Citation Nr: 21066254 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-22 715 DATE: October 29, 2021 ORDER 1. An initial 40 percent rating, and no higher, for peripheral neuropathy of the right lower extremity, for the whole period on appeal, is granted. 2. An initial 40 percent rating, and no higher, for peripheral neuropathy of the left lower extremity, prior to February 23, 2015, is granted. 3. A rating of 60 percent, and no higher, for peripheral neuropathy of the left lower extremity, from January 22, 2016 to July 29, 2019, is granted. 4. A rating in excess of 40 percent for peripheral neuropathy of the left lower extremity from July 30, 2019 forward is denied. FINDINGS OF FACT 1. Affording the Veteran the reasonable benefit of the doubt, he has exhibited symptoms consistent with moderately severe incomplete paralysis of the sciatic nerve in the right lower extremity. 2. Prior to February 23, 2015, affording the Veteran the reasonable benefit of the doubt, he has exhibited symptoms consistent with moderately severe incomplete paralysis of the sciatic nerve in the left lower extremity from 3. From January 22, 2016 to July 29, 2019, the Veteran's left lower extremity peripheral neuropathy resulted in severe incomplete paralysis of the sciatic nerve with muscular atrophy. 4. From July 30, 2019 forward, the Veteran's left lower extremity peripheral neuropathy resulted in moderate incomplete paralysis of the sciatic nerve, and is not manifested by incomplete paralysis with severe, marked muscular atrophy. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, for the Veteran's peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520. 2. Prior to February 23, 2015, the criteria for a rating of 40 percent, but no higher, for the Veteran's peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520. 3. From January 22, 2016 to July 29, 2019, the criteria for a 60 percent rating, but no higher, for the Veteran's peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.2, 4.3, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 4. From July 30, 2019 forward, the criteria for a rating in excess of 40 percent have not been satisfied for the Veteran's peripheral neuropathy of the left lower extremity. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124(a), DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to September 1982 and from February 1983 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Board denied the Veteran's claim for an increased rating for service-connected bilateral peripheral neuropathy of the lower extremities, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a June 2021 Order, pursuant to a Joint Motion for Partial Remand (JMPR), the V Court vacated the Board's August 2020 decision, and remanded this issue back to the Board for additional development consistent with the JMPR. The appeal has since been returned to the Board for further appellate action. Increased Rating 1. An initial 40 percent rating, and no higher, for peripheral neuropathy of the right lower extremity is granted. 2. An initial 40 percent rating, and no higher, for peripheral neuropathy of the left lower extremity, prior to February 23, 2015, is granted. 3. A rating of 60 percent, and no higher, for peripheral neuropathy of the left lower extremity, from January 22, 2016 to July 29, 2019, is granted. 4. A rating in excess of 40 percent for peripheral neuropathy of the left lower extremity from July 30, 2019 forward is denied. The Veteran contends that he is entitled to a rating in excess of 20 percent bilaterally prior to February 23, 2015, and in excess of 40 percent for his left lower extremity thereafter. Under Diagnostic Code 8520, 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. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Codes 8526, 8626, and 8726 provide ratings for paralysis, neuritis, and neuralgia of the anterior crural (femoral) nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 30 percent are warranted, respectively, for mild, moderate, severe incomplete paralysis of the femoral nerve. A 40 percent rating is warranted with complete paralysis of the femoral nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8526. Diagnostic Codes 8528-8530, 8628-8630, and 8728-8730, provide ratings for paralysis, neuritis, and neuralgia of the obturator, external cutaneous, and ilio-inguinal nerves. Neuritis and neuralgia are rated as incomplete paralysis. For each disability, a maximum 10 percent rating is warranted for severe incomplete paralysis or paralysis of the respective nerve. Mild or moderate impairment of each nerve (obturator, external cutaneous, and ilio-inguinal) warrant noncompensable ratings. 38 C.F.R. § 4.124a, Diagnostic Codes 8528-8530, 8628-8630, and 8728-8730. 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. 38 C.F.R. § 4.124a. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). As per relevant background, this matter began with the Veteran seeking an initial rating higher than 10 percent bilaterally. Subsequently, in March 2016 and June 2016 rating decisions, the RO granted an increased rating of 20 percent for the right lower extremity, 20 percent for the left lower extremity prior to February 23, 2015, and 40 percent for the left lower extremity thereafter. An August 2020 Board decision denied any higher ratings, and the Veteran appealed that decision to the Court. Essentially the Court found the Board provided inadequate reasons and bases to support its decision when it failed to discuss materially favorable medical evidence of record, and offer an explanation as to why the favorable medical evidence does not show moderately severe impairment. To this point, the Court explained that the Board failed to address the January 2016 private medical examination showing "moderate constant pain (which may be excruciating at times)" as well as "severe intermittent pain," and severe flare ups occurring 1-4 times a week. In this decision, the Board will address these concerns. By way of evidentiary background, the Veteran underwent a VA back examination in January 2015. Upon examination, the Veteran presented with moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness bilaterally. No muscular atrophy was found. A peripheral nerves examination was performed right after the VA back examination in January 2015. The Veteran reported constant pain radiating from lower back to both legs, intermittent flare ups, numbness, and tingling down to both feet. The Veteran exhibited moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness bilaterally. Muscle strength testing was normal, and the Veteran did not have muscle atrophy. Both the reflex examination and the sensory examination were normal. The nerves affected were the sciatic and external popliteal, described as bilateral, mild, incomplete paralysis. The Veteran submitted a private back and peripheral nerves examination report. See July 2016 Medical Treatment Record- Non-Government. The Veteran reported bilateral moderate constant pain, which can be excruciating at times, severe intermittent pain bilaterally, moderate paresthesias and/or dysesthesias bilaterally, and moderate numbness bilaterally. The Veteran also reported flare ups between 1-4 times per week, which were described as severe in nature. The Veteran was noted to use a brace for ambulation constantly. Upon examination, muscular atrophy was noted, muscle strength testing was 3/5 bilaterally, and the sensory examination was normal except for left thigh, knee, lower leg, ankle, foot, and toes, which showed decreased sensation. The Veteran was again afforded a VA examination for his back and peripheral neuropathy in January 2019. Upon examination, the Veteran showed moderate bilateral constant pain, moderate bilateral intermittent pain, moderate bilateral paresthesias and/or dysesthesias, and moderate bilateral numbness. Sensory examination revealed bilateral decreased sensation to lower leg, ankle, foot, and toes. The examiner found no muscular atrophy, and no use of assistive devices were needed. The peripheral nerves examination performed that same day noted much of the same as above, and included a description of the nature and severity of the Veteran's peripheral nerve condition as bilateral, moderate, incomplete paralysis of the sciatic nerve. The Veteran underwent another VA peripheral nerves examination in October 2020. He reported experiencing bilateral foot drop, resulting in the dragging of his feet. Examination revealed bilateral moderate intermittent pain, bilateral moderate paresthesias and/or dysesthesias, and bilateral moderate numbness. Muscle strength testing showed 4/5 for bilateral knee extension, ankle plantar flexion, and ankle dorsiflexion. Reflex examination was normal, and there was no evidence of muscle atrophy. The examiner found the Veteran to have bilateral, moderate incomplete paralysis of the sciatic and external popliteal nerve, and a cane was noted to be used constantly for ambulation. The examiner remarked that there is no objective evidence of bilateral foot drop after considering the evidence of record and the examination. Right Lower Extremity The Veteran currently has a 20 percent rating for peripheral neuropathy of the right lower extremity (sciatic nerve) for the entire period on appeal under Diagnostic Code 8520. Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that a 40 percent disability rating, but no higher, for peripheral neuropathy of the right lower extremity is warranted. As noted above, a 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. The January 2015 VA examination indicated severe intermittent pain bilaterally, along with periods of flare which results in greater pain and numbness. Similarly, the July 2016 private examination noted the Veteran's report of bilateral constant pain, which is described as excruciating at times, and severe intermittent pain bilaterally. Additionally, the private examination report revealed flare ups between 1-4 times per week, which were described as severe in nature. When affording the Veteran the benefit of the doubt, the Board finds that a 40 percent disability evaluation is warranted for the Veteran's service-connected peripheral neuropathy of the right lower extremity. Evaluations in excess of 40 percent for peripheral neuropathy of the right lower extremity have not been demonstrated by the evidence of record at any point. While the Veteran had numbness, tingling, and pain, there was no evidence of foot drop, paralysis, constant weakness, or muscle atrophy. The Board again notes that a higher 60 percent evaluation under Diagnostic Code 8520 requires both severe incomplete paralysis and marked muscular atrophy of the sciatic nerve. There is no evidence of muscular atrophy as both the VA and private examinations specifically indicate that there is no muscular atrophy of the right lower extremity. As such, a rating in excess of 40 percent is not warranted. Left Lower Extremity Prior to February 23, 2015 The Veteran currently has a 20 percent rating, prior to February 23, 2015, for peripheral neuropathy of the left lower extremity (sciatic nerve) under Diagnostic Code 8520. For the reasons explained above, the Board finds that with resolution of all reasonable doubt in the Veteran's favor, a 40 percent disability rating, but no higher, for peripheral neuropathy of the left lower extremity prior to February 23, 2015 is warranted. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Left Lower Extremity from January 22, 2016 to July 29, 2019 January 2016 private examination reveals moderate bilateral constant pain, described as excruciating at times, severe intermittent pain bilaterally, periods of flare 1-4 days out of the week, described as severe in nature, decreased sensation of the left thigh, knee, lower leg, ankle, foot and toes, and muscle atrophy of the left lower extremity. The July 2019 VA peripheral nerves examination indicated moderate bilateral constant pain, moderate bilateral intermittent pain, moderate bilateral paresthesias and/or dysesthesias, and moderate bilateral numbness, with no muscular atrophy. The examiner characterized the severity of the Veteran's paralysis as incomplete and moderate bilaterally. As the medical evidence confirms severe incomplete paralysis with muscular atrophy, a rating of 60 percent for left lower extremity peripheral neuropathy is warranted from January 22, 2016 to July 29, 2019. During this period, there is no evidence of complete paralysis of the sciatic nerve due to peripheral neuropathy and symptoms of left foot drop. Accordingly, a rating in excess of 60 percent is not indicated. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Left Lower Extremity from July 30, 2019 Forward The Veteran currently has a 40 percent rating, from February 23, 2015 forward, for peripheral neuropathy of the left lower extremity (sciatic nerve) under Diagnostic Code 8520. As this decision has increased his left lower extremity rating from 40 to 60 percent, effective January 22, 2016 to July 29, 2019, the Board will now address an appropriate rating for the dates thereafter. After reviewing the record, the Board finds that there is no competent evidence to support a finding that the Veteran's peripheral neuropathy symptoms more nearly approximate severe incomplete paralysis with marked muscular atrophy. Indeed, both the January 2019 and October 2020 VA examinations indicate bilateral moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Moreover, both VA examiners described the severity of the Veteran's paralysis as bilateral, moderate, incomplete paralysis of the sciatic and external popliteal nerve. The Board acknowledges the Veteran's report of bilateral drop foot resulting in the dragging of his feet during his October 2020 VA examination; however, after considering this report, the October 2020 VA examiner remarked that he could find no evidence of such a condition upon examination nor within the Veteran's medical records. Therefore, the competent and probative findings rendered by the VA examiners (discussed above) establishes no more than moderate, incomplete paralysis, of the sciatic and external popliteal nerve. As there is no competent evidence demonstrating that the criteria for a rating in excess of 40 percent have been met, a higher rating is denied from July 30, 2019 forward. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.