Citation Nr: 21015580 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-38 935 DATE: March 17, 2021 ORDER Entitlement to service connection for bilateral lower extremity neuropathy is granted. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to May 1, 2013 is granted subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s bilateral lower extremity neuropathy is related to service. 2. The evidence is at least evenly balanced as to whether the Veteran’s service connected bilateral hearing loss precludes him from securing and following a substantially gainful occupation prior to May 1, 2013. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral lower extremity neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU prior to May 1, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1970. This case initially came to the Board of Veterans’ Appeals (Board) on appeal from August 2011 and October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Both rating decisions denied an increased rating for bilateral hearing loss. The October 2013 rating decision, inter alia, denied service connection for muscle damage. In November 2013, the Veteran timely filed his notice of disagreement, was issued a statement of the case in September 2015, and in October 2015 perfected his appeal to the Board. In November 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In September 2018, the Board, among other things, remanded the Veteran’s service connection claims for muscle damage. The Board also inferred the issue of entitlement to a TDIU as part and parcel of the claim for an increased rating for bilateral hearing loss. Rice v. Shinseki, 22 Veteran. App. 447 (2009). The RO denied the Veteran’s claim for service connection for muscle damage and entitlement to a TDIU, informing the Veteran in a November 2019 supplemental statement of the case. In April 2020, the Board granted a TDIU from May 1, 2013, remanded the Veteran’s claim for service connection for muscle damage for a new medical opinion, and remanded entitlement to a TDIU prior to May 1, 2013 to include for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). The RO denied the Veteran’s claim for service connection for muscle damage and denied a TDIU prior to May 1, 2013, notifying the Veteran in a January 2021 supplemental statement of the case. The Board notes that the Veteran submitted a VA form 10182 Notice of Disagreement for, among one other thing, the claim of entitlement to a TDIU in March 2020, electing a hearing review under the Appeals Modernization Act. However, the Veteran had previously perfected his appeal for that issue under the Legacy appeal system, thus the VA form 10182 is disregarded as to that issue as the Board’s jurisdiction has been established. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Muscle Damage/Bilateral Lower extremity peripheral neuropathy The Veteran testified that he suffers from muscle damage due to service in Germany when he was required to train in the field where it was very cold. He stated that the clothing provided did not adequately protect him from the cold. The Veteran reported temperatures in the teens while stationed in Germany and indicated that he suffered from frostbite a lot of times, for which he received treatment. He stated that he takes medication for his damaged muscles, and has muscle pain and numbness. The Veteran’s service treatment records do not reflect treatment for, or complaints of muscle damage, and his December 1969 medical examination report upon discharge is normal. There is no evidence in the Veteran’s post-service treatment records of muscle damage, or muscle damage symptomatology. In an April 2019 disability benefits questionnaire (DBQ), the examiner opined that the Veteran’s muscle damage was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event or illness, stating that there is no objective evidence in the Veteran’s medical records of a chronic diagnosis of muscle damage incurred in, or caused by cold weather exposure. She also indicated that there is no chronicity of care for a chronic muscle damage condition, thus a nexus cannot be established. The DBQ reflected a diagnosis of neuropathy, and indicated that the Veteran reported exposure to cold temperatures while stationed overseas, and having to train and sleep in the cold temperatures. He stated that he suffered cold injury to his feet, and that the symptoms worsen each year. The examiner noted no evidence of chronic muscle damage, and indicated the diagnosis of muscle strain was acute in nature. The examiner also noted that the Veteran’s symptoms included right and left foot arthralgia or other pain, numbness, and cold sensitivity, left foot color changes, and impaired sensation in the right foot. The DBQ reflected that the Veteran lost 2 to 4 weeks of work time in the last 12 months, and reported a limited ability to walk and stand for a prolonged period. A November 2020 DBQ reflected that the Veteran did not have a current diagnosis of a muscle injury. The examining nurse practitioner (NP) noted the Veteran’s report of generalized muscle pain in the 1970s during service for which the Veteran sought medical attention, and the Veteran’s statement that his symptoms have worsened, and include pain, stiffness, numbness, and muscle spasms to the back and feet on the left side more than the right. The NP opined that the Veteran’s claimed muscle injury was less likely than not (less than a 50 percent probability) incurred in or caused by an in-service injury, event, or disease, stating that while the Veteran claims a muscle injury due to freezing temperatures without adequate clothing in Germany, there is no evidence supporting the claim. She noted that the Veteran’s service treatment records do not note a muscle injury in service, and reported that there is no current diagnosis of muscle injuries. She also noted that the examination was normal with no evidence of decrease in muscle strength, no muscle atrophy, no fascia deficits, and no evidence of scarring from a muscle injury to support her opinion. While a valid claim must identify a sickness, disease, or injury relating to the disability for which compensation is sought, even at a high level of generality, Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2019), a claimant “is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition.” Delisio v. Shinseki, 25 Vet. App. 45, 53 (2011). “Moreover, even if a claimant attempts to identify his diagnosis in his claim for benefits, his claim is not limited necessarily to benefits for that diagnosis.” Id. “Overall, the scope of the claim will be based on a sympathetic assessment of “the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim,” i.e., the information gathered upon investigation.” Id. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court explained that in determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. Here, while the Veteran does not have a diagnosis of muscle damage, the April 2019 examiner noted a diagnosis of neuropathy in the bilateral lower extremities, i.e. the right and left foot. In light of the Court’s decision in Clemons, the Board has recharacterized the claim for muscle damage to entitlement to service connection for bilateral lower extremity neuropathy as stated on the title page of this decision, and his appeal is perfected to the Board as such. This will provide the most favorable review of the Veteran’s claim based on a sympathetic assessment of the evidence, and in keeping with the Court’s holding in Clemons. The Veteran has reported symptoms of pain, numbness, and spasms due to neuropathy since service that he stated have worsened. The Veteran is competent to report the symptoms associated with his bilateral lower extremity neuropathy and the Board has no reason to challenge the credibility of his contentions, thus his reports are afforded significant probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). While the April 2019 examiner and November 2020 NP opined that the Veteran’s muscle damage was less likely than not (less than a 50 percent probability) incurred in, or caused by a claimed in-service injury, event, or illness, they based their opinion on a lack of muscle damage, and did not opine as to the Veteran’s diagnosed bilateral lower extremity neuropathy. As there is sufficient evidence to adjudicate the appeal, a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand for additional development, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Moreover, to the extent that the grant of service connection in this case is based primarily on lay evidence, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.” Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran has a current diagnosis of bilateral lower extremity neuropathy, and has provided competent and credible evidence that he has suffered from symptoms of neuropathy since service. The evidence is thus at least evenly balanced as to whether the Veteran’s bilateral lower extremity neuropathy is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral lower extremity neuropathy is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. TDIU prior to May 1, 2013 In addressing the issue of entitlement to a TDIU prior to May 1, 2013, it is necessary to determine the relevant date of claim. The date of claim for the issue of entitlement to a TDIU is not the date of the formal TDIU claim (VA Form 8940), but rather, the date of the increased rating claim from which the TDIU was inferred. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). In this case, the Veteran filed a claim for an increased rating for bilateral hearing loss on April 30, 2010, the claim was denied in August 2011, additional evidence was received including a VA treatment referencing hearing loss received in October 2011, and the claim was readjudicated in October 2013, with the denial being continued. When a claim is readjudicated due to the receipt of new and material evidence within a year of the denial, the evidence is considered to have been filed in connection with the claim that was pending at the beginning of the appeal period. Consequently, the date of claim for purposes of adjudicating entitlement to a TDIU is April 30, 2010. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, due to his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by VA’s Director of Compensation Service when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to VA’s Director of Compensation Service is so warranted for extra-schedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board has done so, the Director advised denying TDIU prior to May 1, 2013 which was implemented by the RO, and the issue may therefore now be adjudicated by the Board. In doing so, the Board conducts de novo review and must consider the Director’s decision to be “in essence the de facto decision of the agency of original jurisdiction” and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Id (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). For the period prior to May 1, 2013, the Veteran was service connected for bilateral hearing loss, evaluated as 20 percent disabling from July 27, 2007; tinnitus, evaluated as 10 percent disabling from July 27, 2007; left knee scar, evaluated as 10 percent disabling from June 17, 2008; thoracolumbar spine disability, evaluated as 10 percent disabling from April 30, 2010; and left thumb scar, evaluated as noncompensable from September 14, 2011. Thus, the Veteran’s combined 40 percent disability rating does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16 (a) for a TDIU from April 30, 2010. The Veteran’s VA 21-8940 Application for Increased Compensation indicates that the Veteran completed 4 years of high school, and last worked full-time as a laboratory technician with Chevron in 2005, but became too disabled to work January 1, 2006 due to his service connected bilateral hearing loss. A June 2008 VA examination report reflects that the Veteran’s bilateral hearing loss results in decreased hearing and understanding, especially with females, groups, and children. In an August 2010 VA examination report, the examining audiologist reported that the effects of the Veteran’s bilateral hearing loss on his usual occupation is considerable considering his degree of hearing loss, particularly in the presence of background noise. The evidence is thus at least evenly balanced as to whether the Veteran’s service-connected bilateral hearing loss precludes him from obtaining or maintaining any gainful employment prior to May 1, 2013. The Veteran has indicated that his bilateral hearing loss caused him to retire early as he could not always understand instructions, and the June 2008 and August 2010 audiologists noted that the Veteran’s bilateral hearing loss impacted his ability to work as he had difficulty hearing and understanding females and children, and in a group. The Veteran’s VA Form 8940 reflects that he worked as a lab technician, a profession which often requires working amongst other people, and interpersonal communication. The evidence of record including the Veteran’s lay statements reflect that the Veteran’s bilateral hearing loss would prevent him from performing the requisite duties necessary of a person with his education, experience, and training as an lab technician, as an inability to hear instructions and effectively communicate could jeopardize his ability to competently complete his assigned tasks. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) prior to May 1, 2013 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. It appears that the Veteran stopped working due to his service-connected disabilities in 2005. However, the Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an notice of disagreement is then of record as to the downstream issue of an effective date for the assignment of that rating”). As noted, the date of claim is April 30, 2010 and a claim for a TDIU is a type of increased rating claim and is therefore governed by 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o). See Dalton v. Nicholson, 21 Vet. App. 23, 32–34 (2007). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.