Citation Nr: 1756880 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-06 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an evaluation for the right lower extremity peripheral neuropathy of the sciatic nerve in excess of 10 percent prior to June 3, 2015, and an evaluation in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran honorably served on active duty service in the United States Marine Corps., from July 1967 to May 1971. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In October 2002, the Veteran was notified that his claim for entitlement to service connection for the right lower extremity peripheral neuropathy was granted and assigned an evaluation of 10 percent effective July 9, 2001. On April 30, 2010, VA received the Veteran's increased rating claim for the right lower extremity peripheral neuropathy of the sciatic nerve. In August 2010, the RO denied the increased rating claim and continued the 10 percent evaluation for the right lower extremity peripheral neuropathy. In August 2010, the Veteran filed a notice of disagreement for the rating decision and filed a substantive appeal on February 2014. The claim was remanded by the Board in June 2015 and March 2016. During the pendency of the appeal, in August 2015, the RO issued a rating decision and supplemental statement of the case (SSOC), increasing the evaluation for the right lower extremity peripheral neuropathy of the sciatic nerve to 20 percent effective June 3, 2015. As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim for entitlement to an increased rating for the right lower extremity peripheral neuropathy of the sciatic nerve is still on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-7 (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). FINDINGS OF FACT 1. For the period from April 30, 2009 to June 2, 2015, the Veteran exhibited symptoms consistent with mild incomplete paralysis in the right lower extremity peripheral neuropathy of the sciatic nerve. 2. For the period from June 3, 2015, the Veteran exhibited symptoms consistent with moderate incomplete paralysis in the right lower extremity peripheral neuropathy of the sciatic nerve. CONCLUSIONS OF LAW 1. For the period from April 30, 2009 to June 2, 2015, the criteria for an evaluation in excess of 10 percent for right lower extremity peripheral neuropathy of the sciatic nerve have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2017). 2. For the period from June 3, 2015, the criteria for an evaluation in excess of 20 percent for right lower extremity peripheral neuropathy of the sciatic nerve have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to Increased Ratings Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The United States Court of Appeals for Veterans Claims (Court) has also found that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where a service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis-characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating-is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Since no guidance is provided as to what the degrees of incomplete paralysis actually mean in terms of impairment, the Board must use some criteria to define the "mild," "moderate," and "severe" terms, and must explain what criteria it has used. See Ohland v. Derwinski, 1 Vet.App. 147 (1991) (Board's reasoning is flawed when it fails to explain the criteria it used in determining whether the evidence fell into a particular PTSD rating category, e.g., total, severe, considerable, definite, and mild.) It should also be noted that use of terminology such as "severe" by VA examiners and others, 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. 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Analysis In this case, the Veteran's service-connected right lower extremity peripheral neuropathy has been rated by the RO under Diagnostic Code (DC) 8620 (neuritis). However, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. 38 C.F.R. §§ 3.951, 3.957. Here, the evidence consistently shows that the Veteran's right lower extremity peripheral neuropathy involves incomplete paralysis of the sciatic nerve. See June 2015 VA examination; July 2015 VA examination; and April 2016 VA examination. Furthermore, the record does not indicate that the Veteran was ever diagnosed with neuritis or neuralgia. Thus, the Board determines that the Veteran's current diagnosis and symptoms demonstrate that DC 8520 (paralysis of the sciatic nerve) more appropriately reflects his disability picture than DC 8620 (neuritis). See Butts, 5 Vet. App. at 532 (noting that a choice of DC should be upheld if supported by explanation and evidence). Moreover, Diagnostic Code 8520, governing incomplete paralysis of the sciatic nerve, allows for a higher maximum rating than DC 8620, governing neuritis of the sciatic nerve. See 38 C.F.R. § 4.123 (peripheral neuritis with sciatic nerve involvement is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to moderately severe, incomplete paralysis). As the medical evidence clearly shows involvement of incomplete paralysis of the sciatic nerve and no neuritis diagnosis, and DC 8520 (paralysis of the sciatic nerve) allows for a higher maximum rating than DC 8620 (neuritis), the Board finds that it is more appropriate to rate the Veteran under Diagnostic Code 8520 (paralysis of the sciatic nerve). As such, the Board will first evaluate the Veteran's right lower extremity peripheral neuropathy under the criteria of Diagnostic Code 8520 (paralysis of the sciatic nerve), and then will consider if increased or separate compensable ratings are warranted under any other Diagnostic Codes. Under Diagnostic Code 8520 (paralysis of the sciatic nerve), a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is contemplated for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is assigned where there is complete paralysis of the sciatic nerve. When there is complete paralysis of the sciatic nerve, symptoms include the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis of 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 words "mild," "moderate," "moderately severe," and "marked" are not defined in the Schedule for Rating Disabilities or in the regulations during this time period. As such, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 1. Entitlement to an Evaluation in Excess of 10 Percent for Service-Connected Right Lower Extremity Peripheral Neuropathy of the Sciatic Nerve From April 30, 2010 to June 2, 2015. For the period from April 30, 2010 to June 2, 2015, the Board finds that an increased rating in excess of 10 percent is not warranted. In order to warrant a rating of 20 percent or higher, there must be evidence of at least a moderate incomplete paralysis of the sciatic nerve; however, no such evidence exists for this period. Private treatment records from Kaiser Permanente (Kaiser), which are dated from April 2009 to June 2015, show that the service-connected right lower extremity peripheral neuropathy of the sciatic nerve was manifested by only numbness. Moreover, a June 2010 VA examiner opined that the peripheral neuropathy in the right lower extremity was not interfering with the Veteran's activities of daily living during this period. Id. Furthermore, neither the Kaiser treatment records from the period from April 2009 to June 2015 nor the June 2010 VA examination report shows any paralysis of the sciatic nerve whatsoever. Thus, in view of symptoms manifesting by no more than some decreased sensation, and there being no evidence of the disability affecting the activities of daily living, the Board finds that the service-connected right lower extremity peripheral neuropathy of the sciatic nerve was no more than mild in degree prior to June 3, 2015. The Board finds this to be the case, particularly in light of the fact that neither the Kaiser treatment records from the period from April 2009 to June 2015 nor the June 2010 VA examination report shows any paralysis of the sciatic nerve. See Miller v. Shulkin, 28 Vet. App. 376, 380 (2017) (affirming Board's decision to deny a rating in excess of 10% for peripheral neuropathy that was made with consideration of both the objective and subjective evidence of record). Based on the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the period from April 30, 2010 to June 2, 2015. The benefit of the doubt rule is not applicable here; therefore, the claim for an initial rating in excess of 10 percent for the period from April 30, 2010 to June 2, 2015 is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Additionally, neither the Kaiser treatment records from the period from April 2009 to June 2015 nor the June 2010 VA examination report shows that during this time, the Veteran had any neuralgia, neuritis, or marked muscular atrophy - which, if found, may have warranted additional or alternative ratings under different Diagnostic Codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Thus, the Board finds that no higher or alternative ratings under a different diagnostic code can be applied here. 2. Entitlement to an Evaluation in Excess of 20 Percent for Service-Connected Right Lower Extremity Peripheral Neuropathy of the Sciatic Nerve From June 3, 2015. Turning to the period from June 3, 2015 forward, the Board finds that an increased rating in excess of 20 percent is not warranted. In order to warrant a rating of 40 percent or higher, there must be evidence of at least a moderately severe incomplete paralysis of the sciatic nerve; however, no such evidence exists for this period as well. During this period, the Veteran was evaluated at three separate VA examinations. See VA examination reports dated June 2015, July 2015, and April 2016. At the June 2015 VA examination, the examiner found that the Veteran had in the right lower extremity: a moderate constant pain, a moderate intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. The examiner also found decreased touch testing results for the right knee/thigh, ankle/lower leg, and foot/toes. The examiner also found no muscle atrophy, and no trophic changes. Based on these findings, the examiner then concluded that the Veteran had moderate, but not moderately severe, incomplete paralysis of the sciatic nerve with respect to his right lower extremity diabetic peripheral neuropathy. At the July 2015 VA examination, the examiner found that the Veteran had in the right lower extremity: no constant pain, a moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner also found normal touch testing results for the right knee/thigh and ankle/lower leg, and decreased touch testing results for the foot/toes. The examiner also found no muscle atrophy, and no trophic changes. Based on these findings, the examiner then concluded that the Veteran had moderate, but not moderately severe, incomplete paralysis of the sciatic nerve with respect to his right lower extremity diabetic peripheral neuropathy. Finally, at the April 2016 VA examination, the examiner found that the Veteran had in the right lower extremity: mild constant pain, no intermittent pain, no paresthesias and/or dysesthesias, and moderate numbness. The examiner also found decreased touch testing results for the right knee/thigh, ankle/lower leg, and foot/toes. The examiner also found no muscle atrophy, and no trophic changes. Based on these findings, the examiner then concluded that the Veteran had mild, but neither moderate nor moderately severe, incomplete paralysis of the sciatic nerve with respect to his right lower extremity diabetic peripheral neuropathy. In sum, all of the examiners from each examination opined that the Veteran's right lower extremity peripheral neuropathy of the sciatic nerve exhibited either mild or moderate, but no more than moderate, symptoms of paralysis of the sciatic nerve. See VA examination dated June 2015 (examiner found mild incomplete paralysis of the sciatic nerve), VA examination dated July 2015 (examiner found moderate incomplete paralysis of the sciatic nerve), and VA examination dated April 2016 (examiner found mild incomplete paralysis of the sciatic nerve). Moreover, Kaiser treatment records from the period from June 3, 2015 forward, do not show any evidence that detracts from the findings made by the VA examiners, or any evidence otherwise to show that the Veteran's right lower extremity peripheral neuropathy of the sciatic nerve involved more than moderate symptoms of paralysis of the sciatic nerve. See also Miller, 28 Vet. App. at 380 ("Although the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level. There is no support for this proposition in the regulation.") Thus, based on the objective medical evidence showing that the Veteran had mild or moderate, but not moderately severe, symptoms of incomplete paralysis of the sciatic nerve, for this time period, the Board finds that the service-connected right lower extremity peripheral neuropathy of the sciatic nerve was no more than moderate in degree from June 3, 2015. See also Miller, 28 Vet. App. at 380 (affirming Board's decision to deny an increased rating for peripheral neuropathy that was made with consideration of both the objective and subjective evidence of record). The preponderance of the evidence is against a rating in excess of 20 percent for the period from June 3, 2015 forward. The benefit of the doubt rule is not applicable here; therefore, the claim for an initial rating in excess of 10 percent for the period from June 3, 2015 forward, is denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. Additionally, neither the Kaiser treatment records from June 3, 2015 forward, nor any of the three VA examination reports show that during this time, the Veteran has or has had any neuralgia, neuritis, or marked muscular atrophy - which, if found, may warrant additional or alternative ratings under different Diagnostic Codes. Thus, the Board finds that no higher or alternative ratings under a different diagnostic code can be applied here. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation in excess of 10 percent for the right lower extremity peripheral neuropathy of the sciatic nerve prior to June 3, 2015, and an evaluation in excess of 20 percent thereafter is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs