Citation Nr: 21005929 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 19-19 064 DATE: February 2, 2021 ORDER 1. Entitlement to a rating in excess of 20 percent for right upper extremity diabetic neuropathy is denied. 2. Entitlement to a rating in excess of 20 percent for left upper extremity diabetic neuropathy is denied. 3. Entitlement to increases in the (10 percent prior to December 11, 2019 and 20 percent from that date) staged ratings assigned for right lower extremity sciatic nerve peripheral neuropathy, is denied. 4. Entitlement to increases in the (10 percent prior to December 11, 2019 and 20 percent from that date) staged ratings assigned for left lower extremity sciatic nerve peripheral neuropathy, is denied. 5. Entitlement to increases in the (10 percent prior to December 11, 2019 and 20 percent from that date) staged ratings assigned for right lower extremity anterior crural (femoral) nerve peripheral neuropathy, is denied. FINDINGS OF FACT 1. Throughout, the Veteran’s right upper and left upper extremity diabetic neuropathy is shown to have been manifested by no more than mild incomplete paralysis of all radicular groups of either upper extremity; moderately severe incomplete paralysis of all right upper extremity radicular groups is not shown. 2. Prior to December 11, 2019, the Veteran’s right and left lower extremity sciatic nerve peripheral neuropathy is shown to have been manifested by no more than mild incomplete paralysis of the sciatic nerve on either side, and moderate incomplete paralysis of the nerve was not shown; from that date, the right and left sciatic nerve peripheral neuropathy is shown to have been manifested by no more than moderate incomplete paralysis of the sciatic nerve, and moderately severe incomplete paralysis of the sciatic nerve on either side is not shown. 3. Prior to December 11, 2019, the Veteran’s right lower extremity femoral nerve peripheral neuropathy is shown to have been manifested by no more than mild incomplete paralysis of that nerve, and moderate incomplete paralysis of the nerve was not shown; from that date, the right femoral nerve peripheral neuropathy is shown to have been manifested by no more than moderate incomplete paralysis of the sciatic nerve, and severe incomplete paralysis of the nerve is not shown. CONCLUSIONS OF LAW 1., 2. Ratings for right and left upper extremity diabetic neuropathy in excess of 20 percent for each are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.21, 4.124a, Diagnostic Code (Code) 8513. 3., 4. Ratings for right and left lower extremity sciatic nerve peripheral neuropathy in excess of 10 percent, each, prior to December 11, 2019, and in excess of 20 percent, each, from that date, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.21, 4.124a, Code 8520. 5. Ratings for right lower extremity femoral nerve peripheral neuropathy in excess of 10 percent prior to December 11, 2019, and in excess of 20 percent from that date, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.21, 4.124a, Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1958 to January 1964 and from April 1964 to April 1967. These matters are before the Board of Veterans’ Appeals (Board) on appeal from December 2016 and July 2018 rating decisions. In September 2019 the case was remanded for further development. An interim ( July 2020 ) rating decision increased the ratings for right and left lower extremity sciatic nerve peripheral neuropathy and right lower extremity femoral nerve peripheral neuropathy, to 20 percent, each, effective December 11, 2019. 1., 2., 3. 4, 5. Entitlement to ratings in excess of 20 percent, each, for right and left upper extremity diabetic neuropathy; in excess of 10 percent, each, prior to December 11, 2019, and 20 percent, each, from that date for right and lower extremity sciatic nerve peripheral neuropathy; and in excess of 10 percent prior to December 11, 2019, and 20 percent from that date for right femoral nerve peripheral neuropathy is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 1155; 38 C.F.R. Part 4. When the appeal is from the initial rating assigned with a grant of service connection (as here, with the claims for increased ratings for right upper extremity diabetic neuropathy, and right lower extremity femoral nerve peripheral neuropathy, the severity of the disability during the entire period from the grant of service connection to the present is to be considered. “Staged” ratings may be assigned for distinct periods when different levels of impairment are shown. Fenderson v. West, 12 Vet. App. 119 (1999). An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. §§ 3.157, 3.400(o)(2). Consequently, the evaluation period for consideration (for left lower extremity sciatic nerve peripheral neuropathy) is from September 28, 2015 (a year prior to the September 28, 2016 date of claim) to the present, and the evaluation period for consideration (for left upper extremity diabetic neuropathy and right lower extremity sciatic nerve peripheral neuropathy) is from May 25, 2017 (a year prior to the May 25, 2018 date of claim) to the present. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be assigned for distinct periods when varying levels of disability are shown. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for such rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s right and left upper extremity diabetic neuropathy has been rated under Code 8513 for all radicular groups, which provides: A 90 percent rating is assigned for complete paralysis of all radicular groups of the major arm, and an 80 percent rating for such paralysis in the minor arm. A 70 percent rating is assigned for severe incomplete paralysis of the major arm and a 60 percent rating for severe incomplete paralysis of the minor arm. A 40 percent rating is assigned for moderate incomplete paralysis of the major arm, and a 30 percent rating is assigned for moderate incomplete paralysis of the minor arm. A 20 percent rating is assigned for mild incomplete paralysis of either the major or minor arm. The Veteran’s right upper extremity has been found to be the major one. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Code 8513. A Note to the Code indicates that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. The Veteran’s right and left lower extremity peripheral neuropathy has been rated under Code 8520 (for sciatic nerve paralysis), which sets forth the following criteria. A 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Code 8520. The Veteran’s right lower extremity femoral nerve peripheral neuropathy is rated under Code 8526. A 10 percent rating is warranted when there is mild incomplete paralysis of the nerve. A 20 percent rating is warranted when there is moderate incomplete paralysis of the nerve. A 30 percent rating is warranted when there is severe incomplete paralysis of the nerve. A 40 percent rating is warranted when there is complete paralysis of the nerve, with paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a. The term “incomplete paralysis,” with respect to peripheral nerve injuries, 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. On October 2016 VA peripheral neuropathy examination, the diagnoses were bilateral lower extremity and left upper extremity peripheral neuropathy. The Veteran reported numbness, tingling, and burning pain in his legs and left arm. He took Gabapentin for pain. Symptoms included left upper and lower extremity mild constant pain, left upper and lower extremity moderate and right lower extremity mild intermittent pain, left upper and lower extremity moderate and right lower extremity mild paresthesias, and left upper and lower extremity moderate and right lower extremity mild numbness. Muscle strength testing was normal in all extremities; muscle atrophy was not shown in any extremity. Deep tendon reflexes were all normal, and sensory examination was normal except for decreased sensation shown in the left hands/fingers, left lower leg/ankle, and left foot/toes. There was some loss of hair on the legs from the distal knee to feet, but it was not attributed to peripheral neuropathy. He denied use of assistive devices. The examiner opined that there was mild incomplete paralysis in the left upper radicular group, mild incomplete sciatic nerve paralysis bilaterally, left femoral nerve mild incomplete paralysis, and right internal saphenous nerve mild incomplete paralysis. The examiner opined that the severity of the Veteran’s upper and lower extremity peripheral neuropathy was mild. An October 2017 VA treatment record notes that the Veteran denied numbness, pain, and tingling in his hands and feet. A November 2017 VA treatment record notes that he reported that he had no difficulty walking a quarter of a mile or doing light housework. On June 2018 peripheral neuropathy examination, left upper extremity, right lower extremity, right upper extremity, and left lower extremity diabetic peripheral neuropathy was diagnosed. The Veteran reported that he had left elbow and forearm numbness, tingling and burning sensations in his extremities, and mild itching in his right elbow and bilateral fingertips. He related that he had bilateral numbness and tingling of both feet that had increased mildly, and that he continued to take Gabapentin daily. Symptoms attributable to peripheral nerve conditions included right upper extremity and left lower extremity mild and left upper extremity and right lower extremity moderate intermittent pain, and right and left upper extremity mild and right and left lower extremity moderate numbness. Muscle strength testing in all extremities was normal; there was no muscle atrophy. Sensory examination was normal. Reflex examination showed biceps 2+, triceps 2+, brachioradialis 1+, knee 1+, and ankle 0. The examiner opined that there was mild incomplete paralysis of the median, ulnar, sciatic, external popliteal and femoral nerves. Regarding functional impairment, the examiner noted that a review of the Veteran’s medical history revealed a mild progression of the upper and lower extremity peripheral neuropathy. An August 2018 VA treatment record notes that the Veteran reported ongoing burning neuropathy in his arms, hands, and feet. An October 2018 VA treatment record notes that the Veteran walked with a steady gait. A November 2018 VA treatment record notes that motor strength in the Veteran’s bilateral upper and lower extremities was grossly intact. In an August 2019 statement, the Veteran’s representative asserted that the findings on the June 2018 examination did not reflect the current status of the disabilities. He indicated that the Veteran reported worsening ongoing pain on movement and limitation of motion due to pain on use, including during flare-ups. He also reported numbness, tingling, and burning in his extremities that had progressively worsened and that markedly impacted on daily activities. Therefore, a September 2019 Board remand directed examinations to determine the current severity of the Veteran’s upper and lower diabetic peripheral neuropathies and non-diabetic peripheral neuropathies. A September 2019 VA treatment record notes that the Veteran reported occasional numbness in his toes. On December 2019 VA diabetic sensory-motor peripheral neuropathy examination, the diagnoses were bilateral upper extremity, and bilateral lower extremity diabetic peripheral neuropathy. The Veteran reported that his upper extremity neuropathy symptoms have worsened since 2016, and his lower extremity pain extended from his lower back to the bottoms of his feet. He indicated that he took Gabapentin for pain, daily. Symptoms of his diabetic peripheral neuropathy included mild bilateral upper extremity intermittent pain, mild bilateral upper extremity and moderate bilateral lower extremity paresthesias, and mild bilateral upper extremity and moderate bilateral lower extremity numbness. Muscle strength was normal; deep tendon reflexes were normal; and light touch sensation testing was normal, in all extremities. Position sense was normal in both upper extremities and decreased in both lower extremities. Vibration and cold sensation testing was normal in all extremities. The examiner opined that there was mild incomplete paralysis of the radial nerve, median nerve, and ulnar nerve, bilaterally and moderate incomplete paralysis of the sciatic nerve and femoral nerve, bilaterally. The examiner also opined that the Veteran’s peripheral neuropathy disabilities had no functional impact. On December 2019 peripheral nerve (not diabetic) examination, the diagnoses were diabetic neuropathy of the bilateral upper and lower extremities and peripheral neuropathy of the bilateral upper and lower extremities. The Veteran reported that his bilateral upper and lower extremity neuropathies had increased in intensity (worsened) within the last few years, and that he continued to take Gabapentin daily. Symptoms related to his peripheral nerve disorder included mild bilateral upper extremity intermittent pain, mild bilateral upper extremity and moderate bilateral lower extremity paresthesias, and mild bilateral upper extremity and moderate bilateral lower extremity numbness. Muscle strength was normal; deep tendon reflexes were normal; and light touch sensation testing was normal in all extremities, and no muscle atrophy was shown. His gait was normal, and no trophic changes were shown to be due to peripheral neuropathy. The Veteran reported that he did not use assistive devices. The examiner opined that there was mild incomplete paralysis of the radial, median, and ulnar nerves, bilaterally, and moderate incomplete paralysis of the sciatic and femoral nerves, bilaterally. The examiner also opined that the Veteran’s peripheral neuropathy had no functional impact. A February 2020 VA treatment record notes that the Veteran denied numbness, stinging, and burning in his feet. A March 2020 VA treatment record notes that he was not at risk for falling and had no impaired mobility. A July 2020 VA treatment record notes that he denied numbness, stinging, and burning in his feet. A July 2020 rating decision increased the 10 percent ratings, each, for right and left lower extremity sciatic nerve peripheral neuropathy, and for right lower extremity femoral nerve peripheral neuropathy, to 20 percent, each, effective December 11, 2019. Entitlement to ratings in excess of 20 percent, each, for right and left upper extremity diabetic neuropathy. Upon review of the evidence, the Board finds that ratings in excess of 20 percent for right and left upper extremity diabetic neuropathy are not warranted at any time under consideration. The neuropathy of both upper extremities has been manifested by no more than mild incomplete paralysis of all radicular groups (which encompasses the median and ulnar nerves under Code 8513); moderate incomplete paralysis of all radicular groups is not shown. The findings on October 2016, June 2018 and December 2019 VA examinations do not reflect more than mild incomplete paralysis of the median and ulnar nerves (consistent with the criteria for the 20 percent rating assigned under Code 8513). On October 2016 examination, muscle strength testing was normal in all extremities, and there was no muscle atrophy in either extremity. Deep tendon reflexes were all normal, and sensory examination was normal except for decreased sensation in the left hands/fingers. On June 2018 examination, muscle strength testing was normal in all extremities, and there was no muscle atrophy. Sensory examination was normal. On December 2019 examinations, muscle strength testing was normal, deep tendon reflexes were normal, and light touch sensation testing was normal, in each extremity. Position sense was normal in both upper extremities and vibration and cold sensation testing was normal in both extremities. On October 2016 examination the Veteran reported left upper extremity mild constant pain, and moderate intermittent pain, paresthesias, and numbness. On June 2018 examination, he reported right upper extremity mild and left upper extremity moderate intermittent pain and right and left upper extremity mild numbness. He did not report constant pain or paresthesias in either upper extremity. On December 2019 VA examinations, the Veteran reported mild bilateral upper extremity intermittent pain, mild bilateral upper extremity paresthesias, and mild bilateral upper extremity numbness. The Board notes the Veteran’s subjective reports of left upper extremity moderate intermittent pain, paresthesias and numbness on October 2016 examination and left upper extremity moderate intermittent pain on June 2018 examination. However, the October 2016, June 2018, and December 2019 examiners, on objective examination, found only mild incomplete paralysis of the left upper radicular group (October 2016 examination) and mild incomplete paralysis of the median and ulnar nerves (June 2018 and December 2019 examinations). The Board finds the objective findings on detailed examination more probative regarding the nature and severity of the diabetic neuropathies than the subjective lay of greater impairment, functional impairment is not shown to have risen to a level reflective of moderately severe incomplete paralysis of all radicular nerve groups on either side; muscle strength has been normal, there is no muscle atrophy, and deep tendon reflexes have remained normal (the most recent examiner of record specifically found there is no impact on functioning). Accordingly, ratings in excess of 20 percent for right and left upper extremity diabetic neuropathy are not warranted at any time during the period on appeal. Ratings for right and left lower extremity sciatic nerve peripheral neuropathy in excess of 10 percent prior to December 11, 2019, and in excess of 20 percent from that date, and for right lower extremity femoral nerve neuropathy in excess of 10 percent prior to December 11, 2019, and in excess of 20 percent from that date. Prior to December 11, 2019, the VA examination reports and the treatment records do not show symptoms of, or impairment due to, right and left lower extremity sciatic nerve peripheral neuropathy and right lower extremity femoral nerve peripheral neuropathy to have been of greater severity than that consistent with mild incomplete paralysis of those nerves, so as to warrant a rating in excess of 10 percent for sciatic nerve involvement in either lower extremity or femoral nerve involvement in the right lower extremity. On October 2016 VA examination, the examiner characterized the peripheral neuropathy as mild, there was no muscle atrophy (suggestive of disuse), muscle strength was normal, and any trophic (hair loss) changes were not attributed to the neuropathy. On June 2018 VA examination, the Veteran reported that tingling and burning sensations in his extremities, bilateral numbness and tingling of both feet that had mildly increased, and continued daily use of Gabapentin. Muscle strength testing was normal in both extremities, and there was no muscle atrophy. The examiner opined that there was mild incomplete paralysis of the sciatic, external popliteal, and femoral nerves, bilaterally. Regarding functional impairment, the examiner noted that a review of the Veteran’s medical history found a mild progression of lower extremity peripheral neuropathy. VA treatment records note that he periodically reported bilateral leg and foot pain, tingling, and/or numbness. However, treatment records show he reported that he walked on a treadmill a few times a week, and although he was slowed due to age, he was not at risk for falls and did not otherwise have mobility limitations, was maintained on Gabapentin, and sought medical treatment for pain only on an “as needed” basis. The descriptions of functioning and examination findings do not show or suggest symptoms or impairment characteristic of moderate incomplete paralysis of either sciatic nerve or the right femoral nerve prior to December 11, 2019. Accordingly, ratings in excess of 10 percent, each, for right and left lower sciatic nerve right femoral nerve peripheral neuropathy, were not warranted prior to December 11, 2019. From December 11, 2019, the date from which 20 percent ratings have been assigned for right and left lower sciatic nerve and right femoral nerve peripheral neuropathy, the VA examination report and the treatment records do not show symptoms of, or impairment due to, the peripheral neuropathy to be of greater severity than reflecting moderate incomplete paralysis of the sciatic nerve, so as to warrant a rating in excess of 20 percent for either lower extremity or reflecting more than moderate incomplete paralysis of the femoral nerve, so as to warrant a rating in excess of 20 percent for such nerve disability. On the December 2019 VA (diabetic and non-diabetic peripheral nerve) examinations, the Veteran reported that his lower extremity pain extended from his low back to the bottoms of his feet, but he did not identify the level of severity (or describe related functional impairment). He reported continued daily use of Gabapentin for pain. Muscle strength was normal, deep tendon reflexes were normal, and light touch sensation testing was normal in all extremities, and there was no muscle atrophy. His gait was normal, but lower extremity position sense was normal was reduced in both extremities. The examiner opined that there was moderate incomplete paralysis of both sciatic nerves and the right femoral nerve. The examiner further opined that the Veteran’s peripheral neuropathy disabilities had no functional impact. Although symptoms such as burning, tingling, and numbness were likely present based on daily intake of Gabapentin, February and July 2020 VA treatment records note he denied numbness, stinging, and burning in his feet. The overall disability picture presented reflects no more than moderate incomplete paralysis of the sciatic nerve in either lower extremity and no more than moderate incomplete paralysis of the right femoral nerve. Moderately severe incomplete sciatic nerve paralysis (which would warrant a 40 percent rating) is not shown by clinical findings or even by the Veteran’s own descriptions of functioning. Severe incomplete right femoral nerve paralysis (which would warrant a 30 percent rating) is not shown by clinical findings or by the Veteran’s own descriptions of functioning. Muscle strength loss and muscle atrophy have never been found. From December 11, 2019, ratings in excess of 20 percent for sciatic nerve neuropathy in either lower extremity and right femoral nerve neuropathy are not warranted. The preponderance of the evidence is against these claims. Accordingly, the appeals in the matters must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.