Citation Nr: 21070922 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 19-03 393 DATE: November 27, 2021 ORDER Entitlement to an initial 20 percent rating for left lower extremity (LLE) peripheral neuropathy (PN) of the sciatic nerve is granted. Entitlement to an initial 20 percent rating for LLE PN of the femoral nerve is granted. Entitlement to an initial 20 percent rating for right lower extremity (RLE) PN of the sciatic nerve is granted. Entitlement to an initial 20 percent rating for RLE PN of the femoral nerve is granted. REMANDED Entitlement to an initial rating in excess of 20 percent for LLE PN of the sciatic nerve is remanded. Entitlement to an initial rating in excess of 20 percent for LLE PN of the femoral nerve is remanded. Entitlement to an initial rating in excess of 20 percent for RLE PN of the sciatic nerve is remanded. Entitlement to an initial rating in excess of 20 percent for RLE PN of the femoral nerve is remanded. FINDING OF FACT The Veteran has a level of impairment that is consistent with moderate incomplete paralysis of the sciatic and femoral nerves of the bilateral lower extremities. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating for bilateral lower extremity PN of the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520. 2. The criteria for an initial 20 percent rating for bilateral lower extremity PN of the femoral nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8526. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from December 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in October 2021. 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 DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, as is the case here, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts that his bilateral lower extremity PN of the sciatic and femoral nerves are worse than what the current rating reflects. Currently, the Veteran's bilateral lower extremity radiculopathy is rated under DC 8520 for the paralysis of the sciatic nerve at 10 percent for the right leg and 10 percent for the left leg from November 1, 2016, the date of claim. As it pertains to radiculopathy, DC 8520 contemplates impairment of the sciatic nerve. Incomplete mild paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. An 80 percent rating requires complete paralysis of the sciatic nerve, which is characterized by foot dangle and drop, no active movement possible of muscle below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The Veteran's bilateral lower extremity PR of the femoral nerve is rated under DC 8526 for the paralysis of the femoral nerve at 10 percent from November 1, 2016, the date of claim. As it pertains to radiculopathy, DC 8526 contemplates impairment of the femoral or crural nerve. Incomplete mild paralysis of the femoral nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the femoral nerve. A 30 percent rating requires severe incomplete paralysis of the femoral nerve. 38 C.F.R. § 4.124a, DC 8526. Turning to the evidence of record, during a January 2017 VA examination, the Veteran reported symptoms in his lower extremities, including tingling, numbness and feeling "hot." In addition, the examiner noted no constant pain in the lower extremities, and moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in both lower extremities. Muscle strength in the lower extremities was noted as 5 out of 5. Decreased light touch sensation in bilateral feet, decreased cold sensation, and decreased position sense were also noted in the bilateral lower extremities. Vibration sensation was noted as absent in both lower extremities. The examiner characterized the severity of the Veteran's bilateral lower extremity PN of the sciatic nerve as moderate. The examiner also characterized the severity of the Veteran's bilateral lower extremity PN of the femoral nerve as moderate. Based on the foregoing, the Board finds that the Veteran is entitled to 20 percent ratings (here four separate ratings) for his bilateral lower extremity PN of the sciatic and femoral nerves, as the medical evidence reflects predominantly moderate symptoms. The question of whether even higher evaluations are warranted is addressed in the remand section below. REASONS FOR REMAND By virtue of this decision, the Veteran has been granted four separate 20 percent ratings for the entire appeal period for his bilateral lower extremity PN of the sciatic and femoral nerves. However, the Veteran testified during an October 2021 Board hearing that his condition is not moderate but "severe." Furthermore, the Veteran testified that he currently uses a walker, which he did not before, due to his increased risk of falling, and is currently undergoing physical therapy with a private treatment center. All of this evidence is indicative of a worsening since the last examination. As such, the Board finds that a remand is necessary for a VA examination to assess the current severity of his bilateral lower extremity peripheral neuropathy and obtain any pertinent private treatment records. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information needed to develop the evidence related to his bilateral lower extremity peripheral neuropathy of the sciatic and femoral nerves. In particular, the Veteran testified that he is undergoing physical therapy at "Peterson Therapy." If he identifies VA treatment providers, then undertake the development of the file in that regard. If he identifies a private treatment provider, then ask the Veteran to complete a VA Form 21-4142 for the healthcare provider and, if authorization is received, make two requests for the authorized records from the identified provider, unless it is clear after the first request that a second request would be futile. Also, give the Veteran an opportunity to submit copies of any treatment records he has in his possession relating to bilateral lower extremity peripheral neuropathy. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected bilateral lower extremity peripheral neuropathy of the sciatic and femoral nerves. A copy of the notice letter sent to the Veteran of the place, date, and time of the examination must be associated with the claims file. The claims file should be made available to and reviewed by the examiner, and all necessary tests should be performed. The most up-to-date Disability Benefits Questionnaire must be utilized. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.