Citation Nr: 21070919 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 05-05 151 DATE: November 27, 2021 ORDER Throughout the period on appeal, entitlement to a 20 percent rating, but not higher, for right lower extremity (RLE) peripheral neuropathy is granted subject to controlling regulations applicable to the payment of monetary benefits. Throughout the period on appeal, entitlement to a 20 percent rating, but not higher, for left lower extremity (LLE) peripheral neuropathy is granted subject to controlling regulations applicable to the payment of monetary benefits. REMANDED Entitlement to separate ratings for bilateral upper extremity (BUE) peripheral neuropathy, to include on a secondary basis, is remanded. Prior to January 17, 2019, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's bilateral lower extremity (BLE) peripheral neuropathy was manifested by symptoms more nearly approximating moderate incomplete paralysis. CONCLUSIONS OF LAW 1. Throughout the period on appeal, entitlement to an increased 20 percent rating, but no higher, for RLE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.124a, DCs 8520, 8521. 2. Throughout the period on appeal, entitlement to an increased 20 percent rating, but no higher, for LLE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.124a, DCs 8520, 8521. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1970. The Board recognizes that he is the recipient of the Purple Heart and the Bronze Star. He died in January 2020, and his spouse was substituted as the appellant in March 2020. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2004 (TDIU) and June 2017 (all other issues) rating decisions by a Department of Veterans Affairs Regional Office (RO). In July 2020, the Board remanded these claims for issuance of a supplemental statement of the case. In December 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain VA medical opinions. With regard to the issues decided below, the Board finds there was substantial compliance with the requested development. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. BLE Peripheral Neuropathy The Veteran filed an increased rating claim for his service-connected BLE peripheral neuropathy in March 2017. The evidence of record includes an April 2017 VA diabetic sensory-motor peripheral neuropathy examination. The Veteran stated that he did not know the date of onset of the condition, but that his symptoms began as burning and tingling sensations; he reported that his symptoms had worsened. The BLE peripheral neuropathy was manifested by severe constant and intermittent pain, paresthesias and/or dysesthesias, and numbness. A neurological examination revealed less than normal strength for right knee extension and flexion, and no movement against resistance for left knee extension and flexion. Ankle plantar flexion and dorsiflexion neurological examinations were normal. Deep tendon reflexes and light touch/monofilament testing results were also normal. The BLE peripheral neuropathy affected the sciatic nerve and was manifested by moderate incomplete paralysis. In September 2017, a neurological evaluation noted normal gait and station, grossly intact sensation, and normal reflexes. An October 2017 private treatment record noted neurological symptoms of leg numbness. See Private Treatment Records Received December 2017. The Veteran underwent another VA peripheral neuropathy examination in October 2017. A neurological examination revealed normal strength and deep tendon reflexes and normal results for light touch and monofilament testing. The examiner further noted the absence of symptoms for BLE pain, paresthesias and/or dysesthesias, and numbness. A February 2018 VA medical record shows the Veteran complained of progressive weakness since December 2017 that progressed to the point where he was no longer able to walk. Weakness reportedly began in the LLE and progressed to the RLE. He was currently unable to stand or walk. Another February 2018 medical record shows he reported progressive difficulty walking the past two months. It was noted that the history was mostly obtained from the Veteran who was a poor historian. See VA Medical Records Received December 2018. A February 2018 VA inpatient neurological examination revealed active movement against some resistance for bilateral hip flexors, knee flexion and foot dorsiflexion, and normal strength for hip abduction/adduction and knee extension. A profound loss of vibration and proprioception in all extremities was noted. Allodynia (nerve pain) was noted over the lower extremities. Sensory ataxia and weakness in the lower extremities was found likely due to large fiber neuropathy resulting from chronic alcohol abuse. Two days later, the Veteran was found able to move all four extremities upon command. Other February 2018 VA medical records note good range of motion (ROM) in the BLEs, normal muscle strength and full ROM against gravity and some resistance. See VA Medical Records Received December 2018. During a January 2019 VA examination, the Veteran reported difficulty walking and needing assistance with dressing, toileting and bathing. The examiner noted symptoms of moderate constant pain, paresthesias and/or dysesthesias and numbness. Moderate weakness was also noted. Muscle strength testing revealed active movement against some resistance for bilateral knee extension, ankle plantar flexion, and ankle dorsiflexion. A reflex examination was normal for the bilateral knee, and hypoactive for the bilateral ankle. Sensory testing was normal for the bilateral thigh/knee, and decreased for the bilateral lower leg/ankle, and foot/toes. The Veteran's gait was normal. The BLE peripheral neuropathy was not found to affect the sciatic nerve but was found to affect the external popliteal nerve and manifested by moderate incomplete paralysis. In a March 2021 VA examination report, the examiner stated that the BLE diabetic peripheral neuropathy and CIDP conditions were all separate etiological and histological conditions. CIDP was noted as a rare type of autoimmune disorder characterized by progressive weakness and impaired sensory function in the legs and arms and was caused by damage to the myelin sheath of the peripheral nerves. CIDP symptoms included tingling, numbness, weakness, loss of deep tendon reflexes, fatigue and abnormal sensations. With regard to the different neurological conditions, the examiner stated that it was impossible to identify specifically what symptoms and clinical findings on EMG were due to each specific condition because they were all a type of neuropathy and that the symptoms overlapped and could not be separated. After a review of the evidence of record, the Board finds that increased 20 percent ratings, but no higher, are warranted for the BLE peripheral neuropathy. Throughout the period on appeal, the BLE peripheral neuropathy has been rated 10 percent disabling pursuant to 38 C.F.R. § 4.124a; at times under DC 8520, which governs the sciatic nerve, and DC 8521 at other times, which governs the external popliteal nerve. Under DC 8520, disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis of the sciatic nerve. Id. A 60 percent rating also requires marked muscular atrophy. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. Id. Under DC 8521, disability ratings of 10, 20, and 30 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the external popliteal nerve. Id. A disability rating of 40 percent is warranted for complete paralysis of the external popliteal nerve: foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension of proximal phalanges of toes lost, abduction of foot lost, adduction weakened, anesthesia covers entire dorsum of foot and toes. Id. In rating diseases of the peripheral nerves, 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 level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Other nerves of the lower extremities include the musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), posterior tibial, internal saphenous, obturator, external cutaneous, and ilio-inguinal nerves. Paralysis, neuritis, and neuralgia thereof is addressed by DCs 8521 through 8530, 8621 through 8630, and 8721 through 8730. As set forth below, the evidence shows that the Veteran's BLE peripheral neuropathy has at times been found to affect his sciatic and external popliteal nerves. After a review of the evidence of record, the Board finds that an increased 20 percent rating, but no higher, is warranted for the BLE peripheral neuropathy throughout the period on appeal. In this regard, a review of the April 2017 VA examination shows that the BLE peripheral neuropathy was found to affect the sciatic nerve, and that the severity of was moderate which was determined by diagnostic testing. Additionally, the January 2019 VA examination shows the BLE peripheral neuropathy was found to affect the external popliteal nerve, and that, based on diagnostic testing, the severity of was moderate which is supported by findings of moderate constant pain, paresthesias and/or dysesthesias and numbness, moderate weakness, and a normal reflex examination. The Board finds the VA examinations of record the most probative evidence as they conducted diagnostic testing and specifically evaluated symptoms associated with the BLE peripheral neuropathy. In this regard, while the Veteran reported worsening symptoms in February 2018, a full diagnostic VA examination was conducted the following January. Therefore, the Board finds that the VA examinations provide a full picture of the severity of the BLE peripheral neuropathy symptoms throughout the period on appeal. As noted above, the BLE peripheral neuropathy has at times been found to affect the sciatic and/or external popliteal nerve. As additionally noted above, throughout the period on appeal, the BLE peripheral neuropathy was been consistently manifested by moderate incomplete paralysis. In this regard, moderate incomplete paralysis under both DCs 8520 and 8521 warrant 20 percent ratings. As the Veteran's symptoms have not been found manifested by moderately severe or severe, higher ratings are not warranted. In summary, throughout the period on appeal, higher 20 percent ratings, but no higher, are warranted for the BLE peripheral neuropathy. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.124a; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Service Connection Bilateral Upper Extremity (BUE) Neuropathy This matter was remanded in December 2020 to obtain a VA examination to determine whether the BUE condition is secondary to his service-connected diabetes. The requested examination was obtained in March 2021. The examiner stated that the BUE diabetic peripheral neuropathy, carpal tunnel and chronic inflammatory demyelinating polyradiculoneuropathy (CIDP) conditions were all separate etiological and histological conditions. CIDP was noted as a rare type of autoimmune disorder characterized by progressive weakness and impaired sensory function in arms and caused by damage to the myelin sheath of the peripheral nerves. CIDP symptoms included tingling, numbness, weakness, loss of deep tendon reflexes, fatigue and abnormal sensations. With regard to the different neurological conditions, the examiner stated that it was impossible to identify specifically what symptom and clinical finding on EMG testing were due to each specific condition because they were all a type of neuropathy with overlapping symptoms that could not be separated. In a May 2021 addendum, the examiner was asked to clarify all BUE diagnoses. The examiner noted diagnoses for bilateral axonal polyneuropathy with alcoholism listed as the most likely etiology, carpal and cubital tunnel syndrome, CIDP and paraneoplastic syndrome with CIDP exacerbation. The examiner noted that each condition had its own etiology and opined that it was "less likely than not" that CIDP was due to or aggravated by the service-connected disabilities. In support of this opinion, the examiner stated that there was no known relationship between any of the service-connected conditions and the development of CIDP. However, as the service-connected lung cancer required chemotherapy, in January 2018 the condition experienced a rapid onset and severe exacerbation due to paraneoplastic syndrome associated with the lung cancer, but that the condition again responded to treatment and resolved almost to normal extremity function by May 2019, and the claims file was silent for any further exacerbation or progression until January 2020. Based on the above, the examiner stated that it could be established that the service-connected lung cancer with paraneoplastic syndrome caused a temporary exacerbation of the CIDP, but not any permanent aggravation or progression beyond normal. With regard to the diagnosed bilateral carpal and cubital tunnel syndromes, those conditions were also found to be distinct and separate nerve dysfunction disorders from the service-connected conditions. The examiner noted that the conditions were already severe when diagnosed, and there was no documentation of worsening symptoms between 2017 and 2020, or any evidence to support a finding that the conditions were aggravated or progressed as a result of any service-connected condition. Turning to axonal polyneuropathy, evidence of the condition was noted as early as 2003. However, the examiner further noted no evidence to support a finding of any rapid or aggressive progression over the years. In addition, it was noted that he had developed multiple other nerve dysfunctions after the axonal polyneuropathy, but that the condition had remained stable as an underlying but unrelated disorder. As the condition had remained stable with minimal progression over approximately 10 years regardless of the comorbid conditions, the examiner stated that it could not be established that the axonal polyneuropathy had progressed beyond the normal course due to any cause, including the service-connected conditions. The Board finds that an addendum VA examination is necessary. First, with regard to the examiner's statement that axonal polyneuropathy was most likely etiologically related to alcoholism, the examiner did not provide any rationale and the Board finds that statement speculative in nature. In this regard, speculative language such as "most likely" does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Therefore, an addendum opinion should address whether the Second, with regard to the diagnosed BUE CIDP, although the examiner found that the Veteran experienced a rapid onset and severe exacerbation due to paraneoplastic syndrome associated with the service-connected lung cancer, the examiner provided a negative medical opinion with regard to aggravation as it could not be established that there was "any permanent aggravation or progression beyond normal." The examiner's reference to "permanent aggravation" as the standard is incorrect. Rather, aggravation in the context of secondary service connection under 38 C.F.R. § 3.310 means any increase in disability. Therefore, an addendum examination report is necessary to address these issues. 2. TDIU prior to January 17, 2019 Lastly, the claim for TDIU is inextricably intertwined with the remaining claims on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature. Hence, a remand of this matter is warranted, as well. The matters are REMANDED for the following action: 1. Refer the Veteran's claims file to a VA examiner who provided the May 2021 VA examination report, or another qualified examiner. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed bilateral upper extremity axonal polyneuropathy was caused by a service-connected condition, to include diabetes? Please explain why or why not. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed bilateral upper extremity CIDP was aggravated by a service-connected condition, to include diabetes and lung cancer? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner is asked to consider the May 2021 VA examination report noting a rapid onset and severe exacerbation of CIDP due to paraneoplastic syndrome associated with the lung cancer. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 2. Thereafter, the RO should readjudicate the claims on appeal, to include the claim for TDIU. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.