Citation Nr: 20007644 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 15-18 846A DATE: January 30, 2020 ORDER Entitlement to a disability rating in excess of 20 percent for left foot peripheral neuropathy is denied. Entitlement to a disability rating in excess of 20 percent for right foot peripheral neuropathy is denied. Entitlement to a temporary total evaluation based on convalescence following an October 2013 right foot exostosis surgical procedure is denied. INTRODUCTION The Veteran served on active duty from October 1977 to March 1979. In February 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal was before the Board in April 2018 and January 2019, when the above-noted issues were remanded for additional development. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran failed to report for examinations in August 2018, September 2018, October 2018, and January 2019, and the available evidence of record shows that throughout the period of the claims, the Veteran’s bilateral peripheral neuropathy has more closely approximated moderate incomplete paralysis of the external popliteal nerves than severe incomplete paralysis of the external popliteal nerves. 2. The Veteran is not service-connected for his right great toe disability, and as such, entitlement to a temporary total evaluation based on convalescence under 38 C.F.R. § 4.30 is not warranted as a matter of law. CONCLUSIONS OF LAW 1. The schedular criteria for a disability evaluation in excess of 20 percent for left foot peripheral neuropathy are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8521 (2019). 2. The schedular criteria for a disability evaluation in excess of 20 percent for right foot peripheral neuropathy are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8521 (2019). 3. The criteria for entitlement to a temporary total evaluation based on convalescence following an October 2013 right foot exostosis surgical procedure have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.30 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2019), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all pertinent available service treatment records (STRs) and post-service medical evidence identified by the Veteran have been obtained. The Veteran was afforded appropriate VA examinations to address the severity of his service-connected disabilities in April 2012 and December 2014. As noted above, the Veteran failed to report for scheduled VA examinations in August 2018, September 2018, October 2018, and January 2019. The Veteran was afforded a Board hearing in February 2018, and a transcript of that proceeding is of record. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran’s claims. General Legal Criteria Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2019). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A temporary total disability rating of 100 percent will be assigned when it is established by report at hospital discharge or outpatient release that entitlement is warranted. Total ratings will be assigned if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence, (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or for continued use of wheelchair or crutches, (3) immobilization by cast, without surgery, of one major joint or more (emphasis added). 38 C.F.R. § 4.30. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis Increased Ratings Claims The Veteran filed a claim for an increased rating for his bilateral peripheral neuropathy in January 2012. In the course of the Veteran’s April 2012 and December 2014 VA examinations, the examiners indicated the Veteran’s peripheral neuropathy causes incomplete paralysis that affects his external popliteal nerve, which is rated under 38 C.F.R. § 4.124a , Diagnostic Code 8521. Diagnostic Code 8521 provides that a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A rating of 30 percent requires severe incomplete paralysis. The maximum rating of 40 percent is reserved for complete paralysis shown by manifestations such as: foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a , Diagnostic Code 8521. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss 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 38 C.F.R. § 4.124a , Note Diseases of the Peripheral Nerves. The Board observes that the words “mild,” “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 (2019). The Veteran was afforded a VA examination in April 2012. He reported having symptoms of pain, numbness, and tingling in his feet. Physical examination revealed motor strength of 4/5 with plantar flexion bilaterally, as well as 3/5 dorsiflexion in the right ankle and 4/5 dorsiflexion in the left ankle. The examiner found no evidence of muscle atrophy. Deep tendon reflexes were absent at ankle level bilaterally. Sensation was decreased during light touch testing. Following examination, the examiner concluded the Veteran has a moderate incomplete paralysis of the external popliteal nerve bilaterally. The Veteran was afforded a second VA examination in December 2014. At that time, the Veteran again reported experiencing moderate tingling, numbness, and pain in both feet. Physical examination revealed motor strength of 4/5 in the bilateral ankles with plantar and dorsi flexion. Reflexes were again decreased in both ankles. The examiner found a decrease in sensation of the feet and ankles to light touch. In sum, the examiner indicated the Veteran’s lower extremity neuropathy resulted in a moderate incomplete paralysis of the external popliteal nerves. After careful review of the evidence, the Board finds that a 20 percent rating is warranted for left and right foot peripheral neuropathy throughout the entire claim period. The record shows the Veteran has some degree of muscle strength impairment, and decreased sensation and reflexes. Such impairments do not more nearly approximate the severe impairments required for a higher rating. The Veteran’s lower extremity neurological deficits manifest as tingling, pain, and numbness, as well as a decreased light touch. The Veteran has also exhibited impaired deep tendon reflexes. There is no complete absence of sensation or reflexes, and testing demonstrated strength that allowed for active movement against resistance in plantar flexion of the ankles, and active movement with gravity applied in the right ankle in dorsiflexion. Moreover, both the April 2012 and December 2014 VA examiners assessed the Veteran’s condition as a moderate incomplete paralysis. The Board has carefully reviewed the Veteran’s VA outpatient treatment reports from the VA Medical Centers in Orlando, Bay Pines, Gainesville, Miami, and Tampa; however, these records do not contain any evidence indicating the Veteran’s disability is worse than presently evaluated. Further, as noted above, the Veteran failed to report for VA examinations in August 2018, September 2018, October 2018, and January 2019, which may have provided additional evidence in this matter. Pursuant to 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. Based on the foregoing, the Board finds a rating in excess of 20 percent is not warranted for the Veteran’s left and right foot peripheral neuropathy. Temporary Total Rating Claim The Veteran contends he is entitled to a temporary total rating for surgery and time of convalescence following his right great toe exostosis procedure. In this instance, a temporary total rating for the right great toe disability is not warranted. The Veteran’s filed a claim for a temporary total disability rating for the October 2013 surgery; however, the Veteran is not service-connected for a right great toe disability. As such, the claim for a temporary total rating based on convalescence must be denied as a matter of law. For a temporary total rating to be assigned, the treatment of a service-connected disability must have resulted in one of the listed outcomes. However, the treatment provided in October 2013 was not for a service-connected disability. The Veteran did not have a right great toe disability for which service connection had been established at the time of surgery. Accordingly, the criteria for a temporary total rating are not satisfied. Therefore, a temporary total rating must be denied as a matter of law. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.