Citation Nr: 20023935 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 18-45 393 DATE: April 7, 2020 ORDER An initial rating in excess of 10 percent for left lower extremity peripheral neuropathy is denied. An initial rating in excess of 10 percent for right lower extremity peripheral neuropathy is denied. An effective date of December 4, 2009, but not earlier, for the award of service connection for left lower extremity peripheral neuropathy, is granted. An effective date of December 4, 2009, but not earlier, for the award of service connection for right lower extremity peripheral neuropathy, is granted.   FINDINGS OF FACT 1. The Veteran’s left lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis throughout the appeal period. 2. The Veteran’s right lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis throughout the appeal period. 3. The date entitlement arose for service connection for left lower extremity peripheral neuropathy was December 4, 2009. 4. The date entitlement arose for service connection for right lower extremity peripheral neuropathy was December 4, 2009. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for an initial disability rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8520. 3. The criteria for an effective date of December 4, 2009, but not earlier, for the award of service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 4. The criteria for an effective date of December 4, 2009, but not earlier, for the award of service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to July 1970. This matter is on appeal from a March 2017 rating decision. Additional evidence was received subsequent to the statement of the issued in August 2018. As the evidence is not pertinent to the claims on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. An initial rating in excess of 10 percent for left lower extremity peripheral neuropathy. 2. An initial rating in excess of 10 percent for right lower extremity peripheral neuropathy. The Veteran’s left lower extremity and right lower extremity peripheral neuropathy are assigned disability ratings under DC 8520 of 38 C.F.R. § 4.124a. DC 8520 (which pertains to the sciatic nerve) provides for a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy. Complete paralysis of the sciatic nerve (where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or lost), warrants the highest rating of 80 percent. Id. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis 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. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury; the relative impairment in motor function; trophic changes; or sensory disturbances. 38 C.F.R. § 4.120. Analysis The Veteran is seeking higher ratings for his service-connected left and right lower extremity peripheral neuropathy. In a December 2011 lay statement, the Veteran reported that when he walks, he drags his feet most of the time. The evidence of record includes a January 2011 VA neurology consultation. At that time, the examining physician noted that the Veteran bilateral lower extremities had strength that was 5/5, and tone was normal. Sensory testing showed that vibration, temperature, light touch, and pinprick testing were also normal. The physician noted that the Veteran demonstrated ataxia when walking but walked down a long hall without assistance. She also noted that he demonstrated some balance issues, but the sensory testing and the rest of the neurological examination results were normal. The Veteran underwent a VA examination in December 2011. The examiner noted that the Veteran had mild peripheral neuropathy. Concerning strength, the examiner reported that the Veteran’s right and left knee extension, right and left ankle plantar flexion, and right and left ankle dorsiflexion was 5/5 (normal). The examiner reported that knee and ankle reflexes were normal and that there was no muscle atrophy present. He also noted that there was no right or left lower extremity muscle weakness but there was decreased sensation to pinprick in the distal feet and diminished vibration sensation in the great toes. The examiner reported that the Veteran regularly used a cane, but his peripheral neuropathy did not impact his ability to work. The Veteran underwent an August 2018 VA examination. At that time, the Veteran reported pain, numbness, and tingling in his lower extremities. He also stated that he has occasional weakness in his left leg with falls. With regard to symptoms, the examiner reported that the Veteran does not experience constant pain, has mild intermittent pain, mild parasthesia, and mild numbness of both the right and left lower extremities. With regard to strength testing, the examiner reported that right and left knee extension was 5/5, right ankle plantar flexion was 5/5, left ankle flexion was 4/5, right ankle dorsiflexsion was 5/5, and left ankle dorsiflexion was 4/5. The examiner also reported that there was no muscle atrophy. With regard to reflexes, the examiner reported that the Veteran’s right and left knee reflexes were normal, and the Veteran’s right and left ankle reflexes were absent. Concerning sensory disturbance, the examiner reported that the Veteran’s right and left upper anterior thighs were normal, his right lower leg had decreased sensation, his left lower leg had normal sensation, and his right and left feet had decreased sensation. The examiner also reported that there no trophic changes and the Veteran’s gait was normal. The examiner evaluated the Veteran’s right and left sciatic nerve has having mild incomplete paralysis and noted that his peripheral nerve condition does not impact his ability to work. After a careful review of the evidence, the Board finds that the Veteran’s service-connected left lower extremity and right lower extremity peripheral neuropathy most closely approximate a 10 percent rating for each, and an increased rating for either the left or right lower extremity peripheral neuropathy is not warranted. The Board notes that the two VA examination reports during the appeal period indicated that the severity of the Veteran’s bilateral lower disabilities is mild. With regard to impairment of motor functions, both examination reports indicate that the Veteran has normal strength in his lower extremities. Testing on both examinations revealed that the Veteran’s right and left knee extension, right and left ankle plantar flexion, and right and left ankle dorsiflexion was 5/5 (normal). This finding is also consistent with notations in the Veteran’s VA treatment records. See e.g., March 2011, February 2017 VA treatment records. Other notations in the Veteran’s VA treatment records state that movement in all the Veteran’s extremities is strong. See e.g., April 2016, July 2016 VA treatment records. Concerning the Veteran’s gait in particular, the January 2011 neurology consult noted that the Veteran walked with ataxia but was able to walk down a long hallway without assistance. The examiner who provided the December 2011 examination noted that the Veteran used a cane whereas the examiner who provided the August 2018 VA examination reported that the Veteran’s did not use any assistive devices and that the Veteran’s gait was normal. VA treatment records show generally that the Veteran’s gait is characterized as steady, normal, or symmetric, see e.g., October 2016, February 2017 VA treatment record; but that he uses a cane on occasion, see e.g., April 2016 VA treatment record. Regarding trophic changes, there is no indication of trophic changes. The January 2011 VA neurology consultation states that (muscle) tone was normal, and neither the examiner who provided the December 2011 or the August 2018 examination reported that there was evidence of trophic changes. Regarding sensory disturbances, sensation testing to include vibration, temperature, light touch, and pinprick testing was normal at the time of the January 2011 VA neurology consultation. The examiner who provided the December 2011 VA examination noted that there was decreased sensation to pinprick in the distal feet and diminished vibration sensation in the great toes. In addition, the Veteran reported numbness and tingling at the August 2018 VA examination. The examiner who provided the August 2018 VA examination also reported that the Veteran’s right and left upper anterior thighs were normal, his right lower leg had decreased sensation, his left lower leg had normal sensation, and his right and left feet had decreased sensation. She determined that mild parasthesia, and mild numbness of both the right and left lower extremities. Regarding loss of reflexes, the examiner who provided the December 2011 VA examination noted that the Veteran’s knee and ankle reflexes were normal. The examiner who provided the August 2018 VA examination reported that the Veteran’s right and left knee reflexes were normal, and the Veteran’s right and left ankle reflexes were absent. Regarding pain, the Veteran reported pain at the August 2018 VA examination. The examiner who provided the August 2018 VA examination reported that the Veteran did not experience constant pain but did experience mild intermittent pain. The Veteran’s VA treatment records show complaints of pain associated with his right lower extremity that was due to deep vein thrombosis in April 2016. Based on the above, the Board finds that the Veteran’s disability is primarily manifested by motor function impairment with regard to gait. The Board also acknowledges that the Veteran also experiences mild intermittent pain and mild sensory disturbances. The Board finds, that in this case, the most probative evidence of record is against a finding that the disability was manifested by a moderate disability level for the appellate period. The Board acknowledges that the Veteran has walked with a cane at times, but his gait was noted as normal on the August 2018 VA examination and as steady in VA treatment records. See e.g., April 2016 November 2016 VA treatment records. In addition, pain and sensory disturbances are either absent or noted as mild. Thus, the current disability ratings are consistent with the degree of severity medically graded by the VA examiners, who determined, at worst, the Veteran’s symptoms are mild. The Board finds the December 2011 and August 2018 examinations are persuasive as to the severity level as they are consistent with one another. Without severity greater than mild, the preponderance of the evidence is against a rating in excess of 10 percent throughout the appeal period for left and right lower extremity peripheral neuropathy. Thus, the benefit of the doubt doctrine is not applicable, and a higher rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Effective Date Generally, the effective date of an award is the date after separation from service or date entitlement arose, whichever is later, for claims filed within one year of separation; or the date the claim was received by VA or the date entitlement arose, whichever is later, for claims filed more than one year after separation from service. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155. Although VA has amended the claims filing process to require the filing of proper standard forms, the “informal claim” provisions are the proper application given the time period in which the Veteran’s claim was filed. Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims formal and informal for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 3. An effective date prior to March 11, 2011, for the award of service connection for left lower extremity peripheral neuropathy. 4. An effective date prior to March 11, 2011, for the award of service connection for right lower extremity peripheral neuropathy. The Veteran contends that he is entitled to an earlier effective date for the grant of service connection left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy. A review of the record shows that the Veteran filed a claim of service connection for a stroke/cerebrovascular accident in December 2009 and that he filed a claim of service connection for PTSD in August 2010. In connection with his claim of service connection for PTSD, the Veteran submitted a lay statement in March 2011 stating that he had stroke like symptoms that a VA medical treatment provider explained to him were due to alcohol abuse. A June 2012 rating decision denied service connection for residuals of a stroke. An April 2014 rating decision granted service connection for PTSD with a history of alcohol abuse, assigning a 30 percent disability rating with an effective date of August 18, 2010, the date of the Veteran’s claim for PTSD. The Veteran subsequently appealed the June 2012 rating decision that denied service connection for residuals of a stroke to the Board. A January 2016 Board decision denied the Veteran’s claim of service connection for residuals of a stroke. The Veteran appealed the January 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court), that resulted in a Joint Motion for Partial Remand (Joint Motion). The Joint Motion essentially stated that the evidence of record indicated that the symptoms the Veteran attributed to a stroke may instead be due to his chronic alcohol consumption, and that the Board erred in not addressing that theory of entitlement in the January 2016 Board decision. The Board subsequently granted service connection for bilateral lower extremity peripheral neuropathy in a February 2017 decision based on a finding that Veteran’s bilateral lower extremity peripheral neuropathy could not be disassociated from his service-connected PTSD with alcohol abuse. The RO subsequently granted service connection in a March 2017 rating decision based on the Board’s finding and assigned an effective date of March 11, 2011. In this case, the Board finds that the effective date for entitlement to service connection for left and right lower extremity peripheral neuropathy to be December 4, 2009, as this the date on which the Veteran’s claim of service connection for a stroke was received. Evidence which supported entitlement to service connection arose prior to December 2004. Private medical records received in March 2012 show that the Veteran presented to a private emergency room in November 2009 under the belief that he had a stroke and was evaluated for a gait disturbance. However, the Veteran's claim was not received until December 2009 and as noted, the effective date for service connection claims is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In addition, the Board notes that the Court has held that for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred. See Frost v. Shulkin, 29 Vet. App. 131 (2017). In this case, the March 2017 rating decision granted service connection for bilateral lower extremity peripheral neuropathy because it cannot be reasonably dissociated from the Veteran’s service-connected PTSD with a history of alcohol abuse. Thus, while PTSD is service connected from August 18, 2010, the Board determines that service connection for bilateral peripheral neuropathy is warranted back to the December 4, 2009 claim despite its association with the PTSD for which service connection became effective at a subsequent date. In sum, the Board finds, after resolving all reasonable doubt in the Veteran’s favor, that an effective date of December 4, 2009, is warranted for the award of service left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence is against an even earlier effective date. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.