Citation Nr: 1800378 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-36 510A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the left lower extremity involving the sciatic nerve prior to June 23, 2014. 2. Entitlement to an initial evaluation in excess of 40 percent for peripheral neuropathy of the left lower extremity involving the sciatic nerve on or after June 23, 2014. 3. Entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the right lower extremity involving the sciatic nerve prior to June 23, 2014. 4. Entitlement to an initial evaluation in excess of 40 percent for peripheral neuropathy of the right lower extremity involving the sciatic nerve on or after June 23, 2014. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Postek, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to October 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO granted service connection for peripheral neuropathy of the left and right lower extremities involving the sciatic nerve and assigned separate 10 percent evaluations effective from December 16, 2008. Jurisdiction over the case was subsequently transferred to the RO in Houston, Texas. Initially, the Board notes that the Veteran withdrew his appeal as to the issues of entitlement to an increased evaluation for diabetes mellitus; service connection for chronic bladder syndrome; and whether new and material evidence has been submitted to reopen a claim for service connection for peripheral neuropathy of the bilateral upper extremities, as addressed in an April 2010 statement of the case (SOC). See July 2014 written statement. Thereafter, the RO granted service connection for peripheral neuropathy of the bilateral upper extremities in an unappealed December 2014 rating decision. The Veteran also initiated an appeal as to the denial of a request for automobile and adaptive equipment or for adaptive equipment only, as well as the denial of an earlier effective date for the grant of service connection for ischemic heart disease, as addressed in a June 2014 SOC; however, he did not perfect an appeal as to those issues. In an October 2014 rating decision, the RO increased the evaluations for the bilateral lower extremity peripheral neuropathy to 20 percent effective from December 16, 2008. In a December 2014 rating decision, the RO increased the bilateral lower extremity evaluations to 40 percent, effective from June 23, 2014. Because these evaluations do not represent the highest possible benefit, the issues are in appellate status and have been recharacterized as stated above. AB v. Brown, 6 Vet. App. 35 (1993). A hearing was held before a Decision Review Officer (DRO) at the RO in November 2010. A hearing was also held before the undersigned Veterans Law Judge at the Central Office in Washington, D.C., in August 2015. A transcript of the DRO hearing is unavailable, but a Board hearing transcript is of record. See November 2016 letter and telephonic contact with Veteran (requesting copy of the DRO hearing transcript). The Board remanded the case for further development in February 2016. That development was completed, and the case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS). The agency of original jurisdiction (AOJ) reviewed the complete claims file in the December 2016 SSOC. Thereafter, the Veteran's vocational rehabilitation folder was added to the claims file. On review, these records contain the same information as that established in other records reviewed by the AOJ in connection with the claims decided herein. Thus, this additional evidence does not materially alter the outcome of the case. As such, the Board finds that remand for initial RO review of this evidence in relation to these claims is not necessary, and there is no prejudice to the Veteran in proceeding with adjudication of the claims. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). FINDINGS OF FACT 1. Prior to June 23, 2014, the Veteran's peripheral neuropathy of the left lower extremity involving the sciatic nerve was not productive of moderately severe incomplete paralysis. 2. Since June 23, 2014, the Veteran's peripheral neuropathy of the left lower extremity involving the sciatic nerve has not been productive of severe incomplete paralysis. 3. Throughout the appeal period, the Veteran's peripheral neuropathy of the right lower extremity involving the sciatic nerve has been productive of moderately severe incomplete paralysis, but not severe incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to June 23, 2014, the criteria for an initial evaluation in excess of 20 percent for peripheral neuropathy of the left lower extremity involving the sciatic nerve have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2017). 2. Since June 23, 2014, the criteria for an initial evaluation in excess of 40 percent for peripheral neuropathy of the left lower extremity involving the sciatic nerve have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2017). 3. Resolving reasonable doubt in favor of the Veteran, prior to June 23, 2014, the criteria for an initial evaluation of 40 percent, but no higher, for peripheral neuropathy of the right lower extremity involving the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2017). 4. Since June 23, 2014, the criteria for an initial evaluation in excess of 40 percent for peripheral neuropathy of the right lower extremity involving the sciatic nerve have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that VA's duty to assist has been met with regard to obtaining outstanding records. In response to the Board's remand, the AOJ obtained the Veteran's Social Security Administration (SSA) records and sent a March 2016 letter to the Veteran to identify and provide authorization forms for any additional non-VA health care providers based on his report of ongoing treatment at the Board hearing. Although the Veteran continued to report that he received non-VA treatment, he did not submit any additional treatment records or a completed release so that the AOJ could make an attempt to obtain them. The duty to assist is not a one-way street. A claimant cannot remain passive when he has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996); Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records, or submit those records himself. 38 C.F.R. § 3.159 (c)(1)(i)-(ii). In addition, the Board finds that there has been compliance with the prior remand directives as to the review of additional evidence by the AOJ and the VA examiner. The Veteran's representative indicated that the AOJ and the most recent VA examiner did not consider the SSA records; however, a review of the December 2016 SSOC and the April 2016 VA examination report (with June 2016 VA medical opinion following indicated testing) shows that this was not the case. The VA examiner did indicate that review of more recent non-VA treatment records would have been helpful in evaluating the current severity of the disabilities in the non-VA examination setting, as the most recent private treatment records in the claims file were dated in 2011. The SSA records are dated earlier than that time. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 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; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Fenderson, 12 Vet. App. at 126-27. In this case, continuation of the current staged evaluation for the left lower extremity and the now-assigned uniform evaluation for the right lower extremity, but no higher, are warranted based on the evidence. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran has contended that he is entitled to higher initial evaluations for his service-connected peripheral neuropathy of the right and left lower extremities involving the sciatic nerve. He has indicated that he has problems including decreased sensation, weakness, and difficulty with ambulation requiring assistive devices, as well as bilateral drop foot. He has also indicated that his right leg is worse than his left leg. See, e.g., June 2010 VA independent living assessment; September 2010 substantive appeal; August 2015 Bd. Hrg. Tr.; October 2015 written appellate brief. The Veteran is currently assigned separate 20 percent evaluations prior to June 23, 2014, and separate 40 percent evaluations thereafter pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520 for the sciatic nerve, a 20 percent evaluation is warranted for moderate incomplete paralysis. A 40 percent evaluation is warranted for moderately severe incomplete paralysis. A 60 percent evaluation is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, no active movement of muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 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, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis," with respect to peripheral nerve injuries, 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 lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement and are combined with application of the bilateral factor for bilateral involvement. Neuritis, cranial or peripheral, 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. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, can receive a maximum rating of moderate incomplete paralysis, except for tic douloureux or trifacial neuralgia, which may be rated up to complete paralysis. 38 C.F.R. § 4.124. 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. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA 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. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an initial evaluation in excess of 20 percent is not warranted prior to June 23, 2014, and an initial evaluation in excess of 40 percent thereafter is not warranted for peripheral neuropathy of the left lower extremity involving the sciatic nerve. In addition, the Board concludes that an initial evaluation of 40 percent is warranted for peripheral neuropathy of the right lower extremity involving the sciatic nerve prior to June 23, 2014, but an initial evaluation in excess of 40 percent thereafter is not warranted. Left Lower Extremity Prior to June 23, 2014, the Veteran has not been shown to have moderately severe incomplete paralysis from his peripheral neuropathy of the left lower extremity involving the sciatic nerve. For example, he reported during the March 2010 VA examination that he had paresthesia and dysesthesia and could not feel the ground when he was walking, but that he was otherwise able to perform his usual daily activities. On examination, he had decreased sensation to touch and pinprick over the foot and distal lower leg in a sock pattern, complete numbness of the sole and digits of the foot, and decreased strength, but no atrophies. During the December 2011 VA examination, the Veteran again reported abnormal sensation, as well as constant pain. On examination, he had slightly decreased strength (4/5 for the knee and ankle) and normal reflex in the knee, but absent reflex in the ankle. Sensory testing was decreased on light touch in the knee/thigh, on position sense, and cold sensation, and was absent on light touch in the ankle/lower leg and foot/toes, as well as on vibration sense. There was no lower extremity muscle atrophy, but the examiner noted that there was a loss of hair growth below the mid-calf that constituted a trophic change due to diabetes mellitus, but otherwise good hair growth upward. These findings are substantially similar to those on the June 2014 VA examination in which the examiner determined that the disability was productive of moderate incomplete paralysis of the sciatic nerve, with a normal femoral nerve. Outside of the VA examination setting, the Veteran also reported sensory disturbances and weakness of the lower extremities, and the record shows that he took lyrica and gabapentin. See, e.g., VA treatment records from February 2008 (reported foot numbness and tingling sensations most of the time with pulses present, but no sensation of the foot on testing); June 2010 (reported numbness distally in the left foot); July 2010 (reported foot numbness and tingling sensations most of the time with pulses partially present but no sensation of the foot on testing); October 2010 (medications); April 2011 (noted history of long-standing dysesthesia and paresthesia, predominantly in the right distal lower extremity); June 2011 (reported no new weakness, but legs were shaky at times with standing). As part of a June 2010 VA independent living assessment, the Veteran reported that he had a loss of sensation on the bottom of his left foot. A September 2010 related report shows that the Veteran reported being unable to walk several blocks due to his right lower extremity weakness and sensory loss, without mentioning the left lower extremity. He also reported continued use of a stationary bike for daily exercise with increased tolerance for riding the bike up to 60 to 90 minutes per day in increments of 20 minutes. An April 2011 private treatment record also shows that the Veteran's diabetic neuropathy pain was relatively controlled on medication. A May 2011 VA treatment record further indicates that there was good strength in the left leg for ankle dorsiflexion and knee extension. Regarding the claimed left foot drop, the record does not establish that the Veteran has had this symptom during the appeal period. For example, while he had a right foot drop on evaluation during VA treatment, his left foot was noted to be in normal shape. See, e.g., VA treatment records from July 2010 and August 2011. In written statements, private treatment providers Dr. E.M.H. (March 2008) and Dr. S.W. (October 2010) only address a right foot drop. In written statements received in May 2012 and September 2015, Dr. K.G. indicated that the Veteran had a diagnosis of left foot drop; however, as discussed above, the actual treatment records from that provider are not of record. The earlier VA examinations do not address the issue of the claimed left foot drop. Moreover, the April 2016/June 2016 VA examiner determined that there was no objective evidence of left foot drop. The Board finds the VA examiner's (a neurologist) findings were based on an examination and review of the record, including the results of EMG/NCV testing and available treatment records, and are more probative than the Veteran's general assertions and the written statement of the private provider (in the absence of supporting treatment records) in this regard. Based on the foregoing, the preponderance of the evidence weighs against a finding that the Veteran has had left foot drop during the appeal period. The record also shows that the Veteran's lower extremity functional impairment, including ambulation difficulties, can also be attributed to his orthopedic problems, as discussed in detail below. Based on the foregoing, the Board finds that the Veteran's overall disability picture does not more nearly approximate the 40 percent criteria and is consistent with the 20 percent evaluation assigned prior to June 23, 2014, for the left lower extremity disability. Right Lower Extremity Prior to June 23, 2014, the Veteran has been shown to have moderately severe incomplete paralysis from his peripheral neuropathy of the right lower extremity involving the sciatic nerve. The Veteran's reports and findings for the March 2010 VA examination are the same as those for the left lower extremity provided above. During the December 2011 VA examination, the Veteran again reported abnormal sensation, as well as pain. On examination, he had slightly decreased strength (4/5 for the knee and ankle), but absent reflex in the knee and ankle. Sensory testing was decreased on light touch in the knee/thigh, on position sense, and cold sensation, and was absent on light touch in the ankle/lower leg and foot/toes, as well as on vibration sense. There was no lower extremity muscle atrophy, but the examiner noted that there was a loss of hair growth below the mid-calf that constituted a trophic change due to diabetes mellitus, but otherwise good hair growth upward. These findings are substantially similar to those of the June 2014 VA examination in which the examiner determined that the disability was productive of moderate incomplete paralysis of the sciatic nerve, with a normal femoral nerve. Outside of the VA examination setting, the Veteran also reported sensory disturbances and weakness of the lower extremities, and the record shows that he took lyrica and gabapentin, as discussed above. The record also shows that the Veteran has reported that his neuropathy problems are greater in the right lower extremity. See, e.g., VA treatment records from October 2010 (neurology note shows that Veteran has right AFO brace and due to weakness and sensory deficit in right foot, has a loss of use and not able to drive a vehicle safely) and April 2011 (noted history of long-standing dysesthesia and paresthesia, predominantly in the right distal lower extremity, exacerbated with prolonged weight-bearing or standing that affects ambulating any great distance; additional record showing lack of sensation greater on right side); June 2010 VA independent living assessment (reported neuropathies in all extremities, worse in right leg/foot). In addition, the record establishes that the Veteran has had right foot drop throughout the appeal period that is due to his service-connected diabetes mellitus. Although Dr. E.M.H. related the right foot drop to reported in-service knee injuries in the March 2008 written statement, the most probative evidence establishes that the right foot drop is related to the diabetes mellitus. Other private treatment providers noted that the Veteran currently has right foot drop. See Dr. SW (October 2010) (indicating that this disorder has caused a loss of function) and Dr. K.G. (September 2015). That reported diagnosis is supported by testing performed as part of VA treatment during this portion of the appeal period, as confirmed on the most recent VA examination. See, e.g., VA treatment records from July 2010 and August 2011; April 2016 VA examination report and June 2016 VA medical opinion. The April 2016/June 2016 VA examiner determined that the Veteran had objective evidence of right foot drop, based on an examination of the Veteran and consideration of the EMG/NCV testing, which resulted in a partial loss of use of the right foot. Based on the foregoing, the preponderance of the evidence weighs in favor of a finding that the Veteran has had right foot drop during the appeal period. Given the finding of right foot drop and the remainder of the reported symptoms and findings, as well as the resulting functional impairment, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has been shown to have moderately severe incomplete paralysis from his peripheral neuropathy of the right lower extremity involving the sciatic nerve. The record also shows that the Veteran's lower extremity functional impairment, including ambulation difficulties, can also be attributed to his orthopedic problems, as discussed in detail below. Based on the foregoing, and resolving any reasonable doubt in favor of the Veteran, the Board concludes that the evidence supports the assignment of a 40 percent evaluation for the right lower extremity disability prior to June 23, 2014, and the claim is granted to this extent. Bilateral Lower Extremities Nevertheless, the Board finds that the Veteran has not been shown to have severe incomplete paralysis from his peripheral neuropathy of the left lower extremity involving the sciatic nerve since June 23, 2014, or at any time during the appeal period from his peripheral neuropathy of the right lower extremity involving the sciatic nerve. In this regard, the record does not establish that the Veteran has any lower extremity muscle atrophy. He did testify that his doctors had told him that his legs had gotten smaller during the Board hearing, but the VA examination reports show that there was no lower extremity muscle atrophy. The available treatment records also do not support such a finding. See, e.g., June 2011 VA treatment record (noting no evidence of muscular weakness). Notably, the VA treatment records do reflect findings of upper extremity atrophy, but not lower extremity atrophy. In addition, the June 2014 VA examiner noted findings included strength of 4/5 or 5/5 for the knees and ankle plantar flexion and 3/5 for ankle dorsiflexion and determined that the disability was productive of moderate incomplete paralysis of the sciatic nerve, with a normal femoral nerve bilaterally, as confirmed in a September 2014 VA medical opinion from the VA examiner who later performed the 2016 examination. The April 2016/June 2016 VA examiner also indicated that he was unable to perform strength testing because of a lack of a full effort by the Veteran. The record does show that the Veteran has previously been uncooperative in the medical evaluation setting. See September 2012 VA treatment record (noting Veteran came to establish care on a scooter but refused to walk). In any event, the examiner determined that that the disability was productive of moderately severe incomplete paralysis of the right lower extremity sciatic nerve and that the Veteran had a normal left lower extremity sciatic nerve, as well as normal femoral nerves. Moreover, although the Veteran does have right foot drop suggestive of complete paralysis, the record does not establish that he also has the other factors of complete paralysis, as outlined above. Indeed, knee flexion on the December 2011 and June 2014 VA examinations was at least 4/5 bilaterally. The Board acknowledges the Veteran's representative's argument that he is entitled to additional compensation based on complete loss of use of the feet. See, e.g., October 2015 written appellate brief. Nevertheless, the April 2016/June 2016 VA examiner indicated that the Veteran has partial loss of use from the right foot drop. In so finding, the examiner reviewed the complete claims file, including records such as the October 2010 VA treatment record noting that the Veteran had a loss of use of the right foot. See also, e.g., VA treatment records from August 2011 (noting Veteran will begin pool therapy soon); May 2011, March 2012, and March 2013 (noting that Veteran was able to ambulate independently). The evaluations under Diagnostic Code 8520 contemplate this partial loss of use. See 38 C.F.R. § 4.124a (with partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves). The Board also acknowledges the Veteran's report of problems with his toenails provided at the Board hearing. The April 2016/June 2016 VA examiner determined that the Veteran had onychomycosis of the toenails (a fungal infection) that was not a manifestation of his service-connected peripheral neuropathy, as there was no correlation between diabetic neuropathy and onychomycosis. The record does not otherwise suggest such an association. In reaching the above determinations, the Board notes that the Veteran has also experienced long-standing, significant nonservice-connected and service-connected orthopedic problems that have also caused functional impairment, including ambulation difficulty and the need for assistive devices. See, e.g., SSA records from May 1992 (Veteran reported not being able to stand long or walk long distances; used a cane for back problems) and 2008 (Veteran reported that he was limited by multiple disorders); August 1993 VA examination report (Veteran reported walking with a cane for past two years because of pain in his left ankle); VA treatment records from November 1977 (left ankle), July 1992 (Veteran walks with a cane for orthopedic issues), November 1997 (noted chronic left ankle pain with foot drop requiring AFO), October 2002 (noted history of using left AFO post-motor vehicle accident with surgery), October 2007 (noted Veteran using wheelchair for complaints of walking problems due to knee pain; referred earlier in the month for issuance of walker for right knee pain), December 2007 (tub chair needed for knee problems); July 2014 (noting Veteran had outside script for brace with a knee stabilizer); private treatment from December 2002 (noting Veteran walked with a limp due to pain in his right lower extremity and used a cane), November 2007 (noting Veteran falls because of knee). Indeed, the RO originally granted service connection for these disabilities on the basis of aggravation of bilateral peripheral neuropathy due to the service-connected diabetes mellitus. See April 2010 rating decision. The September 2014/April 2016/June 2016 VA examiner also clarified that much of the Veteran's disability was related to his earlier spinal cord trauma. The evaluations now assigned contemplate the fact that the service-connected bilateral lower extremity disabilities do result in some functional impairment outside of the orthopedic injuries and take into consideration the reported symptoms and findings on examination. In addition, the Veteran is in receipt of a 30 percent evaluation for a left ankle fracture disability, which contemplates limitation of motion, ambulation issues, and impairment of weight-bearing ability. See April 2005 rating decision; see also 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (separate evaluations may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition). Therefore, the Board finds that the weight of the evidence is against an initial evaluation in excess of 40 percent for peripheral neuropathy of the left and right lower extremities involving the sciatic nerve on or after June 23, 2014. As such, the benefit-of-the-doubt rule does not apply, and the claims are denied. Gilbert, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the left lower extremity involving the sciatic nerve prior to June 23, 2014, is denied. Entitlement to an initial evaluation in excess of 40 percent for peripheral neuropathy of the left lower extremity involving the sciatic nerve on or after June 23, 2014, is denied. An initial evaluation of 40 percent, but no higher, for peripheral neuropathy of the right lower extremity involving the sciatic nerve prior to June 23, 2014, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial evaluation in excess of 40 percent for peripheral neuropathy of the right lower extremity involving the sciatic nerve on or after June 23, 2014, is denied. _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs