Citation Nr: A21020151 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 210105-127533 One DATE: December 16, 2021 ORDER Entitlement to an initial disability rating of 20 percent, but no higher, for diabetic peripheral neuropathy, left lower extremity (claimed as peripheral neuropathy) is granted. Entitlement to an initial disability rating of 20 percent, but no higher, for diabetic peripheral neuropathy, right lower extremity (claimed as peripheral neuropathy) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's left lower extremity peripheral neuropathy disability was manifested by, at most, moderate incomplete paralysis of the sciatic nerve. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran's right lower extremity peripheral neuropathy disability was manifested by, at most, moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520. 2. The criteria for an initial disability rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to November 1968. The rating decision on appeal was issued in November 2020; therefore, the modernized review system, also known as the Appeals Modernizations Act (AMA), applies. In the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) dated January 2021, the Appellant elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction's (AOJ) November 2020 rating decision on appeal. 38 C.F.R. § 20.301. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of entitlement to an initial evaluation in excess of 10 percent for service-connected bilateral lower extremity peripheral neuropathy, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence.38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.800(c). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. § Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. (2019). If two disability evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. (2019). While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 1. Entitlement to a rating in excess of 10 percent for diabetic peripheral neuropathy, left lower extremity (claimed as peripheral neuropathy) from November 11, 2020. 2. Entitlement to a rating in excess of 10 percent for diabetic peripheral neuropathy, right lower extremity (claimed as peripheral neuropathy) from November 11, 2020. The Veteran asserts that he is entitled to initial disability ratings in excess of 10 percent for his bilateral lower extremity diabetic peripheral neuropathy disability. See Appellate Brief Received December 2021. The Veteran stated that he is being treated at the VA Medical Center for this disability and takes two types of medications to treat it. The Veteran also stated that he was evaluated by an outside contractor for these disabilities. See VA Form 10182 Notice of Disagreement Received January 2021. Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. §§ 4.123, 4.124, and 4.124a. The Veteran is currently in receipt of a 10 percent disability rating for diabetic peripheral neuropathy of the right lower extremity and diabetic peripheral neuropathy of the left lower extremity, respectively, pursuant to Diagnostic Code 8520. See Rating Decision Codesheet Received November 2020. DC 8520 provides for a 10 percent rating for mild incomplete paralysis of the sciatic nerve; a 20 percent rating for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve; and a 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Further, an 80 percent rating is warranted where there is complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. In Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018), the U.S. Court of Appeals for Veterans Claims noted that "DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms." One possible source for such definitions would be the dictionary. Webster's II New College Dictionary defines "mild," as relevant here, as "not severe." Id. at 694 (1995). A synonym for "mild" is "slight," and definitions for "slight" includes "small in size, degree, or amount." Id. at 1038. The definitions for "moderate" include "of average or medium quantity, quality, or extent." Id. at 704. Finally, definitions for "severe" include "extremely intense." Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." 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.; see also Miller v. Shulkin, 28 Vet. App. 376 (2017). 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. When he filed his claim for service connection in November 2020, the Veteran reported that his diabetes causes his peripheral neuropathy, noting he has some numbness and tingling in his feet. The Veteran also stated that "often my feet feel like they are bleeding" but are not when he checks. In addition, the Veteran stated his legs cramp every morning when he wakes but he was unsure if this is related. See VA 21-526EZ received November 2020. The Veteran was afforded a Disability Benefits Questionnaire (DBQ) Examination in November 2020. The examiner noted that the Veteran experienced lower extremity diabetic peripheral neuropathy that manifested as mild incomplete paralysis in both his left and right lower extremities. Additionally, the examiner indicated that the Veteran experienced symptoms of mild numbness and mild paresthesias and/or dysesthesias in his left and right lower extremities. Moreover, it was noted that the Veteran noticed recently that he has had intermittent numbness and tingling in both feet and has had type II diabetes since 2003. The examiner noted normal muscle strength, including knee flexion and ankle plantar flexion and dorsiflexion; normal deep tendon reflexes in the ankles; and decreased light touch/monofilament testing in the foot and toes. The examiner affirmatively indicated that he does not have muscle atrophy. The examiner concluded the Veteran's diabetic peripheral neuropathy disorder had no functional impact on his ability to work. See C&P Examination Received November 2020. A treatment record dated September 2020 states that the Veteran moves all extremities well and further noted that his extremities were warm and well perfused and did not demonstrate peripheral edema. See CAPRI treatment records received November 2020. The evidence of record supports a rating of 20 percent, but no higher, under Diagnostic Code 8520, as the medical and lay evidence as a whole supports a disability picture consistent with no more than moderate incomplete paralysis. The Veteran is competent to describe the radiating symptoms; and the medical evidence of record demonstrates that manifestations of the Veteran's service-connected diabetic peripheral neuropathy of both the right and left lower extremities are wholly sensory. While the November 2020 examiner concluded the Veteran's symptoms are mild and the Veteran described his symptoms at the time he filed his claim in November 2020 to include "some numbness and tingling in his feet," the Veteran also described "often" feeling as though his feet were bleeding. The Veteran's statements indicate his symptoms more closely approximate moderate incomplete paralysis, but are not of a greater degree to be consistent with moderately severe or severe incomplete paralysis. While decreased deep tendon reflexes in the ankle were noted on examination, the preponderance of the evidence is against a finding that moderately severe or severe functional impairment was more nearly approximated. There is no evidence of functional impairment related to decreased deep tendon reflexes. Normal muscle strength was noted on examination and there is no evidence of muscle atrophy. Normal ankle flexion and dorsiflexion and normal knee flexion were also noted on examination. In viewing the evidence, including the Veteran's competent statements about his pain which often feels like bleeding, the Board finds that initial ratings of 20 percent, but not higher, are warranted because the right and left lower extremity diabetic peripheral neuropathy results in moderate incomplete paralysis. The Veteran is competent to report symptomatology relating to his disability because this requires only personal knowledge as it comes to him through his senses and his statements regarding his in this case are credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, to the extent that the Veteran alleges greater severity than a 20 percent rating, the Board finds that the probative value of his allegations is outweighed by the aforementioned medical records during the period on appeal. Accordingly, a disability rating of 20 percent, but no higher, for right and left lower extremity diabetic peripheral neuropathy is granted. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.