Miller v. Shulkin
28 Vet. App. 376
| Vet. App. | 2017Background
- Earl Miller appealed the Board of Veterans’ Appeals’ June 5, 2015 denial of an increased rating above 10% for left-foot peripheral neuropathy associated with service‑connected diabetes.
- VA regional office originally assigned 10% in Dec 2009; claimant sought increase and appealed after RO continued 10% in Sept 2010.
- Multiple VA examinations (2010, 2014, 2015) documented sensory symptoms (numbness, burning, paresthesias), intermittent decreased sensation, absent vibration at one exam; no consistent muscle atrophy, weakness, or reflex loss.
- Claimant reported frequent falls, use of cane/wheelchair, limp, and limitations in ambulation; some examiners opined unemployability due to neuropathy.
- The Board found predominantly mild/incomplete sensory impairment with intermittently decreased sensation and no objective atrophy or reflex loss, concluding 10% was proper; it denied rating above 10% and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Interpretation of the § 4.124a note stating “When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.” | Miller: If a neuropathy is more than "wholly sensory" (sensory plus non‑sensory signs), it must be rated at least moderate (≥40%). | Secretary: The language sets a ceiling (max rating for wholly sensory cases), not a floor for non‑sensory cases. | Court: The note creates a maximum for wholly sensory conditions, not a mandatory minimum for cases with non‑sensory findings; it affirmed the Board's decision. |
Key Cases Cited
- Lane v. Principi, 339 F.3d 1331 (Fed. Cir.) (regulatory interpretation is a question of law reviewed de novo)
- Perrin v. United States, 444 U.S. 37 (plain‑language interpretation starts the analysis)
- Tropf v. Nicholson, 20 Vet.App. 317 (if regulation language is clear, inquiry ends)
- Gilbert v. Derwinski, 1 Vet.App. 49 (Board must provide adequate reasons or bases for its determinations)
- Owens v. Brown, 7 Vet.App. 429 (challenge to Board's weighing of evidence requires showing clear error)
- Frankel v. Derwinski, 1 Vet.App. 23 (factors supporting referral for precedential decisions)