Citation Nr: 20028337 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 15-22 363 DATE: April 22, 2020 ORDER From July 30, 2010 to May 8, 2012, entitlement to a rating of 20 percent for peripheral neuropathy of the right lower extremity is granted. From May 9, 2012 to May 13, 2019, entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is denied. From May 14, 2019, entitlement to a rating in excess of 30 percent for peripheral neuropathy of the right lower extremity is denied. From July 30, 2010 to May 8, 2012, entitlement to a rating of 30 percent for peripheral neuropathy of the left lower extremity is granted. From May 9, 2012, entitlement to a rating in excess of 30 percent for peripheral neuropathy of the left lower extremity is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From July 30, 2010 to May 13, 2019, the Veteran’s peripheral neuropathy of the right lower extremity is manifest by no more than moderate incomplete paralysis. 2. From May 14, 2019, the Veteran’s peripheral neuropathy of the right lower extremity is manifest by no more than severe incomplete paralysis. 3. From July 30, 2010, the Veteran’s peripheral neuropathy of the left lower extremity is manifest by no more than severe incomplete paralysis. CONCLUSIONS OF LAW 1. From July 30, 2010 to May 8, 2012, the criteria for entitlement to a rating of 20 percent, but no higher, for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521. 2. From May 9, 2012 to May 13, 2019, the criteria for entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521. 3. From May 14, 2019, the criteria for entitlement to a rating in excess of 30 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521. 4. From July 30, 2010 to May 8, 2012, the criteria for entitlement to a rating of 30 percent, but no higher, for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521. 5. From May 9, 2012, the criteria for entitlement to a rating in excess of 30 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2007 to June 2007 and from May 2009 to July 2010. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. This matter was previously remanded by the Board in December 2018 for further development, specifically requesting the Agency of Original Jurisdiction (AOJ) to schedule and obtain a VA examination to determine the current severity of the Veteran’s conditions. The VA examination took place in June 2019. Thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates “staged ratings” where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, “staged ratings” are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). As a preliminary matter, the Veteran has contended that he should be rated under Diagnostic Code (DC) 8620 because every single branch of the sciatic nerve in his right and left lower extremity is damaged. See November 2019 Correspondence. However, the June 2019 VA examiner indicated the Veteran’s sciatic nerve in both the right and left lower extremity is normal. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily-observable disabilities. 38 U.S.C. § 1153(a) (2018); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to diagnose his own medical condition. The Board does not find the Veteran competent to opine about the severity of his nerve damage as it is medically complex and not something that can be readily observed. Therefore, rating the Veteran under this DC is inappropriate as the Board gives more weight to the opinion of the June 2019 VA examiner that the Veteran’s sciatic nerve is normal. Diagnostic Code 8521 provides the rating criteria for paralysis of the external popliteal (common peroneal) nerve. Mild incomplete paralysis of the external popliteal nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the external popliteal nerve. A 30 percent rating requires severe incomplete paralysis of the external popliteal nerve. A 40 percent rating requires complete paralysis. When there is complete paralysis, the foot drops and there is a slight droop of the first phalanges of all toes, cannot dorsiflex the foot extension (dorsal flexion) of proximal phalanges of toes lost; adduction weakened; and anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a. 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 note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124 (a). The Board has considered evaluating the Veteran’s disability under 38 C.F.R. § 4.124a , Diagnostic Codes 8520-8530, which provides for evaluation of the sciatic nerve, musculocutaneous nerve (superficial peroneal), anterior tibial nerve (deep peroneal), internal popliteal nerve (tibial), posterior tibial nerve, anterior crural nerve (femoral), internal saphenous nerve, obturator nerve, external cutaneous nerve of thigh, and ilio-inguinal nerve. However, the separate evaluation of these nerves is prohibited under the rule against pyramiding. See 38 C.F.R. § 4.14. Also, 38 C.F.R. § 4.124a, Diagnostic Code 8521 provides for the highest evaluation in favor of the Veteran, and the Board has a duty to maximize benefits. Thus, the Board will not assign these diagnostic codes. 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). 1. From July 30, 2010 to May 8, 2012, entitlement to a rating of 20 percent for peripheral neuropathy of the right lower extremity is granted. The Veteran contends that his service-connected peripheral neuropathy of his right lower extremity is more disabling for the above-mentioned time period, than its current 10 percent rating. The Veteran underwent a VA examination in August 2010. The VA examiner noted the Veteran’s right lower extremity exhibited 5/5 strength. He indicated the Veteran felt as though there are insects crawling on the soles of bilateral feet and that he felt an irregular painful pulsation with walking. The Veteran could not walk barefoot especially on uneven surfaces as it was painful for him. With thick soles in his shoes, the Veteran was able to walk 2 to 3 miles at one time but with discomfort and with numbness in his feet. Sensory examination revealed decreased sensation to light touch temperature pinprick on bilateral feet . There was also mild decreased of vibratory sense on bilateral big toes. Knee jerks were 1+ bilaterally, ankle jerks 0 and toes are down-going. October 2010 private treatment records indicated the Veteran’s level of pain was tolerable until running one and a half miles or walking more than 30 minutes. The Veteran had decreased balance and lower body weakness distally. In June 2012, the Veteran underwent another VA examination. The VA examiner noted that lower extremity range of motion strength and sensation was full and the Veteran’s symptoms were remarkably similar in severity to the symptoms in his previous VA examination in 2010. Therefore, the Board finds the Veteran is entitled to the increased rating of 20 percent to extend back to July 30, 2010. The increase is granted. A 30 percent rating requires severe incomplete paralysis of the external popliteal nerve which is not demonstrated by the record and a rating in excess of 20 percent is not warranted for this period. 2. From May 9, 2012 to May 13, 2019, entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is denied. In September 2012, the Veteran underwent a nerve conduction study. In December 2018, the Board remanded this Veteran’s claims in order for a VA examiner to explain the results of that study and the nerves affected by the peripheral neuropathy. In June 2019, that VA examination took place. The June 2019 VA examiner indicated the doctor who performed the September 2012 nerve study found right tibial neuropathy. The June 2019 VA examiner indicated she does not find the sciatic nerve is affected, but rather the tibial nerve as it branches off the sciatic nerve and come down the leg into the foot. The May 2019 examiner further indicated the right lower extremity was affected to a lesser extent in 2012, and that at the present time, the right and left lower extremity are quite comparable. As the examiner indicated the right lower extremity was not as severe as it is now, the Board finds a moderate rating is appropriate. The Board has considered evaluating the Veteran’s disability under 38 C.F.R. § 4.124a , Diagnostic Codes 8520-8530, which provides for evaluation of the sciatic nerve, musculocutaneous nerve (superficial peroneal), anterior tibial nerve (deep peroneal), internal popliteal nerve (tibial), posterior tibial nerve, anterior crural nerve (femoral), internal saphenous nerve, obturator nerve, external cutaneous nerve of thigh, and ilio-inguinal nerve. However, Diagnostic Code 8521 provides for highest evaluation under for moderate incomplete paralysis and the Board has a duty to maximize benefits in favor of the Veteran. The increase is denied. 3. From May 14, 2019, entitlement to a rating in excess of 30 percent for peripheral neuropathy of the right lower extremity is denied. The RO granted a 30 percent rating with an effective date of May 14, 2019 in the October 2019 rating decision. As that grant was a partial grant of the benefit sought on appeal and the Veteran is presumed to be seeking the maximum rating, the Board will address entitlement to a rating in excess of 30 percent below. From May 9, 2012, the evidence does not support a higher rating of 40 percent as the evidence does not show complete paralysis of the external popliteal nerve. (38 C.F.R. § 4.120, 38 C.F.R. § 4.14a). The June 2019 VA examination showed a severe level of impairment and incomplete paralysis of popliteal nerve. The VA examiner questioned whether the Veteran had developed mild foot drop as a result of the severe impairment, however foot drop results from complete paralysis of the nerve. The examiner indicated the nerve paralysis was incomplete but severe. Thus, a higher rating of 40 percent is not appropriate. Although the posterior tibial, external popliteal, musculocutaneous, anterior tibial and internal popliteal nerves were shown to be affected, only one evaluation is allowable. The rating is based on the highest rated nerve. 38 CFR 4.14, Hart, supra. 4. From July 30, 2010 to May 8, 2012, entitlement to a rating of 30 percent for peripheral neuropathy of the left lower extremity is granted. The Veteran contends that his service-connected peripheral neuropathy of his left lower extremity was more disabling for the above-mentioned time period, than its current 10 percent rating. The Veteran underwent a VA examination in August 2010. The VA examiner noted the Veteran’s left lower extremity exhibited 5/5 strength. He indicated the Veteran felt as though there are insects crawling on the soles of bilateral feet and that he felt an irregular painful pulsation with walking. The Veteran could not walk barefoot especially on uneven surfaces as it was painful for him. With thick soles in his shoes, the Veteran was able to walk 2 to 3 miles at one time but with discomfort and with numbness in his feet. October 2010 private treatment records indicated the Veteran’s level of pain was tolerable until running one and a half miles or walking more than 30 minutes. The Veteran had decreased balance and lower body weakness distally. In June 2012, the Veteran underwent another VA examination. The VA examiner noted the Veteran’s symptoms are remarkably similar in severity to the symptoms in his previous VA examination in 2010. Therefore, the Board finds the Veteran is entitled to the increased rating of 30 percent to extend back to July 30, 2010. The increase is granted. 5. From May 9, 2012, entitlement to a rating in excess of 30 percent for peripheral neuropathy of the left lower extremity is denied. The RO granted a 30 percent rating with an effective date of May 9, 2012 in the October 2019 rating decision. As that grant was a partial grant of the benefit sought on appeal and the Veteran is presumed to be seeking the maximum rating, the Board will address entitlement to a rating in excess of 30 percent below. From May 9, 2012, the evidence does not support a higher rating of 40 percent as the evidence does not show complete paralysis of the external popliteal nerve. (38 C.F.R. § 4.120, 38 C.F.R. § 4.14a). The June 2019 examination showed a severe level of impairment with incomplete paralysis. The VA examiner questioned whether the Veteran had developed mild foot drop as a result of the severe impairment, however foot drop results from complete paralysis of the nerve. The examiner indicated the nerve paralysis was incomplete but severe. Thus, a higher rating of 40 percent is not appropriate. Hart, supra. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. During the pendency of the appeal, the Veteran has stated he seeks a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) in relation to his claim for an increased rating for ¬¬¬¬-peripheral neuropathy of his right and left lower extremities. See November 2019 Correspondence. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. As, the claim for TDIU has not been developed, it will be remanded for development and adjudication by the Agency of Original Jurisdiction (AOJ). The matters are REMANDED for the following action: 1. Issue a notice letter that includes an explanation as to the information and evidence needed to establish a claim for TDIU. (Continued on the next page)   2. Send the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based Upon Unemployability, and request that he complete it in its entirety. 3. Request and obtain from the Social Security Administration (SSA) all documents pertaining to any application by the Veteran for SSA disability benefits, including any decisions and/or determinations, and all supporting medical documentation utilized in rendering any decision or determination. Any negative search results should be noted in the record and communicated to the Veteran. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.