Citation Nr: 1805455 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 09-42 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to July 3, 2008, and in excess of 40 percent from July 3, 2008 to February 7, 2017, for peripheral neuropathy of the left lower extremity. 2. Entitlement to a rating in excess of 10 percent prior to July 3, 2008, and in excess of 40 percent from July 3, 2008 to February 7, 2017, for peripheral neuropathy of the the right lower extremity. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Veteran's Spouse ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to October 1971 and August 1976 to November 1976. These matters are before the Board of Veterans' Appeals (the Board) on appeal from a November 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in January 2014, June 2016, and June 2017, when they were remanded for further evidentiary development. Of note, a December 2015 rating decision granted the increase to a 40 percent disability rating, effective August 27, 2015, and a March 2017 rating decision granted an earlier effective date of July 3, 2008 for the grant of 40 percent. In a July 2017 rating decision, the RO granted 100 percent rating for bilateral loss of use of the lower extremities, effective February 7, 2017. Therefore, as the Veteran has the maximum schedular rating from February 7, 2017, the matter of the rating for that period is moot and the issues have been characterized accordingly. A hearing was held before a Decision Review Officer at the RO in August 2010. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Prior to July 3, 2008, the Veteran's peripheral neuropathy of the left lower extremity was manifest by no more than mild incomplete paralysis of the sciatic nerve, and from July 3, 2008 to February 7, 2017, no more than moderately severe incomplete paralysis of the sciatic nerve. 2. Prior to July 3, 2008, the Veteran's peripheral neuropathy of the right lower extremity was manifest by no more than mild incomplete paralysis of the sciatic nerve, and from July 3, 2008 to February 7, 2017, no more than moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to July 3, 2008, the criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity are not met; from July 3, 2008 to February 7, 2017 the criteria for a disability rating in excess of 40 percent are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.124a, DC 8520. 2. Prior to July 3, 2008, the criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity are not met; from July 3, 2008 to February 7, 2017 the criteria for a disability rating in excess of 40 percent are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Regarding the duty to assist, per the June 2017 Board remand, the Veteran was provided with another VA examination in August 2017, with the express direction to evaluate the Veteran's bilateral lower extremity neuropathy and perform current clinical testing, to include EMG testing. There is no indication in the August 2017 VA examination, or additional medical records, that EMG testing was performed at the time of the August 2017 VA examination. However, following the August 2017 VA examination, the Veteran was granted a 100 percent rating for bilateral loss of use of the lower extremities, effectively making the need for current EMG ratings moot. Therefore, while the August 2017 VA examination was not in substantial compliance with the June 2017 Board remand pursuant to Stegall v. West, 11 Vet. App. 268 (1998), the Veteran is not prejudiced by the Board not remanding for further examination and EMG testing, as such would not affect the outcome of the appeal. Scott, 789 F.3d at 1381 ("A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution."). Neither the Veteran nor his representative has raised any other issues with the duty to assist. Id.; Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Legal Standards and Analysis Disability ratings are determined by comparing a Veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of the two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The assignment of a particular diagnostic code is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's peripheral neuropathy of the bilateral lower extremities is rated under DC 8520 for impairment of the sciatic nerve. DC 8520 provides that for complete paralysis of the sciatic nerve, marked by dangle and drop of the foot, with no active movement of the muscles below the knee possible, and weakened or (very rarely) lost flexion of knee, an 80 percent evaluation is assigned. For lesser degrees of impairment, or incomplete paralysis, lower ratings are assigned. Mild impairment is rated 10 percent, moderate impairment is 20 percent, and moderately severe impairment is 40 percent. Severe impairment, with marked muscle atrophy, is rated 60 percent disabling. 38 C.F.R. § 4.124a, DC 8520. When rating neurological conditions, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. 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, or at most, the moderate degree. 38 C.F.R. § 4.124a; see Miller v. Shulkin, 28 Vet. App. 376 (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). The words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Staged ratings are currently in effect for the Veteran's peripheral neuropathy of the bilateral lower extremities: the disability has been rated as 10 percent disabling to July 3, 2008, and 40 percent disabling from July 3, 2008 to February 7, 2017. As noted in the Introduction, as a 100 percent rating has been granted for loss of use of the bilateral extremities based on peripheral neuropathy from February 7, 2017, that period is not on appeal and will not be further addressed. Prior to July 3, 2008 Prior to July 3, 2008, the Veteran's peripheral neuropathy of the bilateral lower extremities is rated as 10 percent disabling for mild impairment of the sciatic nerve. A rating of 20 percent requires moderate impairment of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. The Veteran was afforded a VA examination in April 2005. On physical examination, nerves examination revealed bilateral peripheral pulses of 2+ for femoral pulse, 1+ for popliteal pulse and dorsalis pedis pulse, and absent for anterior tibial pulse. Neurological examination reflected normal motor function with abnormal sensory function with diminished and altered sensation throughout the lower extremities. Knee and ankle jerk reflex tests were 2+ (normal), bilaterally. On VA examination for the separately service-connected disability of peripheral arterial disease in August 2006, the Veteran complained of pain in his lower extremities, specifically an aching and throbbing pain in his calves, thighs, and hips when he walked greater than 25 feet, which decreased with rest. The Veteran asserted that he had been in a wheelchair for approximately two years prior to the examination. Physical examination revealed dorsalis pedis pulses of 2+ bilaterally and posterior tibialis pulses 1+ bilaterally. Prior to July 3, 2008, the medical evidence reflects mild incomplete paralysis of the sciatic nerve, bilaterally. The Veteran's April 2005 VA examination reflected decreased popliteal pulse and dorsalis pedis pulse and the absence of anterior tibial pulse. He had normal motor function with abnormal sensory function with diminished and altered sensation throughout the lower extremities and normal reflex testing. On August 2006 VA examination, the Veteran complained of aching, throbbing pain in his lower extremities with dorsalis pedis pulses of 2+ bilaterally and posterior tibialis pulses 1+ bilaterally. In examining the relevant evidence prior to July 3, 2008, the Veteran's overall disability picture reflected no more than wholly sensory involvement of a mild degree. Therefore, the Board concludes that an evaluation of 10 percent for mild incomplete paralysis most closely approximates the Veteran's disability picture prior to July 3, 2008. Here, the evidence shows that the nerve damage does not more nearly approximate "moderate" incomplete paralysis; hence, a preponderance of the evidence is against the Veteran's claim and an evaluation in excess of 10 percent prior to July 3, 2008, is denied. July 3, 2008 to February 7, 2017 The Veteran's peripheral neuropathy of the bilateral lower extremities is rated as 40 percent disabling from July 3, 2008 to February 7, 2017. A rating of 60 percent requires severe incomplete paralysis, with marked muscular atrophy of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. In July 2017 and October 2017 VA 21-4138, Statements in Support of Claim, the Veteran asserted that he believes he is entitled to a 60% rating for each lower extremity, or a higher rating for the bilateral extremities combined. The Veteran underwent a VA examination in July 2008. The Veteran reported constant symptoms of pain, tingling, numbness, weakness, loss of all and/or abnormal sensations, and paralysis of his lower extremities. Physical examination revealed abnormal motor function with weakness in both legs and feet of 2-3/5. Sensory function was decreased, right lower extremities revealed knee and ankle jerk of 2+ and left lower extremities revealed knee and ankle jerk of 2+. The VA examiner noted decreased sensation to light palpation of the extremities. Severe weakness in the lower extremities required a wheelchair for the Veteran to ambulate. The VA examiner opined that the Veteran's peripheral neuropathy of the bilateral lower extremities was manifest by decreased sensation to light palpation of the extremities. The Veteran underwent a VA Neurological examination in September 2008. Physical examination revealed 4/5 strength in all muscle groups of the lower extremities that demonstrated "give way" weakness. Muscle examination showed no atrophy or fasciculation of the muscle groups of the lower extremities. There was diffusely decreased tone in the muscle groups consistent with the Veteran's use of a wheelchair and braces. Deep tendon reflexes were brisk and normal at 2+, sensory examination revealed subjective decreased pinprick sensation of the entire bilateral lower extremities. The examiner diagnosed the Veteran with mild sensory peripheral neuropathy. The examiner noted that examination showed no loss of muscle mass, reduced tone, or reduced reflexes that would be expected with a motor neuropathy of the severity required to cause such a marked reduction in strength as demonstrated on formal testing. The examiner concluded there was insufficient objective evidence to conclude that there was loss of use of the bilateral lower extremities due to peripheral neuropathy. The Veteran underwent another VA examination in September 2010. Upon physical examination, the VA examiner noted that the Veteran had weakness, numbness, dysesthesias, and pain in his bilateral legs. The Veteran complained of burning, throbbing pain, cramps and tingling, and spasming in his legs and feet. He reported that his left ankle would go out due to peripheral neuropathy and that he would fall frequently. The VA examiner noted an abnormal gait and that the Veteran wore bilateral leg braces and arrived in a wheelchair. Motor and reflex testing of the lower extremities was normal bilaterally. Sensory testing revealed decreased sensation for vibration, pin prick and fine touch in both legs and feet. On August 2015 VA examination, the Veteran endorsed moderate constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and moderate numbness of the bilateral lower extremities. Upon physical examination, muscle strength testing revealed 4/5 (less than normal strength) for knee extension and flexion, and 4/5 for ankle plantar flexion and dorsiflexion. Reflex testing was normal, light touch testing to the knee/thigh was normal, with decreased sensation to the ankle/lower leg and foot/toes. Vibration testing was not done and position sense testing of the bilateral lower extremities was normal. The VA examiner noted no muscle atrophy. The VA examiner opined that the Veteran's disability was manifested by moderately severe incomplete paralysis of the sciatic nerve bilaterally. The Veteran underwent another VA examination in June 2016. The Veteran reported numbness and tingling. The Veteran also reported that he began experiencing bilateral foot drop in 2005 and started wearing leg braces at that time. Upon physical examination, the VA examiner noted the Veteran reported that he did not have constant pain of the bilateral lower extremities. He reported having moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the bilateral lower extremities. Muscle strength testing reflected 5/5 (normal) knee extension and ankle plantar flexion and 3/5 (active movement against gravity) ankle dorsiflexion. Reflex examination was normal and sensory examination was decreased. There was no muscle atrophy noted. The VA examiner noted an abnormal gait due to bilateral foot drop, specifically noting that the Veteran was unable to walk. The VA examiner noted mild incomplete paralysis of the sciatic nerve. The Veteran endorsed constant need for a wheelchair and leg braces. From July 3, 2008 to February 7, 2017, the medical evidence most nearly approximates moderately severe incomplete paralysis of the sciatic nerve, bilaterally, rather than severe incomplete paralysis with muscle atrophy. The July 2008 examination revealed decreased sensory function with normal reflexes. Motor function was decreased at 2-3/5 with weakness in both legs and feet. The Veteran's September 2008 VA examination reflected 4/5 muscle strength and did not reflect any muscle atrophy. The VA examiner noted diffusely decreased tone in the muscle groups of the lower extremities consistent with the Veteran's use of braces and wheelchair, but specifically indicated that there was no atrophy. On September 2010 VA examination, the Veteran reported weakness, numbness, and dysesthesias, with burning and throbbing pain in his bilateral legs. There was no muscle atrophy noted. On August 2015 VA examination, the VA examiner noted moderately severe incomplete paralysis of the Veteran's peripheral neuropathy of the bilateral lower extremities with symptoms of moderate constant pain and numbness and severe intermittent pain and paresthesias. There was no muscle atrophy or trophic changes noted. Finally, the June 2016 VA examination revealed symptoms of moderate intermittent pain of the bilateral lower extremities, mild paresthesias and/or dysesthesias and numbness. The VA examiner noted decreased ankle dorsiflexion and decreased sensory responses, but noted there was no muscle atrophy or trophic changes. In examining the relevant evidence, the Board concludes that an evaluation of 40 percent for moderately severe incomplete paralysis most closely approximates the Veteran's disability picture from July 3, 2008 to February 7, 2017. Neither the medical evidence, nor any lay evidence presented by the Veteran, reflects that during this time his peripheral neuropathy of the bilateral lower extremities was manifest by severe incomplete paralysis with marked muscular atrophy. While decreased muscle tone was noted in in September 2008 VA examination, the VA examinations consistently reflected no muscle atrophy present. Here, the evidence shows that the nerve damage does not more nearly approximate "severe" incomplete paralysis with marked muscular atrophy; hence, a preponderance of the evidence is against the Veteran's claim and an evaluation in excess of 40 percent from July 3, 2008 to February 7, 2017, is denied. ORDER A rating in excess of 10 percent prior to July 3, 2008, and 40 percent from July 3, 2008 to February 7, 2017 for peripheral neuropathy of the left lower extremity, is denied. A rating in excess of 10 percent prior to July 3, 2008, and 40 percent from July 3, 2008 to February 7, 2017 for peripheral neuropathy of the right lower extremity, is denied. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs