Citation Nr: 18139537 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 15-45 941 DATE: October 1, 2018 ORDER From June 24, 2011, to July 27, 2015, entitlement to an initial rating in excess of 30 percent for hypothyroidism is denied. From July 28, 2015, to July 30, 2018, entitlement to a rating of 60 percent, but no greater, for hypothyroidism is granted, subject to the laws and regulations governing the payment of monetary benefits. From July 31, 2018, entitlement to a rating of 100 percent, but no greater, for hypothyroidism is granted, subject to the laws and regulations governing the payment of monetary benefits. From June 24, 2011, to March 28, 2017, entitlement to an initial rating of 70 percent, but no greater, for right upper extremity muscle weakness associated with multiple sclerosis is granted, subject to the laws and regulations governing the payment of monetary benefits. From March 29, 2017, entitlement to a rating of 90 percent, but no greater, for right upper extremity muscle weakness associated with multiple sclerosis is granted, subject to the laws and regulations governing the payment of monetary benefits. From June 24, 2011, to January 8, 2014, entitlement to an initial rating of 60 percent, but no greater, for right lower extremity muscle weakness associated with multiple sclerosis is granted, subject to the laws and regulations governing the payment of monetary benefits. From January 9, 2014, entitlement to a rating of 80 percent, but no greater, for right lower extremity muscle weakness associated with multiple sclerosis is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial compensable rating for residual fracture right great toe is denied. FINDINGS OF FACT 1. From June 24, 2011, to July 27, 2015, the Veteran’s hypothyroidism is characterized by fatigability, mental sluggishness, muscular weakness, and cold intolerance, but is not characterized by constipation, mental disturbance, weight gain attributable to a hypothyroid condition, or bradycardia. 2. From July 28, 2015, to July 30, 2018, the Veteran’s hypothyroidism is characterized by muscular weakness, mental disturbance, and cold intolerance, but is not characterized by cardiovascular involvement or bradycardia. 3. From July 31, 2018, the Veteran’s hypothyroidism is characterized by cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance, bradycardia, and sleepiness. 4. From June 24, 2011, to March 28, 2017, the Veteran’s right upper extremity muscle weakness associated with multiple sclerosis is characterized by complete paralysis of the lower radicular group with substantial loss of use of hand in a major limb. 5. From March 29, 2017, the Veteran’s right upper extremity muscle weakness associated with multiple sclerosis is characterized by complete paralysis of radicular groups in a major limb. 6. From June 24, 2011, to January 8, 2014, the Veteran’s right lower extremity muscle weakness associated with multiple sclerosis is characterized by severe, incomplete paralysis of the sciatic nerve. 7. From January 9, 2014, the Veteran’s right lower extremity muscle weakness associated with multiple sclerosis is characterized by complete paralysis of the sciatic nerve. 8. The Veteran’s fracture of the right great toe is completely healed and with no residuals not already accounted for under the Veteran’s rating for right lower extremity muscle weakness associated with multiple sclerosis. CONCLUSIONS OF LAW 1. From June 24, 2011, to July 27, 2015, the criteria for a disability rating in excess of 30 percent for hypothyroidism have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.119, Diagnostic Code 7903. 2. From July 28, 2015, to July 30, 2018, the criteria for a disability rating of 60 percent, but no greater, for hypothyroidism have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.119, Diagnostic Code 7903. 3. From July 31, 2018, the criteria for a disability rating of 100 percent, but no greater, for hypothyroidism have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.119, Diagnostic Code 7903. 4. From June 24, 2011, to March 28, 2017, the criteria for a disability rating of 70 percent, but no greater, for right upper extremity muscle weakness associated with multiple sclerosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.124a, Diagnostic Code 8512. 5. From March 29, 2017, the criteria for a disability rating of 90 percent, but no greater, for right upper extremity muscle weakness associated with multiple sclerosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.124a, Diagnostic Code 8513. 6. From June 24, 2011, to January 8, 2014, the criteria for an initial disability rating of 60 percent, but no greater, for right lower extremity muscle weakness associated with multiple sclerosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.124a, Diagnostic Code 8520. 7. From January 9, 2014, the criteria for a disability rating of 80 percent, but no greater, for right lower extremity muscle weakness associated with multiple sclerosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.124a, Diagnostic Code 8520. 8. The criteria for an initial compensable rating for residual fracture right great toe have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 2000 to July 2004. In June 2018, a hearing was held before the undersigned. A transcript of that hearing is of record. At the time of the hearing, the Veteran also described symptoms of urinary and fecal incontinence that he believed were also related to service-connected disability; in the event he would like to seek service connection for these conditions as secondary to service-connected disability, he should consult with his representative and file an appropriate formal claim for this purpose. Increased Rating 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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.” Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. From June 24, 2011, to July 30, 2018, entitlement to an initial rating in excess of 30 percent for hypothyroidism In September 2012, the RO granted service connection for hyperthyroidism at an initial rating of 30 percent under Diagnostic Code 7903 from June 24, 2011, the date that the Veteran filed his claim. The Veteran is appealing the rating aspect of that decision. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). Diagnostic Code 7903 provides compensation for hyperthyroidism. 38 C.F.R. § 4.119. A 30 percent rating is provided for fatigue, constipation, and mental sluggishness. Id. A 60 percent rating is provided when the disability causes muscular weakness, mental disturbance, and weight gain. Id. A 100 percent rating is provided when the disability causes cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. Id. The rating criteria for Diagnostic Code 7903 are not conjunctive, cumulative, or successive. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Accordingly, “a veteran could potentially establish all of the criteria required for either a 30% or 60% disability rating, without establishing any of the criteria for a lesser disability rating.” Id. (emphasis omitted). From June 24, 2011, to July 30, 2018, the Veteran is entitled to a rating of 30 percent for hypothyroidism. The April 2012 VA thyroid examination (pages 3–4 of 39) indicates fatigability, mental sluggishness, muscular weakness, and cold intolerance. The examination does not indicate constipation, mental disturbance, weight gain attributable to a hypothyroid condition, bradycardia, or cardiovascular involvement. The examiner specifically indicates that the Veteran’s thyroid disorder does not impact his ability to work (page 8 of 39). Regarding weight gain, VA medical records from August 2013 (received 9/23/15, page 188 of 252) and October 2013 (received 9/23/15, pages 151 and 154 of 252) specifically state that there are “no weight changes.” Regarding mental disturbances such as dementia, slowing of thought, and depression, an April 2013 VA medical record (received 9/23/15, page 250 of 252) indicates a negative screen for depression. A January 2014 VA multiple sclerosis examination specifically indicates that the Veteran does not “have signs or symptoms of depression, cognitive impairment or dementia, or any other mental disorder attributable to multiple sclerosis and/or its treatment.” An April 2014 VA medical record (received 9/23/15, page 100 of 252) contains a negative depression screen and the Veteran indicates “[n]ot at all” when asked whether he experiences “[l]ittle interest or pleasure in doing things” or has been “[f]eeling down, depressed, or hopeless.” Taken together, the Veteran has two of the three symptoms supportive of a 30 percent rating (fatigue and mental sluggishness, but not constipation). He has one of the three symptoms supportive of a 60 percent rating (muscular weakness, but not mental disturbance or weight gain). He has only two of the six symptoms supportive of a 100 percent rating (cold intolerance and muscular weakness, but not cardiovascular involvement, mental disturbance, bradycardia, or sleepiness). While there is no specific evidence of constipation, the evidence of both fatigue and mental sluggishness supports a rating of 30 percent for this time period. While there is evidence of muscular weakness, since there are several medical records specifically indicating no weight gain and no depression, the preponderance of the evidence is against a rating of 60 percent. While there is evidence of cold intolerance and muscle weakness, since there is no evidence of cardiovascular involvement, including bradycardia, and there are several medical records specifically indicating no depression, the preponderance of the evidence is against a rating of 100 percent. For these reasons, the Veteran is entitled to a rating of 30 percent, but not higher, from June 24, 2011, to July 27, 2015. 2. From July 28, 2015, to July 30, 2018, entitlement to a rating of 60 percent, but no greater, for hypothyroidism From July 28, 2015, to July 30, 2018, the Veteran is entitled to a rating of 60 percent. A VA medical record dated July 28, 2015 (received 9/23/15, page 22 of 252), contains a negative depression screen, but indicates “[s]everal days” where the Veteran has been “[f]eeling down, depressed, or hopeless.” A March 2017 private medical record (received 2/3/18, page 5 of 23) makes no indication of depression in describing the Veteran’s mental status, which appears to be normal, and indicates that the Veteran “demonstrates remarkable determination to continue to live and work as normally and fully as possible . . . .” An August 2017 private medical record (received 2/3/18, page 21 of 23) describes the Veteran as “always upbeat and loquacious.” In a January 2018 private medical record (received 2/3/18, page 3 of 23), the Veteran’s wife “raises concern for possible depression.” The first indication of depression is the VA medical record dated July 28, 2015. The Veteran’s depression appears to be minor, given subsequent characterizations of the Veteran’s mental status by his private doctors and his wife’s January 2018 “concern for possible depression.” While there is no evidence of weight gain, the evidence of slight depression with muscular weakness supports a rating of 60 percent from July 28, 2015, to July 30, 2018. While there is evidence of cold intolerance and muscle weakness, because the Veteran’s depression is considered slight and because there is no evidence of cardiovascular involvement, including bradycardia, the preponderance of the evidence is against a rating of 100 percent from July 28, 2015, to July 30, 2018. Rather, the evidence more nearly approximates a rating of 60 percent. 3. From July 31, 2018, entitlement to a rating of 100 percent, but no greater, for hypothyroidism A July 2018 thyroid DBQ (received 8/8/16) indicates cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance, bradychardia, and sleepiness. While that DBQ does not specifically indicate cardiovascular involvement, the presence of bradychardia (low blood pressure) suggests that cardiovascular involvement is present. Therefore, this evidence supports a rating of 100 percent. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. 4. From June 24, 2011, to March 28, 2017, entitlement to an initial rating of 70 percent, but no greater, for right upper extremity muscle weakness associated with multiple sclerosis In September 2012, the RO granted service connection for right upper extremity weakness associated with multiple sclerosis at an initial rating of 20 percent under Diagnostic Code 8018-8510 from June 24, 2011, the date that the Veteran filed his claim. The Veteran is appealing the rating aspect of that decision. In September 2015, the RO increased the Veteran’s rating to 50 percent under Diagnostic Code 8018-8512. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). Diagnostic Code 8018 provides compensation for multiple sclerosis. 38 C.F.R. § 4.124a. The minimum rating is 30 percent. Id. No higher rating is available. Diagnostic Code 8510 provides ratings for paralysis of the upper radicular group (fifth and sixth cervicals). 38 C.F.R. § 4.124a. Mild, incomplete paralysis is rated 20 percent disabling on the major side and 20 percent on the minor side. Id. Moderate, incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side. Id. Severe, incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Id. Complete paralysis (all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected) is rated at 70 percent on the major side and 60 percent on the minor side. Id. Diagnostic Code 8512 provides ratings for paralysis of the lower radicular group. 38 C.F.R. § 4.124a. Mild, incomplete paralysis is rated 20 percent disabling on the major side and 20 percent on the minor side. Id. Moderate, incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side. Id. Severe, incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Id. Complete paralysis (all intrinsic muscles of hand, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of use of hand)) is rated at 70 percent on the major side and 60 percent on the minor side. Id. Diagnostic Code 8513 provides ratings for paralysis of all radicular groups. 38 C.F.R. § 4.124a. Mild, incomplete paralysis is rated 20 percent disabling on the major side and 20 percent on the minor side. Id. Moderate, incomplete paralysis is rated 30 percent disabling on the major side and 20 percent on the minor side. Id. Severe, incomplete paralysis is rated 70 percent disabling on the major side and 60 percent on the minor side. Id. Complete paralysis is rated at 90 percent on the major side and 80 percent on the minor side. Id. The term “incomplete paralysis,” with this and other 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 nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement. Id. The words “slight,” “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. 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. Because the Veteran is right-handed, the major limb provisions apply for his right upper extremity disorder. From June 24, 2011, to January 8, 2014, the Veteran is entitled to a 70 percent rating. A July 2011 private medical record (received 6/20/12, page 8 of 10) indicates intermittent inability to grip a suitcase with his right hand, decreased fine motor movements, and dropping objects regularly. The April 2012 VA multiple sclerosis examination (pages 17–19, 23 of 39) indicates a strength of 4/5 for right shoulder extension, right shoulder flexion, right elbow flexion, and right elbow extension. The Veteran has a strength of 3/5 for right wrist extension, right wrist grip, and right wrist pinch. Reflexes are decreased, but not absent, for the right biceps, right triceps, and right brachioradialis. Right upper extremity muscle weakness is characterized as mild. The examiner specifically indicates that there is no muscle atrophy attributable to multiple sclerosis. For the upper extremity, multiple sclerosis affects his ability to work in that he experiences “[i]mpaired repetitive forceful gross and fine manipulation, pushing, pulling, lifting and carrying with right hand and right upper extremity.” A July 10, 2012, private medical record (received 9/11/13, pages 1–3 of 17) indicates that the Veteran can work 4 to 8 hours per day at his desk despite “significant muscle weakness.” A July 2012 hand therapy evaluation (received 9/11/13, page 7 of 17) indicates significant difficulty with a number of tasks and that the Veteran has started using his “non-dominant left hand for eating and grooming,” but not for all activities. An August 2012 private disability survey for the upper extremity (received 9/11/13, pages 15–17 of 17) indicates that the Veteran is able to perform the majority of activities listed, albeit with severe difficulty for some. The Veteran indicates that his upper extremity symptoms have interfered “quite a bit” with social activities. Work and other regular daily activities are “very limited.” Importantly, an August 2012 chart for analysis of muscle imbalance (received 9/11/13, page 5 of 17) indicates loss of strength for what appear to be all of the muscles of the hand and many of the muscles of the fingers. For the hand, the flexor pollicis brevis, opponens pollicis, and abductor pollicis longus muscles have a strength of 0/5 or 1/5. The palmar interosseus and dorsal interosseus muscles have a strength of 1/5. The abductor pollicis brevis muscle has a strength of 2/5. Most finger muscles have a strength of 4/5, but two flexor digitorum profundus muscles have a strength of 3/5 and one flexor digitorum superficialis muscle has a strength of 2/5. Elbow flexor muscles have a strength of 4/5. There are no specific findings for most of the elbow muscles, although the supraspinatus muscle has a strength of 2/5 and the teres minor & infraspinatus has a strength of 3/5. A January 2014 VA multiple sclerosis examination indicates muscle atrophy characterized by right-hand weakness. The examiner also describes “notable weakness in wrist extensor, finger extensors and interossei” and weakness in the “abductor/flexor digiti minimi and adductor pollicis muscles” of the right hand. In sum, the August 2012 chart indicates impairment of motor function of all hand muscles and some finger muscles. Consistent with this, the January 2014 VA multiple sclerosis examination indicates right upper extremity muscle atrophy with impairment of several hand and finger muscles. Also, the Veteran has stopped using his right hand for several activities. The weight of this evidence supports a rating of 70 percent under Diagnostic Code 8512 for a major limb with complete paralysis of all intrinsic muscles of the hand, complete paralysis of some of the muscles of the fingers, and substantial loss of use of the hand. The Board notes that there is some remaining function in the Veteran’s hands and fingers, and therefore by strict definition there is not “complete” paralysis of his right hand. At the same time, there is substantial functional loss, there is a specific finding of atrophy, and there is medical evidence that the Veteran has stopped using his right hand for many of his daily activities. In light of this evidence, the Board finds that the Veteran’s symptomatology more nearly approximates “complete paralysis” of a major limb than “severe, incomplete paralysis” of a major limb. For these reasons, the Veteran is entitled to the higher rating of 70 percent. The amputation rule does not come into play as the rating provided for the arm is 90 percent. See 38 C.F.R. § 4.68, 4.71a, Diagnostic Code 5120 (amputation of the arm warrants a disability rating of 90 percent). The April 2012 VA multiple sclerosis examination and the August 2012 chart show that the Veteran’s right elbow muscles have a strength of 4/5. It does not appear that all shoulder muscle groups are negatively affected by the Veteran’s multiple sclerosis. For these reasons, the preponderance of the evidence is against a rating of 90 percent under Diagnostic Code 8513 based on complete paralysis of all radicular groups in a major limb. 5. From March 29, 2017, entitlement to a rating of 90 percent, but no greater, for right upper extremity muscle weakness associated with multiple sclerosis From March 29, 2017, the Veteran is entitled to a 90 percent rating under Diagnostic Code 8513 based on complete paralysis of all radicular groups in a major limb. A private medical record dated March 29, 2017 (received 2/3/18, page 5 of 23), indicates “[s]evere [right] arm monoparesis all muscle groups” with “diminished muscle bulk in his right hand.” An August 2017 private medical record (received 2/3/18, page 21 of 23) states that the Veteran has spastic quadriparesis “with far more involvement of his right arm and leg . . . .” An August 2017 private medical record (received 2/3/18, page 22 of 23) states that the Veteran has “severe [right]-predominant mixed spastic/flaccid quadriparesis . . . .” A January 2018 private medical record (received 2/3/18, page 3 of 23) indicates “spastic/flaccid quadriparesis, with severe involvement of [the Veteran’s] right arm.” The Veteran was unable to raise his right arm when being sworn in during his June 2018 video hearing. The July 2018 thyroid DBQ (received 8/8/18) indicates complete atrophy (no remaining function) of the right upper extremity. Starting March 29, 2017, medical providers have separately described the Veteran’s right upper extremity disorder as “severe right arm monoparesis [affecting] all muscle groups,” “severe right-predominant mixed spastic/flaccid quadriparesis,” and “complete atrophy with no remaining function of the right upper extremity.” Consistent, the Veteran was unable to raise his right arm during his June 2018 video hearing. This evidence supports the existence of complete paralysis of all radicular groups of a major limb so as to support a 90 percent rating under Diagnostic Code 8513. Since the highest rating available for an amputated major limb is 90 percent under Diagnostic Codes 5120 and 5121, the amputation rule once again does not come into play. See 38 C.F.R. § 4.68. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. 6. From June 24, 2011, to January 8, 2014, entitlement to an initial rating of 60 percent, but no greater, for right lower extremity muscle weakness associated with multiple sclerosis In September 2012, the RO granted service connection for right lower extremity weakness associated with multiple sclerosis at an initial rating of 20 percent under Diagnostic Code 8018-8520 from June 24, 2011, the date that the Veteran filed his claim. The Veteran is appealing the rating aspect of that decision. In September 2015, the RO: 1) re-characterized this disorder as right lower extremity weakness with foot drop secondary to multiple sclerosis; 2) increased the Veteran’s rating ot 40 percent under Diagnostic Code 5167; and 3) granted special monthly compensation based on loss of use. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). Diagnostic Code 5167 provides a 40 percent rating for loss of use of foot. 38 C.F.R. § 4.71a. With this rating, the Veteran is also entitled to special monthly compensation. Id. at Note 2. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Under that code, a 10 percent rating is provided for mild, incomplete paralysis. Id. A 20 percent rating is provided for moderate, incomplete paralysis. Id. A 40 percent rating is provided for moderately severe, incomplete paralysis. Id. A 60 percent rating is provided for severe, incomplete paralysis with muscular atrophy. Id. An 80 percent rating is provided for complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement is possible for muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id. The term “incomplete paralysis,” with this and other 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 nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement. Id. The words “slight,” “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. 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. The Veteran is entitled to an initial rating of 60 percent under Diagnostic Code 8520 based on moderately severe, incomplete paralysis. A July 2011 private medical record (received 6/20/12, page 8 of 10) indicates that the Veteran can still walk despite increasing numbness and weakness of the right lower extremity. The Veteran’s April 2012 VA multiple sclerosis examination (page 17 of 39) indicates normal gait and states the following: “right foot drop, wears AFO, circumabducts right lower extremity.” The Veteran’s April 2012 VA multiple sclerosis examination (pages 18–19 of 39) indicates a strength of 5/5 for right hip extension and right hip flexion. Right knee extension has a strength of 4/5. Right ankle plantar flexion has a strength of 3/5. Right ankle dorsiflexion has a strength of 1/5. Right lower extremity muscle weakness is characterized as moderate. The examiner specifically indicates that there is no muscle atrophy attributable to MS. For the lower extremity, multiple sclerosis affects his ability to work in that he experiences “significant impairment in ambulation (due to right foot drop).” He wears an orthotic device on his right ankle. A July 2012 initial evaluation for physical therapy (received 9/11/13, pages 1–3 of 17) indicates an abnormal gait, severe muscle weakness, inability “to single-leg stand on the right leg for 15 seconds on a foam surface with eyes open,” and complete difficulty “[s]hifting weight from one leg to the other while standing without symptoms.” The Veteran requires assistive devices to climb stairs and has loss of ankle plantar flexion. Nevertheless, the Veteran can still stand for 1 to 4 hours per day, he “[c]an engage at extensive work” at his job site, he can walk from 11 to 100 yards, and he has moderate strength for ankle dorsiflexion. Importantly, according to his physical therapist, the Veteran’s “primary goals are returning to running, strength training, [and] balance re-training,” not regaining the ability to walk. Taken together, ankle strength is weakened and the Veteran has severe difficulties balancing on his right leg. At the same time, there is a specific finding of no muscle atrophy. Also, there is moderate ankle strength, and therefore not complete paralysis, in that the April 2012 VA examination and the July 2012 initial evaluation both indicate a strength of 3/5 for at least one type of ankle motion. The Veteran appears to maintain the ability to walk during this time period, based on his July 2011 statements about walking around during a convention and his April 2012 physical therapy statements about wanting to return to running and strength training, not regaining the ability to walk. Even though there is no evidence of muscle atrophy, the overall severity of the Veteran’s symptoms more nearly approximates a 60 percent rating based on severe, incomplete paralysis than a 40 percent rating based on moderately severe, incomplete paralysis. The amputation rule is not violated because the rating for an upper third lower extremity amputation, one-third of the distance from the perinean to the knee joint, measured from the perinean, is 80 percent. See 38 C.F.R. § 4.68, 4.71a, Diagnostic Code 5161. Because the Veteran is still able to walk during this time and displays moderate ankle dorsiflexion, the preponderance of the evidence is against the existence of complete paralysis so as to support a rating of 80 percent. 7. From January 9, 2014, entitlement to a rating of 80 percent, but no greater, for right lower extremity muscle weakness associated with multiple sclerosis From January 9, 2014, the Veteran is entitled to an 80 percent rating based on complete paralysis of the right lower extremity. A January 2014 VA multiple sclerosis examination indicates lower-extremity muscle weakness attributable to multiple sclerosis. There is muscle atrophy characterized by “right-sided foot drop” and right leg weakness. The examiner indicates “severe dorsiflexion/plantar flexion weakness” and “severely weak inversion/eversion.” An October 2014 VA medical record (received 12/29/16, page 10 of 122) indicates that the Veteran has an abnormal gait due to favoring his right side. A March 2017 private medical record (received 2/3/18, page 6 of 23) indicates that the Veteran cannot do coordination maneuvers on his right side due to severe hemiparesis. In describing the Veteran’s lower-extremity strength, that same record (received 2/3/18, page 5 of 23) indicates that the “leg is 2 or 3/5 hamstrings and gluts, better low 4/5 hip flexors/quads, but just 1 or 2/5 ankle movers.” An August 2017 private medical record (received 2/3/18, page 22 of 23) states that the Veteran has an abnormal gait “with a severe limp” and “severe [right]-predominant mixed spastic/flaccid quadriparesis . . . .” During his June 2018 video hearing, the Veteran stated that he no longer has any effective use of his right leg. Consistent with this, the July 2018 thyroid DBQ indicates complete atrophy (no remaining function) of the right lower extremity. Taken together, for the right lower extremity there is evidence of muscle atrophy, severe foot weakness, consistent reports of severe hemiparesis, and the inability to perform coordination maneuvers. While there is some evidence of foot motion below the knee prior to June 2018, the evidence as a whole more nearly approximates complete paralysis of the right lower extremity due to foot drop. For this reason, the Veteran is entitled to the higher rating of 80 percent. Once again, the amputation rule is not violated as the maximum rating for amputation of the lower extremity is 80 percent. See 38 C.F.R. § 4.68. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. 8. Entitlement to an initial compensable rating for residual fracture right great toe In September 2012, the RO granted service connection for residual fracture of the right great toe at an initial noncompensable rating under Diagnostic Code 5299-5284 from June 24, 2011, the date that the Veteran filed his claim. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). Under Diagnostic Code 5284, a 10 percent rating is appropriate for moderate symptomatology. 38 C.F.R. § 4.71a. A 20 percent rating is appropriate for moderately severe symptomatology. Id. A 30 percent rating is appropriate for severe symptomatology. Id. A 40 percent rating is appropriate for actual loss of use of the foot. Id. Due to the asymptomatic nature of the Veteran’s right toe injury and the prohibitions against pyramiding, the Veteran is not entitled to a compensable rating for his residual fracture right great toe. The Veteran’s April 2012 VA foot examination (page 11 of 39) indicates a healed fracture that is asymptomatic. The examiner further indicates that imaging studies reveal no abnormal findings and that the foot disorder does not impact the Veteran’s ability to work. A March 2012 radiology report (received 4/30/12) indicates “marked periarticular osteopenia” for which “joint spaces are maintained” and “[t]he surrounding soft tissues are normal.” A December 2016 VA medical record (received 12/29/16, page 1 of 122) indicates right toe numbness but does not indicate right toe pain. The Veteran makes no lay statements specifically indicating pain in his right toe. Given the largely asymptomatic nature of the Veteran’s right toe injury and the lack of any specific reports of right toe pain, the Board finds that any functional loss and limitation of motion that is specifically associated with the Veteran’s right toe injury is contemplated by his ratings of 60 percent and 80 percent for right lower extremity muscle weakness associated with multiple sclerosis. In light of the prohibitions against pyramiding, the Board finds that the Veteran is not additionally entitled to a compensable rating for his right toe disorder. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel