Citation Nr: 21005679 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-32 949 DATE: February 2, 2021 ORDER An initial disability rating of 40 percent, and no higher, for right lower extremity peripheral neuropathy (sciatic nerve) is granted. An initial disability rating of 40 percent, and no higher, for left lower extremity peripheral neuropathy (sciatic nerve) is granted. Prior to May 1, 2004, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. From May 1, 2004 to May 27, 2004, entitlement to a TDIU is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, for the entire appeal period, the Veteran’s right lower extremity peripheral neuropathy is manifested by no more than moderately severe, incomplete paralysis. 2. Resolving reasonable doubt in the Veteran’s favor, for the entire appeal period, the Veteran’s left lower extremity peripheral neuropathy is manifested by no more than moderately severe, incomplete paralysis. 3. Prior to May 1, 2004, the Veteran’s service-connected disabilities did not render him unable to secure a substantially gainful occupation. 4. From May 1, 2004, the Veteran’s service-connected disabilities rendered him unable to secure a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for an initial rating of 40 percent, and no higher, for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for an initial rating of 40 percent, and no higher, for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. Prior to May 1, 2004, the criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. 4. From May 1, 2004, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from September 1968 to April 1971. The Veteran had a hearing before the undersigned Veterans Law Judge in February 2018. In August 2018, the Board denied earlier effect date claims for the grants service connection for diabetes mellitus, bilateral upper extremity peripheral neuropathy, bilateral lower extremities peripheral neuropathy, and loss of use of creative organ. The Board also denied higher ratings for bilateral lower extremities peripheral neuropathy and did not address TDIU. The Veteran appealed the Board’s denial of the claims considered herein to the Court of Appeals for Veterans Claims (the “Court”). In a May 2019 joint motion for partial remand (JMPR), the parties agreed to remand the earlier effective date claims and higher rating claims for peripheral neuropathy of the lower extremities (of the sciatic nerves – the issue of higher ratings for the femoral nerves had been dismissed in the prior Board decision based on the Veteran’s withdrawal of those claim) and TDIU for additional action. In September 2019, the Board granted the earlier effect date claims and remanded the claims for increased rating for the peripheral neuropathy of the bilateral lower extremities (the sciatic but not the femoral nerves) and TDIU. In a December 2020 rating decision, the RO granted TDIU, effective May 27, 2004. As such, only the period prior to May 27, 2004 remains on appeal. 1. Entitlement to initial disability ratings higher than 20 percent for right and left lower extremity peripheral neuropathy. The Veteran contends that a disability rating in excess of 20 percent is warranted for peripheral neuropathy of each lower extremity, currently rated under Diagnostic Code 8520 for the sciatic nerve. The effective date of his award of service connection has been established as from September 2, 2002. As noted above, the question of rating peripheral neuropathy of the femoral nerves is not before the Board. Under Diagnostic Code 8520, the next higher 40 percent disability rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A maximum 80 percent rating is possible for complete paralysis with foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC (Diagnostic Code) 8520. The Board notes that there is no indication of diagnoses of either neuritis or neuralgia to indicate a rating under Diagnostic Code 8620 or 8720 would be warranted. 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 a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. The Board observes that the terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38C.F.R.§4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence 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. 38C.F.R.§§4.2, 4.6. Under Diagnostic Code 8520, the next higher disability rating of 40 percent is warranted for moderately severe incomplete paralysis. Giving the Veteran the benefit of the doubt, the Board finds that a 40 percent disability rating, for moderately severe incomplete paralysis is warranted for each lower extremity. The December 2002 VA examination noted motor strength and deep tendon reflexes were normal and symmetrical. There was diabetic peripheral neuropathy with decreased sensation on the legs, with neuropathic pain. A May 2004 private medical record by Dr. A.H. noted that the Veteran had bilateral, severe neuropathy with decreased sensation sciatic nerve distribution. There was no light touch sensation below the ankle. The parties of the JMPR found that the Board had previously failed to discuss material, favorable evidence in the form of the April 2017 VA examiner finding “severe numbness of both the right and left lower extremities,” not moderate numbness and not discussing whether such a finding would entitle the Veteran to a higher rating. Also, the April 2015 and April 2017 VA examination reports, noted absent sensation in the feet, abnormal and unsteady gait, and the use of foot braces due to weakness. The April 2020 VA examiner similarly noted reports of numbness to the knees, to mid-shin area or a little higher at times. He also reported intermittent shooting pain 3-4 times a day and 2 episodes lasting days a month. There was no constant pain. The examiner found no constant pain. There was severe intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness. There was absent light touch sensation of the feet. The Board notes that to the extent that the Veteran has had foot drop over the course of the appeal, that symptom is associated with the separately service-connected left lower extremity trauma residuals, as noted by the December 2002 VA examiner and other VA examiners and medical providers. For example, a January 2005 private medical record by Dr. R.E.G. noted that the Veteran had long standing foot drop secondary to tendon laceration; following surgery he still demonstrated foot drop symptoms with steppage gait. In a May 2004 letter, Dr. A.H. also noted that the Veteran had a lacerated tendon that resulted in persistent foot drop and for which he used an ankle-foot orthosis. The Board also notes that in a May 2005 letter, Dr. R.E.G. found that the Veteran’s left foot problems stemming from his left lower extremity trauma included ankle instability and extension weakness, as well as, problems walking. He was dependent on his foot brace due to such disability. As such, to the extent that the JMPR has indicated that the Board has not considered abnormal and unsteady gait, and the use of foot braces due to weakness, such symptoms have been attributed to disorders other than the diabetic peripheral neuropathy. Furthermore, the Veteran has already been separately rated for his residuals of left leg trauma, which includes left foot drop, and is currently in receipt of loss of use of the left foot (granted in a February 2010 rating decision). That matter is not currently before the Board. Although the VA examiners have consistently found no more than moderate, incomplete paralysis, given the symptoms associated with his disability and giving him the benefit of the doubt, the Board finds that a 40 percent disability rating is warranted, for moderately severe incomplete paralysis for each extremity. The Board, however, finds that a disability rating higher than 40 percent is not warranted. The next higher ratings require severe incomplete paralysis with marked muscular atrophy (60 percent) or complete paralysis (80 percent). An 80 percent disability rating is not indicated for either extremity as none of the medical evidence of record, to include VA examinations and VA and private medical records, indicates that the Veteran has complete paralysis of either extremity. The April 2020 VA examiner, as well as the other VA examiners, specifically found only incomplete paralysis and not complete paralysis of the sciatic nerves. Furthermore, a 60 percent disability rating for either extremity is not supported by the record. The medical evidence of record, to include all the VA examinations, VA medical records, and private medical records, generally do not indicate marked muscular atrophy for the right lower extremity as a symptom of peripheral neuropathy, which is necessary for such a rating under Diagnostic Code 8520. The initial December 2002 VA examination for peripheral neuropathy had not indicated any atrophy, though weakness of the anterior tibial muscle group had been noted. A May 2004 private medical record, by Dr. R.E.G. noted surgery to the left leg, including for tendon transfer. The record included discussion of multiple left lower extremity diagnoses, but no atrophy was noted at that time. A January 2005 Dr. R.E.G. record noted that the Veteran’s gastrocnemius muscle strength was returning, but again there was no indication of atrophy. Muscle atrophy is not indicated for the left calf until the July 25, 2005 foot VA examination, which noted 2.5 inches of atrophy of the left calf compared to the right. Subsequent VA examinations also indicated atrophy. The April 2015 VA examination, for example, noted that the atrophied side was 35 cm while the normal side was 40 cm. The April 2020 VA examination; however, makes clear that although there is muscle atrophy “this is thought to be less likely as not due to his DM and more likely related to his SC Left leg tendon issue.” The April VA examiner similarly found that the Veteran’s muscle atrophy was less likely as not due to his diabetic neuropathy and specifically found there was not incomplete paralysis of the sciatic nerve that was severe with marked muscular atrophy. Additionally, although the April 2015 VA examiner did note atrophy, the examiner specifically found that there was no severe incomplete paralysis with marked muscle atrophy. As such, although there are findings of left lower extremity muscle atrophy, the most probative medical evidence of record makes clear that it is not a symptom of the Veteran’s diabetic peripheral neuropathy, but rather another, separately service-connected left lower extremity disability. Neither the Veteran nor his representative has raised any other issues related to this issue, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board notes that in an October 2019 correspondence, the Veteran’s representative argued that the Veteran’s disability should be considered at the level of moderately severe paralysis, which is the level found in this decision. Giving the Veteran the benefit of the doubt and given the evidence of record, the Board finds that an initial 40 percent disability rating, and no higher, for each lower extremity’s peripheral neuropathy of the sciatic nerve is warranted. 2. Entitlement to a TDIU. In a December 2020 rating decision, the RO granted a TDIU from May 27, 2004 (the date of his toe surgery). Giving the Veteran the benefit of the doubt, the Board finds, that from May 1, 2004 (the earliest day possible from which the Veteran has claimed he stopped being able to work), but no earlier, the Veteran’s service connected disabilities had rendered him unable to secure and follow a substantially gainful occupation. Per his March 2015 TDIU application, prior to May 2004, the Veteran had been self-employed as a real estate appraiser for over a decade and had worked 60 to 65 hours a week. A Veteran will be entitled to a TDIU upon establishing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Prior to May 27, 2004, the Veteran had a combined rating of 90 percent. He met the minimum schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16(a). He had a 20 percent rating for diabetes mellitus, a 20 percent ratings for each upper extremity’s peripheral neuropathy, a 20 percent ratings for each lower extremity’s peripheral neuropathy (with separate ratings for sciatic and femoral nerves), 30 percent for left leg trauma, noncompensable left foot ulcer, and 10 percent ratings each for left knee strain, right foot warts, right hip disability, right foot chronic metatarsalgia, and right knee disability. In his March 2015 TDIU application, he claimed that he “have not been able to work since my surgery on my service-connected toes May 2004.” In his March 2015 and November 2019 TDIU applications, he claimed his employment ended on May 1, 2004 . In an October 2019 statements, the Veteran’s representative again noted the Veteran’s report that he had been unable to work since his May 2004 surgery, as well as, the Veteran’s report of his service-connected disabilities reducing his ability to work in 2004, due to surgeries, debridements, peripheral neuropathy, and ulcer treatment. Later records, such as the September 2004 VA examination, indicated that the Veteran was unable to return to his work in inspecting houses due to his physical inability to perform functions such as traversing ladders and climbing roofs. (Continued on the next page)   Giving the Veteran the benefit of the doubt, the Board finds that he was unable to work from May 1, 2004. As such, a TDIU from May 1, 2004 is granted. A TDIU prior to that date is denied as the Veteran has not claimed to have been unemployable prior to that date, and there is no probative evidence of record to support finding that he was unemployable prior to that date. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.