Citation Nr: 1756098 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 08-35 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity beginning March 9, 2010. 2. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity beginning March 9, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1981. These matters are before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for peripheral neuropathy and assigned a 10 percent rating for each lower extremity. In November 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is in the record. In a May 2016 decision, the Board denied the Veteran's claim for increased initial ratings for right and left lower extremity peripheral neuropathy. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In November 2016 the Court issued an Order that granted a Joint Motion for Partial Remand (JMR) to vacate the Board's May 2016 decision to the extent that it denied entitlement to a rating in excess of 20 percent for right and left peripheral neuropathy of the lower extremities from March 9, 2010, and remanded the case to the Board for further consideration. Specifically, the Court found that the Board did not provide adequate reasons and bases for finding that the Veteran's symptoms of falling, need for a motorized scooter, and moderate levels of paresthesia and dysesthesia were insufficient to warrant a rating in excess of 20 percent. The Court left undisturbed the portion of the Board's decision that denied a rating in excess of 10 percent for right and left peripheral neuropathy of the lower extremities prior to March 9, 2010. In March 2017, the Board remanded these claims for additional development. They are again before the Board. FINDINGS OF FACT 1. From March 9, 2010, the Veteran's peripheral neuropathy of the right lower extremity most closely approximated moderate incomplete paralysis. 2. From March 9, 2010, the Veteran's peripheral neuropathy of the left lower extremity most closely approximated moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The requirements for a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 2. The requirements for a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. Id. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's diabetic peripheral neuropathy of the right and left lower extremities is currently rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, which is one of the peripheral nerves. Ratings of 10, 20, 40, and 60 percent are assigned for incomplete paralysis that is mild; moderate; moderately severe; and severe, with marked muscle atrophy, respectively. Id. An 80 percent rating is assigned for 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. Id. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2017). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Additionally, in rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2017). Descriptive words such as "mild," "moderate," "moderately severe" 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 (2017). The use of descriptive terminology 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. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. §§ 4.2, 4.6 (2017). Fall screening notes from March 2010 and June 2010 indicate that the Veteran reported falling twice in the prior three months. However, on an August 2010 fall screening he denied any falls in the last 12 months. In an August 2010 statement, the Veteran wrote that his lower extremity peripheral neuropathy had worsened. He reported pain, burning, and numbness in his lower extremities. Upon testing, he had diminished sensation bilaterally with monofilament testing, and absent sensation to vibratory testing. The Veteran's posterior tibial and dorsalis pedis pulses were intact. His skin was warm, skin texture was smooth, hair growth was evident, and there was no evidence of edema or pigmentary changes. VA treatment records from August 2010 indicated that the Veteran had gait issues secondary to his arthritis and peripheral neuropathy. While he was observed to carry a cane, it was noted that he did not depend on it for ambulation or support. Upon examination, there was no evidence of muscle weakness and sensory examination was normal. A September 2010 mobility consultation record indicates that the Veteran ambulated with a cane, but still had impaired balance during ambulation. With regard to the quality of the Veteran's ambulation, there was no evidence of profound weakness. The Veteran was deemed functionally ambulatory around his house but not functionally ambulatory in the community. The kinesotherapist recommended that the Veteran be provided a four-wheeled scooter for ambulating community distances. A May 2011 podiatry record noted that the Veteran had burning and paresthesias. Upon testing, he had diminished sensation bilaterally with monofilament testing, and absent sensation to vibratory testing. The Veteran's lower extremity pulses remained intact. His skin was warm, skin texture was smooth, hair growth was evident, and there was no evidence of edema or pigmentary changes. A September 2011 VA treatment record noted that the Veteran had chronic neuropathy pain and ambulated, even short distances, with a cane. Upon examination, there were no acute neurological deficits and sensory examination of the Veteran's feet was within normal limits. A fall screening in conjunction with the appointment indicated that the Veteran reported falling more than twice in that last 12 months due to his leg giving away. At his November 2011 hearing, the Veteran testified that he had fallen 5 to 6 times due to the lack of feeling in his feet. However, he stated he was able to walk around his house and yard pretty well with his cane, but required frequent breaks. He said he was given a scooter by VA because he was unable to walk for any length of time. He stated that he had pain, numbness, and burning in his legs and feet. A November 2011 podiatry record noted that the Veteran had burning and paresthesias. Upon testing, he had diminished sensation bilaterally with monofilament and vibratory testing. The Veteran's lower extremity pulses remained intact. His skin was warm, skin texture was smooth, hair growth was evident, and there was no evidence of edema or pigmentary changes. The Veteran was assessed with severe diabetic neuropathy. In a May 2012 statement, the Veteran reported that his legs were very painful. He noted that while he had been prescribed medication it did not relieve his pain. He further stated that he used a wheelchair for ambulating long distances. At a May 2012 VA examination, the Veteran denied constant or intermittent lower extremity pain, but endorsed moderate paresthesias, dysesthesias, and numbness. Muscle strength and reflex testing were normal. Sensory testing revealed normal sensation in the thighs and knee, but decreased sensation in the lower legs, ankles, feet, and toes. There was no evidence of muscle atrophy or trophic changes. The Veteran's gait was observed to be normal. The examiner opined that all lower extremity nerves were within normal limits, but acknowledged that a March 2009 electromyogram (EMG) revealed mild sensorimotor polyneuropathy. The examiner noted that while the Veteran reported he required an electric scooter outside his house and endorsed balance problems and a history of falls, secondary to burning and numbness in his feet, the Veteran's medical records did not evidence treatment for any such falls. An October 2012 treatment record indicates that the Veteran used a scooter for traveling long distances but was able to ambulate independently within the room. He was noted to carry a cane, but again did not depend on it for ambulation. Upon examination, no muscle weakness, atrophy, or neurological deficits were evident. A February 2013 podiatry record noted that the Veteran had burning and paresthesias. He was observed to walk with a cane. Upon testing, he had diminished sensation bilaterally with monofilament testing, vibration sensation was markedly diminished sense in his right foot and absent in the left foot. The Veteran's lower extremity pulses remained intact. His skin was warm, skin texture was smooth, hair growth was evident, and there was no evidence of edema or pigmentary changes. The Veteran was assessed with severe diabetic neuropathy. A June 2013 treatment record noted that the Veteran's feet and legs were bothering his as much as ever but that he wanted to forgo beginning Lyrica until he was unable to stand the pain. An October 2013 podiatry note indicated that the Veteran had burning, numbness, and tingling in both feet. He also reported frequent falls because he was unable to feel his feet. The Veteran's lower extremity pulses remained intact. His skin was warm, skin texture was smooth, hair growth was evident, and there was no evidence of edema or pigmentary changes. The Veteran was noted to be a moderate fall risk and was assessed with severe diabetic neuropathy. A November 2013 primary care record indicates that there was no evidence of muscle weakness and examination of his feet revealed normal sensation. A February 2014 primary care records notes that the Veteran denied loss of function of the extremities and reported that his peripheral neuropathy pain was tolerable. Fall screening records from November 1, 2013, February 11, 2014, and November 12, 2014, indicate that the Veteran denied any falls during that past 12 months. A February 2014 treatment record noted that reflex and motor strength examination was normal in all extremities and that sensation was intact. Podiatry notes from July 2014 and January 2015 indicated that Veteran had burning and paresthesias in his feet. Upon testing, sensation was normal bilaterally with monofilament testing, but absent bilaterally with vibration testing. The Veteran's lower extremity pulses remained intact. His skin was warm, skin texture was smooth, hair growth was evident, and there was no evidence of edema or pigmentary changes. The Veteran was noted to be a moderate fall risk and was assessed with severe diabetic neuropathy. A February 2015 emergency department record indicates that the Veteran reported that 8 days previously he woke up sweating profusely, with decreased vision, dizziness, and subjective weakness. The Veteran indicated that his symptoms passed but reoccurred again later that day. The Veteran was assessed with status post possible hypoglycemia. His symptoms, including subjective muscular weakness, were not attributed to his peripheral neuropathy. Treatment records from February 2015 and November 2015 indicate that the Veteran reported slipping and falling within the last 12 months. It was noted that he required a cane because of his inability to feel his feet due to his neuropathy. The physician opined that the Veteran's falls were likely secondary to his neuropathy. The Veteran was started on a trial of Gabapentin. Neurology notes from May 2015 and September 2015 indicate that muscle strength testing was normal as were his muscle bulk and tone. The Veteran's right patellar and bilateral achilles reflexes were somewhat diminished, his left patellar reflex was normal. Sensation was to pinprick was diminished from the foot to upper calf. Podiatry notes from October 2015 and May 2016 noted that the Veteran endorsed burning and paresthesia. Bilaterally, sensation to monofilament testing was normal but was absent to vibratory testing. The Veteran's lower extremity pulses remained intact. His skin was warm, skin texture was smooth, hair growth was evident, and there was no evidence of edema or pigmentary changes. The Veteran was noted to be a moderate fall risk and was assessed with severe diabetic neuropathy. A June 2016 treatment record noted that the Veteran had bilateral leg pain with numbness, tingling, burning. He noted that several of his toes were numb and that he had fallen yesterday but was uninjured and did not require medical attention. Podiatry notes from August 2016, December 2016, and January 2017 indicate that the Veteran endorsed burning and paresthesia. The Veteran was observed to walk with a cane. Sensation to monofilament testing was normal bilaterally, but was absent bilaterally to vibratory testing. The Veteran's lower extremity pulses remained intact. His skin was warm, skin texture was smooth, hair growth was evident, and there was no evidence of edema or pigmentary changes. The Veteran was noted to be a moderate fall risk and was assessed with severe diabetic neuropathy. A March 2017 treatment record from Dr. Cape indicates that the Veteran reported that his feet were more numb, but the pain in his feet was not really bad. Muscle strength was normal bilaterally and his reflexes were decreased. The Veteran's pain medication for his peripheral neuropathy was increased. After review of the evidence, the Board finds at no time during the period on appeal did the Veteran's peripheral neuropathy of the right and left lower extremity approximate moderately severe incomplete paralysis or worse. While the Veteran experienced sensory disturbances, including pain, numbness, and a burning sensation; gait disturbances, in part due to his sensory disturbances; and diminished right patellar and bilateral achilles reflexes, there is no evidence of reduced lower extremity muscle strength, muscle atrophy, or trophic changes. The Board has considered the evidence indicating that the Veteran experienced falls secondary to his peripheral neuropathy and was given a scooter due to his ambulation difficulties. However, the evidence does not indicate the Veteran's falls were due to motor nerve involvement. Rather the weight of the evidence, including the Veteran's lay statements, suggests the falls, balance problems, and need for a scooter were due to the Veteran's sensory disturbances, specifically, pain, foot numbness, and lack of position sense. While a September 23, 2011 record noted that the Veteran reported falling after his "leg gave away," there is no indication the giving away was a manifestation of the Veteran's peripheral neuropathy rather than his non-service-connected arthritis. Accordingly, such record is afforded less probative weight than the objective findings on medical testing and examination as to whether the Veteran had muscle weakness or neurological motor disturbances. As noted above, for rating purposes, sensory impairment is not directly equivalent to motor impairment. See 38 C.F.R. § 4.124a (2017) (when the nerve involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree). Additionally, while the Board acknowledges that various podiatry records indicated an assessment of "peripheral neuropathy severe," that assessment is not dispositive. As noted above, all evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. §§ 4.2, 4.6 (2017). The podiatry records provided no explanation in support of that assessment. Additionally, the evidence of record consistently indicates that there was no evidence of muscle atrophy. Accordingly, the characterization of severe peripheral neuropathy is inconsistent with the rating criteria for severe incomplete paralysis, which requires "marked muscular atrophy." See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). The Board finds the objective testing in the medical records and examination reports to warrant greater probative weight than the clinicians' characterization of severity as severe. Finally, the Board notes that the Veteran failed to report to a VA examination scheduled in June 2017 to assess his peripheral neuropathy, to include EMG and/or nerve conduction studies. Such testing could have confirmed the level of severity of the Veteran's neuropathy. In this regard, the last EMG, in March 2009, revealed only mild sensorimotor polyneuropathy. Thus, evidence that may have been helpful to his claim could not be obtained. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the absence of evidence of muscle strength deficits, muscle atrophy, or trophic changes, the Veteran's symptomatology of sensory disturbances and somewhat diminished reflexes are more consistent with moderate incomplete paralysis and do not more closely approximate moderately severe incomplete paralysis. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A rating in excess of 20 percent for right lower extremity peripheral neuropathy is denied. A rating in excess of 20 percent for left lower extremity peripheral neuropathy is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs