Citation Nr: 21005993 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-05 709 DATE: February 3, 2021 ORDER Entitlement to rating in excess of 30 percent for peripheral neuropathy of the right lower extremity is denied. Entitlement to rating in excess of 30 percent for peripheral neuropathy of the left lower extremity is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected peripheral neuropathy of the right lower extremity, which is rated using the external popliteal nerve, has not caused complete paralysis. 2. The Veteran’s service-connected peripheral neuropathy of the left lower extremity, which is rated using the external popliteal nerve, has not caused complete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to rating in excess of 30 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521 (2017). 2. The criteria for entitlement to rating in excess of 30 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to May 1985. He passed away on July 10, 2017, while these claims were pending. The appellant is his surviving spouse and has been substituted as the appellant in this appeal. These claims come before the Board of Veterans’ Appeal (Board) on appeal from an April 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The matter originally came before the Board in March 2016 but was remanded in pursuit of a new VA examination to ascertain any worsening of the Veteran’s disabilities. The Veteran passed away before the examination could take place, so a medical opinion was provided instead, and the case was returned to the Board. In an October 2020 decision, the Board remanded the case once more as the new opinion was inadequate, using the wrong definition of the word “paralysis” in evaluating the Veteran’s conditions. A new VA medical opinion has been provided and the case is before the Board once more. Increased Rating Claims 1. Entitlement to rating in excess of 30 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to rating in excess of 30 percent for peripheral neuropathy of the left lower extremity. The appellant is seeking a rating in excess of 30 percent for the Veteran’s peripheral neuropathy of the right and left lower extremities. The Veteran’s lower extremities are rated under Diagnostic Code 8521, which provides ratings for paralysis of the external popliteal nerve. 38 C.F.R. § 4.124a. Disability ratings of 10, 20 and 30 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the external popliteal nerve. A disability rating of 40 percent is warranted for complete paralysis of the relevant 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. 38 C.F.R. § 4.124a, Diagnostic Code 8521. Words such as “severe,” “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, that is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6 (2017). In rating diseases of the nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture 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. Neither the Rating Schedule nor the regulations provide definitions for words such as “moderately severe.” Upon full review of the record, the Board finds the Veteran’s peripheral neuropathy of the right and left lower extremities did not manifest with complete paralysis at any time during the appeal period, and thus does not warrant a 40 percent rating. In September 2009, results of a nerve condition study the Veteran underwent were published. The findings of the study revealed that the Veteran’s lower extremities were manifested by severe sensory motor mixed axonal and demyelination polyneuropathy. Absent from the report was any mention of complete paralysis. In June 2020, a VA medical opinion was provided regarding the severity of the Veteran’s peripheral neuropathy. The clinician stated there was no mention of paralysis in the Veteran’s record. Within the context of the opinion, the clinician was referring to complete paralysis, rather than incomplete paralysis. In an October 2020 VA medical opinion, the Veteran was found to have had severe incomplete paralysis, not complete paralysis. The evidence shows the Veteran’s lower extremities predominantly manifested by severe incomplete paralysis rather than complete paralysis. As such, the Board finds that a rating in excess of 30 percent for peripheral neuropathy of the right or left lower extremity is not warranted. REASONS FOR REMAND Entitlement to TDIU is remanded. During his lifetime, the Veteran raised a claim of entitlement to TDIU as a component of his increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In the March 2016 Board remand, the Board sought an evaluation of the Veteran’s claim for TDIU. The RO, in a May 2020 correspondence, sent the appellant VA Form 21-8940 TDIU application in pursuit of the Veteran’s employment information. The appellant did not file the requested form and, if the appellant wished to continue this claim, the Board encourages the appellant to submit the requested form. The Board will allow the appellant yet another opportunity to submit a completed VA Form 21-8940 TDIU application form. The Board notes that the United States Court of Appeals for Veterans Claims has held that the duty to assist is not a “one-way street.” If the appellant wants help in developing this claim, she cannot passively wait for it in circumstances where she may or should have information that is essential in obtaining putative evidence. Woody. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Provide the appellant with another VA Form 21-8940, Veteran’s Application for Increased Compensation Based On Unemployability, and advise her to complete and return the form to support the Veteran’s claim for TDIU. 2. Regardless of whether a response is received in response to number 1, above, readjudicate the Veteran’s claim for TDIU. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Lee Feldman, Attorney Advisor 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.