Citation Nr: 21076869 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-56 914 DATE: December 28, 2021 ORDER From July 3, 2013 to May 3, 2015, a 20 percent rating for right upper extremity peripheral neuropathy is granted. From July 3, 2013 to May 3, 2015, a 20 percent rating for left upper extremity peripheral neuropathy is granted. From May 4, 2015, a rating higher than 20 percent for right upper extremity peripheral neuropathy is denied. From May 4, 2015, a rating higher than 20 percent for left upper extremity peripheral neuropathy is denied. From July 3, 2013 to May 3, 2015, a 10 percent rating for right lower extremity peripheral neuropathy is granted. From July 3, 2013 to May 3, 2015, a 10 percent rating for left lower extremity peripheral neuropathy is granted. From May 4, 2015, a rating higher than 10 percent for right lower extremity peripheral neuropathy (sciatic nerve) is denied. From May 4, 2015, a rating higher than 10 percent for left lower extremity peripheral neuropathy (sciatic nerve) is denied. From May 4, 2015, an initial rating higher than 10 percent for right lower extremity peripheral neuropathy (femoral nerve) is denied. From May 4, 2015, an initial rating higher than 10 percent for left lower extremity peripheral neuropathy (femoral nerve) is denied. FINDINGS OF FACT 1. From July 3, 2013 to May 3, 2015, the Veteran's right upper extremity peripheral neuropathy was manifested by symptoms that more nearly approximated as mild incomplete paralysis of all radicular groups. 2. From July 3, 2013 to May 3, 2015, the Veteran's left upper extremity peripheral neuropathy was manifested by symptoms that more nearly approximated as mild incomplete paralysis of all radicular groups. 3. From May 4, 2015, the Veteran's right upper extremity peripheral neuropathy did not manifest as moderate incomplete paralysis of all radicular groups. 4. From May 4, 2015, the Veteran's left upper extremity peripheral neuropathy did not manifest as moderate incomplete paralysis of all radicular groups. 5. From July 3, 2013 to May 3, 2015, the Veteran's right lower extremity peripheral neuropathy was manifested by symptoms that more nearly approximated mild incomplete paralysis of the sciatic nerve. 6. From July 3, 2013 to May 3, 2015, the Veteran's left lower extremity peripheral neuropathy was manifested by symptoms that more nearly approximated mild incomplete paralysis of the sciatic nerve. 7. From May 4, 2015, the Veteran's right lower extremity peripheral neuropathy did not manifest as moderate incomplete paralysis of the sciatic nerve. 8. From May 4, 2015, the Veteran's left lower extremity peripheral neuropathy did not manifest as moderate incomplete paralysis of the sciatic nerve. 9. From May 4, 2015, the Veteran's right lower extremity peripheral neuropathy did not manifest as moderate incomplete paralysis of the femoral nerve. 10. From May 4, 2015, the Veteran's left lower extremity peripheral neuropathy did not manifest as moderate incomplete paralysis of the femoral nerve. CONCLUSIONS OF LAW 1. From July 3, 2013 to May 3, 2015, a 20 percent rating for right upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513. 2. From July 3, 2013 to May 3, 2015, a 20 percent rating for left upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513. 3. From May 4, 2015, a rating higher than 20 percent for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513. 4. From May 4, 2015, a rating higher than 20 percent for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8513. 5. From July 3, 2013 to May 3, 2015, a 10 percent rating for right lower extremity peripheral neuropathy (sciatic nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 6. From July 3, 2013 to May 3, 2015, a 10 percent rating for left lower extremity peripheral neuropathy (sciatic nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 7. From May 4, 2015, a rating higher than 10 percent for right lower extremity peripheral neuropathy (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 8. From May 4, 2015, a rating higher than 10 percent for left lower extremity peripheral neuropathy (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 9. From May 4, 2015, an initial rating higher than 10 percent for right lower extremity peripheral neuropathy (femoral nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 10. From May 4, 2015, an initial rating higher than 10 percent for left lower extremity peripheral neuropathy (femoral nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1966 to September 1969, including service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded the Bronze Star Medal, the Purple Heart, and the Vietnam Service and Campaign Medals. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2014 rating decision. In July 2021, the Board remanded the claims for further development. While the case was in remand status, in a September 2021 rating decision, the RO granted service connection for left and right lower extremity peripheral neuropathy of the femoral nerve, with 10 percent ratings assigned for each disability. While the actions were phrased as one for service connection, the ratings are part and parcel of the Veteran's claims for an increased rating for his left and right lower extremity peripheral neuropathy. Thus, the Board has taken jurisdiction over these issues and have included them on appeal. Furthermore, the Board notes that the remand directives have been substantially complied with (current VA examinations have been conducted) and therefore will proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters on appeal have been bifurcated as set forth herein, to better reflect the nature of the claims and the requisite analyses thereof. Finally, over the course of the appeal period, the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU). Absent evidence or argument that any single disability is responsible for the Veteran's TDIU (as to render the Veteran eligible for special monthly compensation), this issue need not be further considered. INCREASED RATING Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable rating is warranted for painful limitation of motion. See 38 C.F.R. § 4.59. The Veteran is seeking higher ratings for his diabetic peripheral neuropathies of the of the bilateral upper and lower extremities. In applying the schedular criteria for rating peripheral nerve disabilities, 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 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. Words such as "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, it 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. The Board notes that the Veteran is right hand dominant. Therefore, the right upper extremity is evaluated as his major extremity, and the left upper extremity is evaluated as his minor extremity for rating purposes. 1. Peripheral Neuropathy of the Right and Left Upper and Lower Extremities The Veteran's peripheral neuropathy of the right and left upper extremities are presently assigned noncompensable ratings from July 3, 2013 to May 3, 2015 and 20 percent ratings from May 4, 2015, under Diagnostic Code 8513. The Veteran's peripheral neuropathy of the right and left lower extremities of the sciatic nerve are presently assigned noncompensable ratings from July 3, 2013 to May 3, 2015, and 10 percent ratings from May 4, 2015, under Diagnostic Code 8520. Also, peripheral neuropathy of the right and left lower extremities of the femoral nerve were assigned 10 percent ratings from May 4, 2015, under Diagnostic Code 8526. Under Diagnostic Code 8513, a 20 percent evaluation is assigned for mild incomplete paralysis of all radicular groups in the major or minor extremity. Moderate neuropathy warrants a 40 percent evaluation for the major extremity, and a 30 percent evaluation for the minor extremity. 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve, and a 20 percent rating is warranted for moderate incomplete paralysis. 38 C.F.R. § 4.124a. Under Diagnostic Code 8526, a 10 percent rating is warranted for mild incomplete paralysis of the femoral nerve, and a 20 percent rating is warranted for moderate incomplete paralysis. 38 C.F.R. § 4.124a. Throughout the appeal, the Veteran has contended that the peripheral neuropathies of the of the bilateral upper and lower extremities have persisted. His claim for increased ratings was received on July 3, 2013. On VA diabetic sensory-motor peripheral neuropathy examination in April 2014, the examiner noted that the Veteran had been diagnosed with entrapment of the left ulnar sensory nerve in 2012 on electrodiagnostic study and that his right arm issues stemmed from his right shoulder disorder. With respect to the lower extremities, the examiner noted that the Veteran had neuromas, osteoarthrosis, and heel spurs bilaterally and indicated that his foot pain may be primarily due to his bilateral neuromas, which were treated in December 2013. Accordingly, the VA examiner determined that the Veteran did not have symptoms of bilateral upper and lower extremities attributable to diabetic peripheral neuropathy. The Board remanded in the claims in July 2021 for further VA examination and opinion as to whether the Veteran's symptoms associated with the service-connected peripheral neuropathy are distinguishable from any symptoms associated with nonservice-connected entrapment of the left ulnar sensory nerve and right shoulder disorder and from any symptoms associated with nonservice-connected neuromas, osteoarthritis and heel spurs. Following VA diabetic sensory-motor peripheral neuropathy examination in September 2021, the examiner determined that the subjective and objective evidence are related to the Veteran's diabetic peripheral neuropathy. Regarding the upper extremities, the examiner noted that his symptoms of neuropathy are located in his digits radiating up as opposed to entrapment in which symptoms radiate down the arms. The examiner stated that the peripheral neuropathy of the bilateral lower extremities could not be separated from his non-service connected neuromas, osteoarthritis and heel spurs. With respect ot the severity of the peripheral neuropathy in each extremity, the examiner stated that each one was mild. On examination, there was mild intermittent pain, paresthesias and/or dysesthesias and numbness of the bilateral upper and lower extremities. Vibration and cold sensation were decreased in all extremities. There was no muscle atrophy or trophic changes. There was mild, incomplete paralysis of the radial, median and ulnar nerves of both upper extremities. There was mild, incomplete paralysis of the sciatic and femoral nerves. There were no other pertinent physical findings, complications, conditions, or signs related to any of the extremities. Based on the above findings, there is sufficient evidence to demonstrate that the Veteran's ongoing complaints were related to his peripheral neuropathy of his bilateral upper extremities and were at a "mild" level since he filed his claim on July 3, 2013 to May 3, 2015. Therefore, 20 percent ratings from July 3, 2013 to May 3, 2015, under Diagnostic Code 8513, are warranted for peripheral neuropathy of the right and left upper extremities. In order to warrant higher 40 and 30 percent ratings, respectively, for the right and left upper extremities, the evidence must show moderate incomplete paralysis. In this case, there are no objective findings consistent with at least moderate incomplete nerve paralysis which is required for the 40 and 30 percent ratings. Accordingly, ratings higher than 20 percent for peripheral neuropathy of the right and left upper extremities under Diagnostic Code 8513, from May 4, 2015, are not warranted. With respect to the bilateral lower extremities, there is sufficient evidence to demonstrate that the Veteran's complaints were related to peripheral neuropathy affecting the sciatic nerve and were at a "mild" level since his filed his claim on July 3, 2013 to May 3, 2015. Therefore, 10 percent ratings from July 3, 2013 to May 3, 2015 under Diagnostic 8520, are warranted for peripheral neuropathy of the right and left lower extremities. In order to warrant higher 20 percent ratings for peripheral neuropathy of the right and left lower extremities of the sciatic nerve, the evidence must show moderate incomplete paralysis. Here, there are no objective findings consistent with at least moderate incomplete nerve paralysis of the sciatic nerve of either lower extremity. Accordingly, ratings higher than 10 percent for peripheral neuropathy of the right and left lower extremities of the sciatic nerve under Diagnostic Code 8520, from May 4, 2015, are not warranted. Lastly, in order to warrant higher 20 percent ratings for peripheral neuropathy of the right and left lower extremities of the femoral nerve, the evidence must show moderate incomplete paralysis. There are no objective findings consistent with at least moderate incomplete nerve paralysis of the femoral nerve of either lower extremity. Accordingly, ratings higher than 10 percent for peripheral neuropathy of the right and left lower extremities of the femoral nerve under Diagnostic Code 8526, from May 4, 2015, are not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.