Miller v. Shulkin, docket no. 15-2904 (Mar. 6, 2017)

HELD: The regulation for rating peripheral neuropathy provides for “a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve” and does not cover non-sensory manifestations. Nevertheless, a claimant who has sensory and non-sensory manifestations is not automatically entitled to a higher rating.

SUMMARY: Veteran Earl Miller appealed the Board’s denial of a disability rating higher than 10% for his service-connected peripheral neuropathy of the left foot. The symptoms he described in written submissions and in hearing testimony include the inability to walk more than 4-5 blocks, to stand for more than 15-20 minutes, to run, or to climb a flight of stairs. He also reported frequent stumbling and falling. A VA examiner stated that he had a noticeable limp, walked with a cane, and had difficulty standing because of the peripheral neuropathy. The examiner stated that he did not feel that Mr. Miller was employable because of his peripheral neuropathy.

At a Board hearing, he described his symptoms and stated that he used a cane regularly. His wife testified that he fell at least three times a day and that she had stopped working to take care of him. The Board denied a disability rating higher than 10%.

Peripheral neuropathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8620. For all peripheral nerve conditions, the regulation states: “When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.” 38 C.F.R. § 4.124a. This issue in this case is whether peripheral nerve conditions that are more than “wholly sensory” must be automatically rated, at a minimum, as “moderately severe.” Mr. Miller argued that because the regulation applies to peripheral nerve disorders that are “wholly sensory,” conditions that are more than wholly sensory must be rated at least “moderately severe,” which warrants a 40% disability rating under VA’s rating schedule. The Secretary argued that the language in the regulation created a maximum disability rating for wholly sensory conditions – not a minimum for conditions that are more than sensory.

The Court first acknowledged that Mr. Miller’s condition is more than “wholly sensory.” The Court examined the language of the regulation and determined that it “provides only a maximum disability rating for wholly sensory manifestations” and “contains no mention of non-sensory manifestations.” The Court found that the provision of a maximum 20% disability rating for wholly sensory manifestations did not entitle a claimant with more than sensory manifestations to a higher rating.

Mr. Miller had also argued that VA’s Adjudication Procedures Manual (M21-1) support his position because it defined both mild and moderate symptoms in “wholly sensory” terms, but it defined “severe” symptoms as involving “more than sensory findings . . . such as atrophy, weakness, and diminished reflexes.” The Court determined that it did not have to consider the M21-1 provision, since it already concluded that the language of the regulation was clear. The Court further noted that the Secretary changed the language in the M21-1 after the parties filed their briefs in this case – and that the new portion now states that the regulation does not mean that any non-sensory impairment “must be evaluated as greater than moderate.”

The Court discussed the Board’s rationale for its determination that Mr. Miller was not entitled to a higher rating, and found that the Board had considered the objective and subjective evidence of record and adequately explained its decision.