Citation Nr: 21062991 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 11-15 425 DATE: October 12, 2021 ISSUES 1. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy (PN) of the left lower extremity, sciatic nerve. 2. Entitlement to an initial rating in excess of 10 percent for PN of the right lower extremity, sciatic nerve. ORDER Entitlement to an initial rating in excess of 10 percent for PN of the left lower extremity, sciatic nerve, is denied. Entitlement to an initial rating in excess of 10 percent for PN of the right lower extremity, sciatic nerve, is denied. FINDINGS OF FACT 1. The Veteran's PN of the left lower extremity, sciatic nerve, has been manifested by a disability picture that more nearly approximates no more than mild incomplete paralysis of the sciatic nerve with symptoms of moderate paresthesias and/or dysesthesias, and mild numbness. 2. The Veteran's PN of the right lower extremity, sciatic nerve, has been manifested by a disability picture that more nearly approximates no more than mild incomplete paralysis of the sciatic nerve with symptoms of moderate paresthesias and/or dysesthesias, and mild numbness. CONCLUSIONS OF LAW 1. The criteria for initial disability ratings in excess of 10 percent for PN of the left lower extremity, sciatic nerve, have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, 4.14, Diagnostic Code 8520. 2. The criteria for initial disability ratings in excess of 10 percent for PN of the right lower extremity, sciatic nerve, have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, 4.14, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1969 to July 1971 and from September 1990 to June 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned during a January 2018 travel Board hearing. A copy of the transcript is associated with the record. It is the Board's policy to adjudicate in a single document all issues over which the Board has jurisdiction in an individual case. Eleven exceptions to this general policy are set forth in Board Directive 8430 14(c), including exception 9, for cases with hearings by different Board Members. In this case, resolving the issue of entitlement to a compensable initial rating for the service-connected left ear hearing loss disability in this document would be inappropriate as the Veteran has already had hearing before a different judge on the issue contained here. As such, that issue will be the subject of a separate decision of the Board. When this case was most recently before the Board in October 2020, it was remanded for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The case has since been returned to the Board for further appellate action. During the pendency of this appeal, in a July 2021 rating decision, service connection was granted for PN right upper extremity and PN left upper extremity. (These disabilities were combined and evaluated with bradykinesia, tremors, and muscle rigidity due to Parkinson's disease). Entitlement to individual unemployability was also granted effective April 13, 2013, the day following the Veteran's last date of employment. As such, these issues are no longer before the Board. Moreover, in the July 2021 rating decision, service connection was granted for PN left lower extremity (LLE) (femoral nerve); PN right lower extremity (RLE) (femoral nerve); PN LLE (external cutaneous nerve); PN RLE (external cutaneous nerve); PN LLE (ilio-inguinal nerve); PN RLE (ilio-inguinal nerve); PN LLE (obturator nerve); and PN RLE (obturator nerve). An appeal of these disabilities was not initiated, and the issues are not before the Board. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Schedular Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38U.S.C. §1155; 38C.F.R. §§3.321 (a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38C.F.R. §4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38U.S.C. §5107 (b); 38C.F.R. §4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38C.F.R. §4.1 (2013); Peyton v. Derwinski, 1Vet. App.282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7Vet. App.55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12Vet. App.119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1Vet. App.589 (1991). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38C.F.R. §4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38C.F.R. §4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38U.S.C. §1155; Brady v. Brown, 4Vet. App.203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38C.F.R. §4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6Vet. App.259 (1994); Fanning v. Brown, 4Vet. App.225, 230 (1993). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5Vet. App.532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2Vet. App.625 (1992). If the evidence for and against a claim is in equipoise, the claim will be granted. 38C.F.R. §4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38U.S.C. §5107; 38C.F.R. §3.102; Gilbert v. Derwinski, 1Vet. App.49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38C.F.R. §4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38C.F.R. §4.7. The Veteran is seeking initial ratings in excess of 10 percent for his service-connected PN of the right and left lower extremities involving the sciatic nerve. He contends that his bilateral lower extremity PN is more severe than contemplated by the current assigned ratings. Neurological conditions are rated pursuant to 38 C.F.R. § 4.124a, and those related to the sciatic nerve under Diagnostic Code 8520. A rating is assigned based on the particular nerve involved and whether the disability is manifested by neuritis, neuralgia and/or incomplete or complete paralysis of the particular nerve involved. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. 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. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, 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. For his lower extremities, the Veteran is currently rated analogously under Diseases of the Peripheral Nerves, 38 C.F.R. § 4.124a , Diagnostic Code 8520, with an evaluation of 10 percent for each the right and the left lower extremity. With respect to Diagnostic Code 8520, a disability rating of 10 percent is warranted with mild incomplete paralysis. A disability rating of 20 percent is warranted with moderate incomplete paralysis. A disability rating of 40 percent is warranted with moderately severe incomplete paralysis. A disability rating of 60 percent is warranted with severe incomplete paralysis, with marked muscular atrophy. Finally, the highest schedular rating allowable under Diagnostic Code 8520 is for 80 percent, which is appropriate when there is complete paralysis of the sciatic nerve. The rating criteria indicate that complete paralysis is present when the foot dangles and drops, there is no active movement possible of muscles below the knee, and where flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. 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. See 38 C.F.R. § 4.124a, Note preceding Diagnostic Code 8510 (2019). When the involvement is wholly sensory, the rating should be for the mild, or at most, moderate degree. Id. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. All the medical evidence was to be evaluated to determine the appropriate rating that would compensate the Veteran for impairment in earning capacity, functional impairment, etc. Evidence and Analysis The Veteran was afforded a VA examination in March 2014 in which mild, incomplete paralysis was noted for the left and right PN, sciatic nerve. The Veteran reported numbness in all limbs and had moderate paresthesias and/or dysesthesias. The Board notes that VA and private treatment records show multiple reports of numbness and weakness in the lower extremities. The Veteran was afforded a VA examination in October 2014 in which mild, incomplete paralysis was noted for the left and right PN, sciatic nerve. The Veteran reported numbness in all limbs and had moderate paresthesias and/or dysesthesias. The Board notes that the examiner stated that she believed that the responses given by the Veteran on the sensory examination were unreliable and not credible. The Veteran testified before the undersigned that his service-connected PN caused him to trip and fall, pain to go up and down his legs, burning, numbness, tingling, and it affected his ability to walk and sit. In response to the Board's remand, the Veteran was afforded a VA-contracted examination in March 2021 in which mild, incomplete paralysis was noted for the left and right PN, sciatic nerve. The Veteran reported numbness in all limbs and had moderate paresthesias and/or dysesthesias. The medical evidence in this case shows the Veteran's left and right lower extremity PN, sciatic nerve, manifested by mild paresthesias and/or dysesthesias, and mild numbness involving the sciatic nerve. Given the mild degree noted, with no greater than a mild degree of paresthesias and/or dysesthesias, and mild numbness during the entire period on appeal, the Board finds that the overall disability picture more nearly approximates that of a mild degree of neuropathy in each the left and right lower extremities. Essentially, no more than mild pathology has been shown. Accordingly, the criteria for an assignment of no more than a 10 percent disability rating has been met for this period for each lower extremity. A higher rating of 20 percent for bilateral lower extremity PN is not warranted because such symptomatology has not been shown for the relevant time period which would require moderate incomplete paralysis of the sciatic nerve. In light of the foregoing, the Board finds that the criteria for the assignment of disability ratings in excess of the currently assigned 10 percent for the left and right lower extremity PN, sciatic nerve, have not been more nearly approximated for the entire period on appeal; thus, the preponderance of the evidence is against the assignment of 20 percent ratings. 38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's left and right lower extremity PN, sciatic nerve. See Schafrath, 1 Vet. App. 589, 593. Based on the foregoing, the Board concludes that the criteria for a rating in excess of 10 percent for the Veteran's left and right lower extremity PN, sciatic nerve, are not met or approximated and thus the appeal is denied. All evidence has been considered and there is no doubt to be resolved. See 38U.S.C. §5107 (b); Gilbert, 1Vet. App.49, 54-56. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.