Earl Miller v. David J. Shulkin

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 15-2904

EARL MILLER, APPELLANT,

V.

DAVID J. SHULKIN, M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided March 6, 2017)

Matthew J. Pimentel, of Providence, Rhode Island, was on the brief for the appellant.

Leigh A. Bradley, General Counsel; Mary Ann Flynn, Chief Counsel; Christopher W.

Wallace, Deputy Chief Counsel; and Shondriette D. Kelley, Appellate Attorney, all of Washington,

D.C., were on the brief for the appellee.

Before DAVIS, Chief Judge, SCHOELEN, Judge, and HAGEL, Senior Judge.1

HAGEL, Senior Judge: Earl Miller appeals through counsel a June 5, 2015, Board of

Veterans' Appeals (Board) decision that denied entitlement to a disability rating in excess of 10%

for peripheral neuropathy of the left foot.2 Mr. Miller's Notice of Appeal was timely, and the Court

has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). The question before

the Court is the proper interpretation of the following statement: "When the involvement is wholly

1

Judge Hagel is a Senior Judge acting in recall status. In re: Recall of Retired Judge, U.S. VET. APP. MISC.

ORDER 15-16 (Dec. 21, 2016).

2

The Board remanded the matters of entitlement to a total disability rating based on individual unemployability

and of whether a reduction in the disability rating assigned for diabetic retinopathy with cataracts from 30% to

noncompensable effective May 11, 2015, was proper. Those matters are not before the Court at this time. See 38 U.S.C.

§ 7266(a) (stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341,

1344 (Fed. Cir. 2000) (Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R.

§ 20.1100(b) (1999))).

sensory, the rating should be for the mild, or at most, the moderate degree." 38 C.F.R. § 4.124a

(2016).

Neither party requested oral argument within 14 days of the date on which the reply brief was

filed, see U.S. VET. APP. R. 34(b), nor did the parties identify issues that they believe require a

precedential decision of the Court. Nevertheless, the Court observes that this issue has been

presented to the Court on several previous occasions and, in each instance, has been adequately

decided by single-judge non-precedential memorandum decisions. In light of the fact that multiple

appeals have raised the same issue, the Court concludes that this issue is one of continuing public

interest–a factor warranting a precedential decision. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26

(1990); U.S. VET. APP. R. 35(e)(2). Accordingly, the matter was referred to a panel of the Court on

February 2, 2017. After the docket memorialized the Court's decision that the appeal presented an

issue requiring a precedential decision, Mr. Miller moved, out of time, for oral argument. On March

2, 2017, the Court denied the motion to file a motion for oral argument out of time.

Because the language at issue establishes a maximum disability rating for conditions that are

wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly

sensory, and because the Board adequately explained its determination that Mr. Miller is not entitled

to a disability rating in excess of 10%, the Court will affirm the June 2015 Board decision.

I. FACTS

Mr. Miller served on active duty in the U.S. Army from February 1967 to January 1969,

including service in Viet Nam.

In December 2009, a VA regional office granted Mr. Miller's claim for benefits for

peripheral neuropathy of the left foot associated with type 2 diabetes mellitus and assigned a 10%

disability rating. In April 2010, rather than file a Notice of Disagreement with that decision, Mr.

Miller sought an increased disability rating.

In June 2010, Mr. Miller underwent a VA peripheral nerves examination. He reported

constant soreness and occasional numbness in his feet and inability to walk more than 4 or 5 blocks,

to stand for longer than 15 to 20 minutes, to run at all, or to climb more than one flight of stairs. He

also reported stumbling and falling three times in the past year. The examiner, nurse practitioner Jill

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Messer, recorded that Mr. Miller walked with a slight limp and with the aid of a cane. She

concluded that he suffered from peripheral neuropathy secondary to diabetes mellitus.

In September 2010, the regional office continued the 10% disability rating assigned for Mr.

Miller's service-connected peripheral neuropathy of the left foot. Mr. Miller filed a Notice of

Disagreement with that decision and ultimately appealed to the Board.

The record contains a report of a June 2012 private physical examination conducted by Roel

Laygo, M.D. Mr. Miller reported to Dr. Laygo that he experienced "numb, tingling, sometimes

burning feet." Record (R.) at 837.

In May 2014, Mr. Miller underwent a VA peripheral neuropathy examination, conducted by

certified physician's assistant Lisa Kilgore-Christensen. Mr. Miller reported a constant sensation of

"walking on pins and needles," as well as numbness on the bottoms of his feet. R. at 123. He

advised Ms. Kilgore-Christensen that he used a cane to walk because "when he walks he feels like

he cannot feel the floor underneath him and is afraid he is going to fall." Id. Mr. Miller reported

mild pain, paresthesias, and numbness in his left lower extremity. Light touch/monofilament testing

and cold sensation testing of Mr. Miller's left lower extremity were normal. Vibration sensation was

absent in the lower left extremity, but position sense was normal and there was no muscle atrophy

or trophic changes. Ms. Kilgore-Christensen diagnosed mild incomplete paralysis of the left sciatic

nerve. She stated that Mr. Miller's condition did not affect his ability to work.

In March 2015, Mr. Miller underwent yet another VA peripheral neuropathy examination.

He again reported burning and tingling sensations in his feet. He also reported severe constant pain,

moderate paresthesias, and moderate numbness of the left lower extremity. Muscle strength testing

was normal and there was no muscle atrophy. Light touch testing revealed decreased sensation in

the left foot and toes. The examiner, Steven Cox, M.D., recorded: "[Mr. Miller] uses a cane to walk,

and he favors his right lower extremity and has a limp. He walks very slow without the cane with

a noticeable limp from favoring the right lower extremity." R. at 1191. Dr. Cox determined that the

cause of Mr. Miller's abnormal gait was his service-connected peripheral neuropathy. Dr. Cox

diagnosed mild incomplete paralysis of the left sciatic nerve. In response to whether Mr. Miller's

condition affected his ability to work, Dr. Cox wrote:

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[Mr. Miller] uses a cane to ambulate and has difficulty with prolonged standing[,]

probably as [a] result of the peripheral neuropathy related to his diabetes mellitus.

He has a noticeable limp and does have both upper and lower extremity pain and

numbness which is multifactorial but contributed to by the diabetic neuropathy as

demonstrated on nerve conduction velocity studies as noted. I do not feel [he] is

employable because of his peripheral neuropathy.

R. at 1196.

In April 2015, Mr. Miller and his wife testified before a Board member via video conference.

Mr. Miller reported that he could not feel the bottoms of his feet and that he fell quite often,

including three times already on the day of the hearing. The transcript reveals that Mr. Miller was

using a wheelchair on the day of the hearing and that he stated that he used a cane regularly. Mr.

Miller's wife testified that he fell at least three times a day. She reported that she had stopped

working so that she could take care of Mr. Miller and that they had moved their bedroom to the first

floor in light of Mr. Miller's propensity to fall. Mr. Miller testified that he experienced a decrease

in his muscles in his left lower extremity and that he lacked coordination in his feet, both due to

peripheral neuropathy. Finally, he testified that his left leg and foot were weak and gave way often.

In June 2015, the Board issued the decision on appeal, denying Mr. Miller entitlement to a

disability rating in excess of 10% for left foot peripheral neuropathy. This appeal followed.

II. PARTIES' ARGUMENTS

On appeal, Mr. Miller argues that the Board failed to adequately explain its determination

that he was not entitled to a disability rating in excess of 10% for his service-connected left foot

peripheral neuropathy.

Mr. Miller's disability is rated under Diagnostic Code 8620, which is located in 38 C.F.R.

§ 4.124a, concerning "Diseases of the Peripheral Nerves." For all diseases of the peripheral nerves,

the rating schedule instructs:

The term "incomplete paralysis," with this and other peripheral nerve injuries,

indicates a degree of lost or impaired function substantially less than the type picture

for complete paralysis given with each nerve, whether due to varied level of the nerve

lesion or to partial regeneration. When the involvement is wholly sensory, the rating

should be for the mild, or at most, the moderate degree. The ratings for the

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peripheral nerves are for unilateral involvement; when bilateral, combine with

application of the bilateral factor.

38 C.F.R. § 4.124a (2016).

Mr. Miller's argument is, in short, that, because § 4.124a states that peripheral nerve disorders

that are "wholly sensory" (that is, manifested by only sensory-based symptoms) are to be rated as

mild or moderate at most and assigned disability ratings of 10% or 20%, respectively, a peripheral

nerve disorder that is more than "wholly sensory" (that is, manifested by both sensory and

non-sensory-based symptoms) must be rated as at least moderately severe and assigned a disability

rating of at least 40%. Because the Board failed to consider this theory, Mr. Miller contends that the

Board failed to adequately explain why he was not entitled to a disability rating in excess of 10%.

For his part, the Secretary argues that the "wholly sensory" language of § 4.124a creates a

ceiling–that is, a maximum disability rating–for wholly sensory conditions, rather than a floor–or

minimum disability rating–for conditions that are more than wholly sensory.

III. ANALYSIS

There is no dispute between the parties that Mr. Miller's peripheral neuropathy is more than

"wholly sensory" in nature. The dispute is whether § 4.124a's statement that wholly sensory

peripheral neuropathy should be rated as no more than moderate in degree means that peripheral

neuropathy that is more than wholly sensory must be, automatically and at a minimum, rated as

moderately severe.

A. Plain Language

The question of interpretation of this regulation is a matter of first impression for the Court.

The "interpretation of a . . . regulation is a question of law" that the Court reviews de novo. Lane

v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003). As always, to discern the meaning of a regulation,

we begin with the plain language of the regulation. Perrin v. United States, 444 U.S. 37, 42 (1979)

("We begin with the language of the . . . Act itself."); Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir.

1994) (noting that the canons of statutory interpretation apply to interpreting regulations), superseded

by statute as stated in Samish Indian Nation v. United States, 419 F.3d 1355 (Fed. Cir. 2005). "[I]f

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the meaning of the regulation is clear from its language, then that is 'the end of the matter.'" Tropf

v. Nicholson, 20 Vet.App. 317, 320 (2006) (quoting Brown v. Gardner, 513 U.S. 115, 120 (1994)).

The Court finds that, based on its plain language, the note preceding § 4.124a provides only

a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a

peripheral nerve. The note contains no mention of non-sensory manifestations, and the Court

declines to read into the regulation a corresponding minimum disability rating for non-sensory

manifestations, as Mr. Miller proposes. Although the note preceding § 4.124a directs the claims

adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral

nerve where the condition is productive of wholly sensory manifestations, it does not logically

follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at

a higher level. There is no support for this proposition in the regulation.

The Court acknowledges that Mr. Miller relies not just on the plain language of the

regulation, but also on VA's Adjudication Procedures Manual (Manual). He argues that the Manual

"defines mild incomplete paralysis as demonstrating 'subjective symptoms or diminished sensation;'

moderate symptomology as the 'absence of sensation confirmed by objective findings;' and severe

symptomology as 'more than sensory findings are demonstrated, such as atrophy, weakness, and

diminished reflexes.'" Appellant's Brief (Br.) at 7 (quoting VA Adjudication Procedures Manual,

M21-1MR, Part III, Subpart iv, Chapter 4, § G(4)). Accordingly, he contends that the Manual

supports his interpretation of § 4.124a as requiring a rating of at least moderately severe, if not

severe, where there is more than simply sensory involvement.

The Court, however, need not consider the Manual in interpreting § 4.124a, as the Court has

already concluded that the language of the regulation is plain. See Tropf, 20 Vet.App. at 320.

Moreover, the Court notes that, in June 2016, after the briefs were filed in this matter, the Secretary

amended the Manual "to further clarify the intent of VA's policy," Secretary's Br. at 10, and the

relevant portion of the Manual now explains:

Important: This provision does not mean that if there is any impairment that is

non-sensory (or involves a non-sensory component) such as a reflex abnormality,

weakness or muscle atrophy, the disability must be evaluated as greater than

moderate. Significant and widespread sensory impairment may potentially indicate

the same or even more disability than a case involving a minimally reduced or

increased reflex or minimally reduced strength.

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M21-1, Part III, subpt. iv, Ch. 4, § G(4)(b).

B. Reasons or Bases

To the extent that Mr. Miller argues generally that the Board failed to adequately explain why

he is not entitled to a disability rating in excess of 10% for peripheral neuropathy of the left foot, the

Court disagrees.

The Board explained:

After considering the [medical and lay] evidence, the Board finds that [Mr. Miller]

is not entitled to a rating in excess of 10[%] for his service-connected left foot

peripheral neuropathy. The evidence of record documented pain and intermittent

sensory deficits in the left foot. Moreover, the May 2014 and March 2015 VA

examination[s] also characterized the level of disability as mild, which is the criteria

for a 10[%] rating under this code. Reflexes have [been] consistently found to be

normal with no findings of muscle atrophy or decreased strength. Further, while [Mr.

Miller] reported that he was unable to feel his foot at the April 2015 Board hearing,

objective examination conducted in March 2015 found that sensation in the foot and

toes were decreased. Moreover, a May 2014 VA examination found sensation in the

foot to be normal[,] and a June 2010 VA examination found light touch sensation to

be normal. Objective examination during the course of the appeal has therefore

found sensation to be only intermittently decreased.

Additionally, while [Mr. Miller] has asserted that he frequently falls due to being

unable to feel his feet, the Board again notes that objective examination has found

only intermittent decreased sensation. An April 2015 VA treatment note suggests

that [Mr. Miller's] March 2015 fall was the result of slipping while exiting his car,

not his left foot peripheral neuropathy. Further, there is nothing in the clinical record

to suggest that [Mr. Miller] frequently falls as a result of his left foot peripheral

neuropathy. A rating in excess of 10[%] is therefore not warranted for peripheral

neuropathy of the left foot[,] as muscle atrophy, loss of reflexes[,] and absent

sensation were not found on objective examination. 38 C.F.R. § 4.124a, [Diagnostic

Code] 8620.

R. at 12. This discussion demonstrates that the Board considered both the objective and subjective

evidence of record and concluded that, on the whole, Mr. Miller's disability is properly rated 10%

disabling. The Court finds the Board's analysis sufficient to inform Mr. Miller of the reasons for its

determination and to permit review by the Court. See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski,

1 Vet.App. 49, 57 (1990).

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Although Mr. Miller argues that his symptoms demonstrate a greater degree of severity, his

argument is with the weight the Board afforded the various pieces of evidence. It is the Board's duty

to weigh the evidence, and a mere allegation that the Board improperly weighed the evidence is not

sufficient to demonstrate that the Board clearly erred. See Owens v. Brown, 7 Vet.App. 429, 433

(1995).

IV. CONCLUSION

Upon consideration of the foregoing, the June 5, 2015, Board decision is AFFIRMED.

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