Citation Nr: 18117455 Decision Date: 07/10/18 Archive Date: 07/10/18 DOCKET NO. 15-16 967 DATE: July 10, 2018 ORDER An initial rating in excess of 10 percent for peripheral neuropathy, left lower extremity is denied. An initial rating in excess of 10 percent for peripheral neuropathy, right lower extremity is denied. FINDINGS OF FACT 1. The Veteran had active service from April 1968 to March 1971. 2. Peripheral neuropathy, left lower extremity has been manifested by subjective complaints of constant pain and tingling; objective findings include mild incomplete paralysis. 3. Peripheral neuropathy, right lower extremity has been manifested by subjective complaints of constant pain and tingling; objective findings include mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for peripheral neuropathy, left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.25, 4.26, 4.124a, Diagnostic Code (DC) 8521, 8271 (2017). 2. The criteria for an initial rating in excess of 10 percent for peripheral neuropathy, right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.25, 4.26, 4.124a, DC 8521, 8271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s bilateral lower extremity peripheral neuropathy is currently rated under DC 8721, concerning neuralgia of the external popliteal nerve, and DC 8521 concerning paralysis of the external popliteal nerve. To warrant a higher rating, the evidence must show: • moderate incomplete paralysis of the external popliteal nerve (20% under DC 8521); • severe incomplete paralysis of the external popliteal nervea (30% under DC 8521); or • complete paralysis of the external popliteal nerve, including foot drop and slight droop of first phalanges of all toes, inability to dorsiflex the foot, lost ability for extension of proximal phalanges, lost ability for abduction of the foot, adduction weakened, and anesthesia covers the entire dorsum of foot and toes (40% under DC 8521). 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 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. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, such ratings are combined with application of the bilateral factor. Following a review of the record, the evidence shows that the Veteran’s bilateral lower extremity peripheral neuropathy does not warrant a rating in excess of 10 percent for each side. December 2017, March 2013, December 2010, and December 2008 examinations all failed to show that the Veteran’s symptoms constituted moderate incomplete paralysis or worse. Specifically, the December 2017 VA examination report reflected mild incomplete paralysis of the sciatic rather than popliteal nerve, however evaluating under DC 8520 for his sciatic nerve would not change the rating, as mild incomplete paralysis is still rated at 10 percent, and moderate is still rated at 20 percent. Similarly, his VA treatment records did not show that the Veteran had a moderate or higher degree of incomplete paralysis, or complete paralysis. In support of his claim, he submitted a clarifying letter from a VA medical professional regarding an August 2016 VA medical appointment in which she found that he had, “fairly severe” bilateral foot neuropathy. The Veteran claims she indicated to him that, “fairly severe” equated to medium to high severity, and in a November 2011 assessment the same provider described his disability as severe bilateral foot neuropathy. However, the rating criteria for his disabilities focuses on the severity of incomplete or complete paralysis in his feet. As such, even if his pain or his disability itself is characterized as severe, it may not warrant a higher rating unless that severity results in a higher degree of incomplete or complete paralysis as described in the diagnostic code. The evidence in his VA treatment records fails to show any such progression in severity of his incomplete paralysis. Next, the Veteran also submitted Social Security Administration (SSA) records for review. However, the evidence contained in these records also failed to note a moderate level of incomplete paralysis or higher, nor did they show that he had complete paralysis in either foot. Finally, the Board has also considered the Veteran’s lay statements that his disability is worse. Specifically, he has claimed that his pain in each foot has increased, and both he and family members have described how he has trouble standing for long periods of time, walking long distances, or performing household chores due to the pain in his feet. In addition, the pain causes him to wear rubber clogs without socks because it caused the least pain. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s bilateral lower extremity peripheral neuropathy has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings as provided in the examination reports and other clinical evidence directly address the criteria under which these disabilities are evaluated. Moreover, the VA examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel