Citation Nr: 1752899 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-35 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy. 2. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from December 1963 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a November 2015 written correspondence, prior to certification of the matter on appeal, the Veteran withdrew from appeal the matters of entitlement to increased rating for diabetes mellitus, erectile dysfunction, and posttraumatic stress disorder. Accordingly, these matters are no longer before the Board. The Veteran also withdrew his Board hearing request in the November 2015 written correspondence. The Board will accordingly proceed with a decision in this matter. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the right lower extremity is manifested by moderately severe incomplete paralysis of the sciatic nerve. 2. The Veteran's peripheral neuropathy of the left lower extremity is manifested by moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for peripheral neuropathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for a 40 percent rating for peripheral neuropathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). The Veteran's peripheral neuropathy of the right and left lower extremities are each rated as 20 percent disabling pursuant to the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8520. This diagnostic code provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. A June 2010 VA examination report reflects that the Veteran noted onset of peripheral neuropathy 7 years prior. He had lower extremity numbness, weakness, and pain. Current treatment included gabapentin and tramadol. He indicated that his peripheral neuropathy affected his activities of daily living because he was unable to walk long distances. On neurologic examination, gait was intact. Lower extremity sensation was diminished distally. Lower extremity strength was 4/5 bilaterally. The examiner determined that there was mild motor-sensory polyneuropathy of the right and left lower extremities. VA treatment records indicate that an EMG study conducted in June 2011 showed mild neuropathy. On VA examination in August 2012, the examiner noted that Veteran's symptoms included moderate constant pain, moderate paresthesias, and moderate numbness of the bilateral lower extremities. On neurologic examination, motor strength was 4/5 for knee extension and flexion, ankle plantar flexion, and ankle dorsiflexion bilaterally. Deep tendon reflexes were 1+, decreased, for the knee and ankle bilaterally. Sensation was decreased to light touch at the knee/thigh, ankle/lower leg, and foot/toes bilaterally. Vibration sensation and cold sensation were decreased bilaterally. The Veteran did not have muscle atrophy. There were no trophic changes attributable to diabetic peripheral neuropathy. The examiner found the disability to be productive of mild incomplete paralysis of the sciatic nerve, bilaterally. The examiner diagnosed diabetic peripheral neuropathy. He indicated that the Veteran's diabetes and related peripheral neuropathy impacted employment in that physical employment was precluded, he could not stand for more than 10 minutes at a time, and could only walk less than 100 yards or lift less than 20 pounds at a time. An August 2013 VA aid and attendance examination report reflects that the Veteran got around using a wheelchair and performed physical therapy to strengthen his lower extremities. He also used a walker. Weakness was noted upon standing, with inability to stand longer than a few seconds before becoming unstable, due to muscle weakness. On VA examination in January 2015, the Veteran reported constant numbness and tingling of the lower extremities. These symptoms caused difficulties with balancing and walking, and he had frequent falls. He took gabapentin, patches, and shots for treatment. Symptoms attributable to the Veteran's peripheral neuropathy included severe constant pain, severe intermittent pain, severe paresthesias, and severe numbness of the bilateral lower extremities. Objectively, motor strength testing revealed 3/5 strength for knee extension, knee flexion, ankle plantar flexion, and ankle dorsiflexion bilaterally. Deep tendon reflexes were decreased (1+) in the knees and ankles bilaterally. On sensory examination, sensation was decreased to light touch at the knee/thigh bilaterally, while it was absent in the ankle/lower leg and foot/toes bilaterally. Vibration sensation and cold sensation were absent in the lower extremities bilaterally. The Veteran did not have muscle atrophy. There were trophic changes of the skin, as the skin on the legs was shiny and without hair. The examiner determined that the disability was productive of moderately severe incomplete paralysis of the sciatic nerve bilaterally. It was also productive of moderate incomplete paralysis of the femoral nerve bilaterally. The examiner also noted that previous EMG studies conducted in June 2011 revealed changes compatible with a mild asymmetrical sensory motor neuropathy, axonal in type, consistent with diabetic neuropathy. The examiner diagnosed diabetic neuropathy. He noted that the disability impacted his ability to work in that he had severe trouble balancing and walking due to neuropathy. Continued VA treatment records reflect treatment and diagnosis of peripheral neuropathy of the lower extremities, with symptoms of numbness, weakness, and pain in the lower extremities to the feet. In this case, the Veteran has been assigned 20 percent rating each for his right and left lower extremity peripheral neuropathy. A next higher, 40 percent rating requires disability approximating moderately severe incomplete paralysis of the sciatic nerve. Based on the foregoing evidence, the Board concludes that the criteria for a next higher, 40 percent rating have been more nearly approximated. In so finding, the Board acknowledges that the evidence has varied. However, the disability has been shown to be productive of constant reports of pain, weakness, and numbness in the bilateral lower extremities. On VA examination in 2012, strength, reflexes, and sensation were all diminished in both lower extremities. An August 2013 VA examination report reflected that the Veteran used a walker and wheelchair for ambulation due to lower extremity weakness. The January 2015 VA examination revealed that strength 3/5 in the lower extremities, along with diminished reflexes and decreased/absent sensation. In addition, the January 2015 VA examiner concluded that the disability was productive of moderately severe incomplete paralysis of the sciatic nerve bilaterally, consistent with a 40 percent rating. However, the Board also finds that a rating in excess of 40 percent for either lower extremity is not warranted. While strength is diminished, the Veteran has retained some strength (3/5) in both lower extremities. Similarly, reflexes and sensation have been diminished but not completely absent. In addition, none of the VA examiner has found more than mild to moderately severe incomplete paralysis of the sciatic nerve in either lower extremity. The also Board acknowledges the January 2015 VA examiner's assessment of impairment of the femoral nerve. However, the Veteran has been assigned separate ratings for his peripheral neuropathy of the lower extremities affecting the femoral nerve, and this rating is not subject of the current appeal. For the foregoing reasons, the Board concludes that 40 percent ratings, but no higher, for peripheral neuropathy of the right and lower extremities are warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)." In sum, there is no basis for staged ratings of the Veteran's service-connected disabilities, as his symptoms have been primarily the same throughout the appeal period. In this regard, the Board finds that a uniform, 40 percent rating each for peripheral neuropathy of the right and left lower extremities were warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A 40 percent rating for peripheral neuropathy of the right lower extremity is granted, subject to the controlling regulations applicable to the payment of monetary benefits. A 40 percent rating for peripheral neuropathy of the left lower extremity is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs