Citation Nr: 21006031 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-15 281 DATE: February 3, 2021 ORDER Entitlement to an initial increased evaluation in excess of 20 percent for right lower extremity peripheral neuropathy, sciatic nerve, prior to September 21, 2020, is denied. Entitlement to an initial increased evaluation in excess of 20 percent for left lower extremity peripheral neuropathy, sciatic nerve, prior to September 21, 2020, is denied. Entitlement to an increased evaluation in excess of 40 percent for right lower extremity peripheral neuropathy, sciatic nerve, since September 21, 2020, is denied. Entitlement to an increased evaluation of in excess of 40 percent for left lower extremity peripheral neuropathy, sciatic nerve, since September 21, 2020, is denied. REMANDED Entitlement to service connection for a disability manifested by chronic physical flushing and changes in body temperature, to include as due to exposure to herbicides is remanded. Entitlement to an initial increased rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy, femoral nerve, prior to September 21, 2020, and in excess of 20 percent thereafter is remanded. Entitlement to an initial increased rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy, femoral nerve, prior to September 21, 2020, and in excess of 20 percent thereafter is remanded. Entitlement to an effective date earlier than June 8, 2018, for the grant of service connection for right lower extremity diabetic peripheral neuropathy, femoral nerve, is remanded. Entitlement to an effective date earlier than June 8, 2018, for the grant of service connection for left lower extremity diabetic peripheral neuropathy, femoral nerve, is remanded. FINDINGS OF FACT 1. Pre-existing, nonservice-connected peripheral neuropathy of the left and right lower extremity sciatic nerves was noncompensable. 2. Prior to September 21, 2020, the Veteran’s right lower extremity diabetic peripheral neuropathy, sciatic nerve, manifested as no more than moderate, incomplete paralysis of the sciatic nerve. 3. Prior to September 21, 2020, the Veteran’s left lower extremity diabetic peripheral neuropathy, sciatic nerve, manifested as no more than moderate, incomplete paralysis of the sciatic nerve. 4. From September 21, 2020, the Veteran’s right lower extremity diabetic peripheral neuropathy, sciatic nerve, manifested as no more than moderately severe incomplete paralysis of the sciatic nerve. 5. From September 21, 2020, the Veteran’s left lower extremity diabetic peripheral neuropathy, sciatic nerve manifested as no more than moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial increased evaluation in excess of 20 percent for right lower extremity peripheral neuropathy, sciatic nerve prior to September 21, 2020 are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 – 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for an initial increased evaluation in excess of 20 percent for left lower extremity peripheral neuropathy prior to September 21, 2020 are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 – 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for an increased evaluation of 40 percent, and no higher, for right lower extremity peripheral neuropathy, sciatic nerve from September 21, 2020 are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 – 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for an increased evaluation of 40 percent for n excess of 30 percent for left lower extremity peripheral neuropathy, sciatic nerve from September 21, 2020 are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 – 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1966 to September 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2012, April 2017 and June 2018 rating decisions by the Lincoln, Nebraska Regional Office (RO) of the United States Department of Veterans Affairs (VA). In February 2019, the Board issued a decision which assigned initial ratings of 20 percent for peripheral neuropathy of the right lower extremity, sciatic nerve, and 20 percent for peripheral neuropathy of the left lower extremity sciatic nerve. As part of this determination, the Board determined that the pre-existing peripheral neuropathies were noncompensable, and so no subtraction for a baseline level of disability was required. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In November 2019, based on a Joint Motion for Partial Remand (JMPR), the Court found that in denying increased ratings in excess of 20 percent for right lower and left lower extremity peripheral neuropathy of the sciatic nerves, the Board failed to provide an adequate statement of reasons and bases regarding denial of ratings in excess of such. The Court vacated that portion of the Board’s February 2019 decision denying yet higher ratings and remanded for readjudication. In April 2019, the issue of entitlement to service connection for a disability manifested by chronic physical flushing and changes in body temperature, to include as due to exposure to herbicide agents was remanded by the Board for additional development. In June 2020, the issues of entitlement to service connection for chronic physical flushing; entitlement to increased rating for right and left lower extremity diabetic peripheral neuropathy, sciatic nerve; entitlement to increased initial ratings for right and left lower extremity diabetic peripheral neuropathy, femoral nerve; and for entitlement to earlier effective dates for entitlement to service connection for right and left lower extremity diabetic peripheral neuropathy, femoral nerve, associated with diabetes mellitus, type II were remanded by the Board for additional development. As will be discussed below, the Board finds that there has not been substantial compliance with is prior remand directives pertaining to service connection for chronic physical flushing, increased ratings for right and left lower extremity peripheral neuropathy femoral nerves, and for earlier effective dates for service connection for right and left peripheral neuropathy, femoral nerves and that another remand is needed to properly adjudicate these claims. Moreover, with regard to the assignment of evaluations for sciatic neuropathy, the RO failed to recognize the undisturbed determination by the Board that any pre-existing neuropathy was noncompensable, and continued to subtract for a baseline level of disability. This error is corrected in the discussion to follow. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in April 2012, May 2012 and May 2013. The RO associated the Veteran’s service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 – 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s left and right lower extremity sciatic neuropathies are rated under Diagnostic Code 8520, which contemplates paralysis of the sciatic nerve. Under this code, ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis, which is mild, moderate, or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather than applying a mechanical formula, VA must evaluate all the evidence 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. Right and Left Lower Extremity Peripheral Neuropathy, Sciatic Nerves The Veteran is seeking an increased rating in excess of 10 percent prior to September 21, 2020, and in excess of 30 percent thereafter, for each leg, according to the most recent November 2020 Codesheet and the VA corporate record. These evaluations consider a pre-existing baseline disability of 10 percent in each leg. As is noted above, however, the Board in February 2019 determined such to be improper, and the Court effectively affirmed this determination. Therefore, the Board must consider an accurate corporate record properly reflecting the law of the case and the prior determinations of the Board and Court. Specifically, both right and left lower extremity sciatic neuropathies must be considered rated 20 percent disabling prior to September 21, 2020, and 40 percent disabling since that date. Private treatment records from Dr. EAF dated February 2013 reflect the Veteran reported his neuropathy is much improved with an increased dose and schedule of Gabapentin. The Veteran underwent a VA diabetic sensory-motor peripheral neuropathy examination in July 2013. Subjective complaints included tingling in lower legs and feet that was worse at night. Mild paresthesias and/or dysesthesias were noted in both lower extremities. Muscle strength test results were normal for bilateral knee flexion and extension, and bilateral ankle plantar flexion and dorsiflexion. Deep tendon reflexes were decreased in the bilateral knees and ankles. Light touch/monofilament and cold sensation test results were normal. No muscle atrophy was present. Trophic changes were noted as decreased hair loss in the lower 1/3 of the left bilaterally. The VA examiner determined that the Veteran had mild incomplete paralysis of the right and left sciatic nerves. VA treatment records dated September 2014, October 2014 and January 2015 reflect the Veteran reported his neuropathy was stable, but still bothered him. An April 2017 VA treatment note indicates the Veteran’s neuropathy was well-controlled. The Veteran underwent a VA contract diabetic sensory motor peripheral neuropathy examination in June 2018. The VA contract examiner noted the Veteran’s diagnoses of lower extremity peripheral neuropathy. Subjective complaints included bilateral numbness and tingling from anterior thigh down legs to toes; pain worse at night; symptoms have worsened. The Veteran reported taking Gabapentin three times a day. Symptoms included mild paresthesias and/or dysesthesias and numbness in bilateral lower extremities. Muscle strength was normal on bilateral knee flexion and extension and bilateral ankle plantar flexion and dorsiflexion. Light touch/monofilament test results were normal. Decreased vibration sensation was present bilaterally and decreased cold sensation was present in the left lower extremity. The VA contract examiner determined the Veteran had bilateral mild incomplete paralysis of the bilateral sciatic nerves. VA treatment records from May 2018 and August 2019 continue to reflect the Veteran’s diagnosis of neuropathy. The Veteran underwent a VA contract diabetic sensory-motor peripheral neuropathy examination in September 2020. The VA contract examiner noted the Veteran’s diagnosis of lower extremity diabetic neuropathy. Symptoms attributable to diabetic neuropathy included bilateral moderate paresthesias and/or dysesthesias and bilateral moderate numbness of the lower extremities. Muscle strength testing revealed bilateral knee extension, bilateral ankle plantar flexion and bilateral ankle dorsiflexion were 3 out of 5, indicating no movement against resistance. Deep tendon reflexes of the bilateral knees and ankles were absent. Light touch/monofilament testing results were decreased in the bilateral knees/thighs, ankle/lower leg, and feet/toes. Position sense, vibration sensation and cold sensation were decreased in the right lower extremity and were absent in the left lower extremity. No muscle atrophy was present. Trophic changes were noted as the Veteran had no hair on his bilateral lower legs. The VA contract examiner determined that the Veteran had moderately severe incomplete paralysis of the bilateral lower extremities. After a careful review of the evidence of record, the Board finds that the initial disability pictures of the Veteran’s bilateral lower extremity peripheral neuropathies of the sciatic nerves do not more nearly approximate the criteria for a higher disability evaluation of 40 percent for each prior to September 21, 2020. Prior to September 21, 2020, there is no indication that the Veteran’s symptoms were described as “moderately severe.” The Veteran consistently complaint of pain radiating down his legs with numbness and tingling which have been noted as mild prior to September 21, 2020. Additionally, his treatment records support these findings as they consistently note his peripheral neuropathy is well-controlled and do not indicate the Veteran’s symptoms approximated a “moderately severe ” incomplete paralysis of the bilateral sciatic nerves, prior to September 21, 2020 so as to warrant a 40 percent disability evaluation for each lower extremity. Accordingly, the claims for increased evaluations for right and left lower extremity peripheral neuropathies, sciatic nerves, in excess of 20 percent respectively, prior to September 21, 2020, must be denied. The Board finds that since September 21, 2020, the disability pictures of the Veteran’s bilateral lower extremity peripheral neuropathies of the sciatic nerves do not more nearly approximate the criteria for a 60 percent disability evaluation for each lower extremity. The medical evidence of record shows that as of that date, the Veteran’s symptoms have been described as “moderately severe” and in fact do not meet the criteria for severe incomplete paralysis with marked muscle atrophy. The VA contract examination conducted on September 21, 2020 revealed that the Veteran’s vibration sensation, position sense and cold sense in his right lower extremity were markedly decreased and were completely absent in his left lower extremity. Muscle strength testing had decreased significantly, and deep tendon reflexes were absent. No muscle atrophy was present. As the Veteran does not exhibit severe incomplete paralysis of the bilateral sciatic nerves with marked muscle atrophy, a higher evaluation of 60 percent is not warranted. Accordingly, entitlement to increased disability ratings in excess of 40 percent for right and left lower extremity peripheral neuropathy of the sciatic nerves, respectively, are not warranted from September 21, 2020. REASONS FOR REMAND The Board finds that the issues of entitlement to service connection for a disability manifested by chronic physical flushing, for increased ratings for right and left lower extremity diabetic peripheral neuropathy, femoral nerves, associated with diabetes mellitus, type II, and for effective dates earlier than June 8, 2018 for the grant of service connection for right and left lower extremity diabetic peripheral neuropathy, femoral nerves, associated with diabetes mellitus, type II are remanded for additional development. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds the September 2020 VA ce examination and opinion regarding flushing is inadequate for adjudication purposes. In its June 2020 remand, the Board directed that the Veteran was to be scheduled for a VA central nervous system and neuromuscular diseases examination by a clinician with expertise in autonomic dysfunction to determine the current nature and etiology of any disability manifested by chronic physical flushing and changes in body temperature. The examiner was asked to provide an opinion as to whether or not a disability manifested by chronic physical flushing or changes in body temperature had its onset in service, or was in any way related to service, to include as due to herbicide exposure. The Board directed that the examiner was to address the evidence of potential neurologic pathology; July 2013 and February 2014 treatment notes related the Veteran’s symptoms to possible neuropathic components and the August 2019 VA examiners finding that an autonomic dysfunction was a potential cause. The Veteran underwent a VA examination in October 2020; the examination was not conducted by an expert as was requested in the Board remand. Instead, a nurse practitioner with no indicated specialized neurological knowledge was used; there is not even any showing that a neurologist was consulted. Additionally, the opinion provided stated that it was less likely than not that the Veteran’s claimed physical flushing had its onset in service or was due to exposure to herbicides, as no studies have demonstrated a relationship exists between the two. However, the opinion did not address the specified evidence relating to a possible neuropathic component or autonomic dysfunction as a potential cause. A new VA medical opinion must be obtained to comply with the Board’s prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). With regard to the claims for increased ratings for bilateral lower extremity peripheral neuropathies, femoral nerves, the Board requested the Veteran to be scheduled for a new VA peripheral nerves examination. The VA examiner was asked, to the extent possible, to identify the earliest manifestations of symptoms attributable to the femoral nerve dysfunction, for the period since April 2013. The VA examination was performed in September 2020, but the requested opinion was not provided. On remand, an addendum opinion must be obtained to comply with the Board’s prior remand instructions. The Board determined in its June 2020 remand that with regard to the issues of entitlement to an earlier effective dates for service connection for bilateral lower extremity neuropathies, femoral nerves, it would be helpful to secure a clear opinion regarding the presence or absence of symptoms of such, as opposed to sciatic neuropathy, since April 2013. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA central nervous system and neuromuscular diseases examination by a clinician with expertise is autonomic dysfunction to determine the current nature and likely etiology of any disability manifested by chronic physical flushing and changes in body temperature. Referral to an outside consultant may be necessary. The electronic claims file must be made available to the examiner for review and the examination must reflect that such review has been accomplished. Further, the qualifications of the examiner in autonomic dysfunctions must be specified. The examiner must provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that a disability manifested by chronic physical flushing or changes in body temperature had its onset in service, or is in any way related to the Veteran’s active service, including as a result of his exposure to herbicide agents. The examiner must address the evidence of potential neurologic pathology. A July 2013 and February 2014 treatment note related the Veteran’s symptoms to possible neuropathic components, and the August 2019 examiner found an autonomic dysfunction was a potential cause. A full and complete rationale is requested for all opinions provided. 2. Provide the claims file to the same specialized clinician consulted in connection with the above examination. If the clinician determines that another VA examination is necessary, one should be scheduled. The examiner must describe the functional impact of the Veteran’s peripheral neuropathies of the Veteran’s right and left femoral nerves. The examiner should, if possible, identify the symptoms associated with the femoral nerves and assess the severity of symptoms as applied to the femoral nerves. The examiner must, to the extent possible, identify the earliest manifestation of symptoms attributable to the femoral nerve dysfunction, for the period since April 2013. A full and complete rationale is required for all opinions expressed. 3. Then readjudicate the remanded issues. If the benefits sought remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, 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.