Citation Nr: 21025684 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-23 056 DATE: April 28, 2021 ORDER Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremities is denied. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremities is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to January 7, 2019 is remanded. FINDINGS OF FACT 1. During the appellate period, the probative evidence of record does not show that the Veteran’s left lower extremity peripheral neuropathy has been productive of moderate incomplete paralysis. 2. During the appellate period, the probative evidence of record does not show that the Veteran’s right lower extremity peripheral neuropathy has been productive of moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1968 to November 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board issued a remand order for further development. The Board finds that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In an October 2020 rating decision, the RO granted entitlement to a TDIU from January 7, 2019. A supplemental statement of the case (SSOC) was issued in October 2020, which denied entitlement to a TDIU prior January 7, 2019, as well as the Veteran’s claims of entitlement to higher ratings for service-connected peripheral neuropathy of the right and left lower extremities. 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 the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. The rating period on appeal of a denial of an increased rating may be one-year prior to the date of receipt of the increased rating claim, provided that the evidence reflects a worsening of the disability during that one-year time period. See 38 C.F.R. §§ 3.400 (o)(2), 4.1, 4.2; Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). The Veteran’s right and left lower extremity peripheral neuropathy disabilities are rated under the provisions of DC 8520, which at some levels of severity, distinguishes between the major (dominant) extremity and minor (non-dominant) extremity. Under DC 8520, mild incomplete paralysis warrants a 10 percent rating, moderate incomplete paralysis warrants a 20 percent rating, and severe incomplete paralysis warrants a 30 percent rating. A 40 percent rating is warranted for complete paralysis, with foot drop and slight droop 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; anesthesia covers entire dorsum of foot and toes. The Board notes that the terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Although a medical examiner’s use of descriptive terminology such as “mild” is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. 1. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. As will be detailed in the Remand section below, the Veteran has asserted that he has been in receipt of disability benefits from the Social Security Administration (SSA) disability benefits since 2005. Although the records related to his claim for SSA disability benefits have not been obtained, the adjudication of the increased rating claims for peripheral neuropathy of the bilateral lower extremities may be adjudicated because the SSA records are not relevant to the increased rating claims on appeal. Notably, the period herein under consideration dates from December 2012 to present. The Veteran has not offered evidence or argument suggesting that the SSA disability records are potentially pertinent to the pending increased rating claims on appeal. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) ("The legal standard for relevance requires VA to examine the information it has related to medical records and if there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records"). As the records date from 2005 and earlier, there is no indication that they would be pertinent to the nature and severity of the peripheral neuropathy of the bilateral lower extremities dating from December 2012. The Board will therefore proceed with adjudication of the increased rating claims. In October 2011, the Veteran submitted a claim of service connection for bilateral diabetic peripheral neuropathy. See October 2011 VA 21-526. A VA examination was provided in June 2012. There, the Veteran was diagnosed with bilateral peripheral neuropathy of the lower extremities. Incomplete paralysis was not found, and under severity the examiner found the Veteran’s affected nerves to be ‘normal.’ See June 2012 VA Examination, pp. 23-24. In July 2012 the RO granted service connection with a rating of 10 percent awarded. In December 2013, the Veteran submitted a claim of entitlement to increased ratings for peripheral neuropathy of the right and left lower extremities. He stated that his bilateral lower extremity neuropathy had worsened and that he was entitled to an increased rating. See December 2013 VA 21-4138 Statement in Support of Claim. The Board has considered all evidence up to one year prior. In June 2014, a VA examination was provided. The Veteran reported worsening numbness and pain of his feet, with his feet being numb except when he steps on anything, upon which they would become very sensitive. He was found to have mild intermittent pain and mild numbness and mild paresthesias and/or dysesthesias. Muscle strength testing was normal. While bilateral lower extremity peripheral neuropathy was found, under severity the examiner marked ‘normal.’ See June 2014 C&P Exam. The Veteran’s claim was denied by the RO in an August 2014 rating decision, which continued the assigned 10 percent ratings for peripheral neuropathy of the right and left lower extremities. The Veteran submitted a timely notice of disagreement (NOD) in September 2014. A statement of the case (SOC) was provided, and he submitted a timely VA Form 9 in May 2016. The Veteran’s attorney subsequently submitted an August 2017 surgical pathology report from Associates in Medicine & Surgery, LLC, that showed severe sensory neuropathy of the bilateral lower extremities. As such, in March 2019, the Board issued a remand order for a new VA examination to be provided. Pursuant to the March 2019 Board remand, a VA examination was provided to the Veteran in September 2020. There, the VA examiner found the Veteran’s bilateral lower extremity diabetic peripheral neuropathy to be normal, with incomplete paralysis not being found. Upon examination, constant pain, intermittent pain, paresthesias and/or dysesthesias and numbness were not found. Muscle strength testing was normal and muscle atrophy was not found. Sensory examinations were normal, with the exception of decreased sensation in the lower leg/ankle. Gait was normal. Mild incomplete paralysis was found in the posterior tibial nerve. The Veteran’s peripheral neuropathy was found to not impact the Veteran’s ability to work. The Veteran described his symptoms as being numbness of the feet without difficulty walking, but with his feet hurting worse at the end of the day. See September 2020 C&P Exam. In November 2020, the Veteran’s attorney submitted an appellate brief. In the brief, the Veteran’s attorney cited the August 2017 private medical records and argued that they showed bilateral severe sensory neuropathy affecting small sensory fibers. See November 2020 BVA Decision, mislabeled. With these arguments, the Veteran’s attorney submitted a number of prior decisions by the Board. Notably, a Board decision as to one appellant can have no precedential weight in the decision for a different Veteran. 38 C.F.R. § 20.1303. Board decisions must be made based on the particular facts and applicable legal authority specific to the case before it. Id. In the present case, the Veteran was provided VA examinations in June 2012, June 2014, and September 2020. In all three examinations, the Veteran’s bilateral peripheral neuropathy was not found to be of moderate incomplete paralysis. Rather, under severity, all three examiners marked ‘normal.’ The Board finds that the VA examinations are of significant probative value, as the VA examiners conducted in-person examinations, reviewed the Veteran’s medical records, considered his lay statements, and provided detailed accountings of what constituted their medical determinations. In stark contrast to these findings, is the private examiner’s August 2017 Surgical Pathology Report. There, a 1-page statement was provided, where the private examiner wrote “the pathologic findings are consistent with severe sensory neuropathy affecting small sensory fibers.” See August 2017 Medical Treatment Record – Non – Government Facility. The Board finds that these report holds diminished probative value, as the private physician did not indicate what evidence was reviewed in reaching his determination. The private examiner did not state whether there had been an in-person examination, did not indicate whether any of the Veteran’s medical records were reviewed, and did not provide any rationale for his finding. Furthermore, the Board has reviewed the Veteran’s medical record, and has not uncovered any medical or lay evidence that would indicate moderate incomplete paralysis, nor does the medical record show “severe sensory neuropathy affecting small sensory fibers” anywhere outside of the August 2017 private physician’s letter. This is supported by the Veteran’s statements in the medical record. In October 2014 the Veteran denied any problems with his feet. See April 2016 CAPRI, p. 197. In May 2015, the Veteran denied any problem with his feet and that he was playing softball again. Id at 131. By April 2018, the Veteran’s neuropathy was noted to have caused loss of sensation. See December 2019 CAPRI, p. 132. This complaint remained constant, with the Veteran’s most recent statements being that he denied any difficulty walking, with the only symptoms being numbness of the feet and his feet hurting worse at the end of the day. See September 2020 C&P Exam, p. 1. The Board finds that the Veteran’s lay statements concerning the symptomatology of his bilateral peripheral neuropathy, both in the course of seeking medical treatment during the appellate period and at his VA examinations are more consistent with the findings of the VA examiners than the private physician. Given that the most probative evidence of record does not show moderate incomplete paralysis the Veteran’s claims of entitlement to ratings in excess of 10 percent for peripheral neuropathy of the right and left lower extremities must be denied. 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. REASONS FOR REMAND 1. Entitlement to a TDIU prior to January 7, 2019. As indicated above, entitlement to a TDIU has been granted from January 7, 2019, which is the date that the Veteran met the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). The Board notes that the claim of entitlement to a TDIU has been asserted as part and parcel of the increased rating claims on appeal. C.f., Rice v. Shinseki, 22 Vet. App. 447 (2009). For the period prior to January 7, 2019, service connection was in effect for PTSD at 30 percent, diabetes mellitus, type II, at 20 percent, right lower extremity peripheral neuropathy at 10 percent, and left lower extremity peripheral neuropathy at 10 percent. His combined disability rating was 60 percent prior to January 7, 2019. As such, the Veteran did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) prior to January 7, 2019. In March 2016, Dr. J.B. detailed a psychological evaluation of the Veteran. Dr. J.B. diagnosed the Veteran with PTSD, MDD, and persistent depressive disorder. The examiner reported that the Veteran “has been significantly impaired, socially and occupationally, since at least his last regular employment in 2005. Dr. J.B. reported that the Veteran’s interpersonal relationships are frequently strained and his depression hinders his ability to engage in most activities outside of the home. Dr. J.B. reported, “[t]hat depression, combined with his constant irritability punctuated by unprovoked outbursts of anger, make it difficult for him to adapt to novel, stressful situations and thus render him incapable of maintaining substantial employment.” Accordingly, as set forth in the March 2016 statement from Dr. J.B., there is medical evidence of record suggesting that he was unemployable due to his service-connected disabilities prior to January 7, 2019. The Board therefore finds that the Veteran’s claim of entitlement to an effective date prior to January 7, 2019 for the award of TDIU requires consideration on an extraschedular basis. Thus, the Veteran’s TDIU claim should be referred to the Director of Compensation Service to determine if an extraschedular rating is warranted prior to January 7, 2019 pursuant to 38 C.F.R. § 4.16(b). Additionally, in an April 2016 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), the Veteran reported that he was unable to secure or follow a substantially gainful occupation due to his service-connected diabetes mellitus, peripheral neuropathy of the lower extremities, and his PTSD. He reported that he was unable to obtain his commercial driver’s license due to his service-connected diabetes mellitus. He also indicated that he was awarded SSA disability benefits in 2005. As the Veteran’s SSA records are potentially pertinent to his claim of entitlement to a TDIU prior to January 7, 2019, the AOJ should obtain the Veteran’s SSA records upon remand. The matters are REMANDED for the following action: 1. Request that SSA furnish a copy of its decision awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Refer the issue of entitlement to an effective date prior to January 7, 2019 for the award of a TDIU under 38 C.F.R. § 4.16(b) to the Director. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.