Citation Nr: 18155869 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-19 954 DATE: December 6, 2018 ORDER Entitlement to a rating in excess of 10 percent disabling prior to November 5, 2014 for right lower extremity diabetic peripheral neuropathy of the sciatic nerve is denied. Entitlement to a rating in excess of 10 percent disabling prior to November 5, 2014 for left lower extremity diabetic peripheral neuropathy of the sciatic nerve is denied. Entitlement to a 40 percent disabling rating, but no higher, from November 5, 2014, for right lower extremity diabetic peripheral neuropathy of the sciatic nerve is granted. Entitlement to a 40 percent disabling rating, but no higher, from November 5, 2014, for left lower extremity diabetic peripheral neuropathy of the sciatic nerve is granted. FINDINGS OF FACT 1. Prior to November 5, 2014, the Veteran’s bilateral lower extremity diabetic peripheral neuropathy manifested as mild incomplete paralysis of the sciatic nerve. 2. Following November 5, 2014, the Veteran’s lower extremity diabetic peripheral neuropathy manifested as moderately severe incomplete paralysis of the sciatic nerve in both limbs, with no evidence of marked muscle atrophy. CONCLUSIONS OF LAW 1. Prior to November 5, 2014, the criteria for a disability rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.124a, Diagnostic Code (DC) 8520, 8521, 8525 (2018). 2. Prior to November 5, 2014, the criteria for a disability rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.124a, Diagnostic Code (DC) 8520, 8521, 8525 (2018). 3. Since November 5, 2014, the criteria for a disability rating of 40 percent, but no higher, for right lower extremity diabetic peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.124a, DC 8520, 8521, 8525 (2018). 4. Since November 5, 2014, the criteria for a disability rating of 40 percent, but no higher, for left lower extremity diabetic peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.124a, DC 8520, 8521, 8525 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Entitlement to a rating in excess of 10 percent disabling for bilateral lower extremity diabetic peripheral neuropathy The Veteran contends that his bilateral lower extremity diabetic peripheral neuropathy warrants a higher rating. While currently rated under DC 8521, the Board will review the Veteran’s claims under all applicable diagnostic codes. Under 38 C.F.R. § 4.124a, DC 8520 (pertaining to paralysis of the sciatic nerve), a 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. A maximum rating of 80 percent is warranted for complete paralysis, where the foot dangles and drops, with no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. Under DC 8521 (pertaining to paralysis of the external popliteal, or common peroneal, nerve), a 20 percent rating is warranted for moderate incomplete paralysis. A 30 percent rating is warranted for severe incomplete paralysis. A maximum 40 percent rating is warranted for complete paralysis, where the foot drops and there is slight drop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes is lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. Under DC 8525 (pertaining to paralysis of the posterior tibial nerve), a 10 percent rating is warranted for moderate incomplete paralysis. A 20 percent rating is warranted for severe incomplete paralysis. A maximum 30 percent rating is warranted for complete paralysis, with paralysis of all muscles of sole of foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired. Here, there is no lay report or medical evidence indicating complete paralysis of the posterior tibial nerve. For example, the May 2014 VA examiner stated that there is mild incomplete paralysis of the posterior tibial nerve. Complete paralysis of this nerve is not shown, and criteria for an increased rating under DC 8525 are not met or approximated. The term “incomplete paralysis” with peripheral nerve injuries such as this indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124 (a). The terms “moderate,” “moderately severe,” and “severe” are not defined in the regulations. 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. Although the use of such terms by VA examiners and others is evidence to be considered by the Board, it is not dispositive of the issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In July 2012, the Veteran attended a VA Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire (DBQ) examination. The Veteran indicated that he feels like he is standing on hot sand, has feet numbness, and has to think about being balanced on his feet. Upon examination, the examiner noted bilateral moderate paresthesia and/or dysesthesias for the lower extremities, and bilateral mild numbness for the lower extremities. Further, decreased light touch/monofilament was noted in the Veteran’s bilateral ankle, feet, and toes. Finally, the examiner indicated the Veteran suffered from bilateral lower extremity mild incomplete paralysis for the sciatic nerve. No paralysis was noted for the peroneal or tibial nerves nor was any muscle atrophy noted. In November 2014, the Veteran attended a VA Diabetic Sensory-Motor Peripheral Neuropathy DBQ examination. Upon examination, the examiner noted moderate constant pain in the bilateral lower extremities, moderate intermittent pain in the bilateral lower extremities, severe paresthesia and/or dysesthesias in the bilateral lower extremities, and severe numbness in the bilateral lower extremities. Further, decreased light touch/monofilament was noted in the Veteran’s bilateral ankle and was absent in his bilateral feet and toes. Decreased bilateral lower extremity position and cold sensation with absent vibration sensation. Finally, the examiner indicated the Veteran suffered from bilateral lower extremity mild incomplete paralysis for the sciatic nerve. No paralysis was noted for the femoral nerve nor was any muscle atrophy noted. In a January 2015 private medical treatment note, it is indicated that the Veteran’s gait and balance were normal. In December 2015, the Veteran attended a VA Diabetic Sensory-Motor Peripheral Neuropathy DBQ examination. Upon examination, the examiner noted moderate constant pain in the bilateral lower extremities, severe intermittent pain in the bilateral lower extremities, severe paresthesia and/or dysesthesias in the bilateral lower extremities, and severe numbness in the bilateral lower extremities. Further, decreased light touch/monofilament was noted in the Veteran’s bilateral ankle and was absent in his bilateral feet and toes. Decreased bilateral lower extremity position and cold sensation with absent vibration sensation. Finally, the examiner indicated the Veteran suffered from bilateral lower extremity moderately severe incomplete paralysis for the sciatic nerve. No paralysis was noted for the femoral nerve nor was any muscle atrophy noted. In October 2016, the Veteran attended a Board hearing. He testified to the nature of his symptoms, specifically, bilateral feet pain throughout the night. As an initial matter, the Board notes that the application of DCs 8521 and 8525 are not appropriate in the present matter. The evidence of record is silent for any indication that the Veteran suffered from peripheral neuropathy involving the peroneal or posterior tibial nerves. Therefore, the application of DC 8520, for the sciatic nerve, is the most appropriate. Based on the foregoing evidence of record the Board finds that the Veteran is entitled to a 40 percent disabling rating, but no higher, from November 5, 2014 for each extremity. Prior to this date, there is no indication in the record that the Veteran suffered from moderate incomplete paralysis, indicative of a higher 20 percent rating under DC 8520. Indeed, the examiner of the only examination during this appeal period noted that the Veteran only suffered from mostly mild symptoms with regards to his bilateral peripheral neuropathy. From November 5, 2014, however, the Board finds that the evidence of record more closely approximates a 40 percent rating under DC 8520. Indeed, both VA examinations during this appeal period note predominately moderate and severe symptoms of the Veteran’s bilateral lower peripheral neuropathy. While the Board notes that the November 2014 examiner indicated that the Veteran suffered from bilateral lower extremity mild incomplete paralysis for the sciatic nerve, it also recognizes that the December 2015 examiner found that the Veteran suffered from bilateral lower extremity moderately severe incomplete paralysis for the sciatic nerve with essentially the same severity of symptomatology. Further, the Board also notes that the evidence of record is silent for any indication of marked muscular atrophy, required for a higher 60 percent disabling rating. Viewing the evidence of record in a light most favorable to the Veteran, the Board finds that he is entitled to a 40 percent disabling rating for both lower extremities from November 5, 2014, the date this level of severity was first ascertained. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel