Citation Nr: 21022243 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 12-25 472 DATE: April 15, 2021 ORDER A rating greater than 20 percent for left peroneal nerve palsy, previously diagnosed as sciatic nerve palsy, is denied. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s left peroneal nerve palsy is manifest by no more than moderate incomplete paralysis. 2. The Veteran’s service-connected disability has not shown to preclude him from securing or following a substantially gainful occupation consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for left peroneal nerve palsy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Marine Corps (USMC) from November 1975 to May 1976. These issues were previously before the Board. In July 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to obtain all outstanding VA and/or private medical records including VA Medical Center treatment records from June 2014 and the April 2015 EMG study. The Board also directed the AOJ to readjudicate the claims after completing development. The AOJ obtained VA Medical Center treatment records, informed the Veteran to submit completed VA Form 21-4142 and/or 21-4142a to obtain non-VA medical treatment records in August 2020, obtained June 2014 and April 2015 EMG records in September 2020, and asked the Veteran to submit completed VA Form 21-8940 and 21-4192 for his claim of entitlement to a TDIU in October 2020. In December 2020, the AOJ obtained a new medical opinion that diagnosed the Veteran as having common peroneal nerve palsy, and in January 2021, the Veteran underwent a VA examination. Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in February 2021. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. INCREASED RATINGS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 1. A rating greater than 20 percent for left peroneal nerve palsy, previously diagnosed as sciatic nerve palsy. The Veteran contends that he is entitled to a rating greater than 20 percent for service-connected left sciatic nerve palsy. The Veteran’s left sciatic nerve palsy is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, paralysis of the sciatic nerve. Incomplete paralysis of the sciatic nerve is rated at 10 percent for mild paralysis, 20 percent for moderate paralysis, 40 percent for moderately severe paralysis, and 60 percent for severe paralysis with marked muscular atrophy. The words “mild,” “moderate,” and “severe” are not defined in the VA 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.” See 38 C.F.R. § 4.6. The term “incomplete paralysis,” with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, DCs 8510-8730. In April 2010, the AOJ granted a 20 percent rating for the Veteran’s service-connected left sciatic nerve palsy effective June 14, 2007, the date the Veteran’s claim was received. The decision was based on the March 2010 VA examination that found a “very mild left foot drop” and no paralysis, neuritis, or neuralgia. The Veteran submitted a Notice of Disagreement (NOD) in March 2011, stating that his disability was more severe than rated. The Veteran also stated that at the time of his assignment to the temporary disability retired list (TDRL) that he was rated at 40 percent. The Veteran underwent another VA examination in June 2012. The examiner found mild intermittent pain and numbness in the left lower extremity. There also was an absence of reflex in the Veteran’s left ankle. The examiner found that there was mild incomplete paralysis in the left lower extremity and that the Veteran could not walk far. In July 2012, the AOJ issued an SOC continuing the 20 percent rating. The Veteran submitted a substantive appeal (VA Form 9) in September 2012. In November 2012, the Veteran testified that it felt as half of the body is affected by his disability and that he could only walk 100 feet at most before he had to stop. The Veteran also added that the symptoms worsened since June 2012. In November 2012, private medical treatment records were added. The treatment records showed that the Veteran did not report difficulty walking or any problems with his lower left extremity during a general examination in June 2011. The Veteran specifically reported that he could ambulate independently with no limitation to mobility. He did report limited range of motion although the record did not show where such limitation existed. Private treatment records from February 2012 state that the Veteran was ambulatory 4 months after left anterior total hip arthroplasty. In February 2012, the Veteran testified that he did not have complete paralysis of the leg but that the calf of the leg and the bottom of the foot went numb. The Veteran also reported limitation in range of motion. In June 2014, the AOJ issued an SSOC continuing the Veteran’s 20 percent rating as it could not obtain VA Medical Center treatment records. In July 2014, the Veteran stated that he had no feeling in the left leg at all and that he had suffered this condition since discharge. In December 2014, the Board remanded the Veteran’s claim for a rating greater than 20 percent as the VA examinations did not examine the Veteran’s contended limitation of motion of the left lower extremity. In February 2015, the Veteran underwent a VA examination for his left ankle. The examiner diagnosed the Veteran as having degenerative arthritis of the left ankle. Range of motion in the left ankle was all normal, and the examiner opined that the arthritis was due to aging and not associated with the sciatic nerve palsy. The Veteran was afforded another VA examination in April 2015 where the examiner found that the Veteran’s lower extremity findings were inconsistent with sciatic neuropathy. The examiner cited an EMG showing low amplitude left peroneal motor potential but no evidence of denervation. The examiner added that he could not ascribe any limitation of lower left extremity functions to his service-connected disability. In May 2015, the AOJ issued an SSOC continuing the 20 percent rating for left sciatic nerve palsy, and the Board remanded the claim in April 2016 pointing out missing medical treatment records and inconsistencies in the February 2015 VA examination. In June 2018, the Veteran was afforded a VA examination. The examiner found moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity. The examiner also rated the Veteran’s strength in left knee extension, left ankle plantar flexion, and left ankle dorsiflexion as active movement against gravity. The examiner did not find any muscle atrophy. The Veteran’s reflex and sensory examination resulted in some abnormal results, notably hypoactive left brachioradialis, left knee, and left ankle as well as decreased senses in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The examiner found that the Veteran had moderate incomplete paralysis in the left sciatic nerve, external popliteal nerve, musculocutaneous nerve, anterior tibial nerve, internal popliteal nerve, posterior tibial nerve, anterior crural nerve, internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and illio-inguinal nerve. In January 2020, the AOJ obtained a medical opinion addressing inconsistencies in the medical record. The examiner opined that the Veteran had incomplete paralysis of moderate severity in the left sciatic nerve. In July 2020 the Board remanded the claim as the AOJ did not associate the VA records from June 2014 and the April 2015 EMG study identified in the April 2015 VA examination. As discussed above, the AOJ associated the missing records with the Veteran’s file. The April 2015 EMG study concluded that the Veteran had reduced compound muscle action potential (CMAP) amplitude for the left tibial nerve, reduced interference pattern that may be from the Veteran’s effort and recommended clinical correlation. In December 2020, a VA examiner reviewed the Veteran’s record and opined that the Veteran’s diagnosis was a common peroneal nerve palsy based on the medical evidence of record. The examiner opined that the 2018 VA examiner had erred as the Veteran’s service-connected disability is not related to radiculopathy. The examiner found that the April 2015 EMG “read as essentially normal” and that the results were consistent with “continued improvement” shown from 1976 to 1985. The examiner also opined that any additional nerves would be due to a source other than the common peroneal nerve injury. Contrary to the Veteran’s contentions, the examiner opined that the Veteran’s EMG continued to improve through 2015 rather than worsening. Thus, there is no medical evidence of record showing greater than moderate incomplete paralysis of the left peroneal nerve. The most recent VA examination showed that the Veteran had moderate incomplete paralysis and the December VA examiner found that there were no other symptoms or disabilities due to the service-connected disability. For the foregoing reasons, the preponderance of the evidence reflects that the criteria for a rating greater than 20 percent for the Veteran’s service-connected left peroneal nerve palsy have not been met or more nearly approximated. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. A total disability rating based on individual unemployability due to service-connected disability (TDIU) The Veteran contends that his service-connected disability prevents him from obtaining and maintaining gainful employment. The Veteran is currently service connected for left peroneal nerve palsy, previously diagnosed as sciatic nerve palsy, with a 20 percent rating effective June 14, 2007. VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, 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(a), 4.16(a). The Veteran does not meet the schedular criteria for TDIU at any period on appeal. Regardless, 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: 1) the veteran’s history, education, skill, and training; 2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, considering factors that may be relevant that include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with factors that may be relevant that include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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, 529 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of a TDIU. There is no evidence of record, outside of the Veteran’s contentions, that the Veteran is unable to obtain or maintain gainful employment due to his service-connected left peroneal nerve palsy. Although, as discussed above, the Veteran does not meet the schedular criteria for TDIU for the entire period on appeal, as discussed above, in any case where the Veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). In the case at hand, however, referral for extra-schedular consideration is not warranted because, upon weighing the evidence, the most probative evidence of record establishes that the Veteran’s service-connected disabilities do not preclude substantially gainful employment for any period on appeal. In March 2010, the Veteran reported that he had retired in May 2008, and that the cause of retirement was “eligible by age or duration of work.” During the examination, the Veteran reported that he lived alone and independent with his care, with the disability causing no effects on usual daily activities. In June 2011, the Veteran reported that he had no limitation of mobility. The Social Security Administration found that the Veteran was not disabled in December 2011 although it considered disabilities such as arthritis, degenerative bone disease, and enlarged heart that are not connected to the Veteran’s service. In February 2014, the Veteran testified that he was unable to work due to his service-connected disability since 2009. The Veteran also testified that most of his work was “[sedentary] at a computer” although he was expected to spend about 75 percent of his time on the floor when he worked as a design engineer. The Veteran also testified that he was unable to do that type of work now and that 2009 was the last time he was able to do anything. During the July 2018 VA examination, the Veteran reported that his disabilities caused him to lose 1-2 weeks of work time in the last 12 months, contradicting his prior statements that he could not work. In July 2018, the Veteran included two total hip displacements along with nerve palsy as disabilities that prevented him from securing or following substantially gainful occupation. The Veteran reported that he received education or training related to business management, HVAC engineer, and industrial electrician and that he received 4 years of college education. Prior to his retirement, the Veteran worked as a plant manager from 1990 to 2008 and noted “N/A” when asked if he was receiving, or was entitled to receive, benefits for his employment. In January 2021, a VA examiner opined that the Veteran’s disabilities did not impact his ability to work as the Veteran was able to do jobs that did not require lifting or carrying items. It is well established that internal inconsistency, bias, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran may be considered. Caluza v. Brown, 7 Vet. App. 498, 511-12, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curium) (table); Madden v. Gober, 125 Fed. Cir. 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). As discussed above, there are numerous internal inconsistencies and other inconsistencies within the record regarding the reasons of the Veteran’s retirement, severity and impact of his service-connected disability, and his ability to obtain and maintain gainful employment. Specifically, the Board observes that the Veteran originally cited age and retirement eligibility as a reason for his retirement and had reported to private medical providers in June 2011 that his disabilities did not impact his daily life despite testifying that he could not work since 2009 in February 2014. The Board also notes that the Veteran testified in February 2014 that most of his work was sedentary and that the January 2021 examiner opined that the Veteran was able to perform sedentary jobs. In other words, the Veteran is able to obtain and maintain employment of a nature that he has held prior to his retirement and prior to his service-connected disability reaching the current severity. In sum, the Board finds that the totality of the evidence demonstrates that the Veteran was not unable to obtain and retain substantially gainful employment, based solely on his service-connected disability. Therefore, the Veteran is not entitled to TDIU. Accordingly, the Board finds that the preponderance of the evidence is against the claim of TDIU, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 49. Therefore, the appeal is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun, 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.