Citation Nr: 20047599 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 14-38 609 DATE: July 16, 2020 ORDER An initial disability rating of 20 percent from November 5, 2014 to September 26, 2019, for service-connected diabetic peripheral neuropathy of the left lower extremity (femoral nerve) is granted, subject to the regulations governing the payment of monetary awards. An initial disability rating in excess of 20 percent from September 26, 2019, for service-connected diabetic peripheral neuropathy of the left lower extremity (femoral nerve) is denied. An initial disability rating of 10 percent from November 5, 2014 to September 26, 2019, for service-connected right lower extremity radiculopathy (femoral nerve) is granted, subject to the regulations governing the payment of monetary awards. An initial disability rating in excess of 10 percent from September 26, 2019, for service-connected right lower extremity radiculopathy (femoral nerve) is denied. An initial disability rating of 20 percent prior to September 26, 2019, for service-connected diabetic peripheral neuropathy of the right upper extremity (radial nerve) is granted, subject to the regulations governing the payment of monetary awards. An initial disability rating in excess of 20 percent from September 26, 2019, for service-connected diabetic peripheral neuropathy of the right upper extremity (radial nerve) is denied. An initial disability rating of 20 percent prior to September 26, 2019, for service-connected diabetic peripheral neuropathy of the left upper extremity (radial nerve) is granted, subject to the regulations governing the payment of monetary awards. An initial disability rating in excess of 20 percent from September 26, 2019 for service-connected diabetic peripheral neuropathy of the left upper extremity (radial nerve) is denied. An initial disability rating in excess of 10 percent prior to November 5, 2014 for service-connected diabetic peripheral neuropathy of the left lower extremity (sciatic nerve) is denied. An initial disability rating of 20 percent from November 5, 2014 to September 26, 2019, for service-connected diabetic peripheral neuropathy of the left lower extremity (sciatic nerve) is granted, subject to the regulations governing the payment of monetary awards. An initial disability rating in excess of 20 percent from September 26, 2019, for service-connected diabetic peripheral neuropathy of the left lower extremity (sciatic nerve) is denied. An initial disability rating in excess of 10 percent for service-connected diabetic peripheral neuropathy of the right lower extremity (sciatic nerve) is denied. FINDINGS OF FACT 1. From November 5, 2014, but no earlier, the Veteran’s diabetic peripheral neuropathy of the left lower extremity (femoral nerve) has been manifested by moderate incomplete paralysis. 2. From November 5, 2014, but no earlier, the Veteran’s radiculopathy of the right lower extremity (femoral nerve) has been manifested by mild incomplete paralysis. 3. For the entire period on appeal, the evidence of record shows the Veteran’s bilateral upper extremity diabetic peripheral neuropathy has been manifested by mild incomplete paralysis. 4. Prior to November 5, 2014, the Veteran’s diabetic peripheral neuropathy of the left lower extremity (sciatic nerve) was manifested by mild incomplete paralysis. 5. From November 5, 2014, Veteran’s diabetic peripheral neuropathy of the left lower extremity (sciatic nerve) has been manifested by moderate incomplete paralysis. 6. For the entire period at issue, the Veteran’s diabetic peripheral neuropathy of the right lower extremity (sciatic nerve) has been manifested by as mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent, but no higher, from November 5, 2014 to September 26, 2019, for service-connected diabetic peripheral neuropathy of the left lower extremity (femoral nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 2. The criteria for an initial disability rating in excess of 20 percent from September 26, 2019 for service-connected diabetic peripheral neuropathy of the left lower extremity (femoral nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 3. The criteria for an initial disability rating of 10 percent, but no higher, from November 5, 2014 to September 26, 2019, for service-connected right lower extremity radiculopathy (femoral nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 4. The criteria for an initial disability rating in excess of 10 percent from September 26, 2019, for service-connected right lower extremity radiculopathy (femoral nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 5. The criteria for an initial disability rating of 20 percent prior to September 26, 2019, for service-connected diabetic peripheral neuropathy of the right upper extremity (radial nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Codes 8514 and 8515. 6. The criteria for an initial disability rating in excess of 20 percent for service-connected diabetic peripheral neuropathy of the right upper extremity (radial nerve) for the entire period on appeal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Codes 8514 and 8515. 7. The criteria for an initial disability rating of 20 percent prior to September 26, 2019 for service-connected diabetic peripheral neuropathy of the left upper extremity (radial nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Codes 8514 and 8515. 8. The criteria for an initial disability rating in excess of 20 percent for service-connected diabetic peripheral neuropathy of the left upper extremity (radial nerve) for the entire period on appeal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Codes 8514 and 8515. 9. The criteria for an initial disability rating in excess of 10 percent prior to November 5, 2014, for service-connected diabetic peripheral neuropathy of the left lower extremity (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Code 8520. 10. The criteria for an initial disability rating of 20 percent, but no higher, from November 5, 2014 to September 26, 2019, for service-connected diabetic peripheral neuropathy of the left lower extremity (sciatic nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Code 8520. 11. The criteria for an initial disability rating in excess of 20 percent from September 26, 2019, for service-connected diabetic peripheral neuropathy of the left lower extremity (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Code 8520. 12. The criteria for an initial disability rating in excess of 10 percent for service-connected diabetic peripheral neuropathy of the right lower extremity (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1967 to November 1969. The Board of Veterans Appeals (Board) remanded these claims in May 2018 for further development. Following the additional development, the Regional Office (RO) issued a rating decision in April 2020 which separately granted service connection for radiculopathy of the right lower extremity (femoral nerve) and diabetic peripheral neuropathy of the left lower extremity (femoral nerve), rated 10 percent and 20 percent, respectively, both effective September 26, 2019. As these awards were considered ancillary to and inextricably intertwined with the issues on appeal, they will also be addressed herein. The April 2020 rating decision also granted increased disability ratings of 20 percent for the Veteran’s diabetic peripheral neuropathy of the left lower extremity (sciatic nerve) as well as the left and right upper extremities (radial nerves), effective September 26, 2019. The increased ratings constitute only a partial grant of benefits, and therefore the issues remain on appeal and are for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. Entitlement to increased initial disability ratings for service-connected bilateral upper and lower extremity diabetic peripheral neuropathy and radiculopathy The Veteran contends he is entitled to increased initial disability ratings rating for his service-connected left and right upper and lower extremity diabetic peripheral neuropathy and radiculopathy of the sciatic, radial and femoral nerves. Diseases of the peripheral nerves are rated under 38 C.F.R. § 4.124a. Diagnostic Codes 8514-8519 apply to complete or incomplete paralysis of the specific nerves: musculospiral (radial) nerve (Diagnostic Code 8514), median nerve (Diagnostic Code 8515), ulnar nerve (Diagnostic Code 8516), musculocutaneous nerve (Diagnostic Code 8517), circumflex nerve (Diagnostic Code 8518), and long thoracic nerve (Diagnostic Code 8519). Under Diagnostic Code 8514, a 20 percent disability rating is warranted for mild incomplete paralysis of either upper extremity. Moderate incomplete paralysis warrants a 20 percent rating for the minor upper extremity, and a 30 percent rating for the major upper extremity; and severe incomplete paralysis warrants a 40 percent disability rating for the minor extremity and a 50 percent disability rating for the major upper extremity. 38 C.F.R. § 4.124a. A 60 percent disability rating is warranted for complete paralysis of the radial nerve involving the minor upper extremity, and a 70 percent disability rating is warranted if there is complete paralysis of the major upper extremity. Id. Diagnostic Code 8515 relates to impairment of the median nerve and provides that a 10 percent disability evaluation is assigned for mild, incomplete paralysis of the median nerve of the minor or major hand. Moderate incomplete paralysis of the major hand warrants a 30 percent evaluation. Moderate incomplete paralysis of the minor hand warrants a 20 percent evaluation. Severe incomplete paralysis of the major hand warrants a 50 percent evaluation. Severe incomplete paralysis of the minor hand warrants a 30 percent evaluation. Complete paralysis of the major hand warrants a 70 percent evaluation. Complete paralysis of the minor hand warrants a 60 percent evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. Id. Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 disabling. Complete paralysis of quadriceps extensor muscles is rated as 40 percent disabling. Id. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Turning to the evidence of record, at an October 2010 VA examination, the Veteran described his present symptoms of neuropathy as tingling and numbness in both feet along with pain in the soles especially when he walked more than two miles. He also could not stand for more than one half hour. These symptoms had been occurring for the last two years. Additionally, in the upper extremities, the Veteran indicated he was a right-handed person. He reported tingling and numbness in the fingers of both hands with occasional pain. He was unable to open a jar for the last year or so. Lastly, the Veteran indicated he took Vicodin for his pain symptoms throughout the day. The Veteran was diagnosed with diabetic peripheral neuropathy of the bilateral upper and lower extremities and it was found to be related to his service-connected diabetes mellitus. See October 2010 VA examination. In his November 2014 VA Form 9, substantive appeal, the Veteran reported that his disabilities affected his ability to walk, stand, grab and hold items. He also described chronic numbness, tingling and weakness in all of extremities and noted that his heel dragged when he walked. Additionally, the Veteran indicated suffering from a drop foot condition that was a symptom of his neuropathy worsening in his lower extremities. In May 2018, the Board remanded the Veteran’s claim, in pertinent part, for an updated examination, noting that the Veteran had reported an increase in the severity of his service-connected conditions in his November 2014 VA Form 9. An updated VA examination was performed in September 2019. The VA examiner diagnosed the Veteran with diabetic peripheral neuropathy of the bilateral upper and lower extremities. The Veteran’s current symptoms were noted to include burning pain, paresthesias, numbness of the upper and lower extremities, fatigue in the legs, fine tremor in the hands, and a complaint of “foot drop” that sometimes affected his gait. Symptoms including mild bilateral lower extremity pain and moderate intermittent paresthesias and/or dysesthesias and numbness with mild intermittent bilateral upper extremity pain, paresthesias and/or dysesthesias and numbness with moderate intermittent pain in the bilateral lower extremities were also documented on examination. A neurological examination showed normal muscle strength with no muscle atrophy. The Veteran was also noted to have trophic changes including loss of hair on his legs with shiny skin. The severity of the Veteran’s upper extremity diabetic peripheral neuropathy was found to be manifested by mild incomplete paralysis on the left and right sides. The Veteran’s lower extremity diabetic peripheral neuropathy (sciatic nerve and femoral nerve) was found to be manifested by mild incomplete paralysis on the right side and moderate incomplete paralysis on the left side. Other pertinent physical findings, including fatigue in the legs and tremors in the hands, were noted. Functionally, it was reported that the Veteran had difficulty walking for more than short distances and had a wide based gait. Overall, the severity of the Veteran’s neuropathy in the upper extremities was found to be mild and moderate in the lower extremities. See September 2019 VA examination. Finally, the Veteran’s VA treatment records have been reviewed. They show that the Veteran is noted to have neuropathy associated with his diabetes mellitus, but do not otherwise contain any relevant medical evidence relating to the nature and severity of his service-connected diabetic peripheral neuropathy and radiculopathy of the upper and lower extremities. See VA treatment records received in January 2019 and see VA treatment records received in September 2019. As discussed in the Introduction, based on the medical evidence reported in the September 2019 VA examination, the Veteran was noted to have right lower extremity radiculopathy (femoral nerve) that was found to be most analogous to mild incomplete paralysis and he also had left lower extremity peripheral neuropathy (femoral nerve) that was found to be most analogous to moderate incomplete paralysis. Accordingly, he was separately granted service connection for radiculopathy of the right lower extremity (femoral nerve) and diabetic peripheral neuropathy of the left lower extremity (femoral nerve), rated 10 percent and 20 percent, respectively, both effective September 26, 2019, the date of the VA examination. However, in giving the Veteran’s contentions reported in his November 5, 2014 VA Form 9, the benefit of the doubt, the Board finds the symptoms confirmed by the September 2019 VA examination likely existed at the time of his November 2014 correspondence. Notably, the September 2019 VA examination was obtained as a result of the symptoms reported by the Veteran in his VA Form 9, which included difficulty walking and standing as well as chronic numbness, tingling and weakness in all his extremities. See VA Form 9. These symptoms suggest the Veteran was suffering from bilateral extremity radiculopathy/peripheral neuropathy from this earlier date. However, for the entire period on appeal, there is no medical evidence to suggest that the Veteran’s symptoms associated with his right lower extremity more closely approximated moderate incomplete paralysis. Similarly, there is no suggestion that his left lower extremity symptoms more closely approximated severe incomplete paralysis in which to warrant increased disability ratings, respectively. Accordingly, while the Board finds that service connection/separate ratings are warranted as of November 5, 2014, the date the VA Form 9 was received, initial ratings higher than those already assigned under Diagnostic Code 8526 are not warranted for the Veteran’s right lower extremity radiculopathy and left lower extremity peripheral neuropathy (femoral nerves). Regarding the Veteran’s bilateral upper extremity peripheral neuropathy (radial nerve), for the entire period on appeal, the Board finds that the Veteran’s bilateral upper extremity peripheral neuropathy includes symptoms of tingling and numbness in the fingers of both hands with occasional pain. Specifically, the Veteran is unable to open a jar. Moreover, the Veteran described an inability to grab and hold items in 2014. These symptoms describe a mild incomplete paralysis of the bilateral upper extremities. Additionally, at the September 2019 VA examination, the Veteran’s upper extremity peripheral neuropathy was characterized as mild incomplete paralysis. The Board observes that prior to September 2019, the Veteran’s bilateral radial nerves were rated under Diagnostic Code 8515, which warrants a 10 percent rating for mild incompletely paralysis. However, under Diagnostic Code 8514, mild incomplete paralysis is afforded a 20 percent disability rating. The evidence of record shows consistent mild incomplete paralysis of the Veteran’s bilateral upper extremity peripheral neuropathy, which is more favorably rated as 20 percent under Diagnostic Code 8514. Therefore, for the entire period at issue, the Veteran’s bilateral upper extremity peripheral neuropathy warrants a 20 percent disability rating. However, as there has been no objective evidence suggesting a worsening of the symptomatology rising to the level of moderate incomplete paralysis of the major extremity or severe incomplete paralysis of the minor extremity for the entire period at issue, a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8514. In so finding, the Board acknowledges there is evidence to suggest a disability of the ulnar nerve. However, only one nerve evaluation is allowable for each upper extremity. A rating under the ulnar nerve diagnostic code would not provide a higher evaluation. 38 C.F.R. § 4.120, 38 C.F.R. § 4.124a. Lastly, the medical evidence of record shows that for the entire period on appeal, the Veteran’s right lower extremity peripheral neuropathy (sciatic nerve) has been described as a mild impairment. As noted above, neurological findings at the October 2010 VA examination showed tingling and numbness in both feet along with pain in the soles of the feet, especially when walking more than two miles. While the examiner did not opine as to the overall severity of the bilateral disabilities, the description of pain more closely approximates mild impairment of neuropathy in the right and left lower extremities. Additionally, the September 2019 VA examination confirmed the presence of mild incomplete paralysis on the left lower extremity. There is simply no evidence to support a finding that the disability more closely approximates a moderate incomplete paralysis in order to warrant a higher rating of 20 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Continued on the next page)   As for the Veteran’s left lower peripheral neuropathy (sciatic nerve), the evidence of record shows that prior to November 5, 2014, the date the Veteran’s VA Form 9 was received, the totality of the evidence supports a 10 percent disability rating but not higher. As discussed directly above, the October 2010 VA examination confirmed the existence of mild incomplete paralysis of the left lower extremity, but not moderate. However, beginning with the Veteran’s November 2014 VA Form 9, the record shows evidence of worsening of the left lower extremity. At that time, the Veteran described a drop foot condition as well as numbness and tingling with weakness in all extremities. The presence of a drop foot condition, first reported in 2014, was confirmed by VA examination in September 2019 at which time the examiner described the Veteran’s left lower extremity neuropathy as moderate incomplete paralysis, evidencing worsening of the disability. There was no evidence, however, to suggest the disability rose to the level of moderately severe paralysis of the sciatic nerve in order to warrant a higher disability evaluation of 40 percent after November 5, 2014. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.