Citation Nr: 21066295 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-36 723 DATE: October 29, 2021 ORDER Entitlement to a separate, initial 10 percent rating for bilateral neuroma (metatarsalgia) is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to an initial 20 percent rating, but no higher, for right lower extremity neuropathy prior to May 9, 2017 is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to an initial 20 percent rating, but no higher, for left lower extremity neuropathy prior to May 9, 2017 is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to an initial rating in excess of 20 percent for right lower extremity neuropathy prior to December 13, 2019 is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity neuropathy prior to December 13, 2019 is denied. Entitlement to an initial rating in excess of 40 percent for right lower extremity neuropathy from December 13, 2019 is denied. Entitlement to an initial rating in excess of 40 percent for left lower extremity neuropathy from December 13, 2019 is denied. FINDINGS OF FACT 1. Since February 24, 2014, the Veteran's service-connected bilateral neuroma (also diagnosed as metatarsalgia) has manifested by separate and distinct symptomatology from her service-connected bilateral lower extremity neuropathy. 2. Prior to May 9, 2017, the Veteran's right lower extremity neuropathy, which manifested by symptoms of mild to severe constant pain, burning, tingling, and numbness, and diminished posterior tibial and dorsalis pedis pulses, more closely approximated moderate incomplete paralysis of the sciatic nerve. 3. Prior to May 9, 2017, the Veteran's left lower extremity neuropathy, which manifested by symptoms of mild to severe constant pain, burning, tingling, and numbness, and diminished posterior tibial and dorsalis pedis pulses, more closely approximated moderate incomplete paralysis of the sciatic nerve. 4. Prior to December 13, 2019, the Veteran's right lower extremity neuropathy did not more closely approximate moderately severe incomplete paralysis of the sciatic nerve. 5. Prior to December 13, 2019, the Veteran's left lower extremity neuropathy did not more closely approximate moderately severe incomplete paralysis of the sciatic nerve. 6. Since December 13, 2019, the Veteran's right lower extremity neuropathy has not more closely approximated severe incomplete paralysis with marked muscular atrophy. 7. Since December 13, 2019, the Veteran's left lower extremity neuropathy has not more closely approximated severe incomplete paralysis with marked muscular atrophy. CONCLUSIONS OF LAW 1. Since February 24, 2014, the criteria for a separate, initial 10 percent rating, but no higher, for bilateral neuroma (metatarsalgia) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5279. 2. Prior to May 9, 2017, the criteria for an initial 20 percent rating, but no higher, for right lower extremity neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. Prior to May 9, 2017, the criteria for an initial 20 percent rating, but no higher, for left lower extremity neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. Prior to December 13, 2019, the criteria for an initial rating in excess of 20 percent for right lower extremity neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. Prior to December 13, 2019, the criteria for an initial rating in excess of 20 percent for left lower extremity neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 6. Since December 13, 2019, the criteria for an initial rating in excess of 40 percent for right lower extremity neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 7. Since December 13, 2019, the criteria for an initial rating in excess of 40 percent for left lower extremity neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1984 to March 1985, from September 1990 to November 1990, and from May 1995 to January 1996. She served on active duty in the United States Army from October 2003 to September 2004, and from October 2004 to May 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for right and left lower extremity neuropathy and neuroma and assigned each extremity a 10 percent disability rating effective February 24, 2014. In April 2020, the Board remanded the matters for further development. In an April 2020 rating decision, the RO awarded the Veteran separate 20 percent ratings for her bilateral lower extremity disability effective May 9, 2017. Thereafter, in a March 2021 rating decision, the RO once again awarded the Veteran separate 40 percent ratings for the above disability effective December 13, 2019. As these awards constitute partial grants of the benefit sought, the increased rating claims remain on appeal and have been recharacterized accordingly. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). As the actions specified in the April 2020 remand have been substantially completed, these matters have been properly returned to the Board for further appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor her representative have advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating 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. A veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to initial increased ratings for right and left lower extremity neuropathy and neuroma The Veteran's service-connected right and left lower extremity neuropathy and neuroma is currently rated 10 percent disabling prior to May 9, 2017, 20 percent disabling prior to December 13, 2019, and 40 percent disabling thereafter. As the facts and analysis for both the right and left lower extremity disabilities are substantially the same, the Board will address both issues at the same time for the purposes of brevity. The Veteran's bilateral lower extremity neuropathy and neuroma is currently rated under Diagnostic Code 8520, which contemplates paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. A maximum 80 percent rating is warranted for complete paralysis where the foot dangles and drops, no active movement of muscles below the knee is possible, and flexion of the knee is weakened or lost. Id. Diseases of the peripheral nerves are rated based on the degree of paralysis, neuritis, or neuralgia. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id.; see Miller v. Shulkin, 28 Vet. App. 376, 380 (2017). Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the scale provided for injury of the nerve affected, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Tic douloureux may be rated up to complete paralysis of the affected nerve. Id. The terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element 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. During the period on appeal, the Veteran has described experiencing near-constant pain, heat, and burning in her feet due to neuropathy, and feeling as though she is walking with stones imbedded in the balls of her feet due to neuroma. The Veteran asserts that she has to take frequent breaks during the day to elevate her feet due to her symptoms; by the end of the day, her feet are so painful with symptoms of aching and burning that it is difficult for her to fall and stay asleep. See February 2014 Correspondence. Further, the Veteran has described the nerve pain in her feet as "an extreme icy/hot burning," and that, at times, she has "sharp, stabbing, hot, needle-like pain in the balls of [her] feet." She contends that without custom-made inserts in her shoes, she would not be able to walk more than 30 minutes at a time due to the neuroma knots in the balls of her feet. Due to pain when walking and standing, she oftentimes catches herself walking on the sides of her feet to avoid the pain in the balls of her feet. See October 2015 Correspondence. The Board notes that the Veteran is competent to report such symptoms, and there is no evidence these statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such the Veteran's lay statements are entitled to probative weight as to the severity of the disability during the period on appeal. The Veteran underwent VA diabetic sensory-motor peripheral neuropathy examinations in June 2014, May 2017, October 2019, and February 2021. At the June 2014 examination, the Veteran reported mild numbness, moderate constant pain, and severe paresthesias and/or dysesthesias in the bilateral lower extremities. The VA examiner found that the Veteran had normal muscle strength, reflexes, and sensation to light touch in her lower extremities. Muscle atrophy or trophic changes were not present. The examiner determined that the Veteran has mild incomplete paralysis of the bilateral sciatic nerve. At the May 2017 examination, the Veteran reported moderate constant pain and moderate paresthesias and/or dysesthesias in the bilateral lower extremities. The examiner remarked that the Veteran's level of pain worsens to severe by the end of the day. On neurologic examination, the Veteran's muscle strength and deep tendon reflexes were noted to be normal, however, she had decreased sensation to light touch, vibration, and cold in the lower extremities. No muscle atrophy or trophic changes were noted. The examiner determined that the Veteran has moderate incomplete paralysis of the bilateral sciatic nerve. At the October 2019 examination, the Veteran reported experiencing moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the bilateral lower extremities. On neurologic examination, the Veteran was found to have normal muscle strength; however, decreased deep tendon reflexes in the bilateral ankles, decreased sensation to light touch in the bilateral feet/toes, and decreased vibration sensation in the lower extremities was noted. Muscle atrophy or trophic changes were not present. The examiner determined that the Veteran has moderate incomplete paralysis of the bilateral sciatic nerve. Finally, at the February 2021 examination, the Veteran reported experiencing moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the bilateral lower extremities. On neurologic examination, the Veteran was found to have normal muscle strength; however, she had decreased deep tendon reflexes in the bilateral ankles, and decreased sensation to light touch, position, vibration, and cold in the lower extremities. There was no muscle atrophy, however, the Veteran was noted to have trophic changes, described as "smooth, shiny skin." The examiner determined that the Veteran has moderately severe incomplete paralysis of the bilateral sciatic nerve. There is no evidence that any of the above VA examiners were either not competent or credible. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the appeal period. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also reviewed the Veteran's VA treatment records throughout the period on appeal. These records reflect that the Veteran has consistently sought treatment for neuropathic pain, described as "burning" and "stabbing" in her legs, feet, and toes. Her treating physicians have attributed these symptoms to diabetic neuropathy, which is treated with nerve pain medications. The Veteran has also consistently reported pain over and under the metatarsal heads, or balls of her feet, which she describes as feeling like she is walking on marbles or rocks. Her treating physicians have attributed these symptoms to recurrent neuromas and/or metatarsalgia, which are treated with custom orthotic inserts and periodic cortisone injections. As an initial matter, based on the foregoing evidence, the Board finds that a separate 10 percent rating for the Veteran's bilateral neuroma (also diagnosed as metatarsalgia) is warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5279. In this regard, the record reflects that the Veteran was confirmed to have diagnoses of bilateral lower extremity neuropathy and neuroma, which were both attributed to her diabetes mellitus, at the June 2014 VA examination. Subsequently, in the February 2015 rating decision, the RO granted service connection for both disabilities and assigned them a single disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520 based on paralysis of the sciatic nerve. However, the record clearly demonstrates that while neuropathy and neuroma are both nerve conditions caused by diabetes mellitus that effect the lower extremities, they are wholly separate medical conditions with distinct symptoms, manifestations, and courses of treatment. Therefore, the Board finds that the Veteran's bilateral neuroma should be assigned a separate disability rating. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Pursuant to Diagnostic Code 5279, a maximum 10 percent rating is assigned for metatarsalgia, anterior (Morton's disease), unilateral or bilateral. 38 C.F.R. § 4.71a. Accordingly, a separate 10 percent rating under Diagnostic Code 5279 is assigned during the entire appeal period for the Veteran's bilateral neuroma. As a 10 percent rating is the maximum rating available under the applicable diagnostic code, by law, the Veteran cannot be assigned an even higher rating for bilateral neuroma. Next, after careful review of the relevant evidence of record, as outlined above, the Board finds that prior to May 9, 2017, an initial 20 percent rating for bilateral lower extremity neuropathy is warranted. In this regard, the Board notes that, at the June 2014 VA examination, the examiner noted that the Veteran experiences mild numbness, moderate constant pain, and severe paresthesias and/or dysesthesias in the bilateral lower extremities. Moreover, according to a November 2014 VA podiatry outpatient progress note, the Veteran was found to have slightly more diminished pulses than normal ("2/4") upon examination of the peripheral posterior tibial and dorsalis pedis pulses, bilaterally. As such, the Veteran's overall disability picture prior to May 9, 2017 appears to have manifested by moderate sensory impairment, including constant pain, paresthesias, and numbness, as well as slight physical manifestations, in particular, diminished peripheral pulses in the legs and feet. In light of the above, the Board resolves all reasonable doubt in favor of the Veteran and finds that, prior to May 9, 2017, the Veteran's symptoms of bilateral lower extremity neuropathy more closely approximated the level of severity contemplated by a 20 percent rating for moderate incomplete paralysis of the sciatic nerve. Accordingly, an initial 20 percent rating is warranted for the entire period prior to May 9, 2017. Next, the Board has considered whether an initial rating in excess of 20 percent is warranted at any time prior to December 13, 2019. As noted above, the next higher rating of 40 percent is warranted for moderately severe incomplete paralysis of the sciatic serve. However, based on VA examinations in June 2014, May 2017, and October 2019, the Veteran's symptoms during this period were predominately characterized by moderate sensory impairment, with slightly decreased deep tendon reflexes and sensation to light touch, vibration, and cold in the lower extremities. She was not found to have muscle atrophy or trophic changes at any time. Moreover, the VA examiners never found the Veteran to have more than moderate incomplete paralysis of the sciatic nerve during this period. As such, the Board finds that the preponderance of the evidence does not support a finding that the Veteran's disability picture more nearly approximated the level of severity contemplated by moderately severe incomplete paralysis at any time prior to December 13, 2019. Therefore, an initial rating in excess of 20 percent is not warranted during this period. Finally, the Board has considered whether an initial rating in excess of 40 percent is warranted at any time since December 13, 2019. In this regard, the Board notes that the diagnostic criteria governing the sciatic nerve specifically state that severe incomplete paralysis with marked muscular atrophy is necessary for the assignment of the next higher rating of 60 percent. However, none of the treatment records or the VA examination reports associated with the file document that the Veteran has muscle atrophy of any degree in either lower extremity. Indeed, the most recent, November 2021 VA examination report affirmatively states that the Veteran does not have muscle atrophy in either extremity. Further, there is no evidence of any of the symptoms associated with complete paralysis of the sciatic nerve in either extremity. As such, the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for bilateral lower extremity neuropathy at any time since December 13, 2019. 38 C.F.R. § 4.124a, Diagnostic Code 8520. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). However, no additional higher or alternative ratings under different diagnostic codes can be applied in this case. The sciatic nerve has been specifically identified as the nerve involved, and therefore it would be inappropriate to rate this disability by analogy under any other diagnostic code governing other lower extremity nerves. Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015) ("the Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy"). Further, there is no evidence that the Veteran has been diagnosed with either neuritis, neuralgia or tic douloureux affecting the lower extremities, and therefore increased ratings under those provisions are not warranted. See 38 C.F.R. §§ 4.123, 4.124. As such, higher or separate compensable ratings are not warranted. As a final matter, the Board notes that in a May 2020 appellate brief, the Veteran's representative raised the issue of entitlement to an extraschedular rating based, generally, on the claimed severity of the Veteran's symptoms and the number of years she has lived with her disability. However, with respect to extraschedular consideration, disabilities of the peripheral nerves are rated based on the overall level of severity of incomplete paralysis. As such, the currently-assigned ratings inherently contemplate all symptomatology associated with the Veteran's peripheral nerve disability, as all symptoms are considered when determining the rating to be assigned. As there are no symptoms which are not contemplated by the rating schedule, referral for extraschedular consideration is not warranted in this case. 38 C.F.R. § 3.321; see Thun v. Peake, 22 Vet. App. 111 (2008); Chudy v. O'Rourke, 30 Vet. App. 34 (2018). In summary, for the reasons stated above, the Board finds that an initial, separate 10 percent rating for bilateral neuroma is granted for the entire duration of the appeal period, and an initial increased rating of 20 percent for right and left lower extremity neuropathy is granted prior to May 9, 2017. See Hart, 21 Vet. App. 505. However, initial increased ratings in excess of 20 percent prior to December 13, 2019, and in excess of 40 percent thereafter, for the left or right lower extremity are not warranted, and in this regard, the Veteran's appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.