Citation Nr: 1306456 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-15 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to increases in the "staged" ratings (of 20 percent prior to May 3, 2011, and 40 percent from that date) assigned for the Veteran's compression neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, Daughter & Son-in-law ATTORNEY FOR THE BOARD Tabitha G. Macko, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1944 to December 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for compression neuropathy of the right lower extremity, rated 20 percent, effective November 21, 2008. In February 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. This case was before the Board in March 2011 and in August 2011 when it was remanded for additional development. A May 2011 rating decision increased the rating for the Veteran's right lower extremity compression neuropathy to 30 percent, effective May 3, 2011. Another interim rating decision (December 2012) increased the rating for the Veteran's right lower extremity compression neuropathy to 40 percent, also effective May 3, 2011 (and also awarded special monthly compensation (SMC) for loss of use of the right foot). The issue is characterized to reflect that "staged" ratings are assigned, and that both "stages" are for consideration. As the Veteran has not expressed his satisfaction with the ratings throughout the claims period, and as the rating effective prior to May 3, 2011, is less than the maximum under the applicable criteria, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. At no time prior to February 3, 2011, is the Veteran's compression neuropathy of the right lower extremity shown to have resulted in impairment greater than moderate incomplete paralysis of the right external popliteal nerve. 2. From February 3, 2011, impairment associated with the Veteran's compression neuropathy of the right lower neuropathy is reasonably shown to have most nearly approximated complete paralysis of the right external popliteal nerve. 3. Paralysis of the sciatic nerve is not shown. CONCLUSIONS OF LAW 1. A 40 percent rating for compression neuropathy of the right lower extremity is warranted from (the earlier effective date of) February 3, 2011, but not earlier. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (Code) 8521 (2012). 2. A rating in excess of 40 percent for compression neuropathy of the right lower extremity is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Codes 8520, 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefit, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the February 2010 rating decision granted service connection and assigned the disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A September 2010 statement of the case (SOC) provided notice on the "downstream" issues of entitlement to increased initial ratings; and a November 2012 supplemental SOC (SSOC) readjudicated the matters after the Board Remand ordered development was sufficiently completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); see also Shinseki v. Sanders, 556 U.S. 396 (discussing the rule of prejudicial error). The Veteran's pertinent treatment records have been secured. He was afforded VA examinations in June 2009, January 2010, May 2011, and November 2012. The Board finds that the examinations, cumulatively, are adequate for rating purposes as the examiners conducted thorough examinations, elicited complaints from the Veteran, and noted all clinical findings needed for proper determinations in these matters. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. B. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The RO has assigned a staged rating for the Veteran's compression neuropathy of the right lower extremity and both "stages" are for consideration. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the 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. 38 C.F.R. § 4.124a. The Board observes that the words "slight," "moderate," and "severe," are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Increase in the Rating prior to May 3, 2011 On April 2003 private evaluation, the Veteran reported he was experiencing shooting pain in the toes of the right foot and that the pain would come and go. On December 2006 private evaluation, the Veteran was found to have degenerative arthritis in the right knee. On October 2007 evaluation upon admission for inpatient care for another disorder, he denied pain in his legs and on objective examination, the private clinician observed that tone in his limbs was normal, (muscle) power was 5/5 in all four limbs proximally and distally, and deep tendon reflexes were 1+ bilaterally and symmetrically. On later October 2007 evaluation upon discharge from inpatient treatment, the Veteran was observed neurologically to have deep tendon reflexes that were bilaterally symmetrical with 5/5 motor strength and an intact sensory two-point (and the musculoskeletal system had good tone). In a February 2008 statement the Veteran's then private physician observed that the Veteran had reported off and on numbness and discomfort, then pain, in his right lower extremity for years. An EMG in January 2008 (of record) following the Veteran's reports of numbness and tingling was interpreted as abnormal. The right peroneal motor nerve had demonstrated slowed conduction velocity from the knee to the ankle. In November 2008 the Veteran submitted the current claim and in April 2009 he initiated VA treatment. He reported to the VA clinician in April 2009 that he experienced pain in the right leg, and also reported falling at home. Gabapentin was prescribed. May 2009 VA treatment reports note the Veteran's reports of increased right leg pain and difficulty ambulating. By June 2009 he was observed walking with a cane. On June 2009 VA lymphatic disorders examination (in connection with the claim seeking service connection for neuropathy of the right lower extremity, as a residual of lymphadenitis- which was granted by the rating decision on appeal), the examiner's observations and opinions primarily addressed the etiology of the claimed disability; however, the examiner did observe that VA clinical records contained the Veteran's reports of right foot pain and paresthesia that radiated upward, and that a neurological examination was entirely normal with no motor abnormalities and no sensory abnormalities other than decreased temperature on the right lower limb. The examiner also observed that the Veteran clearly did not have right foot drop and had not had it previously, and that the right lower limb looked as normal as the (non-service connected) left lower limb. On June 2009 neurology consultation the Veteran reported that he fell once every other week, had difficulty with gait, and experienced chronic right foot pain (rated 5 on a scale of 10 (5/10)). The clinician noted there was normal muscle bulk and strength and that the Veteran had an antalgic gait, and was moderately slow with stooped posture and shortened stride length. The assessment was Parkinsonism and prominent postural tremor. The reported leg pain and numbness were considered consistent with the Veteran's documented peroneal neuropathy. On July 2009 neurology clinic follow-up evaluation the Veteran reported pain and spasms in the right leg and pain and numbness in the right foot. He had difficulty walking, especially up and down steps, though he denied falls. The clinician observed no muscle wasting and muscle strength remained 5/5. The assessment was chronic right leg pain related to an old injury, which seemed improved on Gabapentin. In an August 2009 neurology follow-up, the Veteran reported falling three times a week and had begun to use a walker with wheels. He reported fatigue and pain (4/10) in his leg while walking. The clinician noted mild sensory loss in the right leg and paresthesia in the right leg peroneal distribution. VA treatment reports for the remainder of 2009 note the Veteran's reports of constant sharp pain and numbness in his right leg and foot and repeated falls. On January 2010 VA peripheral nerves examination the examiner noted the Veteran's reports of pain and paresthesias in the right leg, predominantly from the knee down, though intermittently from the right thigh. The Veteran reported to the examination in a wheelchair, though the examiner noted he was wheelchair bound for other reasons. The examiner observed diminished sensation in the outer and inner margin of the right leg. He had weakness of the gastrocnemius (calf) muscle 4/5. The examiner opined the Veteran had compression neuropathy likely from the cellulitis or lymphadenitis he had in service and it should be considered external popliteal nerve distribution. It was moderate in severity. February and March 2010 VA treatment reports note the Veteran was wheelchair bound and had had several falls. A private June 2010 hospital report notes evaluation of the Veteran following a fall (his leg had "buckled"); the assessment was vertigo. At the February 3, 2011 Travel Board hearing the Veteran testified that after falling at a VA facility during an appointment (in January 2010, report of record), the VA had insisted that he use a wheelchair while at the facility. As of the hearing, he reported he could not walk at all without a walker or a wheelchair. He described giving way of his right leg and associated impairment of function. On May 3, 2011 VA peripheral nerves examination, it was noted that the Veteran reported that his right leg had worsened and that now he was confined to the electric wheelchair. Examination revealed diminished sensation in the outer and inner aspects of the right leg and that the weakness of the right gastrocnemius muscle was now 3/5. The examiner opined the compression neuropathy was now severe. In a September 2011 prosthetic clinic note, it was observed that the Veteran wore a brace for his right ankle and foot that was not supplied by VA. On December 2011 primary care evaluation, the Veteran reported no falls with his electric wheelchair, though he could only stand for a few seconds. A February 2012 neurology evaluation found that he could stand independently, though he refused to walk without a walker. He reported that pain in his right leg was 5/10. On November 2012 VA peripheral nerves examination, the Veteran reported weakness, intermittent buckling and falling. The examiner observed he wore a MAFO (molded ankle-foot orthosis) on the right foot. The examiner noted there was complete foot drop on the right side (and 2/5 power). The Veteran was unstable both with a brace and without one. He had weakness of extensor hallucis longus, tibialis anterior, peroneus, and the peroneus brevis muscles of 4/5. There was a moderate degree of atrophy with a 2 inch diameter, of the right leg (the examiner did not specify at what level). The assessment was external popliteal neuropathy, complete and severe. The examiner opined that the falling was clearly due to the external popliteal nerve paralysis. The Veteran's compression neuropathy of the right lower extremity is rated under Code 8521 (for impairment of the external popliteal nerve). 38 C.F.R. § 4.124a. Incomplete paralysis of the popliteal nerve warrants a 10 percent rating when mild, a 20 percent rating when moderate, a 30 percent rating when severe, and a (maximum) 40 percent rating when there is complete paralysis. After careful review of the evidence, and with consideration of the benefit of the doubt doctrine, the Board finds that the evidence reasonably warrants the assignment of a 40 percent rating for the Veteran's compression neuropathy of the right lower extremity from the earlier effective date of February 3, 2011, but not earlier. Prior to February 3, 2011 the compression neuropathy of the right lower extremity was not shown to have been more than moderate; therefore, it does not warrant a rating in excess of 20 percent under Code 8521. The Veteran had consistently reported pain in the right leg and foot and numbness. He clearly had neurological impairment of the right lower extremity, and on January 2010 VA examination, the examiner it was noted that sensation was diminished on the outer and inner margins of the right leg and the calf muscle had weakness of 4/5. On the basis of these findings, the examiner opined the neuropathy was of moderate severity. Prior to this assessment, during June and July 2009 clinical evaluations, the Veteran's muscle strength remained 5/5 and mild sensory loss was clinically observed for the first time in the record in the August 2009 neurology follow-up. On June 2009 examination, the examiner observed the Veteran clearly did not have foot drop nor had he ever had foot drop, and again, no other clinical finding contradicts this assessment for the period prior to February 3, 2011. Indeed, no clinical findings included foot drop or muscle atrophy until the November 2012 VA examination, when the compression neuropathy of the right lower extremity was described as complete and severe. Consequently, a rating in excess of 20 percent was not warranted at any time prior to February 3, 2011. At the February 3, 2011 Travel Board hearing the Veteran (and his daughter) described symptoms of his right lower extremity compression neuropathy (and associated impairment of function). He is certainly competent to report symptoms such as weakness and giving way (and associated functional impairment leaving him wheelchair-bound), symptoms that were in part the basis for the later assignment of his 40 percent rating. While he is not competent to assess the degree of severity of his symptoms (because as a layperson he would be unaware of the gradations of severity of the disability, which are a medical question See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007)), his descriptions at the hearing and the reports by his daughter comport with the subsequent examination findings that were the basis for the increase in the ratings to 40 percent. The Board finds no reason to doubt his and his daughter's accounts at the hearing. Therefore, the Board finds that impairment consistent with complete paralysis of the Veteran's right lower extremity external popliteal nerve is reasonably shown from the day of the Travel Board hearing, and that a 40 percent rating for the compression neuropathy is warranted from that [earlier effective] date. Entitlement to a Rating in Excess of 40 percent. The 40 percent rating currently assigned is the maximum rating under Code 8521, and is assigned for complete paralysis with foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex foot, extension of the proximal phalanges of toes lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. Consequently, a schedular rating in excess of 40 percent is not possible. 38 C.F.R. § 4.124a, Code 8521. While Code 8520 provides for ratings in excess of 40 percent for lower extremity neuropathy, that Code requires more substantial neurological pathology than is shown; specifically, it requires paralysis of the sciatic nerve beyond the external popliteal level. Such paralysis has not been identified by any medical provider. [The external popliteal nerve is also known as the tibialis nerve, and while it is part of the sciatic nerve, it affects the lower part of the leg below the knee including the calf, foot, and toes. See Dorland's Illustrated Medical Dictionary 1279 (31st ed., 2007) (Dorland's). The sciatic nerve (ischiadicus) originates in the pelvis and the L4-S3 portion of the lumbar spine and then divides into other nerves further down the leg. Dorland's, 1276.] Consequently, the Board finds that the Veteran's peripheral neuropathy is appropriately rated under Code 8521 and that a higher rating under Code 8520 is not warranted. The Board notes that impairment of function beyond what is recognized by a 40 percent rating under Code 8521 (specifically, loss of use of the right foot) has been identified recognized in the awards of special monthly compensation (SMC) for loss of use of the right foot and a total rating based on individual unemployability (TDIU). Therefore, such matters are not for consideration. ORDER A 40 percent rating for compression neuropathy of the right lower extremity is granted from (the earlier effective date of) February 3, 2011, subject to the regulations governing payment of monetary awards. Ratings in excess of 20 percent prior to February 3, 2011 and/or in excess of 40 percent from that date for the right lower extremity compression neuropathy are denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs