Citation Nr: 1742935 Decision Date: 09/27/17 Archive Date: 10/04/17 DOCKET NO. 12-11 275A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for service-connected dementia associated with multiple sclerosis. 2. Entitlement to an increased rating for service-connected weakness of the right lower extremity associated with multiple sclerosis, to include an initial rating in excess of 20 percent prior to September 8, 2014 and a rating in excess of 60 percent thereafter. 3. Entitlement to an increased rating for service-connected weakness of the left lower extremity associated with multiple sclerosis, to include an initial rating in excess of 20 percent prior to September 8, 2014 and a rating in excess of 60 percent thereafter. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1978 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In March 2013, the Veteran testified before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is associated with the claims file. In May 2017, the Board sent the Veteran a letter informing him that he had the right to a new hearing, as the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. The Veteran subsequently indicated that he did not want a new hearing. Accordingly, the Board finds that all due process has been satisfied with respect to the Veteran's right to a hearing. Finally, the Board notes that the issue of entitlement to special monthly compensation (SMC) based on housebound criteria beyond January 28, 2015 to April 1, 2015 have been certified to the Board. VA's Veterans Appeals Control and Locator System (VACOLS) reflects that the claims have not been received at the Board and a docket number has not been assigned. As such, the Board will address those issues in a separate decision when the issues are received by the Board. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's dementia has primarily resulted in deficiencies in cognitive functioning, including short-term memory loss, difficulty with attention, concentration, multi-tasking and in executive functioning, which impaired his ability to continue working at a high level but did not result in total occupational and social impairment or prevent him from securing or maintaining employment. 2. From January 7, 2005 (the effective date of service connection) to October 13, 2009, the Veteran's service-connected right and left lower extremity weakness has been manifested by subjective and objective evidence of sensory and functional impairment which, while varied, was no more than intermittent and resulted in no more than moderate incomplete paralysis of the sciatic nerve. 3. For the period beginning October 13, 2009, the Veteran's service-connected right and left lower extremity weakness was manifested by more severe and diffuse sensory impairment, diminished reflexes, and decreased muscle strength in both lower extremities, with more significant functional impairment in walking and isolated notations of slight right foot drop, absent left ankle jerk, and left foot drag that more nearly approximated moderately severe incomplete paralysis of the sciatic nerve. 4. For the period beginning September 8, 2014, the Veteran's service-connected right and left lower extremity weakness was manifested by subjective complaints of that included "tremendous" spasms and cramping, with objective evidence of marked atrophy in both thighs and decreased and absent sensation to light touch from the thigh to the toes in the right and left legs, respectively, that more nearly approximated severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for service-connected dementia associated with multiple sclerosis have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, DC 9326 (2016). 2. The criteria for initial disability ratings in excess of 20 percent for service-connected right and left lower extremity weakness were not met prior to October 13, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.25, 4.26, 4.124a, DC 8720 (2016). 3. The criteria for separate 40 percent ratings for service-connected right and left lower extremity weakness were met as of October 13, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.25, 4.26, 4.124a, DC 8720 (2016). 4. The criteria for a rating in excess of 60 percent for service-connected right and left lower extremity weakness were not met for the period beginning September 8, 2014. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.25, 4.26, 4.124a, DC 8720 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural History The Veteran initially filed a claim for entitlement to service connection for multiple sclerosis that was received by the RO on January 7, 2005. While the Veteran's claim was initially denied by the RO and Board, in a December 2010 rating decision, the RO granted service connection for multiple sclerosis, assigning an initial 30 percent rating, effective January 7, 2005, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8018. On December 22, 2010, the Veteran filed a claim of entitlement to service connection for dementia secondary to his service-connected multiple sclerosis and, in that same written statement, he also objected to the initially assigned single 30 percent evaluation for multiple sclerosis in the December 2010 rating decision. In August 2011, the Veteran, through his attorney-representative, requested separate ratings for the residual manifestation of his multiple sclerosis, including dementia and neuropathy of the lower extremities. In a July 2011 rating decision, the RO granted service connection for dementia associated with multiple sclerosis, assigning an initial 50 percent rating, effective December 22, 2010. In August 2011, the Veteran filed a notice of disagreement with the effective date assigned in the July 2011 rating decision. In an April 2012 rating decision, the RO suspended the single 30 percent evaluation initially assigned for multiple sclerosis, effective January 7, 2005, and proceeded to assign separate ratings for the Veteran's residuals of multiple sclerosis. The RO granted entitlement to service connection for voiding dysfunction, bowel dysfunction, and erectile dysfunction associated with multiple sclerosis and assigned separate ratings for each of those disabilities, effective November 4, 2011. As relevant to the current appeal, the RO also granted entitlement to separate ratings for weakness in the right and left lower extremities associated with multiple sclerosis and assigned separate 20 percent ratings for each extremity, effective April 7, 2011. Finally, the RO increased the Veteran's disability rating for service-connected dementia to 70 percent, effective April 28, 2006. In April 2012, the RO issued two separate statements of the case and the Veteran then perfected an appeal in May 2012. The claims on appeal were certified to the Board but remanded for additional evidentiary development in May 2014. While the additional development was being conducted, the RO issued a rating decision in December 2014, which granted entitlement to a TDIU, effective December 1, 2012, and awarded increased 60 percent rating for the Veteran's service-connected right and left lower extremity weakness associated with multiple sclerosis, both effective from September 8, 2014. In April 2016, the Board determined that the proper effective date for the separate ratings assigned for the residual manifestations of the Veteran's multiple sclerosis, including dementia and weakness of the left and right lower extremities is January 7, 2005. However, the Board remanded the issues of entitlement to increased initial disability ratings for dementia, right lower extremity weakness, and left lower extremity weakness to the RO for consideration. Those claims have been returned to the Board for consideration. Parenthetically, the Board notes that several of the adjudicative documents associated with the record do not reflect the correct information regarding the disability ratings and effective dates assigned to the Veteran's service-connected left and right lower extremity weakness. For example, the April 2016 rating decision indicates that the increased 60 percent rating for the left lower extremity weakness was assigned from January 7, 2006, although the codesheet associated with the rating decision correctly reflects that the 60 percent rating was assigned from September 8, 2014. The same codesheet also reflects that a 30 percent rating was assigned for multiple sclerosis with right lower extremity weakness from January 7, 2006, with a 20 percent rating assigned from April 7, 2011, and a 60 percent rating assigned from September 8, 2014. However, this is incorrect, as the single 30 percent rating assigned for multiple sclerosis was suspended and separate ratings were assigned for residual manifestations of multiple sclerosis January 7, 2006, including separate 20 percent ratings for weakness in the left and right lower extremity and a 70 percent rating for dementia. See April 2012 rating decision; April 2016 Board decision and rating decision. The correct disability ratings and effective dates are detailed above and reflected on the first page of this decision. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Neither the Veteran nor the attorney-representative in this case has referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Facts and Analysis The Veteran is seeking an increased rating for his service-connected dementia and weakness of the left and right lower extremity disabilities. Dementia The Veteran's dementia is rated 70 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9326, effective January 7, 2005. Under DC 9326, dementia due to other neurologic or general medical conditions is rated under a General Rating Formula for Mental Disorders which provides that a 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. A 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. The symptoms listed in the rating schedule are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation ... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126 (a). The pertinent evidence of record consists of VA outpatient treatment records dated from 2005 to 2015, VA examination and neuropsychiatric evaluations dated May 2006, June 2011, October 2012, and May 2016, and the Veteran's statements made in support of his claim. The preponderance of the evidence shows the Veteran's dementia has primarily resulted in deficiencies in cognitive functioning, including short-term memory loss (such as forgetting dates, times, and names, misplacing items, and, at work, overlooking emails and difficulty recalling information from projects) and difficulty with attention, concentration, and multi-tasking. He has consistently demonstrated difficulty in executive functioning, such as registering information, planning, organizing, problem solving and setting goals, with additional problems reading and in processing speed and ability. See May 2006 Neuropsychiatric evaluation; VA examination reports dated June 2012 and October 2012; VA treatment records dated July and December 2011, January, March, and October 2012; May 2016 statement from Dr. Seldon. The evidence shows that, as the Veteran's multiple sclerosis and dementia progressed, he lost the ability to continue at a high level of work but he continued to work full-time as an aircraft electronics specialist managing several programs, supervising, and running several research projects and contracts. See June 2011 and October 2012 VA examination reports. He continued to work until approximately November 2012 and, in this context, the Board notes that TDIU has been awarded, effective from December 1, 2012. As demonstrated above, the evidence dated prior to that date does not reflect that his dementia prevented him from securing or maintaining employment. In addition to continuing his job, the evidence shows the Veteran continued to perform his activities of daily living independently throughout the appeal and has been generally well-groomed, alert, and oriented. The Veteran has consistently demonstrated normal speech in rate and volume and his thought content has been linear and coherent, without any evidence of suicidal or homicidal ideation, hallucinations, or signs or symptoms of psychosis. On one occasion, the Veteran reported that he sometimes gets down but he, otherwise, denied experiencing depression, anxiety, or mood instability. There is no evidence that the Veteran's dementia has resulted in impaired insight, judgement, or impulse control. See May 2006 neuropsychiatric evaluation; VA examinations dated June 2011 and October 2012. Based on the foregoing evidence, the Board finds the preponderance of the evidence does not support the grant of a rating in excess of 70 percent at any point during the appeal period. At this juncture, the Board notes that, in assigning the 70 percent rating for dementia, the RO noted the evidence did not clearly show the Veteran warranted the 70 percent rating but assigned the rating because he had some of the criteria for a 70 percent rating and a global assessment of functioning (GAF) score of 49 - which denotes serious systems - was assigned during the June 2011 VA examination. The Board's review of the evidence confirms that, while the Veteran's dementia has resulted in serious cognitive deficiencies that impacted his ability to work during the appeal, his dementia has not affected his family relations, judgment, thinking, or mood to warrant a 70 percent rating under DC 9326. Nevertheless, in considering whether a rating higher than 70 percent is warranted during the appeal period, the Board concludes that the lay and medical evidence does not reflect that the Veteran's dementia has resulted in total occupational and social impairment at any point during the appeal period, including as a result of symptoms such as persistent impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting others, intermittent inability to perform activities of daily living, or disorientation to time or place. As noted above, the Veteran has consistently endorsed having problems with his short-term memory but the evidence does not reflect that his memory loss was of the frequency, severity, or duration to result in total social or occupational impairment. Additionally, the objective evidence of record does not contain any notation of spatial disorientation or neglect of personal hygiene but, instead, shows that his thought process and communication have been consistently normal, without any evidence of inappropriate behavior or persistent danger of hurting others. Therefore, the Board finds the preponderance of the evidence is against the grant of a rating in excess of 70 percent at any point during the appeal period and that, because his symptomatology has been stable throughout the appeal, a staged rating for his dementia is not warranted. As the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application in this case and his claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Weakness of the Right and Left Lower Extremities The Veteran's weakness of the right and left lower extremities is rated 20 percent disabling prior to September 8, 2014, and 60 percent disabling thereafter, pursuant to 38 C.F.R. § 4.124a, DC 8520. Under DC 8520, 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; and an 80 percent rating requires complete paralysis, whereby 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, DC 8520. Under 38 C.F.R. § 4.124a, 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. When the involvement is wholly sensory, the rating should be for the mild, at most, the moderate degree. The pertinent evidence of record consists of VA outpatient treatment records dated from 2005 to 2015, VA examination reports dated April 2006, April 2011, November 2011, and October 2012. The evidence reflects that the Veteran has consistently reported having numbness, weakness, and pain in both his legs which has impaired his gait and resulted in his using a cane throughout the appeal period. However, the evidence reflects that the Veteran's symptoms and functional impairment caused thereby has gradually progressed and worsened throughout the appeal. VA treatment records dated in 2005 reflect that the Veteran reported experiencing numbness and incoordination which limited his walking and caused him to stumble sometimes. His muscle tone and bulk in both lower extremities was normal but his muscle strength ranged from slightly decreased (5-/5) to active movement against some resistance (4/5) in his hips, right knee, and lower extremities. See e.g., VA treatment records dated February, June, and August 2005. His sensory impairment also varied, as his vibration sense was diminished in both knees and the left great toe in February, while his sensation to pinprick and position sense testing was lost and decreased above both ankles and in both great toes in June and December. See VA treatment records dated February, June, and December 2005. During the April 2006 VA examination, the Veteran's gait and coordination was normal and he demonstrated very subtle/mild weakness in his left limbs. The Veteran's reflexes were normal in his knees but hypoactive in his ankles. Sensory examination revealed very slight decrease in temperature, touch, and pinprick sensation in the left lower extremity, with slight decrease to only pinprick testing in the right lower extremity. Otherwise, sensory testing was normal. Subsequent VA treatment records show the Veteran reported having increased weakness and cramps in September 2008 but, in October 2009, he reported having more numbness in both legs which resulted in continued difficulty walking but he also reported that he was unable to pick up his right foot as much as his left foot. The examining physician was unable to elicit any deep tendon reflexes and noted the Veteran's right toe was upgoing slightly, while his left toe was downgoing. The Veteran's muscle strength was slightly less than active against some resistance (4-/5) in both hips and knees, but there were "marked deficits" in vibration and light touch in both legs. During outpatient treatment in April 2010, the Veteran demonstrated slight right foot drop and, while his reflexes were normal in both knees and the right ankle, left ankle jerk was absent. Nevertheless, the Veteran's muscle strength was active against some resistance (4/5) in the hips and knees but normal in the ankles. Sensory examination was decreased in all modalities in both lower extremities but absent to vibration at the knees. In October 2010, the Veteran's muscle strength was decreased with no movement against resistance (3/5) and sensation was lost to the mid-calf in both legs. During the April 2011 VA examination, the Veteran continued to endorse poor balance and muscle spasms which limited his ability to walk to no more than 100 feet even with a cane. The Veteran also reported falling more than a dozen times during the year and, in this regard, the examiner noted his gait was abnormal with a wide base. Sensory examination revealed decreased sensation to light touch and vibration sense in both lower extremities and his reflexes were diminished in both ankles and knees, but his muscle strength was only decreased to active movement against some resistance (4/5) in the hips and left knee. A July 2011 VA treatment record reflects the Veteran was dragging his left foot more, as his muscle strength was decreased to no movement against resistance (3/5) in the hips and left knee and decreased to only active movement against some resistance (4/5) in the right knee. There was also marked sensory deficits to vibration and light touch in both lower extremities. During the November 2011 VA examination, the Veteran reported that he was unable to lift his legs very well because of muscle pain and sensory loss and he demonstrated an abnormal gait. The Veteran's reflexes were decreased (1+) in both knees and ankles and his sensation was decreased throughout both lower extremities. See also VA treatment records dated April and November 2011. There was no evidence of muscle atrophy but his muscle strength was decreased to active movement against some resistance (4/5) in the hips, knees, and ankles. VA treatment records dated in 2012 show the Veteran variously demonstrated hypoactive (1+) reflexes in the lower extremities and trace reflexes in the ankles and hamstrings, while his muscle strength was varied to active movement against some resistance (4/5), no movement against resistance (3/5) in the hips, and no movement against gravity (2/5) in the knees and ankles. See e.g., VA treatment records dated January and June 2012. In January 2012, sensory examination revealed absent light touch and significant decrease to vibration sense in the knees, although there was only decease to cold sensation in the left knee. During the October 2012 VA examination, the Veteran limped on the left leg due to moderate weakness and used a cane. His reflexes were decreased (1+) in the ankles and knees and his senses were decreased throughout both lower extremities. There was no evidence of muscle atrophy and the Veteran's muscle strength was normal (5/5) in the right hips, knees, and ankles; however, his muscle strength was decreased to active movement against some resistance (4/5) in the left knee and ankle. The September 2014 VA examination report reflects that the Veteran endorsed having tremendous spasms and cramping, with severe numbness, moderate paresthesia, and pain. The Veteran reported dragging his left leg and stated that he pulled his leg when going up stairs. The examiner noted that the Veteran's gait was abnormal, as he was observed almost dragging his left foot and occasionally swinging his left leg. The examiner also noted marked atrophy in both thighs. The Veteran's reflexes were hypoactive (1+) in both ankles and, while they were normal in the right knee, reflexes were absent in the left knee. Light touch sensory testing in the right thigh, knee, foot, and toes was decreased and absent on the left, while reflexes in his ankles were also decreased. His muscle strength was normal (5/5) in ankle plantar flexion, right ankle dorsiflexion, right knee flexion, and bilateral knee extension but was decreased with no movement against gravity (3/5) in left ankle dorsiflexion and left knee flexion. Subsequent VA treatment records reflect the Veteran reported feeling weaker in the right lower extremity, although objective examination revealed good strength in both lower extremities with essentially normal muscle strength in the knees and throughout the lower extremities and no observed or reported issue with sensation. See e.g., VA treatment records dated January, February, and March 2015. After review of the foregoing evidence, the Board finds that the preponderance of the evidence is against the grant of an initial rating higher than 20 percent for the right and left lower extremity weakness. Indeed, the evidence dated in 2005 and 2006 shows the Veteran generally endorsed numbness and incoordination, while the objective evidence shows his reflexes were hypoactive in his ankles but normal in the knees and his muscle strength was no more than decreased to active movement against some resistance (4/5). See June and August 2005 VA treatment records; April 2006 VA examination report. There was also objective evidence of a sensory impairment, which varied but was only slightly decreased or diminished in certain sensory tests (such as vibration, touch, and pinprick) and shown as lost or absent in the ankles and toes on only one occasion, i.e., in June 2005, and only in pinprick or position sense testing. Nevertheless, the Veteran's gait was normal, as reflected in the June 2005 VA treatment record and during the April 2006 VA examination, and he reported only occasional stumbles, as noted in the January 2005 VA treatment record. This evidence shows that, since January 7, 2005, there has been subjective and objective evidence of sensory and functional impairment affecting the right and left lower extremities which, while varied, was intermittently more severe in certain areas of the lower extremities - as shown by the occasional evidence of hypoactive reflexes in the ankles only and lost sensation to pinprick and position sense in the ankles and toes - which the Board finds more nearly approximated a moderate incomplete paralysis of the sciatic nerve and, thus, warrants separate 20 percent ratings under DC 8720 but no higher. However, the evidence dated from October 13, 2009 shows increased complaints and manifestations of the disability, as the Veteran reported having more numbness bilaterally and objective examination revealed he was unable to pick up his right foot as much as the left, his reflexes were undetectable, and toes were variously going up and down on the right and left, respectively. There were also there "marked deficits" in vibration and light touch in both legs. Subsequent evidence also variously revealed slight right foot drop, absent left ankle jerk, and the Veteran was observed nearly dragging his left foot. See VA treatment records dated April 2010, October 2010, and July 2011, respectively. Additionally, the objective evidence began to reveal decreased sensation in all modalities in both lower extremities, including absent to vibration at and below the knees. See e.g., VA treatment records dated April and October 2010 and July 2011; see also April and November 2011 and October 2012 VA examination reports. The objective evidence also revealed a more significant decrease in muscle strength, as he demonstrated no movement against resistance (3/5) in October 2010 and July 2011, with no movement against gravity (2/5) in the knees and ankles June 2012. The Veteran's reflexes were also impaired in his ankles and knees during the VA examinations conducted in April 2011, November 2011, and October 2012, with no more than trace reflexes observed in his ankles and hamstrings in November 2011. The evidence dated from October 13, 2009 also shows more significant functional impairment as a result of the foregoing symptoms, as he reported falling more frequently, being unable to walk more than 100 feet even with a cane or lift his legs very well, and he was observed limping on the left leg. See e.g., VA examination reports dated April 2011, November 2011, and October 2012. This evidence clearly shows an increase in the severity of the Veteran's sensory impairment, diminished reflexes, and decreased muscle strength in both lower extremities. In addition to the increased severity of his various symptoms, the evidence shows that the deficiencies in his lower extremities were noted on examination more frequently and resulted in a more significant functional impairment in walking. In this regard, the Board finds particularly significant that there is evidence of slight right foot drop, absent left ankle jerk, and left foot drag which, while only noted at certain times, is indicative of a more severe impairment in the right and left lower extremities. As a result, the Board finds that the evidence dated from October 13, 2009 shows his right and left lower extremity disabilities more nearly approximated moderately severe incomplete paralysis of the sciatic nerve and, thus, warrants separate 40 percent ratings under DC 8720 but no higher until September 8, 2014. Indeed, the September 2014 VA examination report shows the Veteran's right and left lower extremity disabilities continued to worsen, as his subjective complaints included severe numbness, moderate paresthesias, and pain that ranged from mild to severe, with "tremendous" spasms and cramping. Additionally, there was objective evidence of marked atrophy in both thighs and sensory examination revealed decreased and absent sensation to light touch from the thigh to the toes in the right and left legs, respectively. The Veteran continued to demonstrate decreased muscle strength, particularly in the left lower extremity, and, while he continued to drag his left leg, he was also observed swinging his left leg at times and reported having to pull his leg when going up stairs. This evidence is clearly more consistent with a finding of severe incomplete paralysis of the sciatic nerve which warrants separate 60 percent ratings for each lower extremity under DC 8720, given the evidence of marked muscle atrophy in both thighs. There is no evidence of marked muscular atrophy or symptoms that more nearly approximate a finding of severe incomplete paralysis in either lower extremity prior to September 8, 2014. Nor does the evidence show that a rating higher than 60 percent is warranted before, on, or after September 8, 2014, as complete paralysis is not shown in either lower extremity. In this regard, the Board notes that there is evidence of slight right foot drop in April 2010 and muscle strength testing revealed no movement against gravity (2/5) in the knees and ankles in June 2012, both of which are contemplated by the 80 percent rating assignable for complete paralysis of the sciatic nerve under DC 8520. However, the evidence of right foot drop and no movement against gravity in the knees and ankles is not shown in the subsequent evidence. Instead, the evidence as detailed above, shows the Veteran's right and left lower extremity disabilities have been manifested by sensory and functional impairment that have varied and worsened throughout the appeal period but have not been consistently manifested by symptoms that more nearly approximate a finding of complete paralysis of the sciatic nerve to warrant a higher, 80 percent rating at any point during the appeal period. As discussed in the foregoing reasons and bases, the preponderance of the evidence is against the grant of an initial rating higher than 20 percent for the right and left lower extremity weakness. However, the evidence dated from October 13, 2009 supports the grant of separate 40 percent ratings for each lower extremity under DC 8720, while the preponderance of the evidence is against the grant of a rating higher than 60 percent from September 8, 2014. In making these determinations, all reasonable doubt has been resolved in favor of the Veteran. ORDER Entitlement to a rating in excess of 70 percent for service-connected dementia is denied. Entitlement to initial ratings in excess of 20 percent for service-connected right and left lower extremity weakness is denied. For the period beginning October 13, 2009, entitlement to separate 40 percent ratings, but no higher, for service-connected right and left lower extremity weakness is granted. For the period beginning September 8, 2014, entitlement to ratings in excess of 60 percent for service-connected right and left lower extremity weakness is denied. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs