Citation Nr: 21062609 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-09 600 DATE: October 8, 2021 ORDER For the appeal period prior to April 2019 entitlement to an initial rating in excess of 10 percent for neuropathy of the right lower extremity sciatic nerve is denied. For the appeal period prior to April 2019 entitlement to an initial rating in excess of 10 percent for neuropathy of the left lower extremity sciatic nerve is denied. For the appeal period from April 2019, entitlement to a rating in excess of 40 percent for neuropathy of the right lower extremity sciatic nerve is denied. For the appeal period from April 2019, entitlement to a rating in excess of 40 percent for neuropathy of the left lower extremity sciatic nerve is denied. For the appeal period from April 2019, entitlement to a rating in excess of 30 percent for neuropathy of the right lower extremity femoral nerve is denied. For the appeal period from April 2019, entitlement to a rating in excess of 30 percent for neuropathy of the left lower extremity femoral nerve is denied. FINDINGS OF FACT 1. For the appeal period prior to April 2019 the Veteran's right lower extremity sciatic nerve is manifested by mild incomplete paralysis. 2. For the appeal period prior to April 2019 the Veteran's left lower extremity sciatic nerve is manifested by mild incomplete paralysis. 3. For the appeal period from April 2019 the Veteran's right lower extremity sciatic nerve is manifested by moderately severe incomplete paralysis. 4. For the appeal period from April 2019 the Veteran's left lower extremity sciatic nerve is manifested by moderately severe incomplete paralysis. 5. For the appeal period from April 2019, the Veteran's right lower extremity femoral nerve is manifested by severe incomplete paralysis. 6. For the appeal period from April 2019, the Veteran's left lower extremity femoral nerve is manifested by severe incomplete paralysis. CONCLUSIONS OF LAW 1. For the appeal period prior to April 2019 the criteria for a rating in excess of 10 percent for the right lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8520, 8521. 2. For the appeal period prior to April 2019 the criteria for a rating in excess of 10 percent for the left lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8520, 8521. 3. For the appeal period from April 2019 the criteria for a rating in excess of 40 percent for the right lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. For the appeal period from April 2019 the criteria for a rating in excess of 40 percent for the left lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. For the appeal period from April 2019 the criteria for a rating in excess of 30 percent for the neuropathy of the right lower extremity femoral nerve are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8526. 6. For the appeal period from April 2019 the criteria for a rating in excess of 30 percent for the neuropathy of the left lower extremity femoral nerve are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2019. The claim was remanded for the RO to afford the Veteran a VA examination. The Veteran attended a VA examination in November 2019. Thus, the Board finds that the RO substantially complied with the June 2019 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). In November 2020 the Veteran submitted a statement indicating he is now rated for multiple neuropathy conditions in both lower extremities and his bilateral lower extremities is resolved. However, in July 2021, the Veteran's representative submitted a Written Brief Presentation indicating the Veteran is seeking entitlement to an initial rating in excess of 10 percent for bilateral neuropathy of the lower extremity, for the appeal period before April 2, 2019, and in excess of 40 percent thereafter. As such the Board will proceed with the merits of the claim. As an initial matter the Board notes the Veteran is service-connected for bilateral lower extremity peripheral neuropathy of the femoral nerve evaluated at 30 percent, effective April 2, 2019, under DC 8526. 38 C.F.R. § 4.124a. Although, the Veteran has not specifically appealed the increase based on the femoral nerve the Board still has jurisdiction. In this case the November 2015 notice of disagreement indicated an intention to appeal the rating for the bilateral lower extremity neuropathy. As a result of the appeal the Veteran was given another VA examination which indicated peripheral neuropathy of the femoral nerve in addition to the sciatic nerve. As the Veteran was appealing neuropathy generally, the Board has taken jurisdiction of the femoral nerve evaluation and the issues have been added and recharacterized accordingly. See Chavis v. McDonough, 34 Vet. App. 1 (U.S. 2021) (where the Board of Veterans' Appeals properly has appellate jurisdiction to review a claim for benefits, it follows that the Board is authorized to decide all questions presented on the record before it that are necessary to its decision on that matter.) Increased Rating 1. For the appeal period prior to April 2019 entitlement to an initial rating in excess of 10 percent for neuropathy of the right lower extremity sciatic nerve 2. For the appeal period prior to April 2019 entitlement to an initial rating in excess of 10 percent for neuropathy of the left lower extremity sciatic nerve 3. For the appeal period from April 2019, entitlement to a rating in excess of 40 percent for neuropathy of the right lower extremity sciatic nerve 4. For the appeal period from April 2019, entitlement to a rating in excess of 40 percent for neuropathy of the left lower extremity sciatic nerve 5. For the appeal period from April 2019 entitlement to a rating in excess of 30 percent for neuropathy of the right lower extremity femoral nerve 6. For the appeal period from April 2019, entitlement to a rating in excess of 30 percent for neuropathy of the left lower extremity femoral nerve The Veteran claims increased ratings for his peripheral neuropathy of his bilateral lower extremities sciatic nerve in excess of 10 percent for the appeal period prior to April 2019 and in excess of 40 percent thereafter. He also claims increased ratings for his peripheral neuropathy of the bilateral lower extremities femoral nerve in excess of 30 percent for the appeal period from April 2019. The Veteran's peripheral neuropathy of the bilateral lower extremity was rated under Diagnostic Code 8521 for peripheral neuropathy manifested by paralysis of the external popliteal nerve. 38 C.F.R. § 4.124a, DC 8521. An evaluation of 10 percent is warranted for mild incomplete paralysis, an evaluation of 20 percent is warranted for moderate incomplete paralysis, an evaluation of 30 percent is warranted for severe incomplete paralysis, and an evaluation of 40 percent is warranted for complete paralysis. Complete paralysis of the external popliteal nerve is productive of foot drop and slight drop of the first phalanges of all toes, inability to dorsiflex the foot, extension of proximal phalanges of toes lost, abduction of foot lost, adduction weakened, and anesthesia covering the entire dorsum of the foot and toes. A December 2019 rating decision changed the Veteran's bilateral lower extremity rating code to paralysis of the sciatic nerve under DC 8520. See 38 C.F.R. § 4.124a. Under DC 8520 incomplete paralysis of the sciatic nerve is rated as 10 percent for mild, 20 percent for moderate, 40 percent for moderately severe, and 60 percent for severe incomplete paralysis with marked muscular atrophy. Complete paralysis is rated 80 percent, and is manifested by the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of the knee weakened and (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. Under Code 8526 incomplete paralysis of the anterior crural nerve (femoral) is rated as 10 percent for mild, 20 percent for moderate, and 30 percent for severe. Complete paralysis, with paralysis of the quadriceps extensor muscles, is assigned a maximum 40 percent rating. 38 C.F.R. § 4.124a, Code 8526. Under the provisions of 38 C.F.R. § 4.124a, 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 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. Turning to the relevant evidence of record, a March 2014 VA examination for diabetes indicated the Veteran did not suffer from peripheral neuropathy. In August 2014 VA treatment records the Veteran reported "tingling, like bugs crawling and stinging me in the legs." In November 2014 VA treatment records the Veteran complained of pain, stinger-like shooting pains down his legs into his feet that he especially notices at night while trying to sleep. Also, he complained of some numbness in the balls of his feet bilaterally about once per week. A May 2015 VA examination report for diabetes indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The Veteran was diagnosed with diabetic peripheral neuropathy. The examiner determined upon examination of the lower extremities and the peripheral pulses; findings were within normal limits. The motor and sensory examination which included the gait, balance, cranial and peripheral nerves, were all normal. A November 2019 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The Veteran was reported to be right-hand dominant. He was diagnosed with bilateral lower and bilateral upper diabetic peripheral neuropathy. There was no muscle atrophy. The left and right lower extremity consisted of moderately severe incomplete paralysis for the sciatic nerve and severe incomplete paralysis for the femoral nerve. The examiner determined the bilateral lower diabetic peripheral neuropathy is progressive and would affect a job, as his balance is severely impaired, standing is limited to less than 5 minutes, walking, sleeping, and sitting is impaired, and he can't run. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds for the appeal period prior to April 2019 a rating in excess of 10 percent is not warranted for the Veteran's bilateral lower extremity peripheral neuropathy. For the appeal period from April 2019 a rating in excess of 40 percent for the bilateral lower extremity peripheral neuropathy is not warranted. Likewise, for the appeal period from April 2019 a rating in excess of 30 percent for the neuropathy of the bilateral lower extremity femoral nerve is not warranted. For the appeal period prior to April 2019 higher ratings for the external popliteal nerve are available for moderate incomplete paralysis, severe incomplete paralysis, or for complete paralysis. The evidence weighs against such manifestations. Higher ratings for the sciatic nerve are available for moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis, or complete paralysis. The evidence weighs against such manifestations. The May 2015 VA examination did not reflect findings consistent with at least moderate incomplete paralysis of the external popliteal or sciatic nerve. For the appeal period from April 2019 higher ratings for the sciatic nerve are available for severe incomplete paralysis with marked muscular atrophy, complete paralysis manifested by the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of the knee weakened and (very rarely) lost. The evidence weighs against such manifestations. The November 2019 VA examination reflected moderately severe incomplete paralysis of the sciatic nerve and severe incomplete paralysis of the femoral nerve for the bilateral lower extremity. For the appeal period from April 2019 higher ratings for the femoral nerve are available for complete paralysis. The evidence weighs against such manifestations as demonstrated by the November 2019 VA examination. Furthermore, the Board notes the evidence does not reflect peripheral neuropathy of the femoral nerve prior to April 2019. The remaining record reflects no medical evidence or other such competent evidence contradicting the findings on the May 2015 and November 2019 VA examination. In the July 2021 Written Brief Presentation, the Representative argued the Veteran's conditions are more severe than rated and are getting worse. It was also argued the April 2019 VA examination results reflect what the Veterans condition was at an earlier date. The Representative also noted the Veteran's conditions impacts his day-to-day activities and may aggravate each other. While the Board acknowledges these arguments, the evidence indicates the conditions are adequately rated. Although the Representative argues the condition is getting worse there are no records associated with the claims file indicating the condition has worsened or demonstrating a change in severity since the last examination. As such, a new VA examination is not warranted. See Snuffer v. Gober, 10 Vet. App. 400, 402 (U.S. 1997). Furthermore, the Board finds that an impact in his day-to-day activities is expected which is why he was awarded an initial 10 percent evaluation prior to April 2019 and 40 percent thereafter. He is also in receipt of a separate 30 percent evaluation for the neuropathy of the bilateral lower extremity femoral nerve. Therefore, the evidence of record establishes that for the appeal period prior to April 2019 the Veteran's bilateral lower extremity peripheral neuropathy has been adequately evaluated at 10 percent and most closely resembles the rating criteria for that percentage. See 38 C.F.R. § 4.124a, DC 8520, 8521. Likewise, for the appeal period from April 2019 the Veteran's bilateral lower extremity peripheral neuropathy has been adequately evaluated at 40 percent and most closely resembles the rating criteria for that percentage. Additionally, for the appeal period from April 2019 the femoral nerve neuropathy has been adequately evaluated at 30 percent. Therefore, increased ratings for the bilateral lower extremities are not warranted. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jackman, 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.