Citation Nr: 1752770 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 16-43 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a back disability, to include degenerative disc and joint disease and as secondary to peripheral neuropathy of the lower extremities. 2. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to an initial rating in excess of 10 percent prior to October 29, 2015, and to a rating in excess of 20 percent beginning October 29, 2015, for peripheral neuropathy of the right lower extremity. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1951 to July 1953. These matters come before the Board of Veterans' Appeals (Board) from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claims for entitlement to service connection for a back disability and a disability rating in excess of 30 percent for cold injury, bilateral feet peripheral neuropathy. A subsequent July 2016 rating decision established separate 30 percent evaluations for cold injury residuals of the left and right foot, and additionally awarded separate evaluations for peripheral neuropathy of the bilateral lower extremities as set forth on the title page. The Veteran is currently in receipt of the maximum schedular rating for his cold injury residuals per Diagnostic Code 7122, such that these issues are no longer before the Board. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017); see also Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016). The claims currently on appeal were then remanded by the Board in May 2017 to schedule the Veteran for his requested hearing. However, in October 2017, both the Veteran and his representative withdrew the hearing request. See 38 C.F.R. § 20.704(d) (2017). The matters have since been returned to the Board for appellate consideration and there is no bar to proceeding with a decision at this time This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). FINDINGS OF FACT 1. A back disability is not etiologically related to the Veteran's active service and was not caused or chronically worsened by a service-connected disability, and arthritis of the thoracolumbar spine was not manifest to a compensable degree within one year of the Veteran's separation from active service. 2. Throughout the entire rating period on appeal, the Veteran's peripheral neuropathy of the left lower extremity presented with incomplete paralysis that was mild in severity. 3. Prior to October 29, 2015, the Veteran's peripheral neuropathy of the right lower extremity was productive of incomplete paralysis that was mild in severity. 4. Beginning October 29, 2015, the Veteran's peripheral neuropathy of the right lower extremity was productive of incomplete paralysis that has been moderate in severity. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability, to include degenerative disc and joint disease, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.7, 4.124(a), Diagnostic Code 8520 (2017). 3. The criteria for an initial rating in excess of 10 percent prior to October 29, 2015, and to a rating in excess of 20 percent beginning October 29, 2015, for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155 (2017); 38 C.F.R. §§ 4.7, 4.124(a), Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to Service Connection for a Back Disability The Board first turns to the Veteran's service connection claim. Here, the Veteran contends that his back disability is causally related to his service-connected peripheral neuropathy of the bilateral lower extremities. In applying those standards to the Veteran's claim, the Board first finds competent evidence of the claimed disability. To that end, the Veteran underwent pertinent VA examination in October 2015 and was diagnosed with degenerative joint disease and degenerative disc disease at that time. Said diagnoses are corroborated by the additional evidence of record, to include VA treatment records. However, the Board does not find competent evidence that the Veteran's back disabilities are causally related to his peripheral neuropathy of the bilateral lower extremities. As the Veteran lacks the requisite training and expertise to provide a competent opinion regarding etiology, the Board turns to the medical evidence of record in assessing this theory of entitlement. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999). In this regard, the October 2015 examiner opined that the Veteran's back disabilities were less likely than not proximately due to or the result of the Veteran's service-connected disabilities. In doing so, the examiner noted that the medical record first recorded an abnormal gait in 2011. In 2013, the Veteran complained of lower back pain, and X-rays taken at that time revealed degenerative joint disease and degenerative disc disease of the lumbar spine. Such degenerative changes took years to develop, and more likely than not started long before the Veteran demonstrated an abnormal gait as due to his bilateral peripheral neuropathy. An addendum to that opinion was obtained in June 2016. At that time, the VA examiner similarly concluded that the Veteran's back disabilities were less likely than not proximately due to or the result of the Veteran's service-connected disabilities. The examiner noted the inability to find literature supporting the theory that peripheral neuropathy could cause or aggravate a back condition. Further, the abnormal gait observed in 2011 was not the same gait abnormality associated with peripheral neuropathy. In offering that conclusion, the examiner cited to a source which asserted that the typical gait associated with disturbed proprioception constituted high-stepping and stamping, with a gait that was slightly wide-based and of limited stride length. The Board lends significant probative value to the October 2015 and June 2016 opinions, which are based upon a complete review of the Veteran's medical history, including such factors as the nature of the Veteran's back disability, the impact of his service-connected bilateral peripheral neuropathy disabilities, and current medical standards. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, in the presence of those competent medical opinions and in the absence of a positive nexus opinion from the record, the Board finds no causal link between the Veteran's non- and service-connected disabilities. Briefly, the Board notes that the Veteran is not prohibited from establishing service connection on a direct basis in this case. 38 C.F.R. § 3.303(d) (2017); Shedden v. Principi, 381 F.3d 1163 (2004). However, the Veteran has not testified as to a pertinent in-service illness or injury, and his July 1953 exit examination reports a normal clinical evaluation of the spine. Further, there is no evidence of record indicating that the Veteran had arthritis of the thoracolumbar spine that was manifest to a compensable degree within one year of his active service. Therefore, presumptive service connection is not applicable in this case. 38 C.F.R. § 3.309(a) (2017). Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a back disability is not warranted. 38 U.S.C.A. § 5107 (2017). Increased Ratings for Bilateral Lower Extremity Peripheral Neuropathy The Board now turns to the Veteran's increased rating claims. As those claims require similar legal analyses, they will be addressed in conjunction with one another. The Veteran has asserted that the symptoms of his bilateral lower extremity peripheral neuropathy are worse than contemplated by the currently assigned ratings. The Veteran underwent relevant VA examination in October 2015. At that time, the Veteran reported increased pain in his feet. An accompanying MRI showed no neuromas. During examination, the following symptoms were recorded in the bilateral lower extremities: severe and constant pain; severe intermittent pain; severe paresthesias and/or dysthesias; and severe numbness. No muscle atrophy was reported. Sensory testing revealed decreased sensation in the left lower leg, ankle, foot, and toes, and no sensation on the right. Accordingly, the Veteran did not demonstrate a normal gait, and instead presented as antalgic, with a tendency to walk on his heels. No degree of paralysis of the sciatic nerves was reported. A January 2016 private treatment letter indicates that the Veteran experienced painful dysesthesias as a result of his disability. As a result, the Veteran had been treated with various neuropathic pain medications, which had provided the Veteran with no relief. However, the Veteran's current medication was noted to be partially successful with suppression of painful symptoms, although significant residuals were still present. In an April 2016 lay statement, the Veteran reported that the pain from his disability was so severe that he was unable to walk any distance or stand on his feet for any length of time. The Veteran underwent additional VA examination in September 2016. Foot and leg pain, decreased sensation, and impaired ambulation were reported at that time. The Veteran used various medications to assist with managing those symptoms. VA treatment records spanning the rating period on appeal note the Veteran's history of peripheral sensory neuropathy. Pain and leg numbness was reported in July 2013, although the Veteran ambulated without assistive devices at that time. Upon review of the above, the Board does not find that an initial rating in excess of 10 percent for the Veteran's left lower extremity peripheral neuropathy is warranted at this time. Throughout the entire rating period on appeal, the Veteran's disability presented with ongoing pain, numbness, and paresthesias. As a result, the October 2015 VA examiner classified the Veteran's disability as productive of decreased sensation in the left lower leg, ankle, foot, and toes. However, the Veteran did not present with a more severe degree of paralysis at any time during the rating period on appeal. Instead, the January 2016 private physician noted that the Veteran's current medication was successful in managing his symptoms, and at no time did the Veteran require the use of an assistive device for ambulation. Thus, the Board finds that the Veteran's paralysis is best classified as mild, as embodied in the criteria for a 10 percent disability rating. 38 C.F.R. § 4.124(a), Diagnostic Code 8520 (2017). Similarly, the Board finds that the ratings for the Veteran's peripheral neuropathy of the right lower extremity are proper as currently assigned. Prior to October 29, 2015, the Veteran's disability was productive of pain and leg numbness; no additional symptoms are noted in the record, to include any more severe degree of incomplete paralysis. However, the October 2015 examiner noted an increase in severity of the Veteran's disability, such that sensory testing revealed no sensation in the right lower extremity. However, it does not appear that the lack of sensation was productive of incomplete paralysis that was moderately severe in nature. Instead, the Veteran remained capable of ambulating without assistance, and his symptoms were moderated with the use of medication. Thus, the evidence of record establishes mild incomplete paralysis prior to October 29, 2015, and moderate incomplete paralysis thereafter. 38 C.F.R. § 4.124(a), Diagnostic Code 8520 (2017). In offering that assessment, the Board does not disregard the Veteran's April 2016 lay statement regarding his inability to walk or stand due to his disabilities. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, without appropriate medical training and expertise, which he has not demonstrated, the Veteran is not competent to assess his symptoms against the General Rating Formula in determining his overall disability picture. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999). Further, the Board finds that the medical evidence of record does not corroborate the Veteran's testimony regarding the severity of his disabilities, particularly given his noted ability to ambulate without assistance. Thus, the Veteran's statement does not stand as competent evidence of ongoing paralysis sufficient to justify the assignment of increased ratings at this time. ORDER Entitlement to service connection for a back disability is denied. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. Entitlement to an initial rating in excess of 10 percent prior to October 29, 2015, and to a rating in excess of 20 percent beginning October 29, 2015, for peripheral neuropathy of the right lower extremity is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs