Citation Nr: 21001385 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-35 062 DATE: January 7, 2021 ORDER A rating higher than 40 percent for right upper extremity (RUE) peripheral neuropathy (PN) is denied. A rating higher than 30 percent for left upper extremity (LUE) PN is denied. A rating higher than 40 percent for right lower extremity (RLE) PN is denied. A rating higher than 40 percent for left lower extremity (LLE) PN is denied. FINDINGS OF FACT 1. The Veteran’s bilateral upper extremity PN approximated moderate incomplete paralysis; severe incomplete paralysis or complete paralysis is not shown. 2. The Veteran’s bilateral lower extremity PN approximated moderately severe incomplete paralysis; muscle atrophy or complete paralysis is not shown. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent rating for RUE PN and 30 percent for LUE PN are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2 4.7 4.124a, Diagnostic Code (DC) 8513. 2. The criteria for a rating higher than 40 percent rating for bilateral lower extremity PN are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2 4.7 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1996 to July 1968. The Board has previously remanded these issues. An October 2020 rating decision increased the Veteran’s bilateral upper and lower extremity PN ratings. However, as it did not constitute full grants, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Ratings Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Bilateral Upper Extremity PN The Veteran’s bilateral upper extremity neuropathy is assigned a 40 percent rating for his RUE and a 30 percent rating for his LUE as of his June 20, 2012, claim for a higher rating, pursuant to DC 8513. The record reflects that the Veteran is right-handed. Under DC 8513, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. Complete paralysis of all radicular groups is rated 90 percent for the major extremity and 80 percent for the minor extremity. 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 on 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). Thus, based on the rating criteria above, to warrant a higher rating for either extremity would require the evidence to show either severe incomplete paralysis or complete paralysis. The Board finds that none of the evidence of record supports either finding. At the outset, the Board notes that the Veteran and his representative have not identified or introduced any evidence which would support a finding that his bilateral upper neuropathy caused either severe incomplete paralysis or complete paralysis. Furthermore, the medical records of evidence all establish that the Veteran does not have complete paralysis of his upper extremity radicular group nerves – no VA examination or other medical records have indicated such a determination and the Veteran’s statements do not indicate that he suffers from complete paralysis. Additionally, the VA examinations of record do not show that the Veteran’s bilateral upper extremity neuropathy caused severe incomplete paralysis. The Veteran’s most recent two VA examinations stated his bilateral upper extremity neuropathy was moderate. See February 2019 and 2020 examinations. Prior to that, his neuropathy was found to be mild. As such, the Board does not find that the evidence of record supports a rating higher than 40 percent for the Veteran’s RUE PN or higher than 30 percent for his LUE PN. The Board has considered the lay statements of record. While the Veteran is competent to report his symptoms, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for higher ratings, the medical findings show that he does not meet the schedular requirements for such, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran’s degree of disability. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Lower Extremity PN The Veteran’s bilateral lower extremity PN is assigned a 40 percent rating pursuant to DC 8520. Under DC 8520, 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. 38 C.F.R. § 4.124a. Thus, based on the rating criteria, ratings higher than the Veteran’s current 40 percent would necessitate a finding of muscle atrophy or complete paralysis. After a review of the record, the Board does not find that any evidence supports either finding. Again, the Board notes that the Veteran and his representative have not identified or introduced any evidence which would support a finding that his lower extremity neuropathy caused either muscle atrophy or complete paralysis. None of the examinations of record – including the examination done by the Veteran’s own physician – found muscle atrophy. Indeed, each examination of record noted that the Veteran did not have muscle atrophy. Also, none of these examinations indicated the Veteran had complete paralysis of his lower extremities. The lay statements indicated that his leg numbness affected his sleep and ability to walk. See November 2012 lay statements. But there was not statement from the Veteran or his wife that he had complete paralysis or muscle atrophy. As such, the Board does not find that the evidence of record supports a rating higher than 40 percent for the Veteran’s bilateral lower extremity neuropathy. As noted above, the Board has again considered the lay statements of record. Here, although the Veteran may believe that he meets the criteria for higher ratings, the medical findings show that he does not meet the schedular requirements for such, as explained and discussed above. (Continued on the next page)   As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.