Citation Nr: 21004208 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 18-49 142 DATE: January 26, 2021 ORDER New and material evidence has not been received to reopen the claim for service connection for hearing loss. New and material evidence has not been received to reopen the claim for service connection for tinnitus. A rating of 20 percent, but no more, for peripheral neuropathy in the sciatic nerve, left lower extremity, is granted. A rating of 20 percent, but no more, for peripheral neuropathy in the sciatic nerve, right lower extremity, is granted. The 10 percent ratings currently assigned for neuropathy in the femoral nerve of the right and left lower extremities are discontinued. Entitlement to service connection for peripheral neuropathy, left upper extremity is denied. Entitlement to service connection for peripheral neuropathy, right upper extremity is denied. FINDINGS OF FACT 1. In the July 2011 rating decision, the claim for service connection for a hearing loss was denied; the Veteran was notified of this decision but did not file a Notice of Disagreement (NOD) or submit new and material evidence within one year. 2. In the July 2011 rating decision, the claim for service connection for a tinnitus was denied; the Veteran was notified of this decision but did not file a Notice of Disagreement (NOD) or submit new and material evidence within one year. 3. The Veteran’s service-connected left and right lower extremity peripheral neuropathy resulted moderate incomplete paralysis of the sciatic nerve. 4. The assignment of separate compensable ratings for neuropathy in the femoral nerve of the left and right lower extremities is pyramiding and are impermissible. 5. There is no current diagnosis of bilateral upper extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for hearing loss. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has not been received to reopen the claim for service connection for tinnitus. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for entitlement to a 20 percent rating, but no more, for peripheral neuropathy, left lower extremity (sciatic nerve) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a 20 percent rating, but no more, for peripheral neuropathy, right lower extremity (sciatic nerve) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520. 5. The assignment of separate ratings for peripheral neuropathy in the right and left lower extremity (femoral nerve), is pyramiding. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.14, 4.124a, Diagnostic Code 8526. 6. The criteria for entitlement to service connection for peripheral neuropathy, left upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to service connection for peripheral neuropathy, right upper extremity have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps from September 1963 to October 1966. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 Regional Office (RO) rating decision. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of the such evidence is to be presumed unless “patently incredible” See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received sufficient to reopen the claim for service connection of hearing loss 2. Whether new and material evidence has been received sufficient to reopen the claim for service connection of tinnitus The Veteran applied for service connection for hearing loss and tinnitus in June 2010. His claim was denied in the July 2011 rating decision on the basis that his hearing loss and tinnitus was neither incurred in nor was caused by service. The Veteran did not submit a NOD to this claim, nor was new and material evidence received within one year, and the decision became final. The Board has reviewed the evidence of record received since the July 2011 rating decision and finds that the Veteran has not submitted any additional evidence tending to establish a current hearing loss disability for VA purposes or tinnitus condition. Under these circumstances, the Board finds that new and material evidence to reopen service connection for hearing loss and tinnitus has not been received. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen this claim must be denied. See Annoni v. Brown, 5 Vet. App. 463 (1993). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and 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). Nevertheless, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 3. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, left lower extremity (femoral nerve) 4. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, left lower extremity (sciatic nerve) 5. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, right lower extremity (femoral nerve) 6. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, right lower extremity (sciatic nerve) The Veteran contends that he is entitled to ratings in excess of 10 percent for his service-connected sciatic peripheral neuropathy of the right and left lower extremities, as well as for his service-connected femoral peripheral neuropathy of the right and left lower extremities. Under Diagnostic Code 8520, which sets forth the rating criteria for sciatic nerve disorders, a Veteran will receive ratings of 10, 20, 40 or 60 percent for mild, moderate, moderately severe, or severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A maximum 80 percent evaluation will be awarded for complete paralysis of the sciatic nerve manifested by the foot dangling and dropping, no active movement possible of muscles below the knees, and flexion of the knee weakened or lost. Id. Under Diagnostic Code 8526 for paralysis of the femoral nerve, mild incomplete paralysis warrants a 10 percent evaluation, moderate incomplete paralysis warrants a 20 percent evaluation, and severe incomplete paralysis warrants a 30 percent evaluation. The term incomplete paralysis with this and other peripheral nerve injuries 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement, and when there is bilateral involvement, the VA adjudicator should combine the ratings for the peripheral nerves, with application of the bilateral factor. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating, which may be assigned for neuritis not characterized by organic changes, will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123. Peripheral neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The use of terminology such as "mild," "moderate," and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Based on the evidence, the Board first determines that a 20 percent rating, but no more, is warranted for neuropathy of the sciatic nerve. Specifically, at an April 2016 VA examination, the Veteran was diagnosed diabetic neuropathy of the left and right lower extremities. On that occasion, he reported numbness, tingling, and burning of the feet. His symptoms included moderate constant pain in the lower extremities, moderate paresthesias and/or dysesthesias in the lower extremities, and moderate numbness in the lower extremities. Muscle strength and deep tendon reflexes were normal. Moderate incomplete paralysis was found in the right and left lower sciatic nerves and the right and left lower femoral nerves. Additionally, the Veteran had decreased light touch/monofilament testing results in the foot and toes. Based on the results of this VA examination, as well as the Veteran’s statements, the Board considers this level of impairment to be equivalent to incomplete paralysis that is “moderate” in nature. However, such limitations are not “severe” in nature. Specifically, the Veteran reported pain and numbness to a “moderate” level. However, his strength in the lower extremities was normal, as were his reflexes in the lower extremities. Moreover, his sensory functioning was diminished only in the toes, which belies a finding of “incomplete paralysis.” Therefore, a 20 percent rating is warranted for limitation of function in the sciatic nerves. In concluding that a 20 percent rating is warranted, the Board also finds that the granting of a separate rating for limitation of function in the femoral nerve is inappropriate, as it effectively addresses the same symptoms that are already captured in the 20 percent rating the Veteran receives for his sciatic nerve. Specifically, as noted above, the diagnostic code for the sciatic nerve (DC 8520) and for the femoral nerve (DC 8526) are effectively identical, in that a 20 percent rating is warranted when there is incomplete paralysis to a moderate nature. It is true that the VA examination in April 2016 differentiated between the two nerves, and stated that each reflected incomplete paralysis to a moderate degree. However, the point of the rating schedule for disabilities is to provide compensation for limitations “under the ordinary conditions of daily life.” 38 C.F.R. § 4.10. Here, there is no discernable indication that the impairment to the Veteran’s sciatic nerve affects his daily living in a way that is different from the impairment resulting from his femoral nerve. Indeed, the only symptom the Veteran mentioned that impacted his daily living was “burning in the feet,” which could be attributable to either nerve but, under VA law, not both. 38 C.F.R. § 4.14 (avoidance of pyramiding). Therefore, the separate ratings the Veteran receives for his femoral nerves under DC 8526 should be discontinued. See Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011) (changing the diagnostic code to a more correct representation of a disability is not a severance of the prior disability). Finally, in making this determination, the Board notes that, given the grant of a 20 percent rating for limitation in the sciatic nerves, the Veteran's overall rating for this period is not being reduced and therefore, the procedural requirements normally required for reductions are inapplicable in this case. See 38 C.F.R. 3.105(e); See also Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007); O'Connell v. Nicholson, 21 Vet. App. 89 (2007). Therefore, a rating of 20 percent, but no more, for peripheral neuropathy of the right and left sciatic nerves is granted, and the separate ratings for the femoral nerves are discontinued. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 7. Entitlement to service connection for peripheral neuropathy, left upper extremity 8. Entitlement to service connection for peripheral neuropathy, right upper extremity The Veteran contends he is entitled to service connection for peripheral neuropathy of his upper extremities. While the Veteran contends that he should be service-connected for peripheral neuropathy of the upper extremities, there is no competent evidence of record that the Veteran has a current diagnosis, or the signs, symptoms, or residuals thereof, of peripheral neuropathy in the upper extremities. Specifically, the Veteran’s April 2016 VA examination shows no diagnosis of upper extremity bilateral peripheral neuropathy. Moreover, the Veteran has not provided any lay statements regarding any current peripheral neuropathy-related symptomatology that would indicate a current diagnosis, or the signs, symptoms, or residuals thereof, of peripheral neuropathy in his upper extremities. See Jandreau, 492 F.3d at 1372. As there is no competent evidence that would establish the current disability element with regard to the peripheral neuropathy service connection claim, entitlement to service connection for bilateral upper extremity peripheral neuropathy, cannot be granted on any basis. Boyer, 210 F.3d at 1353 ; Brammer v Derwinski, 3 Vet. App. 223, 225 (1992) (holding that there can be no valid claim for service connection “[i]n the absence of proof of a present disability”). In reaching all of the conclusions stated above, the Board considered the applicability of the benefit-of- the- doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claims. 38 U.S.C. § 5170 (b); 38 C.F.R. § 3.102 (2016); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vample, Associate Counsel