Citation Nr: 18155456 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 11-22 136 DATE: December 4, 2018 ORDER 1. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, prior to January 15, 2010, is denied. 2. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, prior to January 15, 2010, is denied. 3. Entitlement to a 40 percent rating, but no higher, for peripheral neuropathy of the left lower extremity, since January 15, 2010, is granted. 4. Entitlement to a 40 percent rating, but no higher, for peripheral neuropathy of the right lower extremity, since January 15, 2010, is granted. FINDINGS OF FACT 1. Prior to January 15, 2010, the Veteran’s service-connected peripheral neuropathy of the bilateral lower extremities manifested as moderate incomplete paralysis. 2. Since January 15, 2010, the Veteran’s service-connected peripheral neuropathy of the bilateral lower extremities has manifested as moderately severe incomplete paralysis, and is not characterized by muscle atrophy. CONCLUSIONS OF LAW 1. Prior to January 15, 2010, the criteria for an evaluation in excess of 20 percent for the Veteran’s service-connected peripheral neuropathy of the lower extremities have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 8520 (2017). 2. Since January 15, 2010, the criteria for an evaluation of 40 percent, but no higher, for the Veteran’s service-connected peripheral neuropathy of the lower extremities have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to April 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran requested a Travel Board hearing on his August 2011 substantive appeal and he was scheduled for a hearing in February 2017; however, in January 2017, the Veteran requested that his hearing be cancelled. Accordingly, his request for a hearing is deemed withdrawn. In an August 2017 decision, the Board denied, in part, the Veteran’s claim. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a May 2018 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s decision relevant to the denial of a rating in excess of 20 percent for peripheral neuropathy of the bilateral lower extremities; and remanded the matter for compliance with the terms of the JMPR. 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). Entitlement to a 40 percent rating, but no higher, for peripheral neuropathy of the bilateral lower extremities, effective January 15, 2010, is granted. In this case, the evidence reflects that the Veteran’s peripheral neuropathy of the bilateral lower extremities is due to impairment of the sciatic nerve, incomplete paralysis. Under DC 8520, complete paralysis of the sciatic nerve when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated at 80 percent. Incomplete paralysis that is severe, with marked muscular atrophy, is rated at 60 percent. Incomplete paralysis that is moderately severe is rated at 40 percent. Incomplete paralysis that is moderate is rated at 20 percent. Incomplete paralysis that is mild is rated at 10 percent. 38 C.F.R. 4.124a. The term “incomplete paralysis” indicates a degree of impaired function substantially less than the type of picture for “complete paralysis” given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. The Board finds that a 40 percent rating, but no higher, is warranted for peripheral neuropathy of the bilateral lower extremities, effective January 15, 2010, giving the Veteran the benefit of the doubt. At the January 2007 VA examination, the Veteran reported symptoms including numbness, pain, and tingling due to his peripheral neuropathy. He experienced flare-ups, as well as limitations on walking and standing. In March 2009, a VA examiner noted paresthesias and decreased light touch sensation of the lower extremities. However, reflex and muscle strength testing were normal, with no evidence of muscle atrophy. The Veteran’s gait and balance were normal, with no signs of tremors, tics, or abnormal movements. The examiner found no evidence of paralysis at that time. In January 2010, the Veteran underwent a third VA examination for his peripheral neuropathy. He reported experiencing pain and numbness in his feet, as well as tingling in his shins. The examiner noted additional symptoms including paresthesias and impaired coordination, for which the Veteran required the assistance of a cane. Muscle strength was slightly decreased, but there was no evidence of muscle atrophy. Vibration sensation of both lower extremities was decreased. Reflex and sensory testing were normal. The examiner noted decreased propulsion, as well as a slow gait. There were no signs of tremors, tics, or other abnormal movements. Although neuralgia was present, the examiner found no evidence of paralysis upon examination. In January 2011, the Veteran reported a burning sensation on the balls of his feet and toes after walking, numbness, tingling, a squeezing pain sensation, as well as radiating sharp pains. He experienced unsteadiness while walking due to numbness in his feet. Reflex testing and muscle strength testing was normal, with no evidence of muscle atrophy. Sensory testing was decreased in the feet and ankles. The examiner noted no gait abnormality, but the Veteran experienced impaired balance while walking, for which he required the assistance of a cane. Although neuritis and neuralgia were present, there was no sign of paralysis upon examination. The examiner noted pain with walking, as well as difficulty standing due to the peripheral neuropathy. In March 2012, the Veteran was afforded another VA examination to assess his peripheral neuropathy. He reported moderate numbness, constant pain, and paresthesias and/or dysesthesias. Muscle strength and reflex testing were normal, with no evidence of muscle atrophy. There was decreased sensation in the lower legs and ankles, with no sensation remaining in the feet and toes. The Veteran used a cane due to his antalgic gait, which was the result of diminished sensation in his feet. At the April 2016 VA examination, the Veteran reported moderate numbness, constant pain, and paresthesias and/or dysesthesias. Muscle strength and reflex testing were normal for the lower extremities, with no evidence of muscle atrophy. There was absent sensation in the feet or toes to light touch testing. In January 2018, the Veteran underwent another VA examination to evaluate the severity of his peripheral neuropathy. He described symptoms including moderate burning pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and moderate numbness of the bilateral lower extremities. Muscle strength testing was normal, with no evidence of muscle atrophy. Reflex and sensation testing was decreased in the lower extremities. The Veteran’s gait was normal at that time. The examiner noted moderately severe incomplete paralysis of the sciatic nerve. The Veteran regularly used a cane and walker to assist with ambulation. He further experienced interference with prolonged walking and standing. Additionally, VA treatment records have documented the Veteran’s limited ability to walk due to his peripheral neuropathy, as well as severe neuropathic pain. See VA Treatment Records dated March 3, 2011 and December 9, 2016. Prior to January 15, 2010, the evidence of record shows that a rating in excess of 20 percent is not warranted. The Veteran underwent VA examinations in January 2007 and March 2009, which showed decreased sensation, numbness, pain, and paresthesias in the lower extremities. The evidence of record indicates that the Veteran’s symptoms were wholly sensory during this time; thus, the assigned 20 percent rating is appropriate prior to January 15, 2010. However, since the VA examination conducted on January 15, 2010, the Board finds that a 40 percent disability rating, but no higher, is warranted for the Veteran’s peripheral neuropathy of the bilateral lower extremities. The VA examination reports since this date indicate that he experienced significant functional impairment as a result of the symptomatology related to his peripheral neuropathy. Indeed, the Veteran has consistently reported impaired coordination, antalgic gait, and unsteadiness while walking since the January 2010 VA examination. The evidence of record further demonstrates that he has required the assistance of a cane since that time due to his neuropathic symptoms. The January 2011 and January 2018 examiners indicated that Veteran’s peripheral neuropathy impaired his ability to walk and stand, which was consistent with VA treatment records. A December 2016 VA treatment record noted that his neuropathic pain was considered severe, while the January 2018 examination report documented severe pain and paresthesias, which resulted in moderately severe incomplete paralysis. Thus, giving the Veteran the benefit of the doubt, the Board finds that the medical evidence since January 15, 2010 indicates that his peripheral neuropathy of the bilateral lower extremities has resulted in symptomatology that is more than wholly sensory. In this case, the functional impairment demonstrated by the record is equivalent to the symptomatology considered by the 40 percent rating under DC 8520. Therefore, the Board finds that a 40 percent rating, but no higher, for each lower extremity is warranted. However, as there is no indication of muscular atrophy or complete paralysis, a higher rating is not warranted. Finally, the Board notes that in assessing the severity of the Veteran’s peripheral neuropathy for the period prior to January 15, 2010, the Board has considered his assertions regarding his symptoms, which he is competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Veteran’s history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability ratings that have been assigned. Moreover, the Board finds that the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the Veteran’s peripheral neuropathy. As such, while the Board accepts the Veteran’s statements with regard to the matters he is competent to address, the Board relies upon the medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected peripheral neuropathy. Accordingly, the Board finds that the preponderance of the evidence supports a 40 percent rating, but no higher, effective January 15, 2010. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.85, DC 8520 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel