Citation Nr: 21000869 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-11 833 DATE: January 6, 2021 ORDER Entitlement to an initial rating of 30 percent, but no higher, for mixed polyneuropathy of the left lower extremity from October 3, 2007 to May 29, 2015 is granted. Entitlement to a rating in excess of 30 percent since May 29, 2015 for mixed polyneuropathy of the left lower extremity is denied. Entitlement to an initial rating of 30 percent, but no higher, for mixed polyneuropathy of the right lower extremity from October 3, 2007 to May 29, 2015 is granted. Entitlement to a rating in excess of 30 percent since May 29, 2015 for mixed polyneuropathy of the right lower extremity is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s mixed polyneuropathy of the bilateral lower extremities has manifested to consistent pain, numbness, and tingling, that has significantly impaired his mobility and required the use of crutches, braces, and/or a wheelchair to move. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent, but no higher, for mixed polyneuropathy of the right lower extremity from October 3, 2007 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.124a, Diagnostic Code 8521. 2. The criteria for an initial rating of 30 percent, but no higher, for mixed polyneuropathy of the right lower extremity from October 3, 2007 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.124a, Diagnostic Code 8521. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1976 to January 1983. The claims were brought before the Board in October 2015, August 2019, and May 2020 and were remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. When 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 a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an Increased Rating: Mixed Polyneuropathy The Veteran’s mixed polyneuropathy of the bilateral lower extremities is currently rated as 10 percent disabling prior to May 20, 2013, 20 percent disabling thereafter, and 30 percent disabling from May 29, 2015 under Diagnostic Code (DC) 8521 for the External Popliteal Nerve. Under Diagnostic Code 8521, a non-compensable rating is assigned for mild to moderate complete paralysis, a 20 percent rating is assigned for moderate incomplete paralysis, 30 percent for severe incomplete paralysis, and 40 percent is provided for complete paralysis, foot drop or and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, DC 8521. The Board notes that the terms “mild,” “moderate” and “severe” are not defined. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as “mild” or “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In March 2007, the Veteran was seen at the VA medical center for his bilateral lower extremity neuropathy. The Veteran complained of pain in his feet and legs. He reported needing a walker to help with his ambulation. He reported falling recently and being scheduled to receive crutches. The Veteran stood up from his wheelchair slowly due to stiffness in his legs. He was able to stand stooped steadily and continued to walk in a stooped posture. He braced his walk by holding things. Pain and weakness were noted in the lower extremities. In October 2007, the Veteran was seen again at the VA medical center. The Veteran was noted as having polyneuropathy, peripheral neuropathy. The Veteran reported needing crutches to walk around his home and short distances. He reported using mostly a manual wheelchair in the community but has difficulty going up hills. He reported being very limited in his outdoor activities. His primary complaint was left and right foot drop/turn in walking. In July 2011, the Veteran was seen by his private physician. The Veteran reported bilateral foot pain. He had pain getting up after prolonged sitting, numbness, tingling, and weakness in both legs. He reported the pain forces him to change activities. Weight bearing and walking were noted as making it worse. He reported difficulty with shoes and socks. Bilateral foot drop was noted. The Veteran’s bilateral lower extremities had sensation to light touch intact. Peripheral pulses were normal. The Veteran did have severe ankle spasms bilaterally. In May 2013, the Veteran submitted an opinion and evaluation from his private physician. The physician noted the Veteran has neuropathy that takes form in painful sensitivity in the bilateral lower extremities, with paresthesias that is described as numbness and tingling. Upon examination, the Veteran was noted as ambulating four-point gait with Lofstrand crutches for short distances. He ambulated with hand holds to his power wheelchair across the room. He had 3+ patellar reflexes bilaterally and diminished achilles reflexes bilaterally. He was acutely sensitive to light touch sensation in the right foot greater than left. Nerve conduction studies on the bilateral lower extremities showed he was absent sural sensory responses bilaterally, with the right greater than the left. He also had diminished amplitude, and peroneal motor responses distally with prolongation in latency. In May 2013, the Veteran was also provided a VA examination. The Veteran reported numbness and a hot needle sticking him feeling. He reported having a too hot or too cold issue when putting his legs and feet in water, despite feeling the appropriate temperature in his upper body. He reported numbness from the hips down at times, but the majority is from his knees and below. He reported having surgery because he had severe drop foot in both feet. He uses braces and reported his condition causes him to scissor walk. He reported needing to use crutches and being able to walk 100 feet to 150 feet with them. He reported not being able to stand very long. The Veteran was noted as having edema in the bilateral lower extremities. The Veteran had weakness or paralysis, paresthesia, and numbness. The Veteran’s feet had swelling and tenderness. He had decreased light touch sensation below knees bilaterally and decreased vibratory sense. The Veteran’s muscle tone was noted as spastically in the lower extremities. In May 2015, the Veteran was provided another VA examination. The Veteran was noted as having mixed polyneuropathy. The Veteran reported persistent burning in the feet, left worse than right, as well as spasticity and weakness. He was noted as requiring braces and crutches to ambulate. The Veteran’s symptoms were noted as moderate constant pain bilaterally, severe intermediate pain bilaterally, moderate paresthesias bilaterally, and moderate numbness bilaterally. The Veteran did have muscle atrophy in his quadriceps. The Veteran did have tropic changes in the form of loss of extremity hair. The Veteran’s gait was abnormal and described as slow and weak. The nerves affected were characterized as incomplete paralysis of the external popliteal nerve bilaterally, which was noted as severe, incomplete paralysis of the musculocutaneous nerve, noted as moderate bilaterally, incomplete paralysis of the anterior tibial nerve, noted as moderate bilaterally, incomplete paralysis of the internal popliteal nerve, noted as moderate bilaterally, and incomplete paralysis of the posterior tibial nerve, noted as moderate bilaterally. The Veteran was noted as needing constant use of braces and crutches, as well as occasional use of a wheelchair. In December 2019, the Veteran was provided a VA examination. The Veteran reported decreased sensation over the sural nerve distribution. The Veteran had tropic changes in the form of loss of terminal hair and thin skin. The Veteran’s gait was abnormal, antalgic, and uncoordinated with scissoring. The nerves affected were incomplete paralysis of the external popliteal nerve, noted as severe bilaterally, incomplete paralysis of the posterior tibial nerve, noted as moderate bilaterally, and incomplete paralysis external cutaneous nerve of the thigh, noted as mild bilaterally. The Veteran was noted as occasionally needing the use of a wheelchair, braces, cane, and a walker. The examiner noted the Veteran had hyperreflexia and spastic movements of the bilateral lower extremities, including scissoring of his gait. EMG studies show left sural response delayed across the ankle and both tibial nerves show prolonged distal latencies across the ankle possibly entrapment. In May 2020, a VA opinion was obtained regarding whether the Veteran’s mixed polyneuropathy has separate symptoms for each nerve and/or are separate disabilities. The examiner opined that a separate impairment for each of the affected nerves is not possible because the nerve impairment and symptoms overlap multiple nerves of the bilateral lower extremities. The examiner explained the Veteran has been diagnosed with mixed peripheral polyneuropathy by his treating neurologist. The examiner stated this is a non-specific, diffuse peripheral nerve disorder that is not confined to the distribution of a single nerve or a single limb. The left sural and both tibial nerves were noted to be abnormal in EMG testing in June 2009. The examiner stated that based on the Veteran’s prior diagnosis and clinical findings from December 2019, a separate impairment for each of the affected nerves is not possible because the nerve impairments and symptoms overlap multiple nerves of the bilateral lower extremities. The Veteran was provided a VA examination in July 2020. The Veteran was noted as having mixed polyneuropathy of the bilateral lower extremity external cutaneous nerve. The Veteran’s current symptoms were inability to walk, no gait, no balance, pain, numbness, and burning from the ankle down. Pain was noted sometimes in the hips and he reported not being able to stand straight up. The Veteran was noted as being in physical therapy. The Veteran reported not being able to work and using a power wheelchair to get around. He reported no gait or balance and needing to use two canes, crutches, or a walker. He reported only being able to walk 150 feet and not being able to stand for really long. He reported spasticity and extreme decreased range of motion. He also reported not being able to push a vacuum, push a mower, make the bed, cook, or do his own laundry. He reported needing assistance every day. The Veteran’s symptoms were severe constant pain bilaterally, severe intermittent pain bilaterally, severe paresthesias bilaterally, and severe numbness bilaterally. The Veteran did not have muscle atrophy. The Veteran had decreased sensation for light touch in the thigh, lower leg, ankle, foot, and toes. The Veteran did not have tropic changes. The Veteran’s gait was abnormal and noted as needing two canes, slowed, dragged feet, and short steps. The nerve affected was characterized as incomplete paralysis of the external cutaneous nerve of thigh, noted as moderate bilaterally. The Veteran did have regular use for a wheelchair and cane. After review of the evidence of record, the Board find that the overall evidence of record shows the Veteran’s mixed polyneuropathy of the bilateral lower extremities is more closely represented as severe for the entire period on appeal. Here, the Veteran has consistently reported that his bilateral mixed polyneuropathy has caused him to need regular use of crutches, canes, and/or a wheelchair. The Veteran’s gait has been marked consistently as abnormal with scissoring movements. The Veteran also has been noted as not being able to walk more than 150 feet, and having issues standing and getting up for the entire period on appeal. The Veteran has also consistently reported constant or near constant pain, tingling, and numbness. Thus, the Board finds that a rating of 30 percent is warranted from October 4, 2007, which is the entire period on appeal. However, the Board finds that a rating in excess of 40 percent is not warranted at any time on appeal. Although the Veteran has been reported as having foot drop for the entire period on appeal, the Veteran has never been noted as having complete paralysis, droop of phalanges, proximal phalanges of toes lost, or anesthesia covering the entire dorsum of foot and toes. Thus, a rating of 40 percent is not warranted. The Board acknowledges the Veteran’s contentions that his mixed polyneuropathy of the bilateral lower extremities warrants a separate rating for each nerve affected. However, the May 2020 VA examiner found that the Veteran did not suffer from separate impairment of each nerve, as the symptoms and nerve impairment overlap multiple nerves. The Board notes that when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Thus, a separate rating for each nerve affected is not warranted. Accordingly, the Board finds that an initial rating of 30 percent, but no higher, for mixed polyneuropathy of the bilateral lower extremities from October 3, 2007 is warranted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.