Citation Nr: 1808488 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 17-59 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for service-connected right lower extremity sciatic radiculopathy and peripheral neuropathy. 2. Entitlement to an initial evaluation in excess of 20 percent for service-connected left lower extremity sciatic radiculopathy and peripheral neuropathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran had active service from August 1960 to February 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for right lower extremity sciatic radiculopathy and peripheral neuropathy, and left lower extremity sciatic radiculopathy and peripheral neuropathy, with each disability assigned a separate 10 percent evaluation. In each case, the effective date assigned for service connection was April 6, 2016. The Veteran appealed the issues of entitlement to initial evaluations in excess of 10 percent. In September 2017, the RO granted the claims, to the extent that it assigned separate 20 percent evaluations for each lower extremity, with effective dates of April 6, 2016. Since these increases did not constitute full grants of the benefits sought, the increased initial evaluation issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). 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. The Veteran's service-connected right lower extremity sciatic radiculopathy and peripheral neuropathy is not shown to have been productive of symptoms that include pain and numbness, but not moderately severe incomplete paralysis, neuritis, or neuralgia, of the sciatic nerve. 2. The Veteran's service-connected left lower extremity sciatic radiculopathy and peripheral neuropathy is shown to have been productive of symptoms that include pain and numbness, but not moderately severe incomplete paralysis, neuritis, or neuralgia, of the sciatic nerve. CONCLUSION OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for the Veteran's service-connected right lower extremity sciatic radiculopathy and peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Codes 8520, 8620, 8720 (2017). 2. The criteria for an initial evaluation in excess of 20 percent for the Veteran's service-connected left lower extremity sciatic radiculopathy and peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Codes 8520, 8620, 8720 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that he is entitled to initial evaluations in excess of 20 percent for his service-connected right lower extremity sciatic radiculopathy and peripheral neuropathy, and left lower extremity sciatic radiculopathy and peripheral neuropathy. He has submitted medical reports in support of his argument that his lower extremity disabilities are more accurately characterized as diabetic peripheral neuropathy, and evaluated under Diagnostic Code 8513. See Veteran's appeal (VA Form 9), dated in November 2017. As for the history of the disabilities in issue, see 38 C.F.R. § 4.1 (2017), the Veteran's service treatment reports do not contain any relevant complaints, findings, or diagnoses. Following separation from service, a February 1986 VA examination report noted "sub-clinical radiculopathy on the left." A private report, dated in March 2011, notes a history of evidence of distal axonal symmetric peripheral polyneuropathy (PPN) in December 2010, with current complaints of "persistent numbness and intermittently, for unclear reasons, lower extremity cramping." A VA progress note, dated in March 2016, notes a history of a diagnosis of peripheral neuropathy in March 2011; the Veteran reported that he retired in 2006. In January 1983, the RO granted service connection for chronic lumbosacral strain with spondylosis at L4-L5; the RO subsequently expanded the scope of this disability to include degenerative arthritis and disc disease, and intervertebral disc syndrome. In April 2016, the Veteran filed his claim for service connection for polyneuropathy of the bilateral lower extremities. In November 2016, the RO granted service connection for diabetes mellitus, type 2. The RO also granted service connection for right lower extremity sciatic radiculopathy and peripheral neuropathy, and left lower extremity sciatic radiculopathy and peripheral neuropathy, as secondary to service-connected diabetes mellitus, type 2, and chronic lumbosacral strain with spondylosis at L4-L5 chronic lumbosacral strain with spondylosis at L4-L5, degenerative arthritis and disc disease, and intervertebral disc syndrome. See 38 C.F.R. § 3.310 (2017). The RO assigned a separate 10 percent evaluation for each lower extremity, with effective dates of April 6, 2016. The Veteran appealed the issues of entitlement to initial evaluations in excess of 10 percent. The Board parenthetically notes that in November 2016, the RO granted service connection for right lower extremity femoral radiculopathy, and left lower extremity femoral radiculopathy, with each disability assigned a separate evaluation under 38 C.F.R. § 4,124a, Diagnostic Code 8526. In September 2017, the RO granted the Veteran's claims, to the extent that it assigned separate 20 percent evaluations for each lower extremity, with effective dates of April 6, 2016. The Veteran is appealing the original assignments of disability evaluations following awards of service connection. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). The criteria for evaluating the severity or impairment of the sciatic nerve are set forth under Diagnostic Codes (DCs) 8520, 8620, and 8720. Under DC 8520, a 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. Id. Diagnostic Codes 8620 and 8720 address the criteria for evaluating neuritis and neuralgia of the radial nerve, respectively. The criteria are consistent with the criteria for evaluating degrees of paralysis as set forth above. 38 C.F.R. § 4.124a, DCs 8620, 8720 (2017). A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve 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, DC's 8620 through 8720 (2017). Neuritis of the peripheral nerves, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia of a peripheral nerve characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The term incomplete paralysis, with 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124. 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 (2017). 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 evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017). A VA peripheral nerves disability benefits questionnaire (DBQ), dated in August 2016, indicates that the examination was performed on August 16, 2016. The DBQ shows the following: the Veteran symptoms gradually began in 2008, with a "leatherly feeling in his feet, that slowly moved up his legs." With regard to his lower extremities, he denied constant pain, but complained of mild intermittent pain, as well as moderate paresthesias and numbness. On examination, strength was normal (all findings are for the bilateral lower extremities unless otherwise noted). There was no muscle atrophy. Reflexes were 2+ at the knees and ankles, bilaterally. A sensory examination was normal for the upper anterior thigh (L2), thigh/knee (L3/4), and lower leg/ankle (L4/L5/S1), and decreased at the foot/toes (L5). Gait was normal. The examiner characterized the Veteran's incomplete paralysis of the bilateral sciatic nerves as "mild." The Veteran was noted not to use any assistive devices as a normal mode of locomotion. The Veteran was noted to be well-developed and well-nourished, and in no acute distress. The relevant diagnosis was lower extremity neuropathy. A VA back DBQ, dated in September 2016, indicates that the examination was performed on September 12, 2016. The DBQ shows that the Veteran complained of severe constant pain in his lower extremities, as well as severe paresthesias and numbness; he denied intermittent pain. The DBQ contains findings that include 5/5 strength of knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension (all bilaterally). There was no muscle atrophy. The examiner noted that there were no signs or symptoms of radiculopathy, however, the examiner contradictorily noted severe radiculopathy, bilaterally, in another part of the report. Reflexes were 2+ at the knees and ankles, bilaterally. Sensation to light touch was normal at the upper anterior thigh (L2), thigh/knee (L3/4), and lower leg/ankle (L4/L5/S1), and decreased at the foot/toes (L5). A VA diabetes mellitus DBQ, dated in September 2016, indicates that the examination was performed on September 12, 2016. The DBQ shows that on examination, motor and sensory findings were within normal limits, to include gait and balance, and examination of the cranial and peripheral nerves. A VA diabetic sensory-motor peripheral neuropathy DBQ, dated in September 2016, indicates that the examination was performed on September 12, 2016. The DBQ shows that on examination, the Veteran complained of severe lower extremity diabetic peripheral neuropathy, paresthesias and or dysesthesias, and numbness, bilaterally; he denied intermittent pain. On examination, strength of knee extension and flexion, ankle plantar flexion, and ankle dorsiflexion, was 5/5, bilaterally. Deep tendon reflexes were 2+ at the knee and ankle, bilaterally. Light touch (monofilament) testing was normal at the knee and thigh, and the ankle and lower leg, and decreased at the foot and toes (bilaterally). There was no muscle atrophy. The Veteran was noted to be well-developed and well-nourished, and in no acute distress. The examiner characterized the Veteran's incomplete paralysis due to diabetic neuropathy of the sciatic nerves in his bilateral lower extremities as "moderately severe." The Veteran's ability to work was impacted to the extent that he is limited to walking only two blocks or for five minutes before having increased pain, and having to modify activity. The diagnosis was diabetic peripheral neuropathy of the bilateral lower extremities. The Board finds that the evidence is insufficient to show that the Veteran's service-connected right lower extremity sciatic radiculopathy and peripheral neuropathy, and his left lower extremity sciatic radiculopathy and peripheral neuropathy, have been productive of moderately severe incomplete paralysis of the sciatic nerve, and that initial evaluations in excess of 20 percent are not warranted. The findings in his examination reports have been discussed. They show that in September 2016, there was a finding of severe radiculopathy in a VA back DBQ, and that an examiner characterized his peripheral neuropathy as moderately severe. However, use of such terminology by VA 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 C.F.R. §§ 4.2, 4.6. In this case, those findings are insufficiently supported by the associated findings in the DBQs, or any other contemporaneous findings in the evidence of record. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Specifically, the August 2016 examiner characterized the Veteran's incomplete paralysis of the bilateral sciatic nerves as "mild." The Veteran has been found to have no less than 5/5 strength in his bilateral lower extremities, with no less than 2+ reflexes at the knees and ankles, bilaterally. There is no evidence of muscle atrophy. Sensory examinations have been normal for the upper anterior thigh (L2), thigh/knee (L3/4), and lower leg/ankle (L4/L5/S1), and decreased only at the foot/toes (L5). Gait has been shown to be normal, with no evidence of the need for any assistive devices for locomotion. Where, as here, the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124. Accordingly, the Board finds that the evidence is insufficient to show moderately severe incomplete paralysis of either sciatic nerve, and the claim must be denied. See 38 C.F.R. § 4.124a, DC 8520. The Board also concludes that the evidence does not demonstrate that the Veteran's right lower extremity sciatic radiculopathy and peripheral neuropathy, or left lower extremity sciatic radiculopathy and peripheral neuropathy, is shown to have been manifested by moderately severe incomplete neuritis or neuralgia of the sciatic nerve, such that an increased initial evaluation is warranted under DC 8620 or DC 8720. In this regard, there is no evidence of neuritis or neuralgia. Given the aforementioned medical evidence, to include the findings (or lack thereof) as to strength, sensation, reflexes, and limitation of range of motion, the Board finds that it is not shown that the Veteran's service-connected right lower extremity sciatic radiculopathy and peripheral neuropathy, or left lower extremity sciatic radiculopathy and peripheral neuropathy, has resulted in moderately severe neuritis or neuralgia of the sciatic nerve. An initial evaluation in excess of 20 percent for the right lower extremity, or the left lower extremity, is therefore not warranted under DC's 8620 or 8720. In reaching this decision, the Board has considered the Veteran's argument that his lower extremity symptoms are due to diabetic neuropathy, as opposed to his back disability, and that he should be afforded increased initial evaluations for paralysis of "all radicular groups" under 38 C.F.R. § 4.124a, DC 5313. With regard to application of DC 8513 to his lower extremity peripheral neuropathy, service connection is currently in effect for disabilities that include right upper extremity peripheral neuropathy, and left upper extremity peripheral neuropathy, with each disabilities afforded a separate evaluation under DC 8513. The Veteran has submitted medical reports in support of his assertion that his service-connected lower extremity nerve symptoms are related to his service-connected diabetes mellitus, and not his service-connected back disability. See e.g., report from D.B., M.D., dated in February 2017 (asserting that the Veteran's lower extremities should be evaluated under DC 8513 "because it is related to his diabetic neuropathy rather than any lumbar condition"); report from C.W., M.D., dated in October 2017. The Board first notes, however, that none of these evidence includes findings warranting an increased rating, and that in this decision, the Board has not dissociated any right or left lower extremity symptoms from his service-connected disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In the statement of the case, dated in September 2017, the RO noted the following: the Veteran's lower extremity symptoms are shown to have pre-dated his diagnosis of diabetes. His bilateral lower extremity radiculopathy has been associated with both his service-connection back disability, and his service-connected diabetes mellitus. It is therefore recognized as multifactorial. However, for rating purposes each disability can only be coded as secondary to a single disability. By coding his lower extremity neuropathy as secondary to his service-connected back disability, the RO was able to assign an effective date of April 6, 2016. In contrast, if his lower extremity neuropathy had been coded as secondary to his diabetes, the effective date could not have been earlier than the date of service connection for diabetes of August 17, 2016. Application of DC 8513 is not appropriate. The assignment of diagnostic codes is not based on the condition that caused the neuropathy, rather, it is based on the nerves involved. In this case, DC 8520 applies to the sciatic nerve. Application of DC 8513 is not appropriate because it pertains to all radicular groups of the upper extremities, thus, it does not apply to the lower extremity nerves. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Court has held that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). Under 38 C.F.R. § 4.124a, criteria are listed for disabilities of the upper radicular group (DC 8510), the middle radicular group (DC 8511), and the lower radicular group (DC 8512). DCs 8510 - 8512 describe impairment only to the muscles of the upper extremities, i.e, the shoulder, arm, elbow, wrist, hand, and fingers. DC 8513 is titled "all radicular groups." As these diagnostic codes make clear, DCs 8510 - 8512 involve only impairment of the upper extremities. DC 8513 indicates that it applies to disabilities involving all three of these radicular groups. Therefore, the Board finds that application of DC 8513 is not appropriate, and that given the demonstrated symptomatology, the Veteran's lower extremity disabilities in issue are more properly evaluated as impairments of the sciatic nerve. See 38 C.F.R. § 4.120 (2017); Butts; Pernorio. The issue of whether referral for extra-schedular consideration is warranted must be argued by the claimant or reasonably raised by the record. Yancy v. McDonald, 27 Vet. App 484 (2016); see also Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, neither the Veteran, nor the record, raises the issue of an extra-schedular rating for either of the disabilities in issue. Finally, although the Veteran has submitted evidence of medical disability, and is presumed to have made claims for the highest evaluations possible, he has not submitted evidence of his unemployability, or claimed to be unemployable due to the service-connected disabilities in issue. He has reported that he retired in 2006. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board has considered the Veteran's statements that he should be entitled to increased initial evaluations. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony simply because a claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report his lower extremity symptoms, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant increased initial evaluations. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities are evaluated, are more probative than the Veteran's assessment of the severity of his disabilities. The VA examinations also took into account the Veteran's competent (subjective) statements with regard to the severity of his disabilities. In deciding the Veteran's increased evaluation claims, the Board has considered the determination in Fenderson, and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to initial increased evaluations for separate periods based on the facts found during the appeal period. As noted above, the Board does not find evidence that either of the Veteran's evaluations should be increased for any other separate period based on the facts found during the whole appeal period. The evidence of record from the day the Veteran filed the claims to the present supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of either of the claimed disabilities such that an initial increased evaluation is warranted for either disability. In reaching these decisions the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Veteran has not identified any relevant records that have not been associated with the claims file, and it appears that all pertinent records have been obtained, except as discussed below. The Veteran has been afforded examinations. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Id. at 1381 (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER An initial evaluation in excess of 20 percent for service-connected right lower extremity sciatic radiculopathy and peripheral neuropathy, is denied. An initial evaluation in excess of 20 percent for service-connected left lower extremity sciatic radiculopathy and peripheral neuropathy, is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs