Perry v. McDonough
| Decision Date | 14 January 2022 |
| Docket Number | 21-1298 |
| Parties | Earl Perry, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Casey N. Walker, Esq. VA General Counsel (027)
Before SCHOELEN, Senior Judge, [1]
The appellant, Earl Perry, through counsel appeals a November 12 2020, Board of Veterans' Appeals (Board) decision that denied entitlement to (1) a disability rating greater than 20% for diabetes mellitus type II with erectile dysfunction (2) an initial disability rating greater than 10% for bilateral lower extremity diabetic neuropathy of the sciatic nerve from February 23, 2017, to February 4, 2018; (3) a disability rating greater than 40% for bilateral lower extremity diabetic neuropathy of the sciatic nerve from February 5, 2018; (4) an effective date earlier than February 23, 2017, for the 50% disability compensation award for glaucoma; and (5) a total disability rating based on individual unemployability (TDIU) earlier than February 23 2017. Record (R.) at 5-40.[2] This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
For the following reasons, the Court will affirm the portions of the Board's decision that denied entitlement to (1) a disability rating greater than 40% for bilateral lower extremity diabetic neuropathy of the sciatic nerve from February 5, 2018; and (2) an effective date earlier than February 23, 2017, for the 50% disability compensation award for glaucoma. The Court will vacate the portions of the Board's decision that denied entitlement to (1) a disability rating greater than 20% for diabetes; (2) an initial disability rating greater than 10% for bilateral lower extremity diabetic neuropathy of the sciatic nerve from February 23, 2017, to February 4, 2018; and (3) TDIU earlier than February 23, 2017, and remand the matters for further proceedings consistent with this decision.
The appellant served honorably in the U.S. Army from October 1966 to October 1969. R. at 8686. In September 2004, a VA regional office (RO) awarded disability compensation for diabetes and assigned a 20% rating. R. at 8577-80; see R. at 8694-715 (May 2004 diabetes claim). The appellant did not appeal this decision, and it became final.
In July 2009, he submitted an increased-rating claim for diabetes and sought disability compensation for glaucoma. R. at 8382. The RO denied both claims in a December 2009 rating decision. R. at 8310-15. The appellant disagreed with the denial of the glaucoma claim and perfected his appeal. R. at 7586 (Jan. 2014 VA Form 9), 8289 (Jan. 2010 Notice of Disagreement (NOD)); see R. at 7789-811 (Dec. 2013 Statement of the Case (SOC)).
He submitted another increased-rating claim for diabetes in March 2011, R. at 8208, which the RO denied, R. at 7861-68 (Mar. 2012 rating decision), 8123-31 (Sept. 2011 rating decision); and the appellant disagreed, R. at 7852 (Apr. 2012 NOD). He underwent a VA examination for diabetes in January 2014, and the examiner diagnosed type II diabetes, noted that the appellant did not require regulation of activities to manage his diabetes, and that the appellant did not have any diabetes complications. R. at 7587-89.
In an April 2015 decision, the RO granted disability compensation for glaucoma and assigned a 10% disability rating, effective July 30, 2009. R. at 7454-59. In a June 2015 SOC, the RO continued to deny the appellant's increased-rating claim for diabetes. R. at 7409-27. The appellant submitted a VA Form 9 in August 2015. R. at 7383. The form reflects that the appellant asserted that he is "only appealing these issues: denial for increase for [his] diabetes." R. at 7383. He provided the following explanation:
In February 2017, the appellant obtained his current counsel. R. at 7351-52. On February 23, 2017, he also requested TDR7 based on his service-connected disabilities. R. at 7348-49.[3]
He underwent a VA eye examination in March 2017, and the examiner found that the appellant's glaucoma requires continual treatment and that the appellant has "advanced visual field defects" bilaterally, which are more likely than not related to his service-connected glaucoma. R. at 7190, 7195; see 7179-95. He underwent another VA examination for diabetes in May 2017, and the examiner diagnosed type II diabetes, noting that the appellant did not require regulation of activities to manage his diabetes and did not have any diabetes complications. R. at 6693-95. A May 2017 electromyography (EMG) revealed "bilateral superficial peroneal sensory neuropathy, axonal and demyelinating," "decreased sensation to monofilament and touch," no "lumbar radiculopathy in the myotomes," and that these findings are "consistent with diabetic neuropathy." R. at 4861-62.
In a June 2017 decision, the RO granted entitlement to disability compensation for diabetic neuropathy of the bilateral lower extremities and assigned a disability rating of 10%, effective February 23, 2017; increased the appellant's disability rating for glaucoma from 10% to 50%, effective February 23, 2017, and denied TDIU. R. at 6645-51. The appellant disagreed with the assigned rating for diabetic neuropathy of the bilateral lower extremities, the effective dates for the diabetic neuropathy of the bilateral lower extremities and glaucoma awards (asserting that the effective dates should be the date of the increased-rating claim for diabetes), and the denial of TDIU. R. at 6633.
In February 2018, the appellant underwent a private examination, and the examiner diagnosed type II diabetes and diabetic neuropathy. R. at 6575, 6581. The examiner stated that the appellant "require[s] regulation of activities as part of [his] medical management of diabetes" and specified "avoidance of physical exertion with great attention on diet, coupled with regulation of activities," and that these "are mutually inseparable from each[]other." R. at 6581. The examiner also provided that the appellant's diabetes "impact[s] his . . . ability to work" because his "physical activities [are] limited coupled with [his] need to maintain a very specific diet," that his "diabetes is poorly controlled," and that he "takes daily injections of insulin." R. at 6583.
Further, the examiner found that the appellant's diabetic peripheral neuropathy of his bilateral lower extremities causes constant moderate pain, severe intermittent pain and numbness, moderate parethesias in the left lower extremity, severe parethesias in the right lower extremity, and moderately severe incomplete paralysis of the sciatic nerve. R. at 6575-76, 6578. The examiner also noted that the May 2017 EMG revealed abnormalities in the bilateral lower extremities, including "decreased sensation to monofilament and touch" and neuropathy. R. at 6579. The examiner remarked that the appellant "has well-documented neuropathy symptoms supported by EMG findings since 2004," his "[diabetes] is uncontrolled," and the examiner "suspect[ed] [that the appellant's] neuro[logical] symptoms have been moderately severe since 2006 based on . . . neurological records." Id.
The private examiner also provided an employability assessment and concluded that the appellant's "[diabetes] with residual secondary conditions, [including diabetic neuropathy and glaucoma, ] renders him incapable of maintaining substantially gainful employment.... since at least 2006" and that "[h]is unemployability appears to be solely because of his [diabetes] with residual secondary conditions." R. at 6562-63. The examiner provided the following explanation: The appellant's work as a metal polisher had become increasingly dangerous because of his "loss of dexterity" due to his diabetic neuropathy; his diabetic neuropathy has caused loss of grip and sensation in his hands with intermittent pain and paresthesia, moderately severe lower extremity neuropathy of the sciatic nerve, and "a foot drop and a clumsy gait," and his diabetic neuropathy symptoms have been "moderately severe since at least 2006"; his "diabetic neuropathies alone render him incapable of most physical and/or sedentary work"; and it would be difficult for him to work any computer-related jobs, jobs requiring "micro-dexterity . . . such as making phone calls [and] typing," jobs requiring him to "stay on his feet for... a reasonable duration," or jobs requiring him to "actively participate in activities requiring mobility." R. at 6563. The examiner also explained that the appellant's glaucoma has caused him "severe vision disturbance" that would "greatly impair his serviceability to any employer," especially if a job required "document review or data extraction." Id. In March 2018, the appellant's counsel submitted the February 2018 private examiner's examination reports and employability assessment. R. at 6564.
The appellant underwent another VA examination in December 2019 and the examiner diagnosed type II diabetes since 2004 and diabetic neuropathy since the May 2017 EMG. R. at 487, 491-92. The examiner reported that the appellant "require[s] regulation of activities as part of [his] medical management of diabetes" and specified that the appellant...
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