Citation Nr: 21067466 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 13-33 693 DATE: November 4, 2021 ORDER Entitlement to a 20 percent rating, but not higher, prior to November 14, 2013, for right lower extremity peripheral neuropathy is granted. Entitlement to a 20 percent rating, but not higher, prior to November 14, 2013, for left lower extremity peripheral neuropathy is granted. REMANDED Entitlement to a rating in excess of 20 percent as of November 14, 2013, and prior to February 5, 2018, for right lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 40 percent as of February 5, 2018, for right lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 20 percent as of November 14, 2013, and prior to February 5, 2018, for left lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 40 percent as of February 5, 2018, for left lower extremity peripheral neuropathy is remanded. FINDING OF FACT As of January 28, 2013, but not sooner, bilateral lower extremity peripheral neuropathy, was manifested by no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating, but not higher, prior to November 14, 2013, for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8621. 2. The criteria for entitlement to a 20 percent rating, but not higher, prior to November 14, 2013, for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8621. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1964 to June 1971, from July 1971 to May 1978, and from April 1982 to October 1983. In December 2017, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a ratings in excess of 10 percent prior to November 14, 2013, for bilateral lower extremity peripheral neuropathy Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 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. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. Additionally, in rating peripheral nerve disability, 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. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Prior to November 14, 2013, bilateral lower extremity neuropathy was rated 10 percent under Diagnostic Code 8621 for neuritis of the external popliteal nerve (common peroneal). Neuritis of the popliteal nerve is rated under the same criteria as incomplete paralysis of the popliteal nerve under Diagnostic Code 8521. Under Diagnostic Code 8521, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 30 percent rating is warranted for severe incomplete paralysis. A maximum 40 percent rating is warranted for complete paralysis of the nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8521. As of November 14, 2013, bilateral lower extremity neuropathy was rated under Diagnostic Code 8520 for paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term incomplete paralysis indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. The Board notes that the terms slight, moderate, and severe are not defined in the rating schedule. 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 Veteran asserts that prior to November 14, 2013, bilateral lower extremity peripheral neuropathy was worse than contemplated by the 10 percent ratings assigned. In a July 2021 statement, the Veteran's representative stated that the Veteran asserted that the initial rating was incorrect as there was evidence of at least moderate neuropathy on or before January 2013. A February 2011 audiology report shows that the Veteran reported occasional vertigo or dizziness which caused a falling sensation. The Veteran reported that the symptoms had been present for the past three to four years occurring approximately two times per month especially upon standing. The Veteran reported that he used a cane for stability. At a September 2011 VA diabetes examination, the Veteran reported tingling and numbness, loss of sensation, and neuralgia in the lower extremities. The Veteran reported persistent coldness, calf pain, leg pain, and cramping after walking 75 yards on level ground at two miles per hour. The Veteran reported that the leg pain and cramping were relieved with rest and that coldness and the calf pain persisted with rest. A neurological examination of the lower extremities showed that motor function was within normal limits. The right and left sensory function from the knees to the toe nerves was decreased. The right and left lower extremity reflex testing found knee jerk +1 and no ankle jerk. The examiner stated that there was no specific peripheral nerve identified as the Veteran presented with stocking and glove distribution, but the peripheral nerve examination showed neuritis. The examiner stated that there was sensory dysfunction but no motor dysfunction and diagnosed sensory neuropathy of the lower extremities which resulted in neuritis. The examiner noted that lower extremity neuritis caused difficulty walking at times but had no effect on the Veteran's occupation. During a June 2012 initial pain management consultation, the Veteran reported a history of back pain for nearly 15 years which had become progressively worse. The Veteran reported associated leg pain which he described as an electrical, shooting feeling with associated numbness and tingling. The Veteran reported that the leg pain was spontaneous and aggravated by physical activity and standing for more than ten minutes. The Veteran reported that he had fallen a few times when legs gave out, he stubbed his toes when he walked, he was no longer able to perform landscaping and yardwork, he could not lift a stepping stone, and he could not go to grocery store. He reported pain with walking and the use of a cane. A physical examination found decreased sensitivity to cold and light touch in the left L5 distribution beneath knee; decreased sensitivity to cold and pinprick on soles of the feet; and loss of proprioception to great toes bilaterally. Lower extremity muscle strength testing was normal. A FABER test was positive, and a straight leg raise test was negative. The doctor noted that that the Veteran's gait was wide based with no heel or toe catches. The Veteran was able to walk on the heels and toes, but the doctor noted that there was poor balance. The doctor diagnosed worsening chronic back pain which caused severe decrement in functioning. The doctor noted that back pain was on the left side and over the left posterior superior iliac spine with reported radiculopathy resembling L5. During a July 2012 physical therapy consultation, the Veteran reported back pain which radiated down through the buttock region, alternating on both sides of the back and legs. He reported that walking on hard surfaces increased the pain. The Veteran reported constant back pain with intermittent lower extremity pain and numbness. He reported a decrease in the ability to perform activities of daily living due to the inability to stand for more than 10 minutes at a time without increased pain and the use of a cane. A physical examination showed decreased sensitivity to light touch at L5-S1 on the right side; reflexes were decreased at S1, active at L4, and symmetrical. The physical therapist noted that moving from standing to sitting caused slight peripheral tingling in the legs which increased and worsened. The Veteran reported feeling a little better when lying prone. The Veteran reported numbness and tingling in the feet with back extension while lying down. Neuromotor testing was 4/5 for hip flexion and knee extension and 5/5 for knee flexion, dorsiflexion, and plantar flexion. The physical therapist diagnosed signs and symptoms consistent with mechanical back pain. The physical therapist stated that diabetes and possible neuropathy could make assessing the lower extremity symptoms difficult. During a September 2012 physical therapy session, the Veteran reported that back pain and episodes of dizziness. A September 2012 medical record shows that the Veteran's wife called to report that the Veteran nearly fell when he got out of the car because he was dizzy. She stated that the Veteran had bad dizzy spells for two weeks. A November 2012 primary care note shows that the Veteran reported some positional vertigo over a two-month period. The Veteran was referred to physical therapy "for repositioning maneuvers for vertigo." During a November 2012 physical therapy session, the Veteran reported dizziness with lying down, sitting up, turning his head, and reaching. In January 2013, the Veteran's primary care doctor noted that bilateral leg numbness had increased and stated that neuropathy was at least moderate at that point. In July 2013, the Veteran reported recurring pain, swelling, and stiffness in the hands, wrists, and ankles which was worse in the mornings. The Veteran denied numbness and weakness in the digits. The doctor diagnosed arthralgia. In September 2013, the Veteran reported back pain with associated radicular pain to left posterior thigh not extending past the knee. The low back pain was worse after prolonged standing and lifting, and improved with leaning forward. During a November 2013 electrodiagnostic test for worsening symptoms of peripheral neuropathy, the Veteran reported foot numbness for six to seven years, arm and hand numbness, difficulty dressing, and the use of a shower chair due to fall concerns. Muscle testing was 4/5 bilaterally for hip flexion, knee extension, and dorsiflexion; 4/5 for right extensor hall long; 5/5 for left extensor hall long; and 1/5 for plantar flexion. However, the examiner noted that the Veteran had a great deal of arthritic type pain as well as TTP with MMT, including back pain and foot pain, that appeared to be the main strength-limiting factor. Light touch sensation was intact, symmetric, and decreased in a length dependent manner which was greatest in the feet, somewhat in bilateral lower legs, and normal in thighs. The doctor stated that there was electrodiagnostic evidence consistent with a moderate peripheral polyneuropathy, predominantly characterized by sensorimotor axonal loss. The doctor noted that the Veteran had recent falls which the Veteran attributed to balance issues. A December 2013 physical therapy consultation record shows that the Veteran reported a one-year history of falls and a one and a half to two-year history of dizziness. The Veteran reported dizziness during outside activities, showering, getting dressed, and when lying down. He reported that he received a shot for vertigo two years prior. The physical therapist found that the symptoms were consistent with balance deficits attributed to vestibular and strength impairments. The Board finds that a 20 percent rating, but not higher, is warranted as of January 28, 2013, but not earlier. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board 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 a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered the Veteran's lay statements. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the question of severity of bilateral lower extremity peripheral neuropathy is a medical issue that requires medical training and expertise which the Veteran has not been shown to possess. Therefore, the Veteran's assertions are afforded little probative value. The Board finds the January 2013 report highly probative, more probative than the Veteran's lay assertions, and most probative of the issue at hand. The January 2013 finding was made by a VA primary care doctor; the doctor had treated the Veteran for neuropathy since 2011; the doctor knew the Veteran's medical history; and the doctor based the finding, in part, on the Veteran's reports. The doctor specifically indicated a worsening of symptoms and characterized the disability as moderate at that time. The Board notes that the doctor's finding was subsequently supported by a November 2013 electrodiagnostic testing which showed moderate peripheral polyneuropathy. Therefore, the Board finds that as of January 28, 2013, but not earlier, bilateral lower extremity peripheral neuropathy was manifested by symptoms of moderate incomplete paralysis. The Board finds that prior to January 28, 2013, a bilateral lower extremity peripheral nerve disability manifested as no worse than symptoms approximating mild, incomplete paralysis, as shown by subjective complaints of pain, numbness, coldness, and difficulties with standing, walking, and sitting; and objective evidence of decreased sensation, at least one isolated finding of 1+/4 reflexes upon examination, and mostly normal neurological examination findings regarding motor functioning and reflexes. Moreover, the Veteran's symptoms were noted by several medical professionals, including the Veteran's long-time primary care physician. However, prior to January 28, 2013, no medical professional found that lower extremity peripheral neuropathy was moderate or severe. To the contrary, on January 28, 2013, the Veteran's primary care doctor specifically indicated that bilateral leg numbness had increased, and that neuropathy symptoms were moderate at that point, but did not indicate any higher level of disability at any time prior to January 28, 2013. Therefore, the Board finds that there was a factually ascertainable increase in disability as of January 28, 2013, but not earlier. To the extent that the Veteran argues that reports of leg weakness were indicative of moderate incomplete paralysis, the Board disagrees. The Board notes the Veteran's September 2011 report of loss of strength in the legs and a June 2012 report of falls due to leg weakness. In general, neurological examinations showed normal muscle strength with decreased sensation in the legs. However, no medical professional diagnosed leg weakness or noted the Veteran's reports of leg weakness as a symptom of neuropathy. In June 2012, the Veteran's pain management doctor noted that there was no evidence of heel or toe catches. Further, the Veteran consistently reported leg pain and numbness. However, leg weakness was only reported twice from 2011 to 2013. The Board finds that if the Veteran were having ongoing leg weakness, he would have reported it just as he reported other lower extremity symptoms. The Board notes that reported falls and balance issues have been attributed to strength and vestibular impairments, such as vertigo, by several medical professionals familiar with the Veteran's symptoms and medical history. The Board finds that even when considered with other symptoms, leg weakness, if present, did not present with the severity, frequency, and duration, that would warrant a higher rating than moderate incomplete paralysis. The Board finds that the evidence did not indicate moderately severe incomplete paralysis prior to January 28, 2013. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that a 20 percent rating, but not higher, is warranted as of January 28, 2013, but not earlier. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to ratings in excess of 20 percent from November 14, 2013 to February 5, 2018, for right and left lower extremity peripheral neuropathy is remanded. 2. Entitlement to ratings in excess of 40 percent as of February 5, 2018, for right and left lower extremity peripheral neuropathy is remanded. The Veteran asserts that as of November 14, 2013, bilateral lower extremity peripheral neuropathy was worse than the 20 percent rating assigned. In a July 2021 statement, the Veteran's representative stated that the Veteran is entitled to no less than a 40 percent rating prior to February 2018 because the record established that the Veteran's symptoms manifested to at least a moderately severe level prior to 2018. At an August 2015 VA examination, the Veteran reported ten years of bilateral leg pain and swelling. The Veteran reported that he was unable to stand for more than ten minutes, and that he used a cane, walker, and wheelchair. He denied any weakness in the lower extremities. The examiner noted mild constant pain, mild intermittent pain, mild paresthesias or dysesthesias, and mild numbness in the lower extremities. Muscle strength was normal with no muscle atrophy. Reflexes of the knee and ankle were normal and there was decreased sensitivity to light touch in both lower extremities. The examiner noted decreased hair on the lower extremities. The examiner stated that the November 2013 electromyography test was of very poor quality and that the presence of abnormal testing should have been followed with EMG studies as there were none found in the Veteran's available records. The examiner stated that bilateral paralysis of the sciatic nerves was an erroneous diagnosis as the Veteran's history during the August 2015 examination, neurological examination, and review of the records shows mild peripheral neuropathy involving the small sensory nerve fibers. The examiner stated that no further testing was required. The Board finds the August 2015 VA opinion incomplete because it is contradictory. The examiner stated that abnormal testing should have been followed with EMG studies as there were none found in the available records. However, the examiner also stated that no further testing was required. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). At a February 2018 VA examination, the Veteran reported bilateral leg numbness and continuous pain which has progressed up to the knees. The Veteran stated that leg pain affected his ability to walk and that his balance was off and he had intermittent falls. The Veteran reported that he used a cane, walker, wheelchair, and a scooter daily. He reported that he took narcotic pain medication, acetaminophen, and gabapentin. The examiner noted severe constant pain, intermittent pain, paresthesias or dysesthesias, and numbness of the lower extremities. 5/5 muscle strength with knee extension and 4/5 muscle strength with ankle plantar flexion and ankle dorsiflexion. There was no atrophy, knee reflexes were 2+ and ankle reflexes were absent. The sensory examination showed normal sensitivity to light touch in the thighs and knees, decreased sensitivity in the lower legs and ankles, and sensitivity was absent in the feet and toes. The examiner stated that trophic changes attributable to peripheral neuropathy included swollen ankles, onychomycosis, and athlete's foot. The examiner noted moderately severe incomplete paralysis of the sciatic nerves, moderate incomplete paralysis of the external popliteal nerve, and moderate incomplete paralysis of the posterior tibial nerves. The examiner stated that the Veteran was completely disabled due to his balance and decreased ability to ambulate due to pain and lack of position sense. The Board finds the February 2018 opinion incomplete because in finding that that the Veteran was completely disabled due to his balance and decreased ability to ambulate due to pain and lack of position sense, the examiner did not discuss the relevant medical evidence and opinions showing balance issues since 2011 which attributed to vertigo and ambulation issues since 2006 which were attributed to back disability. In order to be entitled to probative weight, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two. Nieves-Rodrigues v. Peake, 22 Vet. App. (2008). The February 2018 examiner did not discuss the August 2015 VA examiner's findings. This is notable as the two examinations do not agree on which of the Veteran's nerves are affected and there is no EMG test of record. The August 2015 VA examiner opined that small sensory nerve fibers were involved, and the February 2018 VA examiner opined that the sciatic, external popliteal, and posterior tibial nerves were involved. The Board notes that the Peripheral Nerves Conditions Disability Benefits Questionnaire states that "electromyography (EMG) studies are usually rarely required to diagnose specific peripheral nerve conditions in the appropriate clinical setting. If EMG studies are in the medical record and reflect the Veteran's current condition, repeat studies are not indicated." However, the Board finds that a VA examination which includes an EMG test is necessary in order to decide the claim for an increased rating from November 14, 2013. The matters are REMANDED for the following action: 1. With any necessary authorization from the Veteran, obtain any outstanding VA or private treatment records. All attempts to locate records must be documented in the claims file. 2. Then, schedule the Veteran for a VA neurology examination conducted by a medical doctor to determine the nature and severity of service-connected right lower extremity and left lower extremity peripheral neuropathy. All appropriate tests, to include an EMG test if necessary, should be performed and all clinical findings reported in detail. The examiner should specifically explain whether or not an EMG test is necessary and explain why. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a.) Identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the neuropathy of bilateral lower extremities. (b.) Concerning the neurological findings, the examiner must state what nerve or nerves are affected and whether there is complete or incomplete paralysis of each nerve. If incomplete paralysis is present, the examiner should provide an opinion as to whether it is mild, moderate, moderately severe, or severe, and should state whether there are sensory, motor, or strength loss manifestations. Any relevant muscle atrophy should be identified. The examiner should (1) reconcile the findings of which nerves are affected with the findings of previous VA examinations and (2) explicitly address the functional impairment caused by the disability. (c.) The examiner is requested to provide a retrospective medical opinion as to the nature and severity of peripheral neuropathy of the bilateral lower extremities dating from November 14, 2013, through the present, based on examination and review of the medical evidence of record. The examiner is asked to consider the August 2015 VA examination which identified involvement of the small sensory nerve fibers, and the February 2018 VA examination report which identified severe incomplete paralysis in the sciatic, external popliteal, and posterior tibial nerves. To the extent possible, the examiner is requested to separate which of the Veteran's symptoms are attributable to each individual affected nerve. If a symptom overlaps, the examiner should so state. The Board acknowledges that it may not be possible for the examiner to offer the requested opinion. However, if the physician is unable to offer the requested opinion, that must be so stated, and an explanation must be provided as to why. (d.) Opine whether the Veteran's reported balance issues and decreased ability to ambulate are solely attributable to lower extremity neuropathy pain and lack of position sense. The examiner must discuss the (1) medical evidence showing a history of a back disability with subsequent mobility issues; (2) medical evidence showing vertigo since 2011 with the use of assistive devices; and (3) the August 2018 VA examiner's finding attributing balance and mobility issue to lower extremity peripheral neuropathy. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., Associate 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.