Citation Nr: 1753498	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  12-01 254	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for cervical spine disorder, to include cervical strain.

2. Entitlement to a rating higher than 10 percent for the period prior to July 21, 2011, higher than 20 percent for the period July 21, 2011 to April 28, 2017, and higher than 40 percent since April 29, 2017 for diabetic peripheral neuropathy, right lower extremity (RLE).

3. Entitlement to a rating higher than 10 percent for the period prior to July 21, 2011, higher than 20 percent for the period July 21, 2011 to April 28, 2017, and higher than 40 percent since April 29, 2017 for diabetic peripheral neuropathy, left lower extremity (LLE).

4. Entitlement to an initial rating higher than 20 percent for diabetic peripheral neuropathy, anterior crural nerve (femoral), RLE.

5. Entitlement to an initial rating higher than 20 percent for diabetic peripheral neuropathy, femoral nerve, LLE.
6. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from June 1968 to May 1975. 

This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions by a Department of Veterans' Affairs (VA) Regional Office (RO). An August 2010 rating decision denied entitlement to service connection for a cervical spine disorder; and, continued 10-percent ratings for peripheral neuropathy of the LEs. In a November 2011 rating decision, an RO Recision Review Officer (DRO) granted an increased rating for the peripheral neuropathy from 10 to 20 percent each, LEs, effective July 21, 2011. August 2013 and May 2015 rating decisions denied a TDIU. The Veteran perfected separate appeals of those determinations. Prior to certification of the appeal to the Board, in a June 2017 rating decision, the DRO granted an increased rating for the peripheral neuropathy from 20 to 40 percent for each LE; and, granted service connection for diabetic peripheral neuropathy, femoral nerve, and assigned an initial 20-percent rating for each LE, all effective April 29, 2017. The Veteran has continued his appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise).

In September 2016, the Board remanded the case for additional development.

The issues of entitlement to service connection for a cervical spine disorder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. Prior to July 21, 2011, the peripheral neuropathy of each LE manifested with normal motor strength, decreased sensation to pinprick, and diminished deep tendon reflexes; no specific nerve was associated with the symptoms.

2. For the period July 21, 2011 to April 28, 2017, the peripheral neuropathy of each LE manifested with complaints of pain and numbness, etc., normal motor strength, and absent sensation and deep tendon reflexes; no specific nerve was associated with the symptoms.

3. As of April 29, 2017, the peripheral neuropathy of each LE has manifested with complaints of pain and numbness, etc., diminished motor strength, diminished sensation and deep tendon reflexes of the knee and thigh, and absent at the knee, ankle and toes; the pathology is associated with the sciatic and femoral nerves.


CONCLUSIONS OF LAW

1. The requirements for an evaluation higher than 10 percent for the period prior to July 21, 2011, higher than 20 percent for the period July 21, 2011 to April 28, 2017, and higher than 40 percent since April 29, 2017 for diabetic peripheral neuropathy, RLE, have not been met.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.124a, DC 8599-8524 (2017).

2. The requirements for an evaluation higher than 10 percent for the period prior to July 21, 2011, higher than 20 percent for the period July 21, 2011 to April 28, 2017, and higher than 40 percent since April 29, 2017 for diabetic peripheral neuropathy, LLE, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.124a, DC 8599-8524.

3. The requirements for an initial evaluation higher than 20 percent for diabetic peripheral neuropathy, femoral nerve, RLE, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.124a, DC 8526.

4. The requirements for an initial evaluation higher than 20 percent for diabetic peripheral neuropathy, femoral nerve, LLE, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.124a, DC 8526.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

Prior to issuance of the August 2010 and May 2015 rating decisions, via letters dated in February and October 2010, VA provided the Veteran with notice.  Additionally, VA has a duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  See 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), non-VA, and VA treatment records, including the 
VA examination reports are in the claims file. Further, as noted above, the Board remanded the case for additional development, to include current examinations. 
The Board has reviewed the RO's actions and the examination reports, and finds substantial compliance with the remand directives. Neither the Veteran nor his representative has asserted that there are additional records to obtain or other development to perform. As such, the Board will proceed to the merits of the appeal.

Applicable Law and Regulation

Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10.

If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see Peyton v. Derwinski, 1 Vet. App. 282 (1991).

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994).  Nonetheless, separate, or staged, ratings can be assigned for separate periods during the rating period on appeal based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

Discussion

Historically, the Veteran served a tour in the Republic of Vietnam during his active service. He subsequently developed type 2 diabetes mellitus; and, via a March 2005 rating decision, he was granted service connection for that disability due to presumed exposure to an herbicide agent, effective in January 2005. A June 2005 rating decision granted service connection for associated peripheral neuropathy, and assigned an initial 10-percent rating for each LE (and each upper extremity), effective in May 2005. (06/01/2005 Rating Decision-Narrative)
 
VA received the Veteran's current claim of entitlement to an increased rating in September 2009. His informal claim noted complaints of continued lost feeling in his legs and feet that caused him to trip or stumble. (09/11/2009 VA Form 21-4138)

Rating Criteria

Peripheral neuropathy is rated as paralysis and incomplete paralysis of peripheral nerve pathology. See 38 C.F.R. § 4.124a. Under these criteria, the term "incomplete paralysis" 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. Id., Diseases of the Peripheral Nerves.

The words "mild," "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 end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 
It should also be noted that use of such terminology by VA examiners or other physicians, 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 C.F.R. §§ 4.2, 4.6.

The June 2005 rating decision rated the Veteran's peripheral neuropathy of the LEs analogously to incomplete paralysis, neuritis, and neuralgia of the internal popliteal nerve (tibial). See 38 C.F.R. § 4.20. Under those criteria, a maximum 40-percent rating is warranted for complete paralysis with plantar flexion lost, frank adduction of foot impossible, flexion and separation of toes abolished; no muscle in sole can move; in lesions of the nerve high in popliteal fossa, plantar flexion of foot is lost. A 30-percent rating is warranted for severe incomplete paralysis; a 20-percent rating is warranted for moderate incomplete paralysis; and a 10-percent rating is warranted for mild incomplete paralysis. 38 C.F.R. § 4.124a, DC 8524.

VA outpatient records dated in February 2010 note the Veteran's request for diabetic shoes due to leg and foot pain. The shoes were issued. Records dated in April 2010 noted some decreased sensation of the toe. (04/05/2010 Medical Treatment-Government Facility, p. 4) A June 2010 general examination report reflects that the Veteran complained of tingling, numbness, pain, and weakness of the LLE. He denied any abnormal sensation or paralysis. Physical examination revealed normal motor function but abnormal sensation. Specifically, decreased sensation to pinprick/pain at the feet in stocking distribution. The examiner noted that no specific nerve was identified as the Veteran presented with stocking-glove. Sensation to temperature, vibration, position, and touch was normal in each LE. Deep tendon reflexes were diminished at the knees at 1+, and absent at the ankles.  The examiner noted that there was sensory dysfunction demonstrated by decreased pinprick sensation, and that there was no motor dysfunction. (06/30/2010 VA Examination, p. 4)

Upon receipt of the examination report, as noted earlier, the RO continued the assigned 10-percent rating. The rating board noted the hypoactive reflexes at the knees and absent at the ankles, but determined that a higher rating was not warranted, as motor function was normal, the other sensory factors were not affected, and that the examiner did not note involvement of the reflexes in the description of the Veteran's impairment. Hence, the severity of the Veteran's incomplete paralysis was mild. (08/16/2010 Rating Decision-Narrative, p. 7-8)

The Board finds that the RO's determination is supported by the evidence of record for this part of the rating period on appeal. When the objective findings on clinical examination are compared to complete paralysis of the tibial nerve, normal motor function is consistent with a finding of mild incomplete paralysis, as the examination did not reveal any deficit in plantar flexion of either foot, or restricted movement of the toes. Hence, the Board finds that the assigned 10-percent rating compensates the Veteran for his pain and sensory deficit as of the date of the examination. 38 C.F.R. §§ 4.1, 4.10, 4.124a, DC 8524. Accordingly, to the extent that the Veteran asserts that his peripheral neuropathy of the right and left lower extremities must be rated as higher than "moderate" under DC 8520 because his impairment is more than wholly sensory, this argument must fail. Miller v. Shulkin, 28 Vet. App. 376, 380 (2017).  The Board also acknowledges the fact that the RO rated the disability analogously but finds that consideration under either DC 8523, the anterior tibial nerve, or DC 8525, the posterior tibial nerve, will not benefit the Veteran, as all of those criteria base higher ratings on weakened motor function of the foot and toes, which is not shown by the competent evidence of record.

A July 2011 examination report reflects that the Veteran complained of tingling, numbness, loss of sensation, and neuralgia, all of the feet. He reported further that he had to stop driving a semi for a moving company because of the impact of his symptoms, especially those of his UEs. At the time of the examination he was employed as a dump truck driver. Except for being unable to vacuum, perform gardening activities, and push a lawn mower due to loss of balance.  The reported restrictions were due to loss of balance and the necessity of having to use a cane to walk. Neurological examination revealed the Veteran's gait to be unsteady due to neuropathy. His coordination and motor function of the LEs were within normal limits. Sensory function to pinprick, touch, temperature, and vibration was absent for the lower leg and foot nerves. Knee and ankle jerks were absent. The examiner noted that no specific peripheral nerve was identified, as the symptoms presented with stocking glove distribution. The examiner noted further that the peripheral nerve examination revealed neuritis; and, sensory dysfunction demonstrated by absent sensation to feet and lower legs, but there was no motor dysfunction. (07/21/2011 VA Examination, p. 4, 9)

Upon receipt of the 2011 examination report, the RO granted an increase from 10 to 20 percent for moderate incomplete paralysis, effective the date of the examination, July 21, 2011. (11/15/2011 Rating Decision-Narrative) Similarly, the Board also finds that the objective findings on clinical examination more nearly approximated moderate incomplete paralysis of the tibial nerve. 38 C.F.R. § 4.10. Again, the examination did not reveal a specific peripheral nerve. Although the Veteran's knee and ankle jerks were absent, as compared to diminished at the 2010 examination, the examiner specifically noted that motor function was normal. There was no atrophy of the feet and toes.  While the Veteran had decreased strength, examination of the left and right LEs revealed femoral pulse 2+ (normal) popliteal pulse 2+ dorsalis pedis pulse 1+ (decreased) and posterior tibial pulse 1+. When compared to complete paralysis, the Board finds that the clinical findings more nearly approximate moderate incomplete paralysis and the assigned 20-percent rating. 38 C.F.R. § 4.10, 4.124a, DC 8524. The Board notes further that while the Veteran had to change jobs, he still was working full time as a truck driver-his primary occupation. The Board also agrees with the DRO's determination that the treatment records in the file did not indicate the presence of the Veteran's increased symptoms at a date earlier than the examination. See 38 C.F.R. § 3.400(o); see also 11/15/2011 Statement of the Case, p. 25-26.

After the RO certified the appeal to the Board in October 2013, evidence was added to the file that reflected that the Veteran had lost his job because he failed his Department of Transportation physical examination for commercial licensed drivers. He stated that he failed due to his peripheral neuropathy of the LEs. (07/08/2014 VA Form 21-4138; 01/05/2015 VA Form 21-4192) In light of that evidence, the Board remanded in September 2016 for a current examination.

The April 2017 examination report reflects that the Veteran complained of pain/burning sensation, pins/needles sensation, and numbness, all of the LEs. The report reflects an assessment of the severity of the LEs symptoms as moderate. The Veteran noted his loss of balance, and frequent falls. Physical examination revealed diminished motor strength of 4/5 throughout the LEs. Deep tendon reflexes at the knees and ankles were 1+ (decreased). Sensation to light touch was decreased at the knees, and absent at the ankle/ lower leg, and foot/toes. Position sense was also diminished. Light touch/monofilament testing results were decreased in the knee/thigh and absent in the ankle/lower leg and foot/toes, all bilaterally. Vibration sensation was absent, and cold sensation was diminished. There was no muscle atrophy. The examiner assessed the symptomatology as due to the sciatic nerve and of moderately severe severity; and, of the femoral nerve and of moderate severity. (05/11/2017 C&P Exam-DBQ Neuro)

Sciatic nerve pathology is rated under DC 8520. Under these criteria, an 80-percent rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as "a degree of lost or impaired function substantially less than the type picture for complete paralysis given."  Id. A 60-percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A 40-percent rating is assigned for moderately severe incomplete paralysis; and, a 20-percent rating is assigned for moderate incomplete paralysis. 38 C.F.R. § 4.124a.

In light of the above findings, the RO granted an increase from 20 to 40 percent for each LE, effective the day of the examination, April 29, 2017. (06/03/2017 Rating Decision-Narrative) After reviewing the relevant medical and lay evidence, the Board finds that the Veteran's service-connected sciatic nerve neuropathy of the LEs is more nearly approximated by the current 40 percent rating for moderately severe incomplete paralysis.  In this regard, the Board finds that the examination findings revealed that, when compared to complete paralysis of the sciatic nerve, severe incomplete paralysis was not approximated, as the motor strength of the LEs was not diminished beyond 4/5, and deep tendon reflexes were still present at 1+. Further, there was no muscle atrophy. Hence, the Board finds that the 40-percent rating appropriately compensates the Veteran to the extent practical for the impairment of his earning capacity. 38 C.F.R. § 4.1, 4.10, 4.124a, DC 8520. The Board also finds that the outpatient records do not note identification of the sciatic nerve at a date earlier than the date of the examination. 38 C.F.R. § 3.400(o).

The examiner also found femoral nerve involvement. That peripheral nerve is rated under DC 8526, anterior crural. Under this DC, a 20-percent rating is assigned when there is moderate incomplete paralysis of the anterior crural nerve; severe incomplete paralysis warrants a 30-percent rating; and, complete paralysis of quadriceps extensor muscles warrants a 40-percent disability rating. See 38 C.F.R. § 4.124a. As noted above, the examination findings did not include any muscle atrophy. Hence, when compared to complete paralysis, the examiner's assessment of moderate severity is supported by the objective findings on clinical examination. 38 C.F.R. § 4.10. As discussed earlier, until the April 2017 examination, a specific peripheral nerve was not identified. Hence, there is no factual basis for an earlier effective date for femoral nerve pathology. 38 C.F.R. § 3.400(o).

As noted above, staged ratings are to be assigned where indicated by the evidence. Here, the Board finds that he has be afforded a staged rating in accordance with the evidence of record, as set forth in the decision above.  Additionally, in reaching this decision the Board considered the doctrine of reasonable doubt.  As the preponderance of the evidence is against the Veteran's claims for higher ratings, however, the doctrine is not for application.  Schoolman v. West, 12 Vet. App. 307, 311 (1999).


ORDER

A rating higher than 10 percent for the period prior to July 21, 2011, higher than 
20 percent for the period July 21, 2011 to April 28, 2017, and higher than 40 percent since April 29, 2017 for diabetic peripheral neuropathy, sciatic nerve, RLE, is denied.

A rating higher than 10 percent for the period prior to July 21, 2011, higher than 
20 percent for the period July 21, 2011 to April 28, 2017, and higher than 40 percent since April 29, 2017 for diabetic peripheral neuropathy, sciatic nerve, LLE, is denied.

An initial rating higher than 20 percent for diabetic peripheral neuropathy, femoral nerve, RLE, is denied.

An initial rating higher than 20 percent for diabetic peripheral neuropathy, femoral nerve, LLE, is denied.

REMAND

In 2016, the Board remanded for another examination related to the cervical spine claim because the examiner who conducted the 2010 examination relied solely on the absence of contemporaneous medical documentation of symptoms, without more, for the negative nexus opinion. The April 2017 examination report reflects that the examiner, a different examiner, also provided a negative nexus opinion. (05/11/2017 C&P Exam-DBQ Musc Neck) The Board notes, however, that the sole in-service event that the examiner noted was a September 1973 motorcycle accident documented in the STRs. (04/21/2016 STR-Medical, 1st Entry, p. 29) The Board notes, however, that the STRs document a second motorcycle accident that occurred in January 1975 that included head trauma and loss of consciousness. (Id., 2nd Entry, p. 2) After maximum benefit from treatment of the wrist fracture was deemed to have been reached, the Veteran was found physical unfit for continued service and medically discharged. The Veteran has consistently asserted that his cervical spine was injured in a motorcycle accident. His written submissions, however, did not suggest more than one accident.  In light of this fact, the medical examiner must clearly consider both accidents in determining the etiology of the cervical spine disorder.   Finally, a TDIU is based on service-connected disabilities, so that matter can be intertwined with a service connection claim if such is awarded.

Accordingly, the case is REMANDED for the following actions:

1. Send the claims file to the examiner who conducted the April 2017 examination. Inform the examiner that the Veteran was involved in two motorcycle accidents during his active service, in September 1973 and January 1975. Ask the examiner to review the claims file and the clinical findings at the April 2017 examination, and to again opine whether there is at least a 50-percent probability that the Veteran's currently diagnosed cervical strain, is causally connected to either or both in-service motorcycle accidents, or is otherwise causally connected to active service?

Inform the examiner that the Veteran's lay reported history must be considered; and, if the absence of contemporaneous medical documentation is relevant to any opinion provided, a full explanation of why must be provided. If the examiner who conducted the April 2017 examination is no longer available, refer the claims file to an equally qualified examiner.  Should a substitute examiner advise that the requested opinion cannot be rendered without an examination, then the AOJ shall arrange the examination.

2. After the above is complete, readjudicate the issues on appeal, considering all relevant evidence.  If the decision remains in any way adverse to the Veteran, issue him and his representative a Supplemental Statement of the Case (SSOC) and then return the case to the Board, if all is in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs