numbness and moderate paresthesias or dysesthesias of the lower extremities. The Board finds the examiner's assessment of the severity of the condition based on clinical examination and record review to be probative. For these reasons, and resolving all reasonable doubt in the Veteran's favor, 20 percent ratings are assigned. Even higher ratings are not warranted because the Veteran's symptoms for his RSD of the feet and ankles have not more nearly approximated a greater level of disability. In differentiating between the levels of severity contemplated by 38 C.F.R. § 4.124a, DC 8521, the Board notes that where the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. The Veteran's reported symptoms are only pain, hypersensitivity, and numbness; these symptoms are wholly sensory in nature, thus no more than a moderate rating would be warranted. In the absence of additional and/or more severe symptoms that are no sensory in nature, such as muscle atrophy or trophic changes, higher ratings are not warranted. The reflex testing in February 2009 was normal. There have been no findings of muscle atrophy or abnormal tone or bulk. There also is not complete paralysis. Furthermore, while an August 2012 VA examiner noted pain and tenderness of the feet associated with bilateral pes cavus. The Board notes that the Veteran is separately compensated for that disability. The Board has considered whether all of the Veteran's lower extremity nerve symptoms should be attributed to his service-connected RSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). However, in this case, the Board finds that the probative medical evidence of record indicates that the Veteran's symptoms are associated with diabetic retinopathy and/or degenerative disc disease and not with the service-connected RSD. The September 2017 examiner questioned the diagnosis of RSD of the feet and ankles, and noted that the Veteran had multiple other conditions that could contribute to his lower extremity neurological complaints. The examiner found no evidence that the Veteran's current symptoms in the feet were due to RSD, and EMG testing showed polyneuropathy consistent with diabetes mellitus. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. Again, the Board notes that pain and tenderness of the feet is separately compensated in the rating for the Veteran's service-connected bilateral pes cavus. The September 2017 examiner found no evidence that the Veteran's current symptoms in the feet were due to RSD. The examiner's opinion is supported by an adequate rationale, which included an explanation of the other conditions that would explain his symptoms. As the Veteran's reported symptoms, including numbness of the feet, have been found by the probative medical evidence of record to be related to nonservice-connected conditions, there is no basis for a finding that the symptoms of the service-connected RSD should be considered as more than moderate. The evidence does not support ratings in excess of 20 percent. The Board has considered whether staged ratings are appropriate. In evaluating the entire appeal period, however, the Board has found that the severity of the Veteran's RSD has remained relatively consistent. Thus, the assignment of higher staged ratings is not warranted. Resolving all reasonable doubt in the Veteran's favor, separate 20 percent ratings, but not higher, are warranted for RSD of the bilateral feet/ankles. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 3. Entitlement to TDIU 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. See 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." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). Where these percentage requirements are not met, entitlement to the 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. See 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. In this case, a TDIU is denied as the evidence does not show that the Veteran is precluded from a gainful occupation by reason of his service-connected disabilities. The Veteran's service-connected disabilities consist of bilateral pes cavus, rated as 30 percent disabling; RSD of the right foot and ankle (20 percent); and RSD of the left foot and ankle (20 percent). His combined service-connected disability rating is 60 percent. See 38 C.F.R. § 4.25. Although the schedular criteria are not met for TDIU, the Board's review of the evidentiary record does not warrant referral to the Director of the Compensation Service for extraschedular consideration. On VA Form 21-8940 completed by the Veteran in August 2011, he reported having last worked in 1991. He did not indicate the type of employment he had been engaged in prior to that time. The Veteran reported that a TDIU is warranted as he is unable to work due to "my s/c disability. I am on crutches and have had neck surgery and shoulder surgery. I am on morphine liquid and pill and Valium and muscle relaxers." He indicated that he had completed high school. The record shows that the Veteran has work experience as a welder, factory worker, landscaper, and in auto parts retail sales. The record does not demonstrate that the Veteran is incapable of employment consistent with his prior work history and education because of his service-connected disabilities. A VA examiner in August 2012 stated that the "Veteran would be able to work in a sedentary occupation setting due to RSD and pain in feet and the need for constantly being on crutches. He would not be able to work in a physical occupation due to the fact he has to be on crutches, and the amount of pain he is in when on feet. He has pain management at least monthly." A VA examiner in September 2017 noted that the Veteran was "unable to work due to multiple medical conditions." The Veteran testified before the undersigned that he spent up to 80 percent of his time in bed and was unable to work: Because since they have determined that it is throughout my whole body and if you look at complex regional pain syndrome, all of the things that I do have going on in my body is caused by RSD, even down to the bulging disc, osteoarthritis, the pain, the heat changes, the spasms. I also have sweat, excessive sweating, memory loss, short term memory. I have a lot of trouble remembering things that's why my wife takes care of my pills and stuff like that. There is no compelling evidence showing that the Veteran is unemployable solely due to service-connected disabilities of bilateral pes cavus and RSD of the feet and ankles. Rather, he has attributed his inability to work to conditions involving pain in multiple joints. As noted above, the disabilities of the shoulders, spine, knees and hands are not service-connected. The VA examiner in August 2012 found that the Veteran would be able to work in a non-physical job. The September 2017 examiner noted he was unable to work due to multiple medical conditions which clearly included numerous non-service-connected disabilities. As noted above, the Board has considered whether all of the Veteran's lower extremity nerve symptoms should be attributed to his service-connected RSD. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, the Board finds that the probative medical evidence of record indicates that the Veteran's symptoms are associated with diabetic retinopathy and/or degenerative disc disease and not with the service-connected RSD. The September 2017 examiner even questioned the diagnosis of RSD of the feet and ankles, and noted that the Veteran had multiple other conditions that could contribute to his lower extremity neurological complaints. The examiner found no evidence that the Veteran's current symptoms in the feet were due to RSD, and EMG testing showed polyneuropathy consistent with diabetes mellitus. Further, even if those nerve symptoms were attributed to the service-connected disability, the Board finds that the Veteran would still be able to perform work in a non-physical setting. In Withers v. Wilkie, the Court of Appeals for Veterans Claims (Court) held that the term "sedentary" has no legal significance to the issue of employability under VA regulations; it is not defined for VA employability purposes; and, when it is used, there must be an explanation as to how it is applied to a veteran's individual case. Withers v. Wilkie, 30 Vet. App. 139 (2019). Here, the Board takes the term sedentary, as used by the August 2012 VA examiner, to refer to a job that does not require the Veteran to be on his feet. This finding is consistent with the nature of his service-connected disabilities, bilateral pes cavus and RSD of the feet/ankles. The Board finds that while the Veteran's education and work experience may limit his employment opportunities, there is no persuasive evidence demonstrating that a lack of college degree would reasonably preclude the Veteran from all forms of non-physical employment, which includes office work where he could sit and answer telephones, greet customers, or do basic data computer entry; call center work, or front desk manager position where he could sit for a greater part of the day. Moreover, the record does not demonstrate, nor does the Veteran argue, that there is anything unique about the Veteran's educational background that would preclude him from obtaining non-physical employment, to include such office work as described above. While the Veteran believes his service-connected disabilities preclude his ability to work, his description on the 21-8940 as well as at the hearing included reference to nonservice-connected disabilities involving his neck and shoulders. The Veteran has previously sought service connection for disabilities of the shoulders, spine, knees, and hands. The September 2017 VA examiner noted that the Veteran was "unable to work due to multiple medical conditions." In the context ot this case, where the Veteran has identified multiple and varied disabilities involving numerous parts of the body, the Board does not find that the September 2017 examiner's statement contains any ambiguity such that it could be interpreted to mean that the examiner would find the Veteran unable to work due to his service-connected disabilities alone. Rather, had the examiner meant such, he had the opportunity to say so. Based on the above, the Board finds no basis in the evidentiary record for concluding that the Veteran's service-connected disabilities, which affect his feet/ankles, would preclude all forms of employment for which he would be qualified. In sum, the preponderance of the evidence is against the claim for a TDIU. As such, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, a TDIU is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.