Veteranclaims’s Blog

October 18, 2011

Single Judge Application, Successive versus Non-Successive Rating Criteria, Tatum, 23 Vet.App. at 156; Camacho, 21 Vet.App. at 366;

Filed under: Uncategorized — veteranclaims @ 5:07 pm

Excerpts from decision below:
The rating criteria under DC 7913 are successive; that is, “each higher disability rating includes the criteria of each lower disability rating, such that if a component was not met at any one level, the veteran could only be rated at the level that did not require the missing component.” Tatum, 23 Vet.App. at 156. Thus, in Camacho, the Court rejected the appellant’s argument that he could be rated 40% disabled by applying 38 C.F.R. § 4.21 (2006), where he unquestionably only satisfied two of the three requirements for a 40% disability rating. 21 Vet.App. at 366. The Court held that the “conjunctive structure of the language used in specifying the criteria for a 40% disability rating under DC 7913” requires that all criteria must be met to establish entitlement to a 40% disability rating. Id.; see also Tatum, 23 Vet.App. at 156 (noting that § 4.7 was not for application under the facts in Camacho because to award “a 40% disability rating where only two of the three criteria were met, would eviscerate the need for a 20% rating since the symptoms established for either rating might be the same”).
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Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4580
FEDERICO ADAME, APPELLANT,
V.
ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, Federico Adame, through counsel, appeals a November3, 2009, Board of Veterans’ Appeals (Board) decision in which the Board denied entitlement to (1)an initial disability rating in excess of 20% for diabetes mellitus (DM); (2) an initial disability ratingfor peripheral neuropathy of the right lower extremity in excess of 10% prior to April 9, 2009, andin excess of 20% from April 9, 2009; (3) an initial disability rating for peripheral neuropathy of theleft lower extremity in excess of 10% prior to April 9, 2009, and in excess of 20% from April 9,2009; (4) an initial compensable disability rating for peripheral vascular disease (PVD) of the rightlower extremity; and (5) an initial compensable disabilityrating for PVD of the left lower extremity.Record of Proceedings (R.) at 3-36. The Board also denied entitlement to an initial compensabledisability rating for status post right 4th metacarpal fracture; however, because the appellant raisesno allegation of error with regard to this claim, the Court will consider the matter to have beenabandoned on appeal. See Ford v. Gober, 10 Vet.App. 531, 535 (1997) (holding claims not arguedon appeal are deemed abandoned); Bucklinger v. Brown, 5 Vet.App. 435 (1993). Finally, the Boardremanded for further development the appellant’s claims of entitlement to (1) disabilitycompensation benefits for a right knee and low back disability; (2) an initial disability rating inexcess of 10% for coronary artery disease; (3) an initial disability rating in excess of 10% for statuspost arteritic ischemic optic neuropathy of the right eye from September 5, 2002, to September 26,2005, and in excess of 30% from September 27, 2005; and (4) a total disability rating forcompensation purposesbased on individual unemployability. Therefore, those claims arenot beforethe Court. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997). Both parties filed briefs and theappellant filed a reply brief. This appeal is timely, and the Court has jurisdiction to review theBoard’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition isappropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, theBoard’s decision will be affirmed in part and vacated in part, and the vacated matters will beremanded for further proceedings consistent with this decision.I. BACKGROUNDThe appellant served on active dutyin the U.S. Marine Corps from June 24, 1966, to October11, 1969, including service in Vietnam. R. at 843. In September 2003, he filed a claim forcompensation for DM. R. at 693-702. The appellant underwent a VA compensation and pensionexamination for DM in November 2003, which diagnosed insulin dependent DM with coronaryartery disease, early PVD, and profound peripheral neuropathy. R. at 638-40. The VA examinernoted that the onset of diabetes was 16 years prior, that the appellant had been hospitalized two tothree times for ketoacidosis, was on a restricted diet, and had a hypoglycemic reaction. R. at 638.The examiner recorded the appellant’s report that he “walks six to eight miles per day”and that his”feet are painful and [] numb.” Id. Examination of his feet revealed that “[h]is peripheral pulses[were] 1+ in the right foot[,] but the posterior tibial could not be palpated in the left foot. Dorsalispedis in the left foot [was] trace.” R. at 639. Neurological examination of the feet revealed “lossof sensation and two point discrimination. The sensation loss [was] pinprick and touch mid foot andbeyond. He ha[d] no vibratory sensation in the toes.” Id. VA treatment records indicate that theappellant was treated for cellulitis in December 2003 and January 2004. R. at 621, 624.In a July 19, 2004, rating decision, the regional office (RO) granted entitlement to serviceconnection and awardeda20%disabilityratingforDM,effectiveSeptember20,2002; separate 10%disabilityratings for peripheral neuropathyof the right and left lower extremity, effective November24, 2003; and separate noncompensable evaluations for PVD of the right and left lower extremity,2effective November 24, 2003. R. at 96-608. The appellant disagreed with the assigned disabilityratings and perfected an appeal to the Board. R. at 466-67, 469-506, 592-93.The appellant was examined in February 2005 for complaints of numbness in both feet upto the ankles. R. at 514-15. The examination revealed full strength, decreased sensation in bilateraltoes to mid-ankle, and absent right ankle jerk. R. at 514. The examiner noted that “[a]bnormalelectrodiagnostic studies provide evidence for axonal loss affecting both motor and sensory nervesof theright lowerextremity”andopinedthat”[t]he above findings areconsistent with a sensorimotorperipheral neuropathy.” R. at 515.At a May 2007 Board hearing, the appellant testified that he could walk about 20 to 30 feetto his mailbox, but that his feet “kill me.” R. at 402. He also stated that he could not stay on his feetfor longer than 20 minutes and that he needed to regulate his activities because of his DM andperipheral neuropathy. R. at 402-03. He stated that he could do “almost nothing” without worryingthat he might hurt himself, and that he could not drive himself to his physician’s office. R. at 403-04.VA treatment records indicate that the appellant began taking an oral hypoglycemic agent inDecember 2007. R. at 365.InJanuary2008,theBoardremandedtheappellant’s claimsforadditionaldevelopment(R. at383-92),andonApril7,2009,theappellantunderwentanadditionalVAexamination (R.at104-15).The examiner noted that the appellant did not require insulin, that he was taking the oralhypoglycemic agent Glipizide on a daily basis, and that he was on a restricted diet. R. at 104. Theexaminer also noted that the appellant had not been hospitalized in the last year for ketoacidosis andwas not having any hypoglycemia. Id. The examiner reported that the appellant’s main symptomsrelate to his peripheral neuropathy, which make him unable to walk very much because of burning,numbness, tingling, and loss of sensation in his feet. R. at 105. With regard to PVD, the examineralso reported that the appellant suffers from calf claudication if he walks 60 to 70 yards, and that heneeds to rest for five or ten minutes before he can walk again. R. at 105. The examiner also notedthat the appellant did not have any paralysis, history of muscle atrophy, or dystrophic nails, and thathe had good movement and muscle tone and hair loss over the lower extremities. R. at 105, 107.Examination of the lower extremities revealed that “[p]osterior tibial and dorsalis pedis pulses in theleft foot are each 2+ and in the right foot 1+. There is decreased hair loss over the legs. . . .3Neurological [] examination of the lower extremities [revealed that] his left knee jerk is 1+, right is2+. Ankle jerks are 1+ bilaterally.” R. at 106. The examiner opined that “[h]is peripheralneuropathy would be considered moderate.” R. at 107. Finally, a May 5, 2009, lower extremityarterial examination indicates that the appellant’s ankle/brachial index was 1.16 on the right and 1.18on the left, which were reported to be within normal limits bilaterally. R. at 114.In August 2009, the RO issued a rating decision, which increased the appellant’s disabilityratings for peripheral neuropathy of the right and left lower extremity to 20% for each extremity,effective April 7, 2009. R. at 51-61. The disability ratings for his DM and PVD remainedunchanged. R. at 60-61. On November 3, 2009, the Board issued the decision here on appeal thatdenied entitlement to (1) a disability rating in excess of 20% for DM; (2) separate disability ratingsfor peripheral neuropathy of the right and left lower extremities in excess of 10% prior to April 9,2009, and in excess of 20% from April 9, 2009; and (3) an initial compensable disability rating forPVD of the right and left lower extremities. R. at 3-36. This appeal followed.II. ANALYSISThe Board’s assignment of a disability rating is a finding of fact that the Court reviews underthe “clearly erroneous” standard of review. See Johnston v. Brown, 10 Vet.App. 80, 84 (1997). Afinding of material fact is clearly erroneous when the Court, after reviewing the entire evidence, “isleft with the definite and firm conviction that a mistake has been committed.” United States v. U.S.Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).The Secretary’s regulations provide that “[w]here there is a question as to which of two evaluationsshall be applied, the higher evaluation will be assigned if the disability picture more nearlyapproximates the criteria required for that rating. Otherwise, the lower rating will be assigned.”38 C.F.R. § 4.7 (2011). In addition, “it is not expected . . . that all cases will show all the findingsspecified in the [applicable DC].” 38 C.F.R. § 4.21 (2011).In rendering a decision, the Board is required to consider all evidence of record and toconsider, and discuss in its decision, all “potentially applicable” provisions of law and regulation.Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991); see 38 U.S.C. § 7104(a). The Board mustprovide a statement of the reasons or bases for its determination, adequate to enable an appellant to4understand the precise basis for the Board’s decision as well as to facilitate review in this Court.38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value ofthe evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App.498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A remand is the appropriate remedy “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate.” Tucker v.West, 11 Vet.App. 369, 374 (1998).A. Disability Rating for DMThe appellant is rated 20% disabled under Diagnostic Code (DC) 7913 for DM”[r]equiringinsulin and restricted diet, or; oral hypoglycemic agent and restricted diet.” 38 C.F.R. § 4.119, DC7913 (2011). A 40% disabilityrating is assigned for DM, which “[r]equire[s] insulin, restricted diet,and regulation of activities.” Id.In this case, the Board concluded that a 40% disability rating under DC 7913 was notwarranted because the evidence failed to established that the appellant’s activities are regulated asa result of his DM. R. at 13-14. The appellant argues that the Board erred when in failed to considerthat, in addition to fulfilling the requirements for a 20% disability rating, he also suffers from (1) one of the criteria for a 60% disability rating under DC 7913, i.e., he experiences noncompensable complications, namely cellulitis and PVD, and (2) one of the criteria for a 100% disability rating,i.e., complications that are compensable when evaluated separately, namely coronary artery disease, peripheral neuropathy of the lower extremities, and post arteritic ischemic optic neuropathy.Appellant’s Br. at 10-11. The appellant attempts to distinguish his case from Camacho v. Nicholson,21 Vet.App. 360 (2007), and cites the Court’s decision in Tatum v. Shinseki, 23 Vet.App. 152 (2009)to support his contention that the matter be remanded for the Board to consider and apply 38 C.F.R.§ 4.7. Id. at 11. The Secretary refutes his contentions and argues that the Board’s decision should be affirmed because the Court’s decisions in Camacho and Tatum, both supra, support the Board’s finding that the absence of any evidence showing that the appellant’s DM causes him to regulate his activities precludes a disability rating in excess of 20%. R. at 11-14. The Court agrees.5 The rating criteria under DC 7913 are successive; that is, “each higher disability rating includes the criteria of each lower disability rating, such that if a component was not met at any one level, the veteran could only be rated at the level that did not require the missing component.” Tatum, 23 Vet.App. at 156. Thus, in Camacho, the Court rejected the appellant’s argument that he could be rated 40% disabled by applying 38 C.F.R. § 4.21 (2006), where he unquestionably only satisfied two of the three requirements for a 40% disability rating. 21 Vet.App. at 366. The Court held that the “conjunctive structure of the language used in specifying the criteria for a 40% disability rating under DC 7913” requires that all criteria must be met to establish entitlement to a 40% disability rating. Id.; see also Tatum, 23 Vet.App. at 156 (noting that § 4.7 was not for application under the facts in Camacho because to award “a 40% disability rating where only two of the three criteria were met, would eviscerate the need for a 20% rating since the symptoms established for either rating might be the same”).The appellant’s reliance on Tatum is misplaced because the DC at issue in that case, 38 C.F.R. § 4.119, DC 7903, contains rating criteria for hypothyroidism that are not successive. Tatum, 23 Vet.App. 155-57. Accordingly, the Court found that Camacho’s holding did not apply and remanded the matter for the Board to determine whether § 4.7 permitted the assignment of a higher disability rating where the evidence demonstrated some of the symptoms required for a higher rating. Id. at 156. The appellant’s case is controlled by Camacho because he is rated pursuant to DC 7913, which is the same DC as in Camacho, and it involves successive rating criteria. Consequently, because it is undisputed that the evidence fails to show that the appellant regulates his activities as a result of his DM and “regulation of activities” is a necessary requirement for a 40, 60, and 100% disability rating under DC 7913, the Court must affirm the Board’s decision that entitlement to a rating in excess of 20% for DM has not been established. See Tatum, Camacho, Johnston, and Gilbert, all supra.To the extent the appellant argues that the matter must nevertheless be remanded because the Board failed to apply § 4.7 thereby precluding effective judicial review, the Court disagrees. Reply Br. at 2. The reasons and bases for the Board’s decision are clear, i.e., upon consideration of all of the evidence, a disability rating in excess of 20% was not warranted because “regulation of activities was not shown.” R. at 14. The Board’s conclusion is supported by the evidence and the Court’s6decisions in Tatum and Camacho, which are controlling here. The successive nature of the rating criteria in DC 7913 requires that all criteria be met to establish entitlement to a higher rating. See Tatum, 23 Vet.App. at 156; Camacho, 21 Vet.App. at 366. Based on the foregoing, the Board’s finding that the appellant did not meet the criteria for a disability rating in excess of 20% for DM is not clearly erroneous and will be affirmed. See Johnston and Gilbert, both supra.

B. Disability Rating for PVD The appellant’s PVD is rated under 38 C.F.R. § 4.104, DC 7114 (2011). Pursuant to DC7114, a 20% disability ratingis warranted where the evidence establishes “[c]laudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less.” Id.A 40% disability rating is warranted where the evidence establishes “[c]laudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin,absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less.” Id. A 60% disability ratingis warranted where the evidence establishes “[c]laudication on walking less than 25 yards on a levelgrade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of0.5 or less.” Id. Lastly, a 100% disability rating is warranted for an “[i]schemic limb at rest, and;either deep ischemic ulcers or ankle/brachial index of 0.4 or less.” Id.In assessing the appellant’s condition under DC 7114, the Board denied a compensable disability rating for both extremities because “at no time has the [v]eteran been entitled to a 20[%]rating[,] . . . [which] requires claudication on walking more than 100 yards and diminished peripheral pulses or ankle/brachial index of 0.9 or less.” R. at 25 (emphasis added). The appellant argues that a remand is required for the Board to consider the provisions of 38 C.F.R. § 4.7 and to provide a new statement of reasons and bases for its decision. Appellant’s Br. at 11-13. AlthoughtheSecretaryconcedesthattheBoardfoundevidenceshowingdiminishedpulsesofthe leftfoot,hairloss, and claudication on walking between 60 to 70 yards, the Secretary argues that the Boardcorrectly determined that a compensable rating was not warranted. Secretary’s Br. at 16-20. TheCourt disagrees.Unlike the rating criteria for DM, the criteria for rating PVD are not successive. Rather, theratingschedulerequires differentlevelsofclaudication anddifferentsymptomatologyateachrating.See 38 C.F.R. § 4.104, DC 7114. Thus, the rating structure for DC 7114 is analogous to the structure7of DC 7903 for hypothyroidism, which was discussed in Tatum. See 38 C.F.R. § 4.119, DC 7903(2009); seealso Tatum,23Vet.App.at156(distinguishingDC 7913andCamachobecauseaveterancan potentially establish all of the criteria required for a 30% or 60% disability rating under DC7903, without establishing anyof the criteria for a lesserdisabilityrating). As noted bythe appellant,the evidence of record shows that the appellant experiences claudication on walking between 60 to70 yards, diminished pulses, and hair loss. See R. at 104-107, 639. This evidence establishes someof the criteria for a 20% disability rating, and some of the criteria for a 40% disability rating. See38 C.F.R. § 4.104, DC 7114. As such, similar to the facts in Tatum, the facts here necessarilyimplicate § 4.7 and the Board was required to consider whether the appellant’s “disability picturemore nearly approximates the criteria” required for a compensable disability rating. See Tatum,23 Vet.App. at 156; see also 38 C.F.R. § 4.7. However, the Board’s discussion of the evidenceseemed to imply that a compensable rating was not warranted because all the criteria for a 20%disability rating must be met in order for the appellant to be compensated. See R. at 25. Therefore,the matter will be remanded for the Board to reevaluate the evidence and consider how § 4.7 mightapply to the appellant’s claim. The Board’s failure to discuss § 4.7 renders its statement of reasonsand bases inadequate and frustrates judicial review. See Tucker, Allday, and Schafrath, all supra.While pursuing his case on remand, the appellant is free to submit additional evidence andargument on the remanded matter, and the Board is required to consider any such relevant evidenceand argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Boardmust consider additional evidence and argument in assessing entitlement to benefit sought);Kutscherouskyv.West,12Vet.App.369,372-73(1999)(percuriam order). TheBoardmust proceedexpeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretaryto provide for “expeditioustreatment” of claims remanded by the Court).C. Disability Rating for Peripheral NeuropathyThe appellant’s peripheral neuropathy of the lower extremities is rated by analogy to DC8620, which pertains to neuritis of the sciatic nerve. R. at 18; see 38 C.F.R. § 4.124a, DC 8620(2011). Under this DC, a 10% disability rating is warranted for “mild” incomplete paralysis, 20%for “moderate” incomplete paralysis, 40% for “moderately severe” incomplete paralysis, 60% for”severe” incomplete paralysis with “marked muscular atrophy,” and 80% for complete paralysis8where “the foot dangles and drops, no active movement possible of muscles below the knee, flexionof the knee weakened or (very rarely) lost.” See id. A regulatory note preceding the schedule fordiseases of the peripheral nerves, states:The term “incomplete paralysis,” with this and other peripheral nerve injuries,indicates a degree of lost or impaired function substantially less than the type picturefor complete paralysis given with each nerve, whether due to varied level of the nervelesion or to partial regeneration. When the involvement is wholly sensory, the ratingshould be for the mild, or at most, the moderate degree.38 C.F.R. § 4.124a (note preceding DC 8510). Pursuant to 38 C.F.R. § 4.120 (2011), “[i]n ratingperipheral nerve injuries, attention should be given to the site and character of the injury , the relativeimpairment in motor function, trophic changes, or sensory disturbance.”In the decision here on appeal, the Board determined that the evidence failed to establishentitlement to a disability rating in excess of 10% for each extremity prior to April 7, 2009, or inexcess of 20% from April 7, 2009. R. at 21-22. The appellant argues that, because the notepreceding the schedule for diseases of the peripheral nerves, permits at most a moderate, or 20%,disability rating for incomplete paralysis with wholly sensory manifestations, a claimant displayingmore than wholly sensory manifestations of incomplete paralysis must be rated at a higher level.Appellant’s Br. at 13-14; Reply Br. at 3-4. Thus, he argues that because the evidence of recorddemonstrates that he also suffers from diminished reflexes, the matter must be remanded for theBoard to consider whether he is entitled to a “moderately severe” or “severe” disability rating.Appellant’s Br. at 14. The Secretary does not dispute the appellant’s contention that the recordcontains evidence of diminished reflexes and it appears to be supported bythe record and the Board’sdescription of the evidence. SeeR. at 20 (noting that the February2005 VA electromyographyreportshowed “right ankle jerk absent”) and R. at 21 (noting that in April 2009 the appellant’s “left kneejerk was 1+[,] his right [knee] was 2+[,] [and] [a]nkle jerks were 1+ bilaterally”).Nevertheless, when assessing the evidence of record to determine the appropriate level ofdisability, the Board did not include any analysis or discussion of this evidence, which seems tosuggest that the appellant’s disability is also characterized by loss of reflexes. See R. at 21-22; see also 38 C.F.R. § 4.123 (2011) (providing that “[n]euritis, cranial or peripheral, characterized bylossof reflexes, muscle atrophy, sensory disturbances and constant pain, at times excruciating, is to be9rated on the scale provided for injury of the nerve involved”). The Court agrees with the appellantthat the Board should have considered whether the evidence demonstrating absent or diminishedankle jerk, which renders his condition more than “wholly sensory,” requires the assignment of ahigher disability rating. The Board’s failure to discuss this evidence frustrates judicial review andrenders its statement of reasons or bases inadequate. See Dennis v. Nicholson, 21 Vet.App. 18, 22(2007) (“The Court has long held that merely listing evidence before stating a conclusion does notconstitute an adequate statement of reasons and bases.” (citing Abernathy v. Principi, 3 Vet.App.461, 465 (1992))). On remand, the Board must consider the appellant’s contention that he is entitledto a higher disability rating because the manifestations of his peripheral neuropathy are more thanwholly sensory, i.e., his condition is also characterized by diminished reflexes. See Tucker, Allday,and Caluza, all supra. The appellant is free to submit additional evidence and argument on theremanded matter, and the Board is required to consider any such relevant evidence and argument.See Kay and Kutscherousky, both supra. The Board must proceed expeditiously, in accordance with38 U.S.C. § 7112.

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the record, the Board’s November 3, 2009, decision is AFFIRMED IN PART, VACATED IN PART,and the vacated matters are REMANDED to the Board for further proceedings consistent with this decision.
DATED: October 5, 2011
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)10

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