Citation Nr: 20047992 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 10-31 460 DATE: July 17, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity prior to December 3, 2008 and in excess of 30 percent thereafter is denied. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity prior to December 3, 2008 and in excess of 30 percent thereafter is denied. REMANDED Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for a skin disorder is remanded. FINDINGS OF FACT 1. Prior to December 3, 2008, the Veteran’s bilateral lower extremity peripheral neuropathy was manifested by no more than mild incomplete paralysis. 2. Since December 3, 2008, the Veteran’s bilateral lower extremity peripheral neuropathy has not been manifested by complete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity prior to December 3, 2008 and in excess of 30 percent thereafter are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes (DCs) 8599-8521. 2. The criteria for an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity prior to December 3, 2008 and in excess of 30 percent thereafter are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DCs 8599-8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1967 to October 1969, including service in the Republic of Vietnam for which he was awarded the Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) from February 2008 and November 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In this regard, new and material evidence was associated with the record in relation to the peripheral neuropathy claims in December 2008, within one year of the February 2008 rating decision awarding service connection, and the January 2010 rating decision, which the Veteran ultimately appealed, did not consider whether such evidence was new and material. Thus, the Veteran’s initial rating is before the Board. The Board remanded the appeal in March 2016 to afford the Veteran a hearing, which was conducted before the undersigned Veterans Law Judge in March 2018. In May 2018, the Board remanded the claims for further development. Increased Rating 1. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity prior to December 3, 2008 and in excess of 30 percent thereafter is denied. 2. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity prior to December 3, 2008 and in excess of 30 percent thereafter is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s right and left lower extremity radiculopathy is currently rated under the provisions of DCs 8599-8521. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. Pursuant to DC 8520, which contemplates paralysis of the sciatic nerve, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis with marked muscle atrophy; and a maximum 80 percent rating is assigned for complete paralysis, manifested by: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. Pursuant to DC 8521, which contemplates paralysis of the external popliteal (common peroneal) nerve, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 30 percent rating is assigned for severe incomplete paralysis; and a maximum 40 percent rating is assigned for complete paralysis, manifested by foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of the toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, DC 8521. In applying the schedular criteria for rating peripheral nerve disabilities, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Words such as “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. By way of background, a February 2008 rating decision awarded service connection for bilateral lower extremity peripheral neuropathy and assigned 10 percent ratings, effective February 27, 2007, under Diagnostic Code 8520 (sciatic nerve). A January 2010 rating decision increased the ratings to 20 percent, effective October 20, 2009, and a May 2010 rating decision changed the effective date to December 3, 2008. A June 2013 rating decision increased the ratings to 30 percent, effective December 3, 2008, under Diagnostic Code 8521 (common peroneal nerve). The current appeal period before the Board begins on February 27, 2007, the effective date of service connection. The Board notes that in January 2020, the Veteran was assigned separate 10 percent ratings for peripheral neuropathy of the bilateral femoral (anterior crural) nerves, effective October 15, 2019. Should the Veteran wish to appeal the ratings or effective dates assigned, he is encouraged to file an appeal on the appropriate form. A January 2008 VA examination report shows the Veteran’s report of loss of sensation and pain in his legs and feet. The examiner noted trophic changes, including thin skin and absent hair on the Veteran’s lower extremities, and found no ulcers, decreased dorsalis pedis and posterior tibial pulses, mildly decreased monofilament sensation in the left lower extremity and normal sensation in the right lower extremity. Reflex testing was normal (2+) bilaterally. A nerve conduction study revealed mild motor axonal peripheral neuropathy in both lower extremities. In February 2008, nerve conduction studies showed low amplitude for right and left posterior tibial nerve and motor nerve, while all other motor and sensory nerves studied were normal. Needle electromyography showed normal insertional activity, no abnormal spontaneous activity, normal motor-unit action potential with adequate recruitment pattern in all muscles studied. Such findings were compatible with mild motor, mostly axonal peripheral neuropathy. See February 2008 private treatment record. At the December 3, 2008 VA examination, the Veteran reported symptoms of paresthesias, loss of sensation, constant numbness, as well as tingling discomfort and pain in both feet, reporting that his symptoms were worse since his January 2008 VA examination. Upon physical examination, mottled color, absent hair, dystrophic nails, decreased dorsalis pedis and posterior tibial pulses, and hyperpigmented trophic changes in distal tibia were noted bilaterally, but there were no ulcers and temperature was normal. There was no motor loss, but the examiner found decreased to absent monofilament sensation in both feet. Reflex testing was normal (2+) in the bilateral knees and decreased (1+) in the bilateral ankles. On VA examination in December 2009, the Veteran described numbness, weakness, dysesthesias, and burning pain in his legs. Muscle strength testing showed no movement against resistance (3/5) in the bilateral lower extremities and the Veteran was unable to tip-toe or heel. There was no evidence of muscle atrophy. The Veteran was found to have absent sensation from the knees down as well as absent (0) reflexes in the bilateral knees and ankles but had normal plantar flexion. An October 2019 VA examination report shows moderate symptoms of constant pain, intermittent pain, paresthesias and/or dysesthesia, and numbness in the bilateral lower extremities. Muscle strength testing was normal (5/5) in the bilateral knees and ankles, and reflex testing showed absent (0) reflexes. Light touch/monofilament testing was found to be normal bilaterally in the knee/thigh and ankle/lower leg but decreased in the foot/toes. Position sense was normal bilaterally, vibration sensation was absent in the left lower extremity, and cold sensation was decreased bilaterally. There was no evidence of muscle atrophy. Trophic changes were noted, including loss of body hair, shiny pretibial, and discoloration in the lower extremities. The examiner indicated that the Veteran had incomplete paralysis of the sciatic and femoral nerves and characterized them as moderate and mild, respectively. Upon review of the totality of the record, the Board finds that ratings in excess of 10 percent are not warranted at any point prior to December 3, 2008, because contemporaneous examination reports and treatment records do not indicate signs or symptoms of moderately or severe incomplete paralysis in either the left or right lower extremity. Instead, the findings, including EMG testing results, are demonstrative of mild incomplete paralysis of each lower extremity since the beginning of the appeal period. Therefore, ratings higher than 10 percent are not available for the period prior to December 3, 2008. Since December 3, 2008, the record does not support evidence of complete paralysis of the common peroneal nerve or symptoms manifested by foot drop and slight droop of first phalanges of all toes, inability to dorsiflex the foot, extension of proximal phalanges of the toes lost or abduction of foot lost and adduction weakened or anesthesia covering entire dorsum of foot and toes, to warrant a higher 40 recent rating. Accordingly, ratings in excess of 30 percent for left and right lower extremity peripheral neuropathy are not warranted. The Board acknowledges that the October 2019 VA examiner identified involvement of the bilateral sciatic nerve instead of the common peroneal nerve. However, separate compensable ratings are not warranted for this nerve branch, as it would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The evidence shows that the Veteran’s neuropathy is manifested by numbness, tingling, and pain in his lower extremities and have the same functional effects. Therefore, separate ratings for the sciatic nerves, in addition to that already assigned for the common peroneal nerves, would doubly compensate the Veteran for the same symptomatology and thus result in pyramiding. The symptom cluster, anatomical location, and effects of the disabilities overlap and do not constitute separate and distinct manifestations of a disability warranting separate ratings. Moreover, to rate the Veteran under DC 8520 for paralysis of the sciatic nerve as opposed to 8521 would not benefit him, as the October 2019 VA examiner indicated the severity to be moderate, which when applied to DC 8520 would result in a lower rating of 20 percent. Thus, ratings higher than 30 percent are precluded from December 3, 2008. REASONS FOR REMAND 3. Entitlement to service connection for a respiratory disorder is remanded. 4. Entitlement to service connection for a skin disorder is remanded. Remand is warranted, as the October 2019 VA examiners’ opinions are inadequate. Specifically, both examiners did not address the Veteran’s lay statements and did not provide sufficient rationales in support of their opinion. Thus, addendum opinions are necessary on remand. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then refer the claims file to an examiner other than the October 2019 VA examiner for preparation of an addendum opinion as to the etiology of the Veteran’s respiratory disorder. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s asthma had its onset in or is otherwise related to service, to include as a result of conceded herbicide agent exposure therein. In addressing this question, the examiner must discuss and assume as true the Veteran’s reports of respiratory problems in service (inability to breathe) when routinely exposed to chemicals in service by way of diesel fuel, ammunition powder, mortars, and explosions (see Board Hearing Transcript at 5-7), and determine, based on the same, whether a nexus between the Veteran’s respiratory disease and service is “medically plausible.” The Veteran’s statements may not be discounted solely on the lack of confirmation in the medical records. Moreover, the examiner may not discount a nexus to herbicide agent exposure in service solely based on the fact that presumptive service connection is not available for the condition. If the Veteran’s reported history is discounted, the examiner must provide a reason for doing so. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for this conclusion. 4. Then refer the claims file to an examiner other than the October 2019 VA examiner for preparation of an addendum opinion as to the etiology of the Veteran’s skin disorder. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should: (a). Identify all skin conditions diagnosed since November 2012, including vitiligo and dermatophytosis of the feet and nails. See CAPRI records. (b). For each skin disorder identified, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in or is otherwise related to service, to include as a result of the documented August 1969 shaving rash, June 1974 athletes foot, and/or from conceded herbicide agent exposure therein. Please assume as true and discuss the Veteran’s reports of a skin rash under the left arm and groin that has been present since 1969, and discuss whether a nexus between the Veteran’s skin disorder and service is “medically plausible,” given the same. Please do not rely solely on lack of documentation in the medical records and/or the fact that presumptive service connection is not available for the condition in rendering any opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for this conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.