Citation Nr: 21004479 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-40 414 DATE: January 27, 2021 ORDER Entitlement to a rating in excess of 40 percent for diabetic peripheral neuropathy of the right lower extremity is denied. FINDING OF FACT The peripheral neuropathy of the Veteran’s right lower extremity has not been manifested by severe incomplete paralysis with marked muscular atrophy. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for diabetic peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1965 to June 1967. This appeal arose from an October 2017 rating decision, in which the Agency of Original Jurisdiction (AOJ) reduced the Veteran’s disability rating for his right lower extremity peripheral neuropathy from 40 percent to 20 percent. The Veteran perfected the appeal of this decision. In November 2019, the Board restored the rating to 40 percent and remanded the remaining claim for entitlement to an increased rating for further evidentiary development—specifically to obtain another VA examination. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.§ 7107(a)(2). Entitlement to a rating in excess of 40 percent for service-connected diabetic peripheral neuropathy of the right lower extremity The Veteran seeks a higher rating for the peripheral neuropathy of his right lower extremity. This disability is rated under Diagnostic Code 8520, which evaluates the severity of paralysis of the sciatic nerve. Specifically, pursuant to this Diagnostic Code, mild incomplete paralysis warrants a 10 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Moderately severe paralysis warrants a 40 percent rating. Severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy, warrants a 60 percent rating. Complete paralysis of the sciatic nerve, where the foot dangles or drops, there is no active movement possible of muscles below the knee, flexion of the knee weakened or lost, is rated as 80 percent. 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. 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; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Turning now to the evidence of the record, in a February 2015 Primary Care Attending Note, the Veteran reported that his right leg neuropathy was a little worse than the prior year. In particular, the Veteran experienced a little burning sensation into his lower extremities at night, although these problems did not prevent him from sleeping. See September 2017 VA Medical Treatment Records (CAPRI). An October 2017 VA examination did not examine the Veteran’s right leg. The examiner explained that a neurologic examination of the Veteran’s right leg would not be a valid examination for diabetic neuropathy because the right leg neurologic symptoms are most likely due to spinal stenosis. The examiner stated that the spinal stenosis was unrelated to his diabetes and that, because diabetic neuropathy was a symmetric length-dependent neuropathy, the symptoms and examination of the right leg would be expected to be the same as the left leg. The examiner concluded that, for disability rating purposes, the Veteran had mild incomplete paralysis of the muscle groups. As the Veteran’s right leg was not examined at this examination, this examination report has no probative weight in evaluating the severity of the peripheral neuropathy of the Veteran’s right lower extremity. In a March 2018 VA treatment record, the Veteran complained of leg numbness. It was noted that he walked with an antalgic gait supported by a cane. In the April 2018 addendum, regarding the Veteran’s right lower extremity, there is evidence of mild disease at the level of the posterior tibial artery as well as at the level of the anterior tibial artery. There was also evidence consistent with very mild disease at the level of the pedal arteries. It was advised that the findings showed mild vascular disease and that it was important to keep adequate blood pressure, diabetes, and cholesterol levels. The Veteran was advised to seek medical care if his symptoms worsened. See July 2018 VA Medical Treatment Records (CAPRI). In a May 2018 private medical record, the Veteran reported that his lower extremity weakness improved somewhat after his recent spine surgery, but that it was not completely normal. The Veteran had significant residual neuropathy and ambulated with a walker. The Veteran expressed that he felt like he was walking on somebody else’s legs. He described neuropathic pain in his left foot, which was present to a greater degree in his right lower extremity. The neurological examination showed decreased sensation below the right knee as well as multifactorial peripheral neuropathy that significantly impaired the Veteran’s stability and gait. The doctor noted that a portion of this symptomatology was consistent with diabetic neuropathy, but, given asymmetry, a portion is clinically related to prior spinal damage. See June 2018 Private Medical Treatment Record. In a January 2019 VA medical record, the Veteran complained of worsening numbness in his right leg due to neuropathy. Review of his extremities showed that there was no edema, discoloration, or loss of hair. Peripheral pulses were present, and sensation was intact. There was no sensory or gross motor deficiency. In a January 2020 medical record, it was noted that the Veteran experienced bilateral leg and knee numbness. It was remarked that he was still dealing with neuropathy and would have vascular studies of his lower extremities during that week. See November 2020 VA Medical Treatment Records (CAPRI). On the October 2020 VA Examination, the examiner reviewed and addressed the May 2018 private treatment record, which attributed some of the Veteran’s symptoms to his spinal abnormalities. The examiner stated that, while diabetic peripheral neuropathy is usually equal in length dependent between the extremities, in this case it is very difficult to discern which right lower extremity symptoms were related to his low back condition that required an L3-L5 laminectomy and which were caused by his history of diabetic peripheral neuropathy. The Veteran exhibited signs of large nerve fiber loss with impairment of vibratory sensation, proprioception, and reduced ankle reflex as well as small nerve fiber with impairment of pain, light touch, and temperature sensation, that are seen with diabetic peripheral neuropathy. The examiner explained that, while the low back and diabetic neuropathy are entwined due to the L3, L4, and L5 lower extremity innervation overlapping with the stocking distribution of diabetic peripheral neuropathy, the findings of the right lower extremity were more indicative of diabetic peripheral neuropathy. This conclusion was based on the findings associated with large and small nerve fiber loss. Significantly, the examiner opined that the Veteran’s symptoms were less likely due to his low back condition. Further, examination of the Veteran’s right lower extremity demonstrated severe intermittent pain, severe paresthesias or dysesthesias, and severe numbness. Muscle strength was normal. Regarding reflexes, the Veteran had normal knee reflexes, and his ankle reflexes were absent. The Veteran had decreased light touch sensation in his ankle and foot/toes, absent vibration sensation, and decreased cold sensation. He did not have muscle atrophy or any trophic changes attributable to his neuropathy. The severity of his neuropathy was noted as moderately severe incomplete paralysis of the sciatic nerve. Regarding functional impact, the Veteran had issues with stability with ambulation due to decreased sensation. Initially, the Board acknowledges the records indicating that the Veteran may have mild vascular disease in his right lower extremity. The Veteran is not service connected for a vascular disease associated with his diabetes mellitus. The issue of entitlement to an increased rating for diabetes mellitus is not subject to this current appeal because it has not been developed for appellate consideration. If the Veteran wishes to pursue a claim of entitlement to service connection for a vascular disease associated with his service-connected diabetes mellitus, he is free to file with the AOJ for appropriate consideration and handling in accordance with the amended regulations governing the filing of claim for benefits. Furthermore, the symptoms noted in the medical evidence for the right lower extremity have been consistently associated with his diabetic peripheral neuropathy. No edema has been noted, which is contemplated by the rating criteria evaluating vascular disease in the extremities. See 38 C.F.R. § 4.104, Diagnostic Code 7120. Therefore, there is no need for further development to differentiate the symptoms. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Accordingly, and after a thorough consideration of the evidence above, the Board finds that the diabetic peripheral neuropathy of the Veteran’s right lower extremity is adequately contemplated by the currently assigned 40 percent rating. The totality of the evidence of record indicates that the Veteran’s symptoms are more likely associated with his neuropathy rather than his spinal stenosis. Specifically, while the Veteran has experienced severe intermittent pain, paresthesias or dysesthesias, and numbness in his right leg, the severity of his neuropathy has been determined to moderately severe. The medical evidence has not shown that the Veteran has ever had muscular atrophy, which is specifically contemplated by the 60 percent rating criteria. Muscle strength was noted to be normal upon the examinations. Further, while the evidence shows that the Veteran has some absent reflexes and sensations in some areas, he does not exhibit entirely absent reflexes and sensations that would depict severe paralysis. The absent and decreased sensations and reflexes that have been noted are adequately contemplated by the current 40 percent rating, which evaluates moderately severe incomplete paralysis. In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the service-connected diabetic neuropathy of the right lower extremity. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against this increased rating claim, the doctrine is not applicable. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.