Citation Nr: 18153973 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-53 418 DATE: November 29, 2018 ORDER Entitlement to an evaluation of 20 percent disabling, but no higher, for left lower extremity peripheral neuropathy of the sciatic nerve disability is granted. Entitlement to an evaluation of 20 percent disabling, but no higher, for right lower extremity peripheral neuropathy of the sciatic nerve is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s left lower extremity peripheral neuropathy of the sciatic nerve was manifested by no more than moderate incomplete paralysis. 2. For the entire period on appeal, the Veteran’s right lower extremity peripheral neuropathy of the sciatic nerve was manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating of 20 percent disabling, but no higher, for left lower extremity peripheral neuropathy of the sciatic nerve have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. 2. For the entire period on appeal, the criteria for a rating of 20 percent disabling, but no higher, for right lower extremity peripheral neuropathy of the sciatic nerve have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2001 to September 2003 and from May 2005 to May 2006. Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. 1155; 38 C.F.R. Part 4. Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional requirement that the Secretary should from time to time readjust this schedule of ratings in accordance with experience. Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. 4.7. The Veteran’ bilateral lower extremity peripheral neuropathy of the sciatic nerve is rated under Diagnostic Code 8520. Under Diagnostic Code 8520, for incomplete paralysis, a 10 percent disability rating is assigned for mild incomplete paralysis. If the condition is considered “moderate,” a 20 percent disability rating is provided. If the condition is considered “moderately severe,” a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered “severe, with marked muscular atrophy.” Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. An 80 percent rating is assigned where complete paralysis is shown. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board observes that the words “slight,” “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. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All the medical evidence must be evaluated to determine the appropriate rating that compensates the Veteran for her impairment in earning capacity, functional impairment, and functional loss. 38 C.F.R. §§ 4.2, 4.6. The rating code provides that the term “incomplete paralysis,” with this and other peripheral nerve injuries, 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. See Miller v. Shulkin, 28 Vet. App. 376 (2017) (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). 1. Entitlement to an evaluation of 20 percent disabling for left lower extremity peripheral nerve disability 2. Entitlement to an evaluation of 20 percent disabling for right lower extremity peripheral neuropathy The Veteran asserts that her sciatic nerve peripheral neuropathy causes severe, chronic pain in both her feet, which she describes as sharp, burning, dull and affecting her mobility. She stated that as a result of these symptoms, her disability rating should be 20 percent for each lower extremity. Turning to the medical evidence of record, the Board notes several entries in the Veteran’s treatment notes regarding her feet. In a December 2015 primary care nurse note, the Veteran’s chief complaint was noted as, “bilateral foot pain 10 out of 10.” In a March 2015 podiatry treatment note, the physician reported the Veteran’s bilateral foot pain as “stinging, burning, sharp, shooting pain, also states that feet feel heavy. Pain present at night and with activity.” The physician noted that past treatment of prescribed gel insoles for her shoes and medications were not helpful. The physician assessed the Veteran as, “Lumbar radiculopathy…back condition is exacerbating foot condition.” In a December 2014 Women’s Health treatment note, the Veteran’s chief complaint was foot pain, noted as chronic and severe when walking and also when in bed, which disturbs her sleep. In a July 2014 primary care treatment note, the Veteran was seen for chronic foot pain, described as burning and throbbing, with “ambulation but also hurts while she is resting in bed and interferes with her sleep.” The Veteran attended a VA Peripheral Nerves examination and a VA Back examination in May 2015. The diagnosis was given as lumbar strain with radiculopathy bilateral sciatic nerves. The examiner reported that the Veteran’s peripheral nerve condition affects her feet and noted that the Veteran’s “condition began with heaviness, burning, tingling, throbbing and numbness during a PT run. The condition has gotten worse.” The examiner noted that the Veteran’s bilateral lower extremity had moderate intermittent pain (usually dull); moderate paresthesias and/or dysesthesias. No trophic changes, gait, or muscle atrophy was shown. The examiner noted mild incomplete paralysis for the right and left sciatic nerve. The Veteran attended a Peripheral Nerves VA examination in August 2016. Under Medical History, the examiner reported mild sciatic nerve peripheral neuropathy affecting bilateral feet... [the Veteran] states the above condition began with pain in the back that radiates down sciatic nerves. Pain and burning in the bottom of both feet. The condition has gotten worse.” The examiner noted moderate bilateral lower extremity intermittent pain (usually dull) and moderate paresthesia and/or dysesthesias. No trophic changes, gait, or muscle atrophy was shown. The sensory examination was reported as normal for lower extremities and incomplete paralysis of the sciatic nerve was noted as mild. Based on the totality of the medical and lay evidence of record provided in the VA treatment records, VA examinations, and the Veteran’s credible lay statements, the Board finds that the Veteran’s sciatic nerve peripheral neuropathy symptomology indicates a degree of lost or impaired function best characterized as moderate incomplete paralysis. The Veteran’s symptomology has been described in treatment records and examinations as chronic and severe pain in her left and right foot, noted as burning, throbbing, stinging, sharp, and shooting pain upon walking, and affecting her ability to sleep. Additionally, the VA examiners documented her moderate intermittent pain and paresthesias and dysesthesias on both the left and right sciatic nerve. Accordingly, the Board finds that the Veteran’s left and right lower extremity sciatic nerve peripheral neuropathy is best characterized as moderate incomplete paralysis. As the evidence of record discussed above shows the Veteran’s symptomology best reflects moderate incomplete paralysis, and there is no objective medical evidence of muscle atrophy or trophic changes, the moderately severe incomplete paralysis rating is not for application. Moreover, in the Veteran’s November 2015 Notice of Disagreement, she expressly noted that she was seeking a disability rating of 20 percent for each lower extremity. In summary, the Board considers the 20 percent rating for each lower extremity sciatic nerve peripheral neuropathy under Diagnostic Code 8520 to be a full grant of benefits sought. Thus, no further analysis is necessary for these issues. Thus, a 20 percent disability rating for each lower extremity is warranted. 38 C.F.R. § 4.124a, DC 8520. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel