Citation Nr: 21003557 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-45 448 DATE: January 21, 2021 ORDER Entitlement to an initial 30 percent rating for left foot superficial peroneal nerve numbness (left foot peripheral neuropathy) is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an extraschedular rating for left foot peripheral neuropathy under 38 C.F.R. § 3.321(b) is denied. FINDINGS OF FACT 1. The evidence is approximately evenly balanced as to whether symptoms of the Veteran's left foot peripheral neuropathy more nearly approximated eversion of foot weakened. 2. The symptoms of left foot peripheral neuropathy are contemplated by the schedular criteria and there is no marked interference with employment. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial 30 percent rating for left foot peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8522. 2. The criteria for an extraschedular rating for the Veteran’s service-connected left foot peripheral neuropathy are not met. 38 C.F.R. § 3.321(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1988 to July 1988, and the United States Navy from June 2007 to April 2008 and December 2012 to April 2013. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for left foot superficial peroneal nerve numbness and assigned a noncompensable rating, effective July 9, 2013. In March 2015 the Veteran filed a notice of disagreement (NOD) as to his left foot superficial peroneal nerve numbness and in September 2015 the RO issued a rating decision which assigned an increased rating of 10 percent, effective December 29, 2014. In November 2015 the RO issued a statement of the case (SOC) and in November 2015 the RO issued a rating decision which assigned a retroactive increase for left foot superficial peroneal nerve numbness with an evaluation of 10 percent, effective July 9, 2013. In December 2015 the Veteran filed a substantive appeal (via VA Form 9). In an April 2019 decision, the Board, in pertinent part, denied a rating greater than 10 percent for left foot peripheral neuropathy. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans’ Claims (Court). In April 2020, while the matter was pending before the Court, the Veteran’s then attorney and VA’s General Counsel filed a joint motion for partial remand (JMPR). In April 2020, the Court granted the parties’ motion, vacated that portion of the Board’s April 2019 decision which denied a rating in excess of 10 percent for the Veteran’s service-connected left foot peripheral neuropathy, and remanded the matter for action consistent with the JMPR. In September 2020 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to refer the Veteran’s claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (Director) to determine whether an extraschedular rating is warranted. Higher initial rating Disability evaluations are determined by the application of 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. Where there is a question as to which of two evaluations shall 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. The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Left foot peripheral neuropathy The Veteran's left foot peripheral neuropathy is rated under the provisions of 38 C.F.R. § 4.124a, DC 8522. Under DC 8522, a noncompensable rating for mild, incomplete paralysis of the musculocutaneous nerve (superficial peroneal); a 10 percent rating for moderate, incomplete paralysis; a 20 percent rating for severe, incomplete paralysis; and a 30 percent rating for complete paralysis; eversion of the foot weakened. The words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of 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. 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 a 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. 38 C.F.R. § 4.124a. A September 2015 VA examiner noted symptoms of mild intermittent pain and paresthesias and/or dysesthesias and moderate numbness. Muscle strength, deep tendon reflexes, and sensory examination were normal. The Veteran’s gait was antalgic, and he continued to use a cane. The VA examiner noted moderate, incomplete paralysis. The VA examiner also found that the Veteran’s superficial peroneal nerve numbness impacted the Veteran’s ability to work. Significantly, the VA examiner noted “weakens left foot eversion” when asked whether there were any other pertinent physical findings, complications, conditions, signs or symptoms. A July 2015 VA examiner noted symptoms of mild numbness and constant pain and moderate intermittent pain and paresthesias and/or dysesthesias. Strength in plantar flexion and dorsiflexion and deep tendon reflexes were normal. Sensory examination revealed decreased sensation to light touch in the left foot and/or toes. The Veteran’s gait was slightly antalgic, and the Veteran used a cane due to knee and ankle conditions. Mild, incomplete paralysis of the superficial peroneal nerve was found on examination. In the May 2014 NOD the Veteran reported tingling or numbness of the left ankle when touched or sitting with the ankle resting on the floor. A June 2014 private treatment note indicates a mild sensation of tingling to the Veteran’s incision and into the lateral border of the foot. The superficial peroneal nerve was deemed the likely source. Neither the September nor the July 2015 VA examiners noted complete paralysis of the Veteran’s left foot peripheral neuropathy which would warrant a 30 percent rating under DC 8522. However, the Veteran exhibited eversion of foot weakened at the July 2015 VA examination which calls into question whether a 30 percent rating is warranted. When a question arises as to which of two ratings under a code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Although eversion of foot weakened was not noted at the September 2015 VA examination, there is no evidence that the Veteran's left foot peripheral neuropathy suddenly became worse at the July 2015 VA examination. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) ("effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested"). Therefore, the Board finds that the Veteran is entitled to a maximum 30 percent rating for the entire period on appeal. For these reasons, an initial rating of 30 percent for left foot peripheral neuropathy is granted for the entire appeal period which is the maximum schedular rating for the entire period on appeal. There is no evidence or argument that there are symptoms warranting a separate or higher rating under any other potentially applicable diagnostic code, such as sciatic nerve (DC 8520), external popliteal nerve (common peroneal) (DC 8521), musculocutaneous nerve (DC 8522), anterior tibial nerve (DC 8523), internal popliteal nerve (DC 8524), posterior tibial nerve (DC 8525), anterior crural nerve (DC 8526), internal saphenous nerve (DC 8527), obturator nerve (DC 8528), external cutaneous nerve of the thigh (DC 8529), and ilio-inguinal nerve (DC 8530). 2. Extraschedular consideration An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The essential question in such cases is whether the criteria in the applicable diagnostic code contemplate the symptoms exhibited and, if so, whether there is marked interference with employment or frequent hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Pursuant to Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009), the Board has jurisdiction to review denial of extraschedular rating on appeal under 38 C.F.R. § 3.321(b) where RO had previously referred claim for increased rating to the Director, who had found that extraschedular rating was not warranted. The Board reviews the entirety of the Director's decision de novo and is thus authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 443, 458 (2015). Cf. Wages v. McDonald, 27 Vet. App. 233, 239 (2015) (“[T]he Director's decision [pursuant to 38 C.F.R. § 4.16(b)] is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence”; the Board conducts de novo review of the Director's decision denying extraschedular consideration under 38 C.F.R. § 4.16(b)). In the April 2020 JMPR the parties agreed that, in light of the Veteran’s lay reports about his symptomatology, the Board must address whether the reported symptoms not contemplated by DC 8522 warrant extraschedular consideration or separate compensable ratings. In September 2020 the Board referred the Veteran’s claim of a rating in excess of 10 percent for peripheral neuropathy of the left peroneal nerve to the Director to determine whether the Veteran’s disability picture requires the assignment of an extraschedular rating. In an October 2020 VA Memo the Director reviewed the Veteran’s claim for entitlement to an increased evaluation on an extra schedular basis for left foot peripheral neuropathy. The Director recommended that the Board grant an increased evaluation to 30 percent on an extra schedular basis throughout the appeal period. In December 2020 the Director then provided an advisory opinion and stated that there has been no factual demonstration of impairment to earning capacity based on exceptional or unusual factors of left foot peripheral neuropathy. Thus, the Director determined that entitlement to an extra schedular rating for left foot peripheral neuropathy under 38 C.F.R. § 3.321(b)(1) is not warranted. The Veteran is now being awarded a maximum 30 percent rating for his left foot peripheral neuropathy under DC 8522. This does not necessarily preclude a rating on an extraschedular basis. The nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule and there logically is no guidance as to the specific rating that should be assigned in any particular case. Kuppamala v. McDonald, 27 Vet. App. 447, 443, n. 7 (2015) (citing Floyd v. Brown, 9 Vet. App. 88, 97 (1996)). The Board finds the schedular criteria adequately contemplate all of the symptoms attributable to the Veteran’s disability and extraschedular consideration is not warranted. At the September 2015 VA examination that Veteran reported that his left foot peripheral neuropathy affects his ability to stand for prolonged periods, however, he was still capable of climbing on a truck. This implies that he is still able to work. Although it was noted by the September 2015 VA examiner that the Veteran constantly used a cane, a July 2015 VA treatment note indicates that the Veteran works as a mechanic and is on his feet for his job. The Veteran has not otherwise indicated that his left foot peripheral neuropathy causes marked interference with his employment. In addition there is no evidence of frequent periods of hospitalization due to his left foot peripheral neuropathy. To the extent that the Board’s finding above conflicts with the September 2020 remand which determined that the medical evidence showed an exceptional disability picture and that the peripheral neuropathy of the left peroneal nerve had caused marked interference with employment, the Board in this case finds differently for the above reasons. The maximum schedular rating of 30 percent is appropriate and the preponderance of the evidence is against a finding that the schedular criteria do not contemplate the symptoms and that there is marked interference with employment. (Continued on the next page)   Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the matters on appeal. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.