Citation Nr: 21064553 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-29 167 DATE: October 20, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for myofascial pain of the paraspinal muscles of the neck is denied. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of left lower extremity associated with diabetes mellitus prior to May 10, 2011 is denied. Entitlement to a rating in excess of 40 percent for peripheral neuropathy of left lower extremity associated with diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran's myofascial pain of the paraspinal muscles of the neck is manifest by pain with forward flexion to 30 degrees at worst. There is no ankylosis. 2. The Veteran's peripheral neuropathy of left lower extremity associated with diabetes mellitus was manifest by no more than mild incomplete paralysis prior to May 10, 2011. 3. Currently, peripheral neuropathy of left lower extremity associated with diabetes mellitus is manifest by no more than moderate severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for myofascial pain of the paraspinal muscles of the neck have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for a rating in excess of 10 percent for peripheral neuropathy of left lower extremity associated with diabetes mellitus prior to May 10, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating in excess of 40 percent for peripheral neuropathy of left lower extremity associated with diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to November 1968 and from September 1969 to November 1971. This case was previously before the Board in March 2019, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. Entitlement to an initial rating in excess of 20 percent for myofascial pain of the paraspinal muscles of the neck The Veteran's myofascial pain of the paraspinal muscles of the neck is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran's myofascial pain of the paraspinal muscles of the neck was formerly rated as noncompensable under Diagnostic Code 9999-9905. The AOJ changed the diagnostic code upon examination of the Veteran's cervical spine. A separate rating for migraines was also granted. Throughout the appeal period, the Veteran has reported neck pain as the result of his teeth grinding. At a May 2011 VA examination, he reported pain in the jaws, neck and headaches most of the time. Range of motion was not tested, but the Veteran reported only pain and resultant difficulty focusing. In January 2020, the Veteran was examined for temporomandibular disorders. He reported daily bilateral pre-auricular/masseter pain as well as posterior neck pain that occurs daily and extends to both shoulders. He also reported severe headaches. The Veteran received a VA examination for the cervical spine in July 2020. He reported neck pain that flares 2-3 times per week, which are alleviated by taking medication and going into a dark area. Upon examination he exhibited forward flexion to 35 degrees. The examiner estimated that during flare-ups forward flexion was limited to 30 degrees. Guarding was noted but did not result in abnormal spinal contour or gait. No radicular symptoms were noted. There was no ankylosis. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for myofascial pain of the paraspinal muscles of the neck. To warrant a higher rating of 30 percent, there would need to be forward flexion to 15 degrees or less or favorable ankylosis of the entire cervical spine. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that his neck pain flares 2-3 times per week would not result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. The Veteran did not report decreased range of motion during flares, and the July 2020 examiner estimated forward flexion to 30 degrees. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS, and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for myofascial pain of the paraspinal muscles of the neck. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of left lower extremity associated with diabetes mellitus prior to May 10, 2011 Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran had a VA examination for diabetes in January 2011. He reported loss of sensation in the soles of the feet. Reflexes were normal upon examination. Sensory examination revealed decreased sensation to pain/pinprick and light touch on the soles of the feet. Motor examination results were normal. Based on the above, the Board finds that during this period, the disability was primarily manifest by sensory disturbance. The Veteran reported decreased sensation, and sensory testing confirmed this result. Reflex and motor testing was normal, and the Veteran did not report any other symptoms. No muscle atrophy was noted. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity prior to May 10, 2011. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a rating in excess of 40 percent for peripheral neuropathy of left lower extremity associated with diabetes mellitus The Veteran received a VA examination for the peripheral nerves in May 2011. He reported progressive worsening of numbness in his left leg which extends to his left foot. Upon examination, the ankle jerk reflex was hypoactive. Sensory examination revealed decreased sensation to vibration, pain/pinprick, light touch and temperature. The examiner noted decreased sensation from the upper thigh through the lower leg, foot and toes. There was no muscle atrophy. An August 2013 Disability Benefits Questionnaire (DBQ) for the Veteran's diabetes noted that he had moderate left lower extremity peripheral neuropathy. Another DBQ submitted in November 2013 again stated that there was moderate left lower extremity peripheral neuropathy. The Veteran received another VA examination in January 2020. The examiner noted moderate constant pain, moderate paresthesias and/or dysesthesias and moderate numbness in the left lower extremity. Knee extension and ankle dorsiflexion showed decreased strength (4/5) on examination. The left ankle reflex was absent. There was decreased sensation at the knee/thigh and ankle/lower leg. Sensation was absent at the foot/toes. Position sense and vibration sensation were also absent. There was no muscle atrophy and no trophic changes. The examiner indicated that there was moderate incomplete paralysis of the sciatic nerve. Based on the above, the Board finds that during this period, the disability was primarily manifest by sensory disturbance and decreased reflexes. The Veteran reported decreased sensation, and sensory testing confirmed this result. Motor testing was normal, and the Veteran did not report any other symptoms. No muscle atrophy was noted. The Board thus finds that the level of impairment is most analogous to moderately severe incomplete paralysis. To warrant a higher rating of 60 percent, there would need to be severe incomplete paralysis, with marked muscular atrophy. No muscle atrophy was noted at any point. Therefore, a 60 percent rating is not warranted. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for peripheral neuropathy of the left lower extremity. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Creegan, Amanda 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.