Citation Nr: 20022532 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 18-35 732 DATE: April 1, 2020 ORDER Entitlement to a rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy is denied. FINDING OF FACT The Veteran’s diabetic peripheral neuropathy of the left lower extremity has not resulted in moderately severe or severe paralysis, nor total paralysis. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from May 1967 to February 1970. This case comes before the Board of Veterans Appeals (Board) from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Evaluation of a service-connected disorder requires a review of a Veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2018); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a Veteran’s disability, 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. Where an increase in the disability rating is at issue, the present level of a claimant’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings, however, are appropriate when 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. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As an initial matter, the Board notes the Veteran expressed concern in his July 2018 Form 9 that his condition should not be rated under Diagnostic Code 8520 because, he asserts, he has no sciatic nerve involvement. While the Board understands his concern, ultimately it does not change the discussion as the different nerves are rated the same for the varying levels of severity of symptomatology. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling and moderate incomplete paralysis of the sciatic nerve is evaluated as 20 percent disabling. Moderate severe incomplete paralysis is rated at 30 percent, while severe incomplete paralysis with marked muscular atrophy is granted a 60 percent rating Complete paralysis is given an 80 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Veteran submitted a private neurological evaluation in April 2014 in which the examiner noted severe constant pain and numbness in the left lower extremity, along with gait instability. The examiner indicated there was lower peripheral neuropathy, but noted the sciatic nerve and femoral nerve were normal bilaterally and did not indicate the overall level of severity of the Veteran’s neuropathy. The Veteran underwent a VA Compensation and Pension (C&P) Examination in July 2015. The examiner noted that the Veteran has constant numbness to the plantar part of left foot and is no longer feeling the burning or tingling pain as he has this constant numbing. It was noted the Veteran had no constant pain, but there was intermittent pain in the bilateral lower extremities. The examiner noted his numbness is moderate bilaterally. Light touch and cold sensation were noted to be completely numb, while position sense was absent to the left lower extremity. His sciatic nerve and femoral nerve were normal bilaterally. Ultimately, the examiner stated that identification of the nerve involved would include, but is not limited to, the bilateral peroneal and sural nerves, with incomplete paralysis which is mild-moderate in severity. No functional loss was noted. The Veteran additionally submitted buddy statements. In a July 2015 statement, his friend described the Veteran’s condition getting notably worse. The friend noted his numb foot has led to a permanent limp and expressed concern that he is in danger of an even worse situation should he slip on something or fall. In another buddy statement from August 2015 a friend stated the Veteran had difficulty walking in the past few months and was very unsteady, where he previously had not had issues. The friend recounted how they would go fishing together, but noted the Veteran had not gone in a while due to his condition. The Board finds that the evidence does not support a rating in excess of 20 percent for the Veteran’s diabetic peripheral neuropathy. While the Board acknowledges the severe numbing that is noted specifically in the July 2015 examination, this is not enough to warrant a higher rating. Rather, the rating system is based on the overall level of severity of incomplete or complete paralysis of the respective nerves. Here, the July 2015 examiner noted incomplete paralysis which was mild to moderate. As the Veteran is currently rated at 20 percent, representing moderate severity, the Board finds that rating is most appropriate. Nowhere is the Veteran shown to have moderately severe or severe paralysis, nor total paralysis. Rather, though his numbness is shown to be severe, the July 2015 examiner noted incomplete paralysis that is no more than moderate in severity. Similarly, although the April 2014 private evaluator noted severe constant pain and numbness in the Veteran’s left lower extremity, that examiner did not assess the overall level of severity. The Board finds that the symptoms described in that evaluation, when taken together, most closely approximate incomplete paralysis of the sciatic nerve that is moderate in severity. Therefore, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his diabetic peripheral neuropathy. In arriving at the foregoing decisions, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves a claim. In this case, the preponderance of the evidence is against the Veteran’s claims. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Stuedemann, Associate 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.