Citation Nr: 1751701 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 15-13 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a rating higher than 20 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to a rating higher than 20 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1967. His awards include the Combat Infantry Badge and the Republic of Vietnam Gallantry Cross. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted service connection for peripheral neuropathy of the right and left upper extremities, continued the ratings for peripheral neuropathy of the right and left lower extremities, and denied service connection for hypertension and erectile dysfunction. The Veteran submitted a notice of disagreement in August 2013. In a March 2015 rating decision, the Veteran was granted service connection for erectile dysfunction and hypertension, granted special monthly compensation based on loss of use of a creative organ, and increased the ratings for peripheral neuropathy of the right and left lower extremities to 20 percent each effective February 28, 2013. This represents a full grant of the benefits sought with regard to the claims for service connection for hypertension and erectile dysfunction. However, insofar as higher ratings are available for peripheral neuropathy of the right and left lower extremities and the Veteran is presumed to be seeking the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The RO also issued a statement of the case in March 2015 on the issues of increased the ratings for peripheral neuropathy of the right and left upper and lower extremities. In an April 2015 VA Form 9, the Veteran perfected his appeal with regard to the issues of increased ratings for peripheral neuropathy of the right and left lower extremities only. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2014). FINDING OF FACT The Veteran's peripheral neuropathy of the right and left lower extremities manifests as severe pain, numbness, decreased or absent deep tendon reflexes in the joints of the bilateral lower extremities, and decreased or absent sensation in the joints of the bilateral lower extremities. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent, but no higher, have been met for peripheral neuropathy of the right lower extremity for the entire appeal period. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for a disability rating of 40 percent, but no higher, have been met for peripheral neuropathy of the left lower extremity for the entire appeal period. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran was originally granted service connection for diabetic peripheral neuropathy of the right and left lower extremities in an April 2012 rating decision. At that time, the Veteran was assigned 10 percent ratings for each lower extremity effective January 11, 2012. Additional evidence was received and these ratings were confirmed and continued in a September 2012 rating decision. The Veteran did not appeal that rating decision. Instead, The Veteran's current claim for increased ratings was received in February 2013. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's peripheral neuropathy of the bilateral lower extremities is currently rated under Diagnostic Code (DC) 8520. Under DC 8520 mild incomplete paralysis of the sciatic nerve is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. In his February 2013 claim, the Veteran noted that his neuropathy had gotten worse. A May 2013 VA treatment record notes the Veteran's complaints of increasingly intrusive tingling and cramping in toes and feet for about 2 years, and more recently tingling in the fingers and mild gait instability. He had no falls or changes in bladder function. He could not tolerate gabapentin and increasing doses of pregabalin had been unhelpful. Neurologic examination found stable gait, unsteady on tandem. He had normal muscle power except for mild weakness in the extensor hallucis longus bilaterally. He had no tremor or dysmetria. His deep tendon reflexes were decreased and symmetrical, but absent in ankle joints and flexor plantars. He had decreased light touch on distal feet. Vibration sensation was normal (0 seconds) in toes, but delayed 4 seconds at malleoli. His position sensation was intact. In a June 2013 application for parking permit or license plates, the Veteran's VA nurse practitioner noted that the Veteran was unable to walk 200 feet without stopping due to neuropathy in his legs. In June 2013 the Veteran underwent a VA examination in conjunction with these claims. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore it is adequate for VA purposes. At that time, the Veteran complained of worsening neuropathy in his hands and feet. Specifically he complained of numbness, tingling, and pain. He had recently begun to take nortiptyline for these disabilities. The examiner noted that the Veteran was right-hand dominant. His reported symptoms included mild constant pain and severe intermittent pain, paresthesias and/or dysthesias, and numbness bilaterally. Examination results included that he had full muscle strength and deep tendon reflexes. He had decreased light touch/monofilament sensation in the bilateral feet/toes. There was no muscle atrophy or trophic changes. This examiner found that the Veteran's lower extremity diabetic peripheral neuropathy resulted in mild incomplete paralysis of the sciatic nerve bilaterally. The femoral nerve was normal. The Veteran did not have any associated scars or other pertinent physical findings, complications, conditions, signs, and/or symptoms related to these disabilities. These disabilities did not impact his ability to work. At the time, the Veteran worked full time as a county service officer and denied any effect of the neuropathy on his employment. In a July 2013 statement, the Veteran reported an increase in pain in both feet that made walking difficult. He had recently been prescribed a cane. His medication dosage had been doubled. A July 2013 VA treatment record notes that the Veteran's neuropathy was getting worse. He became off balance when he got up at night to use the bathroom. His medication was increased. An August 2013 VA treatment record noted that the Veteran's neuropathy had not improved with increased medication a month earlier. It was causing him to be off balance and he was using a cane. A July 2014 VA treatment record notes that treatment with Lyrica, nortriptyline, and a special topical compound had failed previously and he was currently taking Cymbalta. An August 2014 addendum to this record noted that Cymbalta was not doing much for the Veteran. His ability to walk was limited, especially as the day went on, and he was given a handicap sticker. In September 2014 the Veteran underwent another VA examination in conjunction with these claims. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore it is adequate for VA purposes. At that time, the Veteran's reported symptoms included mild constant pain and severe intermittent pain, paresthesias and/or dysthesias, and numbness bilaterally. Examination results included that he had full muscle strength and deep tendon reflexes. He had decreased light touch/monofilament sensation in the bilateral feet/toes, but otherwise normal sensation in the bilateral lower extremities. There was no muscle atrophy or trophic changes. This examiner found mild incomplete paralysis of the sciatic nerve bilaterally. The femoral nerve was normal. The Veteran did not have any associated scars or other pertinent physical findings, complications, conditions, signs, and/or symptoms related to these disabilities. These disabilities did not impact his ability to work. In a January 2015 statement, the Veteran reported an increase in pain and difficulty walking. He stated that he fell a lot due to pain and lack of feeling in his feet. He was concerned that this could lead to bleeding that would be worsened by his prescription blood thinners. He stated that his feet had no feeling in them except for a shooting pain like electric shock. He reported that staggered when he walked. In a March 2015 statement, the Veteran reported that his neuropathy of the bilateral lower extremities continued to worsen. His ability to walk diminished as the day progressed. He had to use a cane and, later in the day, a walker. He reported that fell often. Medication had failed to ease his pain. The Veteran reported numbness in both feet from the middle to the tip of his toes with the exception of shooting pain that felt like electric shocks running through his feet. He stated that the previous examiner had failed to perform sensory testing on his feet. The Board notes that the examination report does note decreased sensation in his bilateral feet, severe numbness, severe intermittent pain, severe paresthesias and/or dysthesias, and mild constant pain. As the symptoms the Veteran described in his March 2015 statement were recorded in the September 2014 examination report, the Board continues to find that the September 2014 examination was adequate. The February 2016 VA examiner noted that the Veteran's diabetic neuropathy caused extreme pain without relief from medication and that pain had become intolerable. This pain could make it very difficult for the Veteran to work. In April 2016 the Veteran underwent a VA examination in conjunction with this claim. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore it is adequate for VA purposes. At that time the Veteran complained of numbness of his hands and feet along with neuropathic pain. He stated that he had no feeling in his feet up to his ankles. He complained of severe shooting or electrical pain in his feet. The Veteran stated that he had a problem with balance and falling. He had tried multiple medications without any relief of symptoms. The Veteran's symptoms included severe intermittent pain, paresthesias and/or dysthesias, and numbness bilaterally, but no constant pain. He had full muscle strength. His deep tendon reflexes were decreased in the knees and absent in the ankles. He had decreased light touch/monofilament sensation in the bilateral ankles/lower legs and sensation was absent in the bilateral feet/toes. There was no muscle atrophy or trophic changes. This examiner found mild incomplete paralysis of the sciatic nerve bilaterally. The Veteran did not have any associated scars or other pertinent physical findings, complications, conditions, signs, and/or symptoms related to these disabilities. These disabilities impacted his ability to work in that he was unable to walk over 200 feet. Based on the above, the Board concludes that the Veteran's neuropathy of each lower extremity approximates the criteria for a 40 percent, but no higher, for the entire appeal period. Although the Veteran's symptoms have been mostly sensory; i.e., pain, numbness, and paresthesias /dysthesias, he has been found to have deep tendon reflexes decreased in the knees and absent in the ankles. The Board is aware that these findings first were documented by examination in April 2016. However, the Veteran's reports of symptoms have remained relatively constant since he filed his claim for an increase. The Board is therefore left with reasonable doubt as to the extent of his disability prior to the most recent examination. Resolving such doubt in favor of the Veteran, the Board concludes that the ratings should each be increased to 40 percent, for moderately severe incomplete paralysis of each sciatic nerve for the entire period on appeal. However, a rating higher than 40 percent is not approximated in this case. The criteria for the next higher rating includes that he have marked muscular atrophy - which has never been shown. The Board has not ignored 38 C.F.R. § 4.123, which addresses neuritis with such symptoms as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating. That regulation provides that a rating no higher than that for moderately severe incomplete paralysis may be assigned for neuritis of the sciatic nerve. Thus, a rating higher than 40 percent may not be assigned under this section. There is no reasonable doubt to be resolved as to whether a rating higher than 40 percent is warranted for either lower extremity neuropathy. The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of peripheral neuropathy of the bilateral lower extremities are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case, the record shows that the Veteran last worked on August 28, 2015. In a March 2016 rating decision, he was awarded TDIU effective the following day, August 29, 2015. Prior to that date neither the claimant nor the record has raised the question of unemployability due to service-connected disability during the pendency of this appeal. Therefore no further discussion of a TDIU is necessary. ORDER A 40 percent disability rating is granted for peripheral neuropathy of the right lower extremity, subject to the regulations governing the disbursement of monetary benefits. A 40 percent disability rating is granted for peripheral neuropathy of the left lower extremity, subject to the regulations governing the disbursement of monetary benefits. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs