Citation Nr: 21068846 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 16-62 569 DATE: November 15, 2021 ORDER Service connection for a knot or lipoma on the right forearm is granted. An initial disability rating greater than 10 percent for right lower extremity radiculopathy (previously characterized as diabetic neuropathy, right lower extremity), is denied. An initial disability rating greater than 10 percent for left lower extremity radiculopathy (previously characterized as diabetic neuropathy, left lower extremity), is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran has a current diagnosis of a lipoma on his right forearm which has been related to his service. 2. Since the grant of service connection, the Veteran's right lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve. 3. Since the grant of service connection, the Veteran's left lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve. 4. Resolving all reasonable doubt in the Veteran's favor, he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities throughout the entire period on appeal (i.e., since August 20, 2013). CONCLUSIONS OF LAW 1. The criteria for service connection for a lipoma on the right forearm have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial disability rating greater than 10 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. 3. The criteria for an initial disability rating greater than 10 percent for left lower extremity peripheral radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, DC 8520. 4. The criteria for a TDIU have been met since August 20, 2013. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from December 1962 to December 1982. These matters come before the Board of Veterans Appeals (Board) on appeal from June and July 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Specifically, the June 2014 rating decision, in part, granted service connection for diabetic neuropathy of the bilateral lower extremities, assigning separate 10 percent disability ratings effective August 20, 2013. The July 2014 rating decision continued a previous denial of entitlement to service connection for a knot or lipoma on the right forearm. This case was previously before the Board in September 2019 at which time the Board, in part, reopened the previously denied claim of entitlement to service connection for a knot or lipoma on the right forearm based on the submission of new and material evidence and remanded this issue, along with the radiculopathy issues for additional development. The Board also found that the TDIU issue had been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) as part and parcel of the increased rating claims on appeal and remanded the TDIU issue for additional development as well. Subsequently, by rating decision dated in July 2021, the RO recharacterized the Veteran's bilateral lower extremity disabilities as radiculopathy instead of diabetic neuropathy. Legal Criteria Service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service-connected disabilities are assigned disability ratings. Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded. AB, 6 Vet. App. at 35. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In a decision, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Service connection for a knot or lipoma on the right forearm is granted. The Veteran contends that service connection is warranted for a knot or lipoma on the right forearm. Specifically, he contends that he injured his right forearm during an airplane mishap in March 1974 and has continued to experience problems with his right forearm since his military service. In support of this assertion, the Veteran has submitted a March 1974 newspaper article noting a plane mishap at the Anchorage, Alaska airport that injured 12 people. However, the names of those injured was not included in this article. While the Veteran's service treatment records (STRs) do not show that he was involved in an airplane mishap in March 1974, they do show several complaints regarding the right arm. Specifically, STRs dated from February through May 1981 show complaints of right elbow/wrist pain following an injury, show a mass/cyst on the right elbow, and also show an impression of olecranon bursitis of the right elbow. Notably, during the course of this appeal, by rating decision dated in March 2019, the RO granted service connection for olecranon bursitis of the right elbow, assigning a 10 percent disability rating effective August 20, 2013. The Veteran submitted an initial claim for service connection for a right arm disability in February 1983. In connection with this claim, he was scheduled for a VA examination but failed to report to this examination. He sought to reopen the claim in October 1986 and, in connection with the claim to reopen, was afforded VA examinations in February and April 1987. Notably, the February 1987 VA examination shows that the Veteran has a wrist disorder that has resolved and does not bother him anymore. The April 1987 VA examination shows a subcutaneous lipoma and, in one area of the examination report indicates that this is on the right forearm but, on another area of the examination report, indicates that this is on the left forearm. By rating decision dated in May 1987, the RO denied service connection for lipoma, noting that, while the Veteran was found to have a subcutaneous lipoma of the right forearm, this was first shown in 1987, approximately five years after the Veteran's separation from service. The Veteran sought to reopen the previously denied claim in August 2013. In connection with this claim, he was afforded a VA arm examination in September 2017. Significantly, this examination shows diagnoses of olecranon bursitis of the right arm (noting an onset during the Veteran's military service) as well as lipoma of the right forearm (noting an onset in 1987). With regard to the lipoma, the examiner opined that the Veteran's right forearm lipoma is less likely than not incurred in during service. As rationale for this opinion, the examiner noted that there is no documentation to support that the Veteran was evaluated for a right forearm lipoma during service time and the earliest indication of a lipoma of the right forearm is dated in April 1987 which was 5 years after discharge from the service. Pursuant to the September 2019 Board remand, the Veteran was afforded a VA skin examination in May 2021. This examination report shows a diagnosis of lipoma, right forearm posterior surface with an onset in 1968 (during the Veteran's military service). The examiner then went on to provide three separate medical opinions regarding the etiology of the Veteran's right forearm lipoma. First, in June 2021, the examiner provided a positive nexus opinion, finding that it was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale for this opinion, the examiner noted that the Veteran had no issues related to the claimed lipoma prior to military service, the onset of the condition was during service, documented in the STRs, and there was evidence of current, chronic, and continuous treatment and care. Subsequently, but also in June 2021, the examiner provided a negative nexus opinion, finding that it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale for this opinion, the examiner noted that lipomas are fatty tissue that grow slowly over time. They are not caused by trauma or certain events. During service, the condition was acute only and there is no evidence of chronicity of care. Thereafter, in August 2021, the examiner provided another negative nexus opinion, this time on a secondary basis, finding that the Veteran's lipoma was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected olecranon bursitis of the right elbow and/or due to the Veteran's active duty service on a direct basis, including a plane accident. As rationale for this opinion the examiner noted that lipomas are fatty tissue that grow slowly over time and are not caused by trauma or certain events. There is no mention of a right forearm condition during service and the Veteran only had right elbow complaints during service. While the Veteran's 1981 separation exam mentions a right elbow condition, it does not mention a lipoma or skin condition. The lipoma is not mentioned until the examination in May of 1987. The claims file is otherwise silent for on-going condition, complaint, or treatment of the lipoma from at least 1987 until the 2017 examination. There is a 30 year gap in care. Upon review of the above, the Board finds that the evidence of record is in relative equipoise and, affording the Veteran the benefit of the doubt, service connection for a lipoma of the right forearm is warranted. As an initial matter, the Board finds that the Veteran has a current diagnosis of lipoma of the right forearm. The only matter still in question is whether there is a medical link between the Veteran's current lipoma of the right forearm and his military service. In this case, the record contains both positive and negative nexus opinions. Significantly, the first June 2021 VA opinion of record relates the Veteran's lipoma of the right forearm to the Veteran's military service on a direct basis, finding that the Veteran had no issues related to the claimed lipoma prior to military service, the onset of the condition was during service, documented in the STRs, and there was evidence of current, chronic, and continuous treatment and care. While the September 2017, second June 2021, and August 2021 VA opinions have found that the Veteran's lipoma of the right forearm is not related to the Veteran's military service on either a direct or secondary basis, none of these opinions consider the in-service findings of a mass on the right arm. Furthermore, the continued symptoms evident from the statements from the Veteran, as well as the positive medical nexus opinion discussed above provide a plausible basis to conclude that a current lipoma of the right forearm is related to his military service. With resolution of all reasonable doubt in the Veteran's favor, it is concluded that the evidence supports service connection for a lipoma of the right forearm. 38 U.S.C. § 5107(b). 2. Initial disability ratings greater than 10 percent for bilateral lower extremity radiculopathy (previously characterized as diabetic neuropathy, bilateral lower extremities), are denied. As above, by rating decision dated in June 2014, the RO granted service connection for diabetic neuropathy of the bilateral lower extremities, assigning separate 10 percent disability ratings effective August 20, 2013. The Veteran disagreed with this decision and perfected this appeal. Subsequently, by rating decision dated in July 2021, the RO recharacterized the Veteran's bilateral lower extremity disabilities as radiculopathy instead of diabetic neuropathy. The Veteran's service-connected radiculopathy of the lower extremities is rated under the provisions of 38 C.F.R. § 4.124a, DC 8520. DC 8520 assigns 10, 20, 40, and 60 percent ratings for incomplete paralysis of the sciatic nerve that is mild, moderate, moderately severe, and severe with marked muscular atrophy, respectively. 38 C.F.R. § 4.124a, DC 8520. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis for a particular 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. Peripheral 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. Evidence relevant to the severity of the Veteran's radiculopathy of the lower extremities includes a January 2014 VA diabetes examination report as well as a May 2021 VA peripheral nerves examination report. During the January 2014 VA diabetes examination, it was noted that the Veteran had no complications from his service-connected diabetes, to include diabetic peripheral neuropathy. During the May 2021 VA peripheral nerves examination, the examiner noted a diagnosis of diabetic neuropathy of the bilateral lower extremities. It was noted that this disability was due to the Veteran's service-connected diabetes mellitus and had its onset in 2015. The Veteran reported that he started having bilateral leg pain about 15 years earlier. He described the pain as dull and achy and that it starts at his hips and extends to his feet. The examiner noted that this pain was related to the Veteran's degenerative disc disease in his back. The examiner noted moderate constant pain, paresthesias and/or dysesthesias, and numbness of the right lower extremity and severe intermittent pain of the left lower extremity. Neurologic examination revealed normal strength and normal deep tendon reflexes for all joints. Light touch/monofilament testing was normal for all areas. Position sense and cold sensation were normal and vibration sensation was normal for the bilateral lower extremities. There was no muscle atrophy and there were no trophic changes. The examiner found that there was incomplete paralysis of the sciatic nerve of the bilateral lower extremities of a mild severity. There were no other pertinent findings and electromyography (EMG) testing was not done. The examiner found that the Veteran's diabetic peripheral neuropathy impacted his ability to work as the Veteran was unable to sit or walk for a prolonged time. Also of record are VA treatment records dated through October 2017. These records are consistent with the findings of the May 2021 VA examination report. Upon review of the above evidence, the Board finds that disability ratings greater than 10 percent for bilateral lower extremity radiculopathy are not warranted. The medical evidence of record reflects that the Veteran's bilateral lower extremity radiculopathy is comparable to no more than mild incomplete paralysis of the sciatic nerve. Significantly, the May 2021 VA examiner characterized the Veteran's peripheral neuropathy of the lower extremities as mild. There were no objective findings of abnormalities with the reflexes or strength testing. There was no muscl atrophy. In sum, the symptoms were wholly sensory in nature. The Board concludes that the Veteran's radiculopathy of the lower extremities is not manifested by symptomatology that nearly approximates the criteria for the next higher evaluation under DC 8520. 3. A TDIU is granted. As was noted in the September 2019 Board remand, a review of the record shows that the Veteran last worked in 2003 due, at least in part, to his service-connected disabilities. Specifically, at a January 2014 VA psychiatric examination, the Veteran reported that he "quit before [he] had another outburst" and he was seen as a complainer and a trouble-maker. In addition, at a VA heart examination in September 2017, the Veteran reported retiring in 2003 due to illnesses such as his diabetes. A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Significantly, the Veteran is service connected for posttraumatic stress disorder (PTSD) (rated as 50 percent disabling); lumbosacral strain with degenerative disc disease (rated as 40 percent disabling); hypertensive heart disease (rated as 30 percent disabling); diabetes mellitus with dermatophytosis (rated as 20 percent disabling); olecranon bursitis of the right elbow, bilateral hearing loss, tinnitus, and bilateral lower extremity radiculopathy (each rated as 10 percent disabling); as well as hypertension, bilateral tinea pedis, traumatic brain injury, headaches, and rash on testicles (each rated as noncompensably disabling). In this case, the Veteran meets the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a) given his combined 90 percent disability rating. Furthermore, he has met this criteria since August 20, 2013. As the Veteran has met the threshold criteria for a TDIU during the pendency of the appeal period beginning August 20, 2013. 38 C.F.R. § 4.16(a), the remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. During the course of this appeal, the Veteran has been afforded several VA examinations regarding his service-connected disabilities. Significantly, in a January 2014 VA psychiatric examination, the examiner noted that the Veteran's PTSD resulted in impaired judgment, disturbances of motivation and mood, as well as difficulty in establishing and maintaining effective work and social relationships. Also, in a January 2014 VA audiological examination, the examiner opined that the Veteran's service-connected bilateral hearing loss and tinnitus impacted his ability to work as, "at times, it can get a little distracting." More recently, a September 2017 VA spine examiner and a May 2021 VA peripheral nerve examiner opined that the Veteran's service-connected lumbar spine disability impacted his ability to work due to problems with prolonged walking/sitting/standing and heavy lifting/bending. Based on the foregoing, the Board finds that the medical evidence supports a finding that the Veteran's service-connected disabilities make him unemployable. As above, several VA examiners have found that the Veteran's service-connected disabilities significantly affect his ability to secure substantially gainful employment, both in a sedentary and physical setting. Therefore, affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability and, therefore a TDIU is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Furthermore, given the fact that the Veteran last worked in 2003, the Board finds he meets the requirements for TDIU since the date of his increased rating claim (August 20, 2013). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.