Citation Nr: 21063864 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 20-05 991 DATE: October 18, 2021 ORDER Prior to October 13, 2020, entitlement to a disability rating in excess of 10 percent for left lower extremity peripheral neuropathy is denied. Prior to October 13, 2020, entitlement to a disability rating in excess of 10 percent for right lower extremity peripheral neuropathy is denied. From October 13, 2020, entitlement to a disability rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy is granted. From October 13, 2020, entitlement to a disability rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy is granted. Entitlement to a disability rating in excess of 10 percent for prostate cancer is denied. Entitlement to a compensable initial disability rating for erectile dysfunction is denied. FINDINGS OF FACT 1. Prior to October 13, 2020, the Veteran's left lower extremity peripheral neuropathy resulted in, at worst, mild incomplete paralysis. 2. Prior to October 13, 2020, the Veteran's right lower extremity peripheral neuropathy resulted in, at worst, mild incomplete paralysis. 3. From October 13, 2020, the Veteran's left lower extremity peripheral neuropathy has resulted in, at worst, moderate incomplete paralysis. 4. From October 13, 2020, the Veteran's right lower extremity peripheral neuropathy has resulted in, at worst, moderate incomplete paralysis. 5. The Veteran's residuals of prostate cancer have manifested by daytime voiding intervals of three to four hours and awakening to void two times per night. 6. The evidence reflects that the Veteran's service-connected erectile dysfunction has been manifested by an inability to achieve an erection for which special monthly compensation has been awarded; however, competent medical evidence indicates that there is no internal or external physical deformity of the penis. CONCLUSIONS OF LAW 1. Prior to October 13, 2020, the criteria for an initial disability rating in excess of 10 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 2. Prior to October 13, 2020, the criteria for an initial disability rating in excess of 10 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. From October 13, 2020, the criteria for a disability rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. From October 13, 2020, the criteria for a disability rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 5. The criteria for a rating in excess of 10 percent for prostate cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. 6. The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3-4.7, 4.20, 4.27, 4.31, 4.115b, Diagnostic Code 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from January 1971 to January 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Board, in pertinent part, denied the Veteran's claims for disability ratings in excess of 10 percent for his bilateral lower extremity peripheral neuropathy, and remanded the Veteran's claims for a rating in excess of 10 percent for prostate cancer and a compensable rating for his erectile dysfunction. The Board also remanded the Veteran's claims for service connection for bilateral upper extremity peripheral neuropathy, chronic obstructive pulmonary disease (COPD), and assignment of a TDIU. These claims, along with special monthly compensation (SMC) for housebound status, were granted in August 2020 and January 2021 rating decisions and, as such, will not be addressed herein. The Veteran appeal the Board's May 2020 denials to the United States Court of Appeals for Veteran's Claim (Court). In February 2021, the Court issued a Joint Motion for Partial Remand (JMPR) in which the parties agreed the Board's May 2020 decision erred in not discussing the subjective standard by which it determined the Veteran's lower extremity peripheral neuropathies were mild. For example, the Court stated "remand is warranted for the Board to adequately provide a discussion on the standards for comparing and assessing the terms "mild" and "moderate" in determining the severity of the [Veteran's] bilateral lower extremity peripheral neuropathy symptoms." Notably, the Board's prior remand also requested the Veteran provide medical records release authorizations for VA to obtain updated private treatment records on his behalf. VA sent the Veteran correspondence requesting this information in August 2020. The Veteran did not respond, nor did he provide updated private treatment records on his own behalf. VA's duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the Veteran must cooperate in obtaining evidence necessary to adjudicate his or her claim, including obtaining private medical records. See, e.g., 38 C.F.R. §§ 3.159 (c) (requiring claimant to "cooperate fully with VA's efforts" to obtain both VA and non-VA medical records). He did not cooperate here. Thus, this development has been substantially completed and the Board will not undertake additional development for private treatment records. In the same vein, VA treatment records were added to the file in March 2021. However, remand is not required for initial review as they do not contain relevant information. The Veteran's penis is not mentioned. The Veteran's neuropathies and prostate are mentioned to note he sees outside providers for the issues; however, again, the Veteran did not provide the records or authorization for their release as requested by the Board's prior remand. Increased Ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Prior to October 13, 2020, entitlement to a disability rating in excess of 10 percent for left lower extremity peripheral neuropathy 2. Prior to October 13, 2020, entitlement to a disability rating in excess of 10 percent for right lower extremity peripheral neuropathy 3. From October 13, 2020, entitlement to a disability rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy 4. From October 13, 2020, entitlement to a disability rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy The Veteran seeks a disability rating in excess of 10 percent for his bilateral lower extremity peripheral neuropathy. His bilateral lower extremity peripheral neuropathy is currently rated as 10 percent disabling from November 14, 2017, the date the Veteran filed for service connection for the disabilities. The Board finds the Veteran's bilateral lower extremity peripheral neuropathies are appropriately rated as 10 percent disabling prior to October 13, 2020, but warrant 20 percent disability ratings from that date. Under Diagnostic Code 8520, a 10 percent disability evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis and a 30 percent disability rating requires moderately severe incomplete paralysis. A 50 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent disability rating requires complete paralysis; the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the 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. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Moreover, the rating schedule does not define the terms "mild," "moderate," or "severe," as used in the diagnostic codes to describe the degree of impairment. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6. Turning now to the evidence, the Board notes private medical records from March 2017 record the Veteran as engaging in household activities and yardwork while reporting the presence of neuropathy in his feet. The treatment plan from his March 2017 medical visit includes 60 minutes of daily aerobic exercise. Private medical records from November 2017 show the Veteran ambulated without assistance, was alert and oriented, and exhibited a normal gait. No balance issues were noted. However, he denied exercising. VA treatment records from December 2017 note the Veteran did not require assistance with his daily activities, such as bathing, dressing, using the toilet, or transferring. The Veteran was first provided a VA examination on his bilateral lower extremity peripheral neuropathy in March 2018. At the examination, he reported intermittent bilateral foot tingling accompanied by burning and numbness. He further explained it feels as if his feet burn at night and that this sensation had increased in frequency. The examiner recorded the Veteran's lower extremity peripheral neuropathies as resulting in mild intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. The Veteran's reflexes, strength, and position sense were normal, but he experienced decreased light touch and vibration sensations in his lower extremities. The Veteran did not exhibit muscle atrophy or trophic changes. Overall, the examiner assessed his sciatic nerve as producing mild incomplete paralysis bilaterally. Functionally, the examiner noted the Veteran's neuropathy would impact all forms of physical activity because the Veteran could not spend long periods of time on his feet, and that the sensory loss in the Veteran's feet can cause imbalance. VA treatment records from August 2018 note the Veteran's normal gait. In February 2019, the Veteran reported to VA medical personnel that he had not fallen in the last twelve months and did not require assistance with daily activities. The Veteran denied feeling unsteady while walking and that he did not worry about falling. The record includes the notation "no reported or observed issues with gait or imbalance." VA treatment records from February 2020 again note the Veteran with a normal gait. The Veteran was provided another VA examination on the severity of his peripheral neuropathies in October 2020. Although his bilateral lower extremity peripheral neuropathies were not formally assessed, the examiner included information qualifying the severity of them. For example, the examiner qualified the Veteran's bilateral lower extremity peripheral neuropathies as resulting in moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Otherwise the Veteran's lower extremities exhibited normal strength, deep tendon reflexes, position sense, and vibration sensation, but decreased cold sensation and light touch sensation. Notably, the examiner checked the box for "no," the Veteran does not experience peripheral neuropathy of the lower extremities; however, the Board finds this notation to in error considering the rest of the examination report includes symptoms related to the Veteran's bilateral lower extremity peripheral neuropathies. Based on the foregoing, the Board finds the Veteran's bilateral lower extremity peripheral neuropathies are appropriately rated as 10 percent disabling prior to October 13, 2020, but require a 20 percent disability rating from that date. Notably, prior to the October 13, 2020 VA examination, the preponderance of the evidence demonstrates that the Veteran's bilateral lower extremity peripheral neuropathies are mild in nature. For example, at his March 2018 VA examination, only one of the three noted neuropathic symptoms in the Veteran's lower extremities was labeled as moderate. Moreover, his reflexes were decreased, but intact. He exhibited full muscle strength without evidence of atrophy. When only one out of three present neuropathic symptoms is moderate, with the other two found to be mild, the Board finds the equitable and just reading of this evidence requires finding the Veteran's bilateral lower extremity neuropathic disabilities overall resulted in mild incomplete paralysis. Lastly, while the March 2018 VA examiner noted the Veteran's bilateral lower extremity peripheral neuropathies could cause imbalance, the rest of the Veteran's medical records during this period indicate he did not otherwise complain of falling or feeling unsteady on his feet when seeking treatment. Thus, the Board did not assign weight to the notation of imbalance at the Veteran's March 2018 VA examination. However, the neuropathic symptoms present in the Veteran's bilateral lower extremities at his October 2020 VA examination weigh in favor finding the Veteran's bilateral lower extremity peripheral neuropathies resulted in moderate incomplete paralysis as of the date of the October 2020 examination. For example, following examination of the Veteran, the examiner qualified the Veteran's bilateral lower extremity peripheral neuropathies as resulting in moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. Thus, as of this date, the evidence shows the majority of the Veteran's bilateral lower extremity neuropathic symptoms to be of the moderate severity, and the evidence weighs in favor of assigning a 20 percent disability rating from the date of his October 2020 VA examination. A rating in excess of 20 percent is unwarranted, as there is no evidence to suggest the Veteran's bilateral lower extremities resulted in moderately severe incomplete paralysis at any time during the periods on appeal. While the Veteran reported in October 2020 that he can have severe pain at night, the Board finds its inappropriate to qualify this Veteran's overall bilateral lower extremity neuropathy disability as resulting in moderately severe incomplete paralysis when the only severe symptom noted occurs intermittently and the rest of the noted neuropathic symptoms are shown to be moderate. Accordingly, prior to October 13, 2020, the preponderance of the evidence is against the Veteran's claim for disability ratings in excess of 10 percent for his bilateral lower extremities peripheral neuropathies; however, from October 13, 2020, the evidence weighs in favor of finding the Veteran's bilateral lower extremities peripheral neuropathies warrant 20 percent disability ratings, but no higher. 5. Entitlement to a disability rating in excess of 10 percent for prostate cancer The Veteran generally contends a higher rating is warranted for residuals of his prostate cancer. The Veteran's prostate cancer has been evaluated pursuant to Diagnostic Code 7528. A 100 percent rating is assigned for malignant neoplasms of the genitourinary system. Following cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the 100 percent rating shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e). If there has been no local reoccurrence or metastasis, the disorder should be rated based on the residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Diagnostic Code 7528 (Note). A rating based on the diagnostic criteria for voiding dysfunction can be accomplished in one of three ways: for urine leakage, urinary frequency, or voiding obstruction. 38 C.F.R. § 4.115a. Notably, the Veteran underwent a prostatectomy in 2011. As there has been no local recurrence or metastasis and the Veteran filed for service connection for the disability in November 2017, the Veteran's prostate cancer disability will be rated based on the residuals of the Veteran's noted voiding dysfunction. In this case, the evidence does not suggest, and the Veteran has not reported, the presence of compensable symptoms for urine leakage or the presence of voiding obstruction at all. Thus, the Board analysis will focus on the severity of the Veteran's urinary frequency. Urine leakage requiring the wearing of absorbent materials that must be changed less than two times per day warrants a 20 percent rating. A 40 percent rating is warranted when the wearing of absorbent materials which must be changed two to four times per day is required. A (maximum) 60 percent rating is warranted where the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day is required. Id. Urinary frequency involving a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent rating. Urinary frequency involving a daytime voiding interval between one and two hours or awakening to void three to four times per night warrants a 20 percent rating. A daytime voiding interval less than one hour or awakening to void five or more times per night warrants a 40 percent rating, the maximum allowable rating under urinary frequency. Id. Turning now to the evidence, the Board notes private medical records from November 2017 show the Veteran did not report an increase in urinary frequency. He likewise denied urgency, dysuria, nocturia, and incontinence. He was provided a VA examination regarding his prostate cancer residuals in March 2018. At the examination, the Veteran denied urinary leakage and obstructed voiding. However, he reported urinary frequency in that he voided between two and three hours during the day and woke to void twice most nights. Otherwise the Veteran denied experiencing urinary tract infections or retrograde ejaculation. In October 2020, the Veteran was provided another VA examination for his prostate cancer residuals. At this examination, the Veteran reported urine leakage and urinary frequency, but no obstructed voiding. Regarding his urine leakage, the Veteran indicated he did not require the use of absorbent pads, the minimum requirement for a compensable rating for urine leakage. Regarding his urinary frequency, the Veteran again reported daytime voiding between two and three hours and waking twice to void at night. Based on the foregoing, the Board finds the Veteran's prostate cancer residuals do not warrant a rating in excess of 10 percent during the period on appeal. The Veteran has consistently reported daytime voiding between two and three hours and waking twice to void at night. No evidence weighs in favor of finding the Veteran voids between one and two hours during the day or awakens to void three to four times per night, symptoms of which would warrant the next highest 20 percent disability rating. The evidence also does not show other residual symptoms of the Veteran's prostate cancer (i.e. voiding dysfunction, obstructed voiding, or renal dysfunction) which would warrant a higher rating pursuant to 38 C.F.R. § 4.115a. Accordingly, evidence preponderates against the claim, and a disability rating in excess of 10 percent for prostate cancer residuals is denied. 6. Entitlement to a compensable initial disability rating for erectile dysfunction is denied. The Veteran generally contends a higher rating is warranted for his erectile dysfunction. Pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. A 20 percent rating is the only schedular rating provided under that diagnostic code. The Boards notes that the inability to achieve an erection cannot be considered an actual deformity as the requirement under Diagnostic Code 7522 of deformity of the penis "with" loss of erectile power clearly means that both factors are required. 38 C.F.R. § 4.115b; see Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met for an increased rating to be assigned). A note for Diagnostic Code 7522 indicates that, when evaluating any claim involving loss or loss of use of one or more creative organs, refer to 38 C.F.R. § 3.350 to determine whether a veteran may be entitled to special monthly compensation. The Board notes that the Veteran is already in receipt of special monthly compensation under 38 U.S.C. § 1114 (k) and 38 C.F.R. § 3.350 (a) based on loss of use of a creative organ, effective November 14, 2017, the date of the Veteran's claim. The rating schedule authorizes the assignment of a noncompensable rating in every instance in which the rating schedule does not provide for such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. A compensable rating for erectile dysfunction is not warranted at any point pertinent to the current claim for increase. Again, the Veteran's prostate cancer was first evaluated in March 2018. The examiner recorded the Veteran as experiencing erectile dysfunction without having yet used medication for treatment. It was noted that he did not experience retrograde ejaculation nor any other residuals due to his prostate cancer. However, as his erectile dysfunction was not formally evaluated, the Board remanded the claim for examination. In October 2020, the Veteran was provided a VA erectile dysfunction examination. At the examination, the Veteran reported experiencing issues with erectile dysfunction since the night before his prostatectomy. He noted trying Viagra without improvement, and reported his symptoms as trouble getting and maintaining an erection. Notably, the Veteran also reported the issue had stayed the same since its onset. The Veteran refused actual inspection of his penis and testes, but reported to the examiner that he had normal anatomy with no penile or testicular deformity or abnormality. There are no medical records that support finding the Veteran has a deformed penis, and the Veteran has specifically denied the presence of any penile or testicular deformity or abnormality, the presence of which is required for a compensable rating under the Diagnostic Code governing his erectile dysfunction. As such, the evidence preponderates against the Veteran's claim for a compensable rating for erectile dysfunction, and it must be denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.