Citation Nr: 21064734 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-33 738 DATE: October 21, 2021 ORDER Entitlement to a disability rating of 60 percent for left lower extremity diabetic neuropathy is granted. Entitlement to a disability rating of 60 percent for right lower extremity diabetic neuropathy is granted. Service connection for upper back condition is denied. FINDINGS OF FACT 1. The Veteran's left lower extremity diabetic neuropathy is characterized by severe incomplete paralysis with muscular atrophy and foot drop. 2. The Veteran's right lower extremity diabetic neuropathy is characterized by severe incomplete paralysis with muscular atrophy and foot drop. 3. The preponderance of the evidence of record is against finding that the Veteran has had an upper back condition at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 60 percent for left lower extremity diabetic neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124a, DC 8520. 2. The criteria for entitlement to a disability rating of 60 percent for right lower extremity diabetic neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124a, DC 8520. 3. The criteria for service connection for upper back condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1965 to November 1967, including service in the Republic of Vietnam from May 1966 to May 1967. The Veteran and his wife presented sworn testimony at a hearing before the undersigned Veterans Law Judge in August 2020. These matters were remanded by the Board in September 2020 for additional development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1-2 Entitlement to an increased disability rating of 60 percent for right and left lower extremity diabetic neuropathy. The Veteran testified during the August 2020 hearing that his left and right lower extremity diabetic neuropathy have worsened. He stated that he experiences poor balance, and a lot of numbness and shooting, burning pain in his lower extremities. He testified that he now has trouble taking care of his activities of daily living and falls and trips often due to drop foot. The Veteran's left and right lower extremity radiculopathy are rated under Diagnostic Code 8520 at 40 percent disabling, effective April 20, 2016. Sciatic nerve neurological manifestations are rated under Diagnostic Code 8520, 8620, or 8720 as, respectively, paralysis, neuritis, or neuralgia of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate, or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that 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 levels of the nerve lesion or to partial regeneration. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Based on the evidence of record, the Board finds that a rating of 60 percent is warranted throughout the appeal period for the Veteran's service-connected bilateral lower extremity radiculopathy. During the June 2016 examination, the Veteran reported foot drop, numbness, and dull sensation of feet. The examiner noted moderate numbness bilaterally, less than normal strength in ankle plantar flexion and ankle dorsiflexion, absent or decreased reflexes in knee and ankle bilaterally, decreased light touch in foot/toes bilaterally, decreased vibration sensation bilaterally, and decreased cold sensation bilaterally. The examiner also noted muscle atrophy in the left leg and normal gait with ankle/foot orthosis in place. Similarly, the August 2017 examination noted numbness bilaterally, absent or decreased reflexes in knee and ankle bilaterally, decreased light touch in foot/toes and ankle/lower leg bilaterally, and decreased cold sensation bilaterally. During the July 2021 examination, the examiner noted moderate intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness. The examiner also noted less than normal strength or no movement against resistance in ankle plantar flexion and ankle dorsiflexion, decreased reflexes in the ankle bilaterally, decreased light touch in foot/toes and ankle/lower leg bilaterally, decreased or absent vibration sense bilaterally, and decreased or absent cold sensation bilaterally. The examiner did not note muscle atrophy but did note trophic changes. The examiner concluded that the Veteran has moderate incomplete paralysis of the sciatic nerve bilaterally. The examiner also stated that the Veteran uses bilateral braces for his foot drop in order to avoid falls. Medical records note trophic changes, weakness bilaterally, numbness bilaterally, absent light touch sensation to feet bilaterally, foot drop and associated falls. See Medical Treatment Records, March 2016, June 2016, January 2018, August 2020, June 2021. In March 2016, the Veteran reported falling eight to ten times over the past six months due to his foot drop. Here, the Veteran's competent and credible reports of the onset and continuation of his symptoms and the medical evidence shows muscle atrophy, severe numbness, and severe foot drop causing falls. Therefore, the Board finds that a rating of 60 percent for bilateral lower extremity peripheral neuropathy is warranted. However, a rating in excess of 60 percent is not warranted. Although lay and medical evidence shows that the Veteran has drop foot that causes falls and requires the Veteran to constantly use a brace, the evidence does not show that the Veteran has complete paralysis of the sciatic nerve with no active movement possible of muscles below the knee and flexion of the knee weakened or (very rarely) lost. See VA Examinations, June 2016, August 2017, and July 2021; see also Hearing Testimony, August 2020. In sum, the Board finds that the Veteran's bilateral lower extremity peripheral neuropathy warrants a 60 percent rating throughout the appeal period. 1. Service connection for upper back condition. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active-duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Even in the absence of a diagnosed disability, evidence of functional limitations due to symptoms can meet this requirement. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Specifically, in Saunders v. Wilkie, the Federal Circuit found that the term "disability," as used in 38 U.S.C. § 1110, refers to the functional impairment of earning capacity, not the underlying cause of said disability, and held that pain alone can serve as a functional impairment and therefore qualify as a disability. At the August 2020 hearing, the Veteran testified that his back condition is due to service. When describing his disability and its corresponding symptoms, the Veteran did not differentiate between an upper and lower back disability. See Hearing Testimony, August 2020. Service treatment records show that the Veteran reported back pain in May 1966 and June 1966. Both reports note chronic back pain, and the June 1966 report recommended the use of a bed board. Since service, the Veteran has been diagnosed with lumbar spine degenerative disease and bilateral lumbar radiculopathy. See VA Examination, October 2013. In July 2021, a VA examination was conducted where the Veteran reported upper back pain in service and current symptoms of back pain that has improved after undergoing surgery. The examiner noted a diagnosis of degenerative disc disease other than IVDS. After examining the Veteran, the examiner concluded that there is no change in the service-connected diagnosis and no additional diagnoses were rendered. The examiner stated that the Veteran has complete impairment of his back and is in such horrible shape that it was difficult to evaluate. However, the examiner reiterated that the Veteran did not have a separate upper back diagnosis. Here, the evidence does not show that the Veteran has suffered from an upper back condition resulting in functional impairment that reduces earning capacity during the appeal period. In July 2021, a VA examination was conducted where the Veteran reported upper back pain in service and current symptoms of back pain that has improved after undergoing surgery. The examiner noted a diagnosis of degenerative disc disease other than IVDS. After examining the Veteran, the examiner concluded that there is no change in the service-connected diagnosis and no additional diagnoses have been rendered. The examiner stated that the Veteran has complete impairment of his back and is in such horrible shape that it was difficult to evaluate. However, the examiner again stated that the Veteran does not have a separate upper back diagnosis. The Board finds the examiner's opinion highly probative as it contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Thus, entitlement to service connection for a separate upper back disability is not warranted because the Veteran does not have any functional impairment to support a finding that he has suffered from an upper back disability during the appeal period. Instead, as noted in the July 2021 VA examination, to the extent the Veteran reports back pain, the Board observes that his symptoms are already contemplated by his service-connected low back disability. In light of the foregoing, the Board finds that service connection for an upper back condition must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.