Citation Nr: 21006632 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-35 581 DATE: February 4, 2021 ORDER Entitlement to an initial rating in excess of 20 percent prior to July 21, 2017, and in excess of 40 percent thereafter, to include on an extraschedular basis, for right foot drop due to impairment of the external popliteal/common peroneal nerve is denied. FINDINGS OF FACT 1. Prior to July 21, 2017, the Veteran’s right foot drop manifested in, at most, moderate incomplete paralysis with slightly-reduced ankle dorsiflexion. 2. From July 21, 2017, the Veteran’s right foot drop manifested in complete paralysis as evidenced by right foot drop and no ankle dorsiflexion; there is no showing of any additional impairment beyond what has already been contemplated by the Rating Schedule. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent prior to July 21, 2017, and in excess of 40 percent thereafter, for right foot drop have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1 , 4.3, 4.7, 4.14, 4.124a, Diagnostic Code (DC) 8521 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had verified periods of active duty for training (ACDUTRA) in the Army Reserves, including in July 1994, August 1996, July 1997, and May 1998. This matter was previously before the Board in May 2019, at which time an increased rating the disability on appeal was denied. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) which, pursuant to a Joint Motion for Partial Remand, vacated and remanded the claim in a February 2020 order. The Board then remanded the claim in August 2020 to comply with the Court’s remand instructions. That development having now been completed, this claim is once again before the Board. The Board notes that a claim for entitlement to a total disability rating based on individual unemployability (TDIU), is currently in remand status at the Regional Office and undergoing further development in the context of a separate appeal for an increased rating for lumbar spine disability. The Veteran testified before the undersigned Veterans Law Judge at a January 2019 videoconference hearing. A transcript of the proceeding has been associated with the claims file. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In every instance where the rating schedule does not provide for a noncompensable evaluation, a noncompensable evaluation shall be assigned where the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 . In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's June 2014 right peroneal nerve release resulted in right foot drop due to impairment of the external popliteal/common peroneal nerve. She was service-connected for the disability at 20 percent disabling under 38 C.F.R. § 4.12a, DC 8521, effective June 18, 2014. She timely appealed, and in an August 2017 rating decision, the evaluation was increased to 40 percent, effective July 21, 2017. Also, pertinent, the Veteran was service-connected for right lower extremity radiculopathy associated with a lumbar spine disability at 10 percent disabling under 38 C.F.R. § 4.124a, DC 8520, effective February 22, 2012. Following the June 2014 surgery, the symptomology previously rated as part of that disability was included in the right foot drop rating. Involvement of the external popliteal/common peroneal nerve is rated under 38 C.F.R. § 4.124a, DC 8521. A 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating contemplates moderate incomplete paralysis, while a 30 percent disability rating contemplates severe incomplete paralysis. A maximum disability rating of 40 percent contemplates complete paralysis as evidenced by: 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. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the 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. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124 (a). Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, 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. 38 U.S.C. § 7104 (a) (2012); 38 C.F.R. §§ 4.2 , 4.6. In December 2013, the Veteran had abnormal electromyography (EMG) results consistent with a mild, chronic right peroneal neuropathy at the fibular head. As noted previously, she underwent a right peroneal nerve release in June 2014. A July 2014 private follow-up record noted that she reported no more neuropathic pain. In September 2014, her private clinician stated that the Veteran could return to full activity. A March 2015 VA treatment record noted that the Veteran was experiencing increased right leg pain, especially with cold and wet weather, weather changes, and weight-bearing. The Veteran underwent a VA examination in July 2015. She reported that since her surgery, she had to ambulate with a walker or a cane and had radicular pain which started in her right lumbar region and radiated to her right foot. Upon examination, it was revealed that she had severe intermittent pain, paresthesias/dysesthesias, and numbness in her right lower extremity, 4 out of 5 muscle strength in right ankle dorsiflexion, and decreased sensory ability in her right lower leg, ankle, foot, and toes. Sciatic nerve impairment was characterized as mild incomplete paralysis on the right; external popliteal nerve impairment was characterized as moderate incomplete paralysis; right anterior tibial nerve impairment was characterized as moderate incomplete paralysis. The following nerves were characterized as normal: superficial peroneal; internal popliteal; posterior tibial; anterior crural (femoral); internal saphenous; obturator; external cutaneous; and ilio-inguinal. Overall, this was considered to demonstrate moderate peripheral neuropathy. Her gait was abnormal with an obvious limp on the right caused by right foot drop. The functional impact of her disability was a decreased ability to walk long distances and to sit for long periods of time due to pain. In a September 2015 VA treatment record, the Veteran's ankle joint range of motion was diminished “< 3 degrees.” In March 2016, the Veteran began VA physical therapy. She reported that she could walk 50 yards at a time with a cane, could stand for 30 minutes at a time, and usually needed to lean on something. She reported she could not go downstairs in her home because the steps had no rails for her to lean on, and she could no longer used the upstairs level of her home. She stated she avoided driving, as well. She did not trust herself to drive for an hour without experiencing numbness in her right foot. At subsequent physical therapy sessions, her right ankle dorsiflexion was -5 degrees and plantar flexion was 45 degrees. In an April 2016 statement, the Veteran described that she had to ambulate with a cane and had problems standing over 30 minutes. She again noted that she had difficulties ascending and descending stairs, including those in her home, leading her to avoid her upstairs and downstairs levels. At a May 2016 private appointment, an ankle foot orthosis (AFO) brace was ordered. In an August 2016 VA treatment record, the Veteran reported increased pain in her right lower extremity from the rainy weather. The Veteran underwent another VA examination in July 2017. She reported symptoms of persistent pain and numbness. Upon evaluation, she had moderate constant pain, as well as moderate paresthesias/dysesthesias, and moderate numbness in her right lower extremity, normal muscle strength testing except for ankle dorsiflexion, which was 0 out of 5, no deep tendon reflexes, and decreased sensory ability in her right lower leg, ankle, foot, and toes. Her gait was awkward with a marked limp due to right foot drop and her bilateral knee disabilities. There was complete paralysis of the right external popliteal nerve. This was determined to affect her ability to bear weight, stand, and especially ambulate and climb. It also affected her ability to use her right lower extremity for operation of pedals and levers. At a September 2017 private evaluation, strength was 5 out of 5 with significant give-way and motor impersistence. The Veteran had contraction involving her right heel cord and strength was reduced for right ankle dorsiflexion, great toe extension and eversion, but was limited by incomplete effort due to pain. The Veteran reported numbness, tingling, and flashing pain in her right lower extremity and right foot and ankle area. She stated that her pain was present daily, and was constant and severe. She noted the pain worsened with standing, walking, overuse, weather changes, cold temperatures, and sitting, and improved with rest, medication, heat, and avoiding painful activities. She reported that her pain during the evaluation rated a 10 out of 10, but it was noted that she did not appear to be in distress. A private EMG was conducted which found no significant changes since 2014. At the January 2019 hearing, the Veteran stated that she experiences pain and numbness in her right leg. She noted that she had to move around every hour, or her leg will go numb. She uses an AFO brace to keep her foot straight and so she does not fall. She described being unable to go to the upstairs or downstairs levels of her home, regular use of a cane and frequent use of a walker when walking longer distances, and needing to elevate her leg daily. She stated she does not go out frequently, as she is afraid to drive. When driving, her foot may go numb and she is unable to move her foot from the accelerator to the brake easily. She also noted that she has flare-ups of her pain. The Board finds that prior to July 21, 2017, the Veteran's right foot drop manifested in moderate incomplete paralysis. She continued to have right ankle dorsiflexion, with strength determined to be a 4 out of 5, and the July 2015 VA examiner determined that the involvement of her external popliteal nerve resulted in moderate incomplete paralysis. Although she described pain and numbness, worsened with weather changes and weight-bearing, her disability was not determined to be of a severe nature by her private and VA treating clinicians, nor the July 2015 VA examiner. Thus, an increased 30 percent rating is not warranted prior to July 21, 2017. Beginning with the gradual loss of ankle dorsiflexion noted first in September 2015, it is clear that her disability began worsening. She lost further range of motion, and required physical therapy sessions and eventually an AFO brace. The July 2017 VA examination revealed that her disability had worsened to result in complete paralysis with foot drop and no ankle dorsiflexion. As such, a 40 percent rating is warranted from the date of the examination. As noted above, the 40 percent rating is the maximum disability level under DC 8521. In its August 2020 Remand, the Board highlighted that the significant functional impairment identified by the July 2017 VA examiner, including the fact that the Veteran uses a cane and walker at all times; has problems sitting, standing, and ambulating; and sometimes has to elevate her right leg for up to half a day for symptom relief, may present an exceptional or unusual disability picture such that referral for extraschedular consideration may be warranted. Additionally, it was noted that he Veteran's lay statements and comments to treating clinicians and VA examiners, her descriptions of relevant symptomology have described pain, numbness, tingling, and swelling in her right lower leg, right ankle, and right foot. These symptoms have resulted in limitations effecting prolonged standing or walking, difficulties ascending and descending stairs, and difficulty driving due to a limited ability to operate pedals and levers. She testified that she was unable to continue working in her previous occupation after the right peroneal nerve release due to numbness, tingling, and flashing pain in her right foot and ankle area as she had to constantly get up to relieve the numbness. She also experienced pain and swelling in her ankle and had to elevate her right leg sometimes up to half of a day to relieve her symptoms. In view of these symptoms, and mindful of the terms of the Joint Motion for Remand, the Veteran’s claim was referred to the Director of Compensation Services in October 2020. Upon review of the claims file, to specifically include the relevant notations highlighted above, it was determined that the Veteran’s overall disability picture was not so exceptional that it resulted in increased hospitalizations or marked interference with employment. Rather it was determined that the Veteran’s symptoms have been adequately contemplated by the rating schedule and the established evaluations for the Veteran’s disability. Noting that the narrative above reflects that all of the symptoms of the Veteran's service-connected right foot drop are contemplated by the broad language of the applicable rating criteria, an extra-schedular rating is not indicated. The various functional loss factors of her disability, including complete paralysis, as evidenced by foot drop, inability to dorsiflex, limited range of motion, pain, numbness, and tingling, are considered and contemplated in the rating schedule. The Veteran does not have symptoms associated with this disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. Accordingly, the Veterans claim is denied. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.