Citation Nr: 21014401 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-38 994A DATE: March 12, 2021 ORDER An initial rating higher than 10 percent for reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the left lower extremity is denied. An initial rating higher than 10 percent for reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the right lower extremity is denied. Total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the left lower extremity is manifest by no more than mild incomplete paralysis. 2. The Veteran’s reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the right lower extremity is manifest by no more than mild incomplete paralysis. 3. The Veteran’s service-connected disabilities do not preclude her from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8599-8524. 2. The criteria for an initial disability rating in excess of 10 percent for reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8599-8524. 3. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.2, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from August 2003 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2011 and September 2018, the Board remanded this matter for further development. Increased Rating Reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the left lower extremity Reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the right lower extremity Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability have exhibited signs or symptoms that would warrant different ratings under the rating criteria. The Veteran contends that she is entitled to a higher initial rating. For the following reasons the Board finds that a higher initial rating is not warranted. The Veteran’s bilateral reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the lower extremities is rated 10 percent disabling under Diagnostic Code (DC) 8599-8524. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. §§ 4.20, 4.27. When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using “99” for the last 2 digits. DC 8524 corresponds with incomplete paralysis of the internal popliteal nerve (tibial). 38 C.F.R. § 4.124a. A 10 percent rating is assigned for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 30 percent rating is assigned for severe incomplete paralysis. A maximum 40 percent rating is assigned for complete paralysis with plantar flexion lost, frank adduction of foot impossible, flexion and separation of toes abolished; no muscle in sole can move; in lesions of the nerve high in popliteal fossa, plantar flexion of foot is lost. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. “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 partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The terms “mild” and “moderate,” and “severe” are not defined in the VA Schedule for Rating Disabilities, and the use of terms by VA examiners and others, although an element to be considered by the Board, is not dispositive of the level of paralysis present. The Veteran has undergone multiple VA examinations throughout the appeal period. Her fist examination was in July 2006. At this examination her symptoms were described as fatigability, stiffness and achy, throbbing, crampy, and swelling. The Veteran’s symptoms manifested everyday with normal activities. In August 2017, the Veteran underwent a peripheral nerve condition examination. At this examination, she exhibited moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the lower extremities. The Veteran was found to have full muscle strength, normal reflexes, and normal sensation. The examiner found the Veteran to have mild incomplete paralysis of the musculocutaneous nerve (superficial peroneal), anterior tibial nerve (deep peroneal), internal popliteal nerve (tibial), and posterior tibial nerve. The Veteran also underwent VA examinations for her service-connected right and left ankle stress fracture that included muscle strength testing of her ankle. At her August 2017 examination, she exhibited active movement against some resistance on plantar flexion and dorsiflexion in both ankles. The Veteran underwent another ankle condition examination in September 2020. At this examination she exhibited active movement against some resistance on dorsiflexion and normal strength on plantar flexion in both ankles. VA treatment records show that the Veteran has consistently reported pain in her ankles. As early as November 2004, she reported that had constant pain in her ankles, even when not weightbearing. In an August 2010 addendum, it is noted that the Veteran has intermittent pain in her ankles for the past six years. At a September 2014 primary care appointment, the Veteran reported that she had bilateral achy ankle pain practically daily that worsens with running, wet weather, and prolong standing. The Board finds that an initial rating higher than 10 percent for bilateral reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the lower extremities is not warranted. Throughout the appeal period, the Veteran has consistently reported her symptoms as pain. Though numbness and paresthesias and/or dysesthesias was found in an August 2017 examination these symptoms have not been reported by the Veteran at any of her VA medical encounters. The Veteran also has exhibited some decreased muscle strength in her ankles, but this is not to the extent to warrant a 20 percent rating for moderate paralysis. As such, the Board finds that an initial rating higher than 10 percent for bilateral reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the lower extremities is not warranted. The Board notes that at her August 2017 peripheral nerves examination, that along with mild incomplete paralysis of the internal popliteal nerve (tibial), the Veteran also exhibited mild incomplete paralysis of the musculotendons nerve (superficial peroneal), anterior tibial nerve (deep peroneal), and posterior tibial nerve. However, separate ratings for these disabilities would constitute impermissible pyramiding. 38 C.F.R. § 4.14. As such, separate ratings cannot be assigned under the diagnostic codes for mild incomplete paralysis of the internal popliteal nerve (tibial), the Veteran also exhibited mild incomplete paralysis of the musculotendons nerve (superficial peroneal), anterior tibial nerve (deep peroneal), and posterior tibial nerve. For the foregoing reasons, the preponderance of the evidence is against awarding an initial rating higher than 10 percent for bilateral reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the lower extremities. In denying such a rating, the Board finds the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU In August 2017, the Veteran submitted an application for increased compensation based on unemployability. The Veteran contends that her bilateral reflex sympathy dystrophy syndrome (complex regional pain syndrome) of her lower extremities precludes her from obtaining and maintaining substantially gainful employment. Though a claim for TDIU was adjudicated by the RO and not appealed by the Veteran, as long as an increased rating claim remains pending, there is a pending TDIU claim with the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 454–55 (2009). Accordingly, the Board assumes jurisdiction over a claim for a TDIU. A TDIU 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 because of a single service-connected disability ratable at 60 percent or more, or because 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, 3.341, 4.16(a). The central inquiry in determining whether a TDIU is warranted is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 365 (1993); 38 C.F.R. §§ 4.16, 4.19. Throughout the appeal period, the Veteran has been service connected for right ankle talus stress fracture, left ankle talus stress fracture, reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the right lower extremity, and reflex sympathy dystrophy syndrome (complex regional pain syndrome) of the left lower extremity. Her combined rating was 40 percent until January 14, 2011, when it was 50 percent. Accordingly, the Veteran does not meet the schedular criteria for a TDIU. However, notwithstanding the above listed schedular criteria, a veteran may be awarded a TDIU on an extraschedular basis if she is nonetheless unemployable on account of her service-connected disabilities. Such a TDIU claim may be submitted to the Director of the Compensation Service. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Additionally, the Board is required to obtain the Director’s decision before the Board may award an extraschedular TDIU. Therefore, the Board may not adjudicate the issue of the Veteran’s entitlement to a TDIU in the first instance. Throughout the appeal period, the Veteran has undergone multiple VA examinations for her service-connected disabilities. At a January 2011 examination, the examiner opined that the Veteran would not be able to participate in occupations involving prolonged standing, walking, or repetitive range of motion of the ankles, but she would be able to participate in occupations that are sedentary or involve desk work. This finding was repeated in a September 2020 VA examination. In her application for Social Security disability benefits the Veteran reported that she can walk between a quarter and half mile before having to rest for three to twenty minutes. She also reported that she is able to do household chores such mowing the lawn and raking. It is noted that the Veteran’s prior work history consists solely of her military service. In her August 2017 application for TDIU, the Veteran reported that she completed two years of college. (Continued on the next page)   The Board concludes that the Veteran’s service-connected disabilities do not preclude her from obtaining and maintaining substantially gainful employment. Though her disabilities limit the Veteran’s ability to be on her feet for prolonged periods of time, there is no evidence that she is unable to sit for prolonged periods of time. Though the Veteran has a limited work history, there is no evidence that she is unable to perform a job outside of physical labor that would require prolonged sitting. As such, the Board cannot find that the Veteran’s service-connected disabilities interfered with her ability to obtain and maintain substantially gainful employment. As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, a TDIU is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.