Citation Nr: 21064674
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 15-23 249A
DATE: October 21, 2021

ORDER

Entitlement to a rating in excess of 10 percent prior to August 21, 2017 for peripheral neuropathy, right lower extremity, is denied.

Entitlement to a 40 percent rating from August 21, 2017 but no higher for peripheral neuropathy, right lower extremity, is granted. 

Entitlement to a rating in excess of 10 percent prior to August 21, 2017 for peripheral neuropathy, left lower extremity, is denied.

Entitlement to a 40 percent rating from August 21, 2017 but no higher for peripheral neuropathy, left lower extremity, is granted.

FINDINGS OF FACT

1. Prior to August 21, 2017, peripheral neuropathy, right lower extremity, was manifest by no more than mild incomplete paralysis of the sciatic nerve.

2. From August 21, 2017, peripheral neuropathy, right lower extremity is manifest by no more than moderately severe incomplete paralysis of the sciatic nerve.

3. Prior to August 21, 2017, peripheral neuropathy, left lower extremity, was manifest by no more than mild incomplete paralysis of the sciatic nerve.

4. From August 21, 2017, peripheral neuropathy, left lower extremity is manifest by no more than moderately severe incomplete paralysis of the sciatic nerve.

CONCLUSIONS OF LAW

1. Prior to August 21, 2017, the criteria for a disability rating in excess of 10 percent, for peripheral neuropathy, right lower extremity are not met or more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

2. From August 21, 2017, the criteria for a 40 percent disability rating but no higher for peripheral neuropathy, right lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

3. Prior to August 21, 2017, the criteria for a disability rating in excess of 10 percent, for peripheral neuropathy, left lower extremity are not met or more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

4. From August 21, 2017, the criteria for a 40 percent disability rating but no higher for peripheral neuropathy, left lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1967 to February 1973.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in December 2019 so that the Agency of Original Jurisdiction (AOJ) could review evidence acquired since the August 2017 Supplemental Statement of the Case (SSOC) and readjudicate the claims. The AOJ issued another SSOC in April 2020, and the matters were recertified to the Board. 

In a July 2020 decision, the Board denied increased ratings for left and right lower extremity peripheral neuropathy. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a May 2021 Joint Motion for Partial Remand, in June 2021 the Court vacated the Board's July 2020 decision and remanded the matters for further consideration pursuant to the terms of the Joint Motion.

INCREASED RATING

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, 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. 38 C.F.R. § 4.7.

1. Entitlement to an evaluation in excess of 10 percent prior to August 21, 2017 for peripheral neuropathy, right lower extremity.

2. Entitlement to an evaluation in excess of 20 percent from August 21, 2017, for peripheral neuropathy, right lower extremity.

3. Entitlement to an initial evaluation in excess of 10 percent prior to August 21, 2017 for peripheral neuropathy, left lower extremity.

4. Entitlement to an evaluation in excess of 20 percent from August 21, 2017, for peripheral neuropathy, left lower extremity.

The Veteran's right and left lower extremity peripheral neuropathies are assigned 10 percent initial evaluations until August 21, 2017, and 20 percent evaluations thereafter. He seeks higher ratings.

The lower extremity peripheral neuropathies are rated under Diagnostic Code 8520, which pertains to paralysis of the sciatic nerve. A 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity, where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520.

The words "slight," "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA 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. 38 C.F.R. §§ 4.123, 4.124. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6.

The term incomplete paralysis indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. 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).

After reviewing the evidence, the Board concludes that preponderance of the evidence is against a rating in excess of 10 percent prior to August 21, 2017. However, as the evidence is at least in relative equipoise as to whether the Veteran's left and right lower extremity peripheral neuropathy has been moderately severe, a 40 percent rating but no higher is warranted from August 21, 2017.

Initially, the Board acknowledges the May 2021 Joint Motion for Partial Remand, in which the parties to the motion agreed the Board had erred with it failed to define the terms "mild," "moderate," and "moderately severe," when denying a rating in excess of 10 percent before August 21, 2017 and 20 percent thereafter for the Veteran's peripheral neuropathy in the July 2020 decision.

The Board is obligated to support its decision with a statement of reasons and bases that is understandable to the Veteran and facilitates review by the Court, which the parties to the May 2021 Joint Motion agreed the Board had not done in the July 2020 decision. 38 U.S.C. § 7104 (d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although such requirement does not mandate that the Board provide precise definitions for terms left undefined by regulation, the requirement does mandate that the Board provide a statement of reasons or bases sufficiently detailed to enable the appellant and the Court to understand how the Board applied the terms used. See Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017).

First, the Board will address the rating period before August 21, 2017. For the reasons articulated below, we conclude that the level of impairment caused by the Veteran's left and right lower extremity peripheral neuropathy more nearly approximates the "mild" impairment of a 10 percent evaluation before August 21, 2017.  In reaching any determination regarding the evaluation, to include the descriptive phrases, we are guided by regulations, to include  sections 4.120, 4.123, 4.124 and 4.124a.  As noted in section 4.120, we are guided by "comparisons."  The above regulations set the standards for such comparisons. 

VA treatment records from this period show diagnoses of diabetic peripheral neuropathy and that the Veteran reported numbness and tingling in both of his feet.

The Veteran was provided a VA diabetic peripheral neuropathy examination in February 2013. The Veteran reported numbness and tingling in his toes and that his feet were always cold, and he denied any pain. The only symptom the examiner attributed to the Veteran's neuropathy was mild paresthesias and/or dysesthesias. Muscle strength testing of the lower extremities showed 5/5 strength in each category and there was no muscle atrophy or trophic changes. Reflex testing showed decreased reflexes in the knee and ankle, and light touch testing showed normal sensation in both ankles and knees with decreased sensation in the right and left feet and toes. Positional sense, vibration sensation, and cold sensation were normal in both lower extremities. The examiner concluded the Veteran had mild incomplete paralysis of the sciatic nerve in both lower extremities and explained that while diabetic peripheral neuropathy is most commonly a polyneuropathy, the sciatic nerve had been chosen for the ratings purposes of the examination.

Here, the February 2013 VA examination is the only evidence directly pertaining to the severity of the Veteran's right and left lower extremity peripheral neuropathy before August 21, 2017. The examiner noted mild paresthesias and/or dysesthesias in both extremities, and the Veteran reported numbness and cold sensation in his toes and feet. He denied any pain. There was no constant pain, intermittent pain, or numbness upon physical examination. Muscle strength testing of the lower extremities showed 5/5 strength in each category and there was no muscle atrophy or trophic changes. While reflexes of both knees and ankles were decreased, and light touch sensation was decreased in the right and left feet and toes, ankle and knee reflexes were not absent, and all other lower extremity sensory tests were normal. 

As noted above, VA 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. The medical evidence before August 21, 2017, including the February 2013 VA examination and the VA treatment records, show only that the Veteran reported numbness and tingling in his feet and that he denied pain. There were no trophic changes, and no impairment of motor function was attributed to the Veteran's bilateral lower extremity neuropathy. While there are sensory disturbances, the VA examiner determined these were mild. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. There is no documented pain or muscle atrophy before August 21, 2017. Although the Veteran's ankle and knee reflexes were reduced, they were merely reduced and not absent.

In sum, the Board concludes the left and right lower extremity peripheral neuropathy symptoms before August 21, 2017 were mild. There was no pain, muscle weakness, or muscle atrophy. The Veteran still had reflexes present in the knee and ankle, there were no trophic changes, and although some light touch sensation was diminished, positional sense, vibration sensation, and cold sensation were normal. The February 2013 examiner determined the Veteran's symptoms were mild, and there is no evidence to the contrary. The evidence does not show the level of impairment required for moderate incomplete paralysis and a 20 percent evaluation. For the ratings period prior to August 21, 2017, a rating in excess of 10 percent for right and left lower extremity peripheral neuropathy is denied. 

Next, the Board will address the rating period since August 21, 2017. For the reasons articulated below, we conclude that the level of impairment caused by the Veteran's left and right lower extremity peripheral neuropathy more nearly approximates the "moderately severe" impairment of a 40 percent evaluation from August 21, 2017.

The Veteran was provided a VA examination on August 21, 2017. He reported worsening of the numbness and tingling in his feet up to his ankle with intermittent sharp pain along both plantar surfaces of his feet, and intermittent cold feet. He also reported that he had fallen four times in the past year but was unsure if the falls were related to dizziness or caused by not feeling his feet with stepping up. The examiner noted moderate intermittent pain and numbness in both extremities, with moderate paresthesias and/or dysesthesias in the right lower extremity and mild in the left. There was not constant pain. Muscle strength testing of the lower extremities showed 5/5 strength in each category. Knee reflexes were decreased, and ankle reflexes were absent. Light touch sensation was decreased in both ankles and absent in the feet and toes. Vibration sensation testing was absent in both lower extremities, and cold sensation was decreased. There was no muscle atrophy. Trophic changes consisted of hairless, smooth, and shiny skin from the Veteran's shins down to his ankles. The examiner concluded the Veteran had moderate incomplete paralysis of the sciatic nerve in both lower extremities.

He was provided another VA examination for peripheral neuropathy in June 2019. The examiner noted moderate intermittent pain, numbness, and paresthesias and/or dysesthesias in both lower extremities. There was not constant pain. Muscle strength testing of the lower extremities showed 5/5 strength in each category. Knee and ankle reflexes were absent. Light touch sensation was absent in the Veteran's ankles, feet, and toes. Vibration and cold sensation were absent in both lower extremities. There was no muscle atrophy. Trophic changes consisted of thick toenails and diminished hair growth. The examiner concluded the Veteran had moderate incomplete paralysis of the sciatic nerve in both lower extremities.

Here, both the August 2017 and June 2019 VA examiners determined the Veteran's left and right lower extremity peripheral neuropathy manifested in moderate incomplete paralysis. However, the Board finds the evidence is at least in equipoise as to whether the Veteran's symptoms more nearly approximated the criteria for moderately severe incomplete paralysis of the right and left lower extremities. As such, a 40 percent evaluation is warranted for the Veteran's left and right lower extremity peripheral neuropathy from August 21, 2017.

The Veteran's intermittent pain, numbness, and paresthesias were assessed moderate by the 2017 and 2019 VA examiners, and muscle strength has been full on examination. We also note that nerve involvement that is wholly sensory should be rated as at most moderate. However, the Veteran's symptoms are not wholly sensory. The left and right knee and ankle reflexes are absent, and there are lower extremity trophic changes attributed to his neuropathy. Additionally, some of the Veteran's sensory impairment is more severe than "moderate." The June 2019 examination shows light touch sensation is completely absent in the ankles, feet, and toes, and that vibration and cold sensation were absent in both lower extremities. This suggests the symptoms are more severe than the "moderate" level assessed by the 2017 and 2019 examiners. VA treatment records reflect the Veteran has continued to report tingling, numbness, and burning sensations in both lower extremities.

The Veteran also uses assistive devices, including a cane and walker, and has reported that his numbness and lack of sensation in both feet may cause him to stumble and fall. The Veteran is service connected for Parkinson's disease with balance impairment separately from his lower extremity peripheral neuropathy. However, use of a cane is contemplated by 38 C.F.R. § 4.120 as impairments of motor and sensory function and are compensated by the schedular ratings listed in Diagnostic Code 8520. See Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018).

Resolving the benefit of the doubt in the Veteran's favor, the Board finds the Veteran's right and left lower extremity peripheral neuropathy has more closely approximated the criteria for moderately severe incomplete paralysis of the sciatic nerve. The overall level of impairment was consistent with a 40 percent rating under Diagnostic Code 8520 from August 21, 2017.

Finally, neither a 60 percent evaluation nor an 80 percent evaluation is warranted for the Veteran's right or left lower extremity peripheral neuropathy at any point during the period on appeal. Although the term "severe" is not defined in the regulations, Diagnostic Code 8520 partially defines severe paralysis of the sciatic nerve as requiring "marked muscle atrophy." A 60 percent evaluation is not warranted before or after August 21, 2017 because no muscle atrophy has been shown on VA examinations or anywhere else in the record. An 80 percent rating for complete paralysis of the sciatic nerve is also not warranted because the Veteran does not have complete paralysis of the sciatic nerve on either side. While some leg weakness has been attributed to the Veteran's Parkinson's disease, the VA examinations do not show muscle strength has been weakened, neither foot dangles or drops, and there is no indication that the Veteran has no active movement of the muscles below either knee. See 38 C.F.R. § 4.124a, Diagnostic Code 8520.

In reaching this determination, the Board as well as the AOJ have assigned a staged rating.  Clearly, there has been a change in the level of disability during the appeal period.  We are not concluding that the Veteran became worse on the day of a VA examination.  However, our review of the record reflects no precise date, including lay evidence, upon which another effective date could be assigned.  Here, the effective date is based upon facts found, the date of an examination disclosing a change in the level of disability.     

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Morse

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.