Citation Nr: 21075712 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-28 920 DATE: December 21, 2021 ORDER Entitlement to a disability rating of 40 percent, but no higher, for peripheral neuropathy of the right lower extremity, is granted. Entitlement to a disability rating in excess of 40 percent, but no higher, for peripheral neuropathy of the left lower extremity, is granted. REFERRED The issue of entitlement to service connection for amputation of the left leg is referred. During a July 2021 VA examination, the Veteran appears to indicate his amputated left leg may be directed to service by stating he cannot feel his feet and that is why he had to get his left leg amputated. Specifically, the Veteran states that he did not feel his left foot getting burnt. It is unclear if the Veteran is raising the issue. Therefore, the issue of entitlement to service connection for amputation of the left leg is referred to the RO for further adjudication, if needed. FINDINGS OF FACT 1. The Veteran's neuropathy of the right lower extremity manifested by moderately severe incomplete paralysis. 2. The Veteran's neuropathy of the left lower extremity manifested by moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, for peripheral neuropathy of the right lower extremity has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for a rating of 40 percent, but no higher, for peripheral neuropathy of the left lower extremity has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to September 1971. In September 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously before the Board of Veterans' Appeals (Board) in February 2021, and was remanded for further development, which has been completed. A September 2021 rating decision granted entitlement to service connection for peripheral neuropathy of the right lower extremity for the external popliteal nerve and musculocutaneous nerve, and continued a 20 percent rating. The Veteran was already service connected for peripheral neuropathy of the right lower extremity for the sciatic nerve. Essentially, the September 2021 rating decision expanded the Veteran's service-connected peripheral neuropathy of the right lower extremity to include the external popliteal nerve and musculocutaneous nerve. Nevertheless, this decision did not impact the Veteran's overall disability rating for his service-connected peripheral neuropathy of the right lower extremity and continued the 20 percent disability rating. The Board has considered whether the issue of a total disability rating based on individual employability (TDIU) has been raised. During the August 2020 hearing, the Veteran's representative indicated the issue of TDIU was not being raised. The representative stated they would check the Veteran's record to see if a contention had been submitted. The representative did not further address the issue and did not submit additional forms or contentions. In light of the hearing testimony, the Board finds the issue of TDIU has not been raised and is not before the Board at this time. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 1. Entitlement to an increased disability rating for peripheral neuropathy of the right lower extremity. 2. Entitlement to an increased disability for peripheral neuropathy of the left lower extremity. The Veteran contends he is entitled to a rating in excess of 20 percent for his service-connected peripheral neuropathy of the sciatic nerve, external popliteal nerve, and musculocutaneous nerve of the right lower extremity and sciatic nerve of the left lower extremity. The Veteran is also service connected for peripheral neuropathy of the femoral nerve in his bilateral lower extremities and has been assigned separate 10 percent disability ratings. In the Veteran's July 2016 Notice of Disagreement, the Veteran only appealed the issue of entitlement to an increased disability rating for peripheral neuropathy of the sciatic nerve in the bilateral lower extremities. Therefore, entitlement to a rating in excess of 10 percent for peripheral neuropathy of the femoral nerve of the bilateral lower extremities is not before the Board at this time. 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. 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. Additional guidance is provided in 38 C.F.R. §§ 4.120 and 4.124. The terms "slight," "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. The Veteran's peripheral neuropathy of the right and left lower extremities have been rated under Diagnostic Code 8520. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve and, therefore, neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. Moderately severe incomplete paralysis is rated 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. Diagnostic Code 8620 refers to neuritis of the sciatic nerve while Diagnostic Code 8720 refers to neuralgia of the sciatic nerve. Diagnostic Code 8521 provides ratings for paralysis of the external popliteal nerve and, therefore, neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, 8521. Diagnostic Code 8521 provides that mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. A 40 percent disability rating is the maximum schedular disability rating available under Diagnostic Code 8521. Diagnostic Code 8621 refers to neuritis of the external popliteal nerve while Diagnostic Code 8720 refers to neuralgia of the external popliteal nerve. Diagnostic Code 8522 provides ratings for paralysis of the musculocutaneous (superficial peroneal) nerve and, therefore, neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, 8522. Diagnostic Code 8522 provides that mild incomplete paralysis is rated noncompensable (0 percent) disabling. Moderate incomplete paralysis is rated 10 percent disabling. Severe incomplete paralysis is rated 20 percent disabling. Complete paralysis of the musculocutaneous (superficial peroneal) nerve, eversion of foot weakened, is rated 30 percent disabling. A 30 percent disability rating is the maximum schedular disability rating available under Diagnostic Code 8522. Diagnostic Code 8622 refers to neuritis of the musculocutaneous (superficial peroneal) nerve while Diagnostic Code 8722 refers to neuralgia of the musculocutaneous (superficial peroneal) nerve. The Veteran received a peripheral nerves examination in July 2021. The Veteran reported having moderate constant pain in the bilateral lower extremities, severe intermittent pain in the right lower extremity, severe paresthesias and/or dysesthesias in the bilateral lower extremities, and severe numbness in the bilateral lower extremities. Reflex testing showed hypoactive deep tendon reflexes in the bilateral knees. There was decreased sensation in the bilateral upper anterior thighs, decreased sensation in the bilateral thighs/knees, decreased sensation in the right lower leg/ankle, absent sensation in the left lower leg/ankle, and absent sensation in the bilateral feet/toes. Muscle strength testing showed active movement with gravity eliminated in the left knee and no muscle movement was reported in the ankle plantar flexion and ankle dorsiflexion. The Veteran does not have any muscle atrophy. There was loss of hair to the right lower extremity and the Veteran has a limp due to his prosthetic for the left lower leg after amputation. The Veteran constantly uses a cane as an assistive device for his abnormal gait due to his recent amputation and new prosthetic. However, the examiner listed that there is no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by amputation with prosthesis. Finally, the examiner stated that the Veteran had moderate incomplete paralysis of the sciatic nerve in the bilateral lower extremities, moderate incomplete paralysis of the external popliteal (common peroneal) nerve in the right lower extremity, and moderate incomplete paralysis of the musculocutaneous (superficial peroneal) nerve in the right lower extremity. Combined nerve ratings, as in this case, should be rated by reference to the major involvement. 38 C.F.R. § 4.124a, Note. As impairment of the sciatic, external popliteal, and musculocutaneous nerves causes the same symptoms, assignment of separate ratings for each nerve would constitute pyramiding. The sciatic and external popliteal nerves allow for a 20 percent rating for moderate incomplete paralysis, while the musculocutaneous nerve allows for only a 10 percent rating for moderate incomplete paralysis. Therefore, the Veteran's peripheral neuropathy of the left lower extremity and right lower extremity has been rated under the Diagnostic Code 8520 for the sciatic nerve. The question here is whether the Veteran has greater than moderate incomplete paralysis to warrant a rating greater than 20 percent for paralysis of the sciatic nerve. Examination showed that the Veteran has severe pain, numbness, and paresthesias and/or dysesthesias in his bilateral legs. He also experiences trophic changes being the loss of hair in his right lower extremity. Furthermore, the Veteran's bilateral deep tendon reflexes are hypoactive below his bilateral knees and absent for his left ankle. Taking into consideration the Veteran's sensory symptoms, reflexes, trophic changes, and muscle strength, the Veteran's bilateral lower extremities warrant a 40 percent rating for moderately severe incomplete paralysis. A higher, 60 percent rating is not warranted, as the Veteran does not have any muscle atrophy. Therefore, a disability rating of 40 percent, but no higher, for peripheral neuropathy of the sciatic nerve for the bilateral lower extremities, is granted. The amputation rule set forth at 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. The combined rating for disabilities below the knee shall not exceed 40 percent, however, the 40 percent rating may be further combined with the rating for disabilities above the knee but not to exceed the above knee amputation elective level. Trans-pelvic amputation (involving complete removal of the femur and intrinsic pelvic musculature along with any portion of the pelvic bones) can be rated at 100 percent. 38 C.F.R. § 4.71a, 5160. The amputation rule prohibits a combined rating in excess of 100 percent for all disabilities above and below the level of the knee, as the rating schedule prescribes a maximum 100 percent rating for amputation above the knee. See 38 C.F.R. §§ 4.68, 4.71a, DC 5160 (Complete amputation, lower extremity). (Continued on the next page) Here, the Board observes that the Veteran has been assigned a separate 10 percent rating for peripheral neuropathy of the femoral nerve for the bilateral lower extremities and has now been granted a 40 percent rating for peripheral neuropathy of the sciatic nerve for the bilateral lower extremities, thereby yielding a combined rating of 50 percent for the right lower extremity and left lower extremity, not including the bilateral factor. Since the schedular criteria provide for a maximum 100 percent rating for the amputation of a leg above the knee, including amputation of the thigh, a combined rating of 50 percent for the disabilities of the bilateral lower extremities, to specifically include the grant of a 40 percent for peripheral neuropathy of the sciatic nerve of the bilateral lower extremities, may be granted under the applicable regulatory provisions. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.