Citation Nr: 1805372 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 07-01 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent disabling for residuals, fracture L-4 prior to April 15, 2010, and in excess of 40 percent, thereafter. 2. Entitlement to an evaluation in excess of 20 percent disabling for residuals of fractures of the right tibia and fibula prior to March 31, 2005. 3. Entitlement to an effective date prior to March 31, 2005, for the grant of service connection for peripheral neuropathy of the right lower extremity, and an initial evaluation in excess of 20 percent disabling prior to July 10, 2017, and in excess of 60 percent disabling, thereafter. 4. Entitlement to an effective date prior to June 24, 2009, for the grant of service connection for peripheral neuropathy of the left lower extremity, and an initial evaluation in excess of 20 percent disabling. REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel INTRODUCTION The Veteran honorably served on active duty from March 1969 to May 1971 with the United States Army. This matter comes before the Board of Veterans' Appeals (Board) from June 2005 and October 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran testified at a Travel Board hearing before a Veterans Law Judge in August 2008. A transcript of that hearing has been associated with the claims file. In an October 2017 correspondence, the Veteran was notified that the Veterans Law Judge who presided over his prior hearing is no longer employed by the Board. The law requires that the Veterans Law Judge who conducted a hearing participate in making the final determination of the claim. 38 U.S.C.A. § 7107 (c) (West 2014); 38 C.F.R. § 20.707 (2017). The October 2017 letter informed the Veteran of an opportunity to request another Board hearing and advised that if he did not respond within 30 days, the Board would assume that he did not want an additional hearing. No response was received. Thus, the Board concludes that the Veteran does not desire an additional hearing and will adjudicate the claim. In March 2017, this matter was remanded for additional development, to include scheduling the Veteran for new VA examinations. The aforementioned development was completed in July 2017. Accordingly, the above referenced issues have now returned to the Board for appellate consideration. The Board notes that, pursuant to an August 2017 Decision Review Officer (DRO) decision, the Veteran's evaluation of peripheral neuropathy of the right lower extremity was increased from 20 percent disabling to 60 percent disabling, effective July 10, 2017. As the aforementioned increase is not the maximum rating allowed under the applicable rating code, this issue remains on appeal before the Board. FINDINGS OF FACT 1. Prior to April 15, 2010, the Veteran's lumbar spine disability had not been manifested by forward flexion of the thoracolumbar spine of 30 degrees or less. There was no evidence of favorable ankylosis of the entire thoracolumbar spine. 2. From April 15, 2010, forward, the Veteran's lumbar spine disability has been manifested by no worse than forward flexion of the thoracolumbar spine to 30 degrees or less. There is no evidence of ankylosis of the entire thoracolumbar spine. 3. Prior to March 31, 2005, the Veteran's tibia and fibula impairment had not been manifested by malunion of the tibia and fibula with marked knee and ankle disability. 4. On March 31, 2005, the Veteran's claim for an increased evaluation for residuals, fracture of L4 and residuals of fracture of the right tibia and fibula, to include complaints of numbness and tingling to the lower extremities was received. 5. Prior to March 31, 2005, there is no other document that can be construed as a claim, formal or informal, for service connection for peripheral neuropathy of the right lower extremity. 6. Prior to July 10, 2017, there is no evidence of incomplete paralysis of the sciatic nerve which was moderately severe. 7. From July 10, 2017, forward, there is no evidence of complete paralysis of the sciatic nerve, as indicated by the foot dangling and dropping, or, no active movement possible of the muscles below the right knee. 8. Prior to June 23, 2009, there is no evidence of complaints of symptoms or a confirmed diagnosis of peripheral neuropathy of the left lower extremity. Throughout the appeal period, there is no evidence of incomplete paralysis of the sciatic nerve, which was moderately severe. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent disabling for a lumbar spine disability prior to April 15, 2010, and in excess of 40 percent disabling thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5237 (2017). 2. The criteria for a rating in excess of 20 percent disabling prior to March 31, 2005, for the Veteran's right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5262 (2017). 3. The criteria for an effective date prior to March 31, 2005, for the award of service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.27, 4.124a, Diagnostic Code 8520 (2017). 4. For the period prior to July 10, 2017, the criteria for an evaluation in excess of 40 percent disabling for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. § 1155, 5017 (West 2014); 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code (DC) 8520 (2017). 5. From July 10, 2017, forward, the criteria for an evaluation in excess of 60 percent disabling for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. § 1155, 5017 (West 2014); 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code (DC) 8520 (2017). 6. Prior to June 23, 2009, there is no other document that can be construed as a claim, formal or informal, for service connection for peripheral neuropathy of the left lower extremity. 7. Throughout the period on appeal, the criteria for an evaluation in excess of 20 percent disabling for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. § 1155, 5017 (West 2014); 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code (DC) 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). Copies of compliant VCAA notices were located in the claim's file. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. VA examinations have been conducted and any necessary opinions obtained. Neither the Veteran nor his representative has raised any 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 the duty to assist argument). As there is no allegation that the August 2008 hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.10 (2016). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court of Appeals for Veterans Claims (the Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40 (2016)), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 (2016)). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59 (2016), which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Lumbar Spine Ratings The Veteran's lumbar spine disability is currently rated under DC 5237, which pertains to Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a (2017). Under the General Formula, a 10 percent rating is warranted for limited forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for limited forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for limited forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a (2017). The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate DC. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a (2017). Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a (2017). For VA purposes, normal range of motion for the thoracolumbar spine is flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and rotation from 0 to 30 degrees. The combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V (2017). Entitlement to an evaluation in excess of 20 percent prior to April 15, 2010, for residuals, fracture L-4 and in excess of 40 percent disabling, thereafter. The Veteran contends that he is entitled to an evaluation in excess of 20 percent disabling prior to April 15, 2010, for residuals, fracture L-4 and in excess of 40 percent disabling thereafter. The preponderance of the evidence is against his claim. The Veteran's private and VA treatment records show numerous complaints of low back pain and numbness, tingling and pain in the lower extremities. His condition has been treated with over-the-counter nonsteroidal anti-inflammatory drugs (NSAIDs). Review of the claims file indicates that the Veteran has undergone numerous VA examinations. In May 2005, the Veteran reported current symptoms including low back pain and stiffness, right ankle pain, dorsal foot pain, and pain radiating down the right lower leg to the knee. He also contends that his symptoms have worsened since his prior examination. On examination, the Veteran's forward flexion was limited to 60 degrees with stiffness, extension limited to 25 degrees with stiffness and right and left rotation were limited to 30 degrees with no pain. Right and left lateral bending were limited to 30 degrees with pain reported at a level of 10 on the right side. Repetitive use testing revealed an increase in pain described as at level of 10 for the right and left lumbosacral area. There was no evidence of muscle spasm, increased weakness, and decreased endurance or incoordination during the examination. Pain with palpation of the joint was noted in the mid lumbosacral area. Muscle strength to the lower extremities was noted as normal on both side. Visualization of the spine did not reveal a gross back deformity. Use of assistive devices was not reported. X rays films of the lumbosacral spine revealed marked deformity L-4 vertebral body compatible with a remote fracture. Spondylosis was identified on the right at L3-L4 and on the left at L4-L5. Transitional lumbosacral vertebra was also noted. During the December 2008 VA examination, the Veteran reported constant pain in the lower back that radiates down his lower extremities. During flare-ups, he described pain beginning at a level 3 on a 10 point scale and reported recurrent flare-ups of 2 to 3 times per week with prolonged sitting or standing. Increases in pain to a level of 8 were also noted during flare-ups. Frequent muscle spasms, and burning and tingling on the right side were reported. The Veteran denied absence from work as an electrician due to low back or lower extremity pain. On examination, range of motion of the lumbar spine revealed forward flexion limited to 60 degrees, extension limited to 20 degrees with evidence of pain in the final 10 degrees. Left and right lateral rotation was limited to 30 degrees with evidence of pain in the final 5 degrees. There was no evidence of increased pain on repetitive use, increased fatigability, weakness, or incoordination was reported. The examiner noted a diagnosis of spinal stenosis secondary to post-traumatic degeneration of the lumbar spine around the L4-L5 levels secondary to prior L-4 fracture. The opinion also noted minimal changes in the Veteran's back condition since the prior examination. The VA examination, dated December 2010, shows decreased, painful range of motion of the lumbar spine with forward flexion limited to 10 degrees and extension to 0 degrees, right and left lateral at 20 degrees, with a combined motion of 110 degrees with the initiation of motion. The combined range of motion was 205 degrees. Increased pain and fatigability were reported with repetitive use with no additional weakness or incoordination. Increased motion with flexion was also noted following three repetitions from 0-40 degrees, 0-45 degrees and 0-60 degrees. The examiner confirmed the prior diagnosis and noted further pathology in the Veteran's spine with compression of the nerve roots, radiculopathy, and stenosis. Radicular pain that impacts the Veteran's daily living was noted; however, the Veteran continued to perform job-related duties as an electrician. Pursuant to a Board Remand in March 2017, the Veteran was afforded a subsequent examination to assess the nature and current severity of his lumbar spine disability. During the July 2017 VA examination, the examiner confirmed the prior diagnosis of degenerative arthritis and spinal stenosis of the lumbar spine. The Veteran's range of motion testing revealed forward flexion limited to 50 degrees, extension limited to 20 degrees with right and left lateral flexion and rotation limited to 20 degrees. The combined range of motion was 190 degrees. Regular use of a brace was noted for occasional back pain. Guarding and muscle spasm of the thoracolumbar spine was noted and resulted in an abnormal gait or abnormal spinal contour. No bowel or bladder issues were reported. There was no evidence of unfavorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis of the entire spine; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the past 12 months. On review of the evidence, the Board finds that an increase in the assigned evaluation is not warranted for any period during this appeal. In order to warrant a disability rating in excess of 20 percent disabling prior to April 15, 2010, the Veteran's lumbar spine disability must be manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The record does not reflect the required symptomology. Similarly, in order to warrant a disability rating in excess of 40 percent, the Veteran's lumbar spine disability must be manifested unfavorable ankylosis of the entire thoracolumbar spine. The record does not reflect the required symptomology. In reaching the this conclusion, the Board has fully considered the medical evidence and lay assertions of record, to include lay statements from the Veteran, his wife, and daughter. It also recognizes the Veteran's competence to report on his current symptoms and such statements are generally deemed credible to the extent that they articulate the Veteran's belief that he is entitled to a higher rating. However, in this case, the Veteran's lay statements are outweighed by competent and credible medical evidence that evaluates the true extent of his back impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Review of the evidence of record does not reveal that the Veteran's lumbar spine disability was productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine prior to April 15, 2010. During both the May 2005 and December 2008 VA examinations, the Veteran's forward flexion was limited to 60 degrees. In December 2010, the Veteran's forward flexion was greater than 30 degrees but not more than 60 degrees after three repetitions. In July 2017, Veteran's forward flexion was limited to 50 degrees and the examiner noted guarding and muscle spasm of the thoracolumbar spine that resulted in an abnormal gait or abnormal spinal contour. No evidence of ankylosis of the thoracolumbar spine was indicated. While the Board is sympathetic to the Veteran's complaints of ongoing symptoms, the medical evidence does not reflect a change in symptomology sufficient to warrant a higher rating at any point during the appeal period. Accordingly, as the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the Veteran's claim. See 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an evaluation in excess of 20 percent disabling for residuals of fractures of the right tibia and fibula prior to March 31, 2005 The Veteran contends that he is entitled to an initial evaluation in excess of 20 percent disabling for residuals of fractures of the right tibia and fibula prior to March 31, 2005. The preponderance of the evidence is against his claim. The Veteran's right knee disability is currently evaluated under Diagnostic Code 5262; impairment of the tibia and fibula. This code provides that a 20 percent evaluation is warranted when there is malunion of the tibia and fibula, with moderate knee or ankle disability; a 30 percent evaluation is warranted when there is malunion of the tibia and fibula, with marked knee or ankle disability; a schedular maximum 40 percent evaluation is warranted when there is nonunion of the tibia and fibula, with loose motion requiring a brace. See 38 C.F.R. § 4.71a, Diagnostic Code 5262. With respect to other potentially applicable rating criteria, the claims folder contains no competent lay or medical evidence indicating that the Veteran's right knee disability has been manifested by instability, ankylosis, dislocation of cartilage, limitation of flexion or extension of the leg, or symptoms other than those discussed above at any time. As such, an increased rating (or separate rating based on instability) cannot be assigned for the right knee for relevant appeal period under Diagnostic Codes 5256-5261, or 5263. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5261, 5263. In May 2005, the Veteran underwent a VA examination to assess the nature and current severity of his knee disability. During the clinical evaluation, it was noted that the Veteran had not received treatment, X-rays or any other medical intervention for his condition. The Veteran reported use of over-the-counter (OTC) medications to treat his low back pain and stiffness, right ankle pain, dorsal foot pain, and pain radiating up the medial aspect of the right lower leg to the knee. Progressive symptoms since the prior VA examination (1990) were noted. Other symptoms included pain with walking or standing for extended periods, throbbing pain from prolonged sitting, and flare-ups of pain sometimes triggered by cold weather. The duration of flare-ups were reported anywhere from 45 minutes to 1 hour. Frequent use of OTC medications was reported along with arthritis creams. The Veteran denied use of a cane, but noted that his limitations impacted his daily living to include putting on socks/shoes, performing household chores/using a ladder, and his ability to engage in recreational interests, such as hunting. On examination, the Veteran's right knee flexion was noted to 120 degrees with 0 degrees extension. No pain was reported on range of motion testing or following repetitive use. The Veteran's right ankle dorsiflexion was to 20 degrees, plantar flexion to 25 degrees, inversion to 10 degrees, and eversion to 5 degrees. Slight pain was reported with range of motion testing. X-ray films revealed a healed right tibia and fibula fracture of the proximal shaft right fibula and mid shaft right tibia. No other abnormality was noted. Following the clinical evaluation, the examiner noted a normal right knee except for very minimal osteophyte formation posterior-superior aspect patella and moderate degenerative joint disease right third tarsometatarsal joint. Other than the conditions noted; the evaluation was deemed normal. On review of the evidence, the Board finds that the overall impairment resulting from his right knee disability most closely approximates a 20 percent rating during the relevant appeal period. In reaching the aforementioned conclusion, the Board notes that during the May 2005 VA examination, the Veteran denied seeking any medical treatment for his right knee disability since his prior VA examination in 1990. Review of post-service treatment records reveals a back clinic treatment note, dated February 1989, which indicates that the Veteran's right tibia and fibula was evaluated and a healed comminuted fractures of the mid right tibia and proximal right fibula was discovered. It was described as having a good anatomical position and alignment. Bilateral X-rays from the same evaluation yielded normal results. No additional impairment of the tibia and fibula was indicated. Accordingly, even if the Board finds the Veteran competent to report on the existence of symptoms prior to March 31, 2005, the medical evidence fails to show any evidence of malunion of the tibia and fibula with marked knee or ankle disability so as to support a higher evaluation of 30 percent disabling. Thus, as the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the Veteran's claim. See 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier effective date for the grant of service connection for peripheral neuropathy of the right lower extremity The RO has assigned an effective date of March 31, 2005, for the award of service connection for peripheral neuropathy of the right lower extremity, based upon the date of receipt of the Veteran's statement in support asserting complaints of symptoms, including "pins and needle sensations in the leg and foot." He seeks the assignment of an earlier effective date. Based upon a complete review of the evidence, and for the reasons discussed below, the Board finds that the currently assigned effective date of March 31, 2005, is the earliest effect date assignable for service connection for peripheral neuropathy of the right lower extremity. The Board notes that a back clinic treatment note dated February 1989, revealed that the Veteran was advised to undergo an EMG (electromyography) and nerve conduction study of the right lower extremity to rule out right peroneal mononeurapathy. There is no evidence that the Veteran obtained the recommended studies. In fact, prior to March 31, 2005, outpatient and VAMC examinations are silent for any complaints of, treatment for or diagnosis of or related to any nerve involvement of the lower extremity. Generally, the effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (b)(1) (West 2014); 38 C.F.R. § 3.400 (b)(2)(i) (2017). If the grant is based on a claim which has been finally denied and subsequently reopened by the receipt of new and material evidence, the effective date is the date of receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (a) (West 2014); 38 C.F.R. § 3.400 (q), (r) (2017). The Veteran has not alleged that he filed a claim or had an informal communication asserting his entitlement to service connection for peripheral neuropathy of the right lower extremity prior to his most recent claim, which was received on March 31, 2005. 38 U.S.C.A. § 5101 (a) (West 2014); 38 C.F.R. §§ 3.1 (b), 3.151(a), 3.155 (2017). Accordingly, the Board finds that the assignment of an earlier effective date is not warranted. Entitlement to an initial evaluation in excess of 20 percent disabling for peripheral neuropathy of the right lower extremity prior to July 10, 2017, and in excess of 60 percent disabling, thereafter. The Veteran contends that he is entitled to an initial evaluation in excess of 20 percent disabling for peripheral neuropathy of the right lower extremity prior to July 10, 2017, and in excess of 60 percent, thereafter. The Veteran's peripheral neuropathy of the right lower extremity is currently evaluated under Diagnostic Code 8520. See 38 C.F.R. § 4.124a. Under this code, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. On review of the evidence, the Board finds that an initial evaluation of 40 percent for the peripheral neuropathy of the right lower extremity has been demonstrated by the evidence of record at any point prior to July 10, 2017. The Board notes that a back clinic treatment note, dated February 1989, revealed that the Veteran was advised to undergo an EMG and nerve conduction study of the right lower extremity to rule out right peroneal mononeurapathy. There is no evidence that the Veteran obtained the recommended studies. In fact, prior to March 31, 2005, outpatient and VAMC examinations are silent for any complaints of, treatment for, or diagnosis of or related to any nerve involvement of the lower extremity. Prior to July 10. 2017, the Veteran complained of chronic symptoms including throbbing/radiating pain, tingling and numbness down the right leg and into the foot. There was no evidence of incomplete paralysis of the sciatic nerve described as moderately severe. Review of the evidence indicates that the Veteran underwent numerous VA examinations to assess the nature and current severity of his peripheral neuropathy of the right lower extremity. VA examination in May 2005, and December 2008 showed decreased strength in the right tabialis extensor (2/5) and reduced quadriceps strength (4/5). No motor impairment or muscle atrophy was noted. During the December 2010 VA examination however, the examiner described the Veteran's radicular pain as debilitating and noted that his daily living is severely limited by his level of pain. Despite his pain, it was noted that the Veteran has continued his employment as an electrician. No evidence of muscle atrophy was indicated. Based upon the forgoing, the Board finds that an evaluation of 40 percent disabling, but no higher, is warranted for the period prior to July 10, 2017. In reaching this conclusion, it is noted that an evaluation in excess of 20 percent disabling under Diagnostic Code 8520, requires evidence of moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. The evidence of record shows that in December 2010, the VA examiner concluded that the Veteran's radicular pain was debilitating and severely limits his daily activities. Therefore, a higher evaluation of 40 percent disabling is warranted. In contrast, an evaluation of 60 percent disabling is not warranted for the period as there is no evidence of severe incomplete paralysis with muscle atrophy. An evaluation of 80 percent disabling is not warranted for the period from July 10, 2017 forward, as the evidence of record does not reveal complete paralysis of the sciatic nerve. Pursuant to the March 2017 Board Remand decision, the Veteran was afforded a new VA examination to assess the nature and current severity of his peripheral neuropathy of the right lower extremity. During the clinical evaluation, the Veteran reported ongoing physical therapy and treatment at the pain clinic for his chronic back pain and radiculopathy to the lower extremities. On examination, the Veteran had decreased muscle strength and sensation to the right leg, ankle and foot. Muscle atrophy of 1 centimeter (cm) was indicated on the right side. The examiner diagnosed the Veteran with incomplete paralysis of the sciatic nerve, described as severe with marked muscle atrophy on the right side. No evidence of complete paralysis was indicated. Resolving all doubt in favor of the Veteran, the Board finds that an evaluation of 40 percent disabling, but no higher, is warranted for the period prior to July 10, 2017. Conversely, an evaluation excess of 60 percent disabling is not warranted for any period as the evidence of record does not reveal complete paralysis of the sciatic nerve. Earlier effective date for the grant of service connection for peripheral neuropathy of the left lower extremity The Board notes that the criteria for establishing entitlement to an earlier effective date is articulated more fully above. The award of service connection for peripheral neuropathy of the left lower extremity was assigned an effective date of June 24, 2009, based upon receipt of medical records noting complaints of numbness and tingling of the left leg and a diagnosis of peripheral neuropathy as secondary to the Veteran's back condition. He seeks the assignment of an earlier effective date. On review of the record, and for the reasons discussed below, the Board finds that the currently assigned effective date of June 24, 2009, is the earliest effect date assignable for service connection for peripheral neuropathy of the left lower extremity. The Board acknowledges the Veteran's appellate arguments, dated January 2018, asserting entitlement to an earlier effective date based upon the May 2005 VA examination. However, during the stated examination, the Veteran's muscle strength and sensation were normal as to the left lower extremity. Straight leg testing and testing of the dorsiflexion of the left foot yielded normal results. The Board recognizes that the Veteran complained of a pulling sensation in the left thigh and pain with repetitive motion to the left lumbosacral area. However, there is no evidence that the Veteran reported numbness, tingling or received a diagnosis of neuropathy as to the left lower extremity. There is also no indication of incomplete paralysis of the sciatic nerve in any severity. On review of the evidence of record, the Board finds that the Veteran has not alleged that he filed a claim or had an informal communication asserting his entitlement to service connection for a peripheral neuropathy of the left lower extremity prior to the submission of medical records noting the existence of symptoms and a confirmed diagnosis on June 24, 2009. 38 U.S.C.A. § 5101 (a) (West 2014); 38 C.F.R. §§ 3.1 (b), 3.151(a), 3.155 (2017). Accordingly, the Board finds that the assignment of an earlier effective date is not warranted. Entitlement to an initial evaluation in excess of 20 percent disabling for peripheral neuropathy of the left lower extremity. The Veteran contends that he is entitled to an evaluation in excess of 20 percent disabling for peripheral neuropathy of the left lower extremity. The preponderance of the evidence is against his claim. Review of the evidence indicates that the Veteran's complaints of symptoms related to peripheral neuropathy of the left lower extremity was first noted in a June 2009 education note, in which the treating physician reported evidence of "pretty profound arthritis in his left tarsometatarsal joints ostensibly due to trauma sustained in 1970." An orthopedic surgery note, dated in the same month, indicated that the Veteran's subtalar joint has a total of 40 degrees of motion at the left lower extremity and 15 degrees at the right signifying a 70 percent decrease in motion. Rear foot varus and cavus of the left foot was also noted. The Veteran was diagnosed with peripheral neuropathy of the left lower extremity. Pursuant to the March 2017 Board Remand decision, the Veteran was afforded a new VA examination to assess the nature and current severity of his peripheral neuropathy of the left lower extremity. During the July 2017 VA examination, the Veteran had normal muscle strength, reflexes, and sensation on the left side. The left sciatic nerve was deemed normal. While the Board has fully considered all lay and medical evidence of record, and acknowledges the Veteran's competence to report on his current symptoms, the medical evidence of record does not support a higher evaluation for the period on appeal. To establish entitlement to an evaluation in excess of 20 percent disabling, the evidence of record must reveal moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. During the July 2017 VA examination, the Veteran's muscle strength, reflexes and sensation were normal. The left sciatic nerve was also deemed normal. Accordingly, the evidence of record does not meet the required showing. Therefore, as the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the Veteran's claim. See 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 20 percent disabling for residuals, fracture L-4 prior to April 15, 2010, and in excess of 40 percent, thereafter is denied. Entitlement to an evaluation in excess of 20 percent disabling for residuals of fractures of the right tibia and fibula prior to March 31, 2005, is denied. Entitlement to an effective date prior to March 31, 2005, for the grant of service connection for peripheral neuropathy of the right lower extremity, is denied. Entitlement to an evaluation of 40 percent disabling for peripheral neuropathy of the right lower extremity, but no higher, is granted for the period prior to July 10, 2017. Entitlement to an evaluation in excess of 60 percent disabling peripheral neuropathy of the right lower extremity is denied. Entitlement to an effective date prior to June 24, 2009, for the grant of service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to an initial evaluation in excess of 20 percent disabling for peripheral neuropathy of the left lower extremity is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs