Citation Nr: 21007985 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-33 632 DATE: February 11, 2021 ORDER Prior to March 27, 2017, entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the sciatic nerve branch of the right lower extremity is denied. Prior to March 27, 2017, entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the sciatic nerve branch of the left lower extremity is denied. Beginning March 27, 2017, entitlement to an initial 20 percent disability rating for service-connected peripheral neuropathy of the sciatic nerve branch of the right lower extremity is granted. Beginning March 27, 2017, entitlement to an initial 20 percent disability rating for service-connected peripheral neuropathy of the sciatic nerve branch of the left lower extremity is granted. Beginning March 27, 2017, entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the femoral nerve branch of the right lower extremity is denied. Beginning March 27, 2017, entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the femoral nerve branch of the left lower extremity is denied. FINDINGS OF FACT 1. Prior to March 27, 2017, the Veteran’s peripheral neuropathy of the sciatic nerve branch of the right lower extremity manifests mild symptoms. 2. Prior to March 27, 2017, the Veteran’s peripheral neuropathy of the sciatic nerve branch of the left lower extremity manifests mild symptoms. 3. Beginning March 27, 2017, the Veteran’s peripheral neuropathy of the sciatic nerve branch of the right lower extremity manifests moderate symptoms. 4. Beginning March 27, 2017, the Veteran’s peripheral neuropathy of the sciatic nerve branch of the left lower extremity manifests moderate symptoms. 5. Beginning March 27, 2017, the Veteran’s peripheral neuropathy of the femoral nerve branch of the right lower extremity manifests moderate symptoms. 6. Beginning March 27, 2017, the Veteran’s peripheral neuropathy of the femoral nerve branch of the left lower extremity manifests moderate symptoms. CONCLUSIONS OF LAW 1. Prior to March 27, 2017, the criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the sciatic nerve branch of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, Diagnostic Code (DC) 8520. 2. Prior to March 27, 2017, the criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the sciatic nerve branch of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8520. 3. Beginning March 27, 2017, the criteria for entitlement to an initial 20 percent disability rating for service-connected peripheral neuropathy of the sciatic nerve branch of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DCs 8520, 8521, 8523, 8524. 4. Beginning March 27, 2017, the criteria for entitlement to an initial 20 percent disability rating for service-connected peripheral neuropathy of the sciatic nerve branch of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DCs 8520, 8521, 8523, 8524. 5. Beginning March 27, 2017, the criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the femoral nerve branch of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8526. 6. Beginning March 27, 2017, the criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the femoral nerve branch of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.124a, DC 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1965 to January 1967 and from November 1967 to July 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In a February 2019 decision, the Board denied an increased rating in excess of 10 percent, from February 18, 2016, to March 27, 2017, for the Veteran’s service-connected bilateral peripheral neuropathy of the sciatic nerve; ratings in excess of 10 percent thereafter were remanded so that an updated examination could be obtained. The Veteran appealed the Board’s denials to the United State Court of Appeals for Veterans Claims (CAVC). On appeal, the Veteran argued that the Board erred in finding that an electromyography (EMG) or nerve conduction study (NCS) was not required for assessment of his condition in contravention of the Veterans Benefits Administration’s (VBA’s) M21-1 Adjudication Procedures Manual (M21). The Veteran further argued that the Board failed to provide an adequate statement of reasons or bases in denying the increased ratings as it failed to define the severity terms listed in DC 8520. See December 23, 2019, Appellant Brief at 5, 7. In a Memorandum Decision (Mem. Dec.), the CAVC agreed with the Veteran. In pertinent part, the CAVC concluded that the M21 provision cited was relevant to the Veteran’s appeal and that the Board erred in failing to discuss that provision. June 15, 2020, Mem. Dec. at 4. With respect to the actual issue of rating the Veteran’s peripheral neuropathy, the CAVC concluded that the Board did not adequately define the severity terms contained in DC 8520, requiring remand. June 15, 2020, Mem. Dec. at 6–7. Between the filing of the Veteran’s appeal to the CAVC and its decision, VA began working on the remanded portion of the Veteran’s claims as instructed by the Board. To that end, VA reexamined the Veteran in October 2019. In a June 5, 2020, rating decision, the Veteran was awarded a separate 10 percent rating for mild peripheral neuropathy of the femoral nerve for each his right and left leg, effective October 28, 2019—the date of his VA examination. No increase for the sciatic nerves was awarded. Therefore, the Board finds that VA substantially has complied with the remand directives and may proceed to address the remand from the CAVC. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). CAVC’s Remand The Board first will address the CAVC’s concerns regarding the M21 before readjudicating these claims on the merits. The United States Court of Appeals for the Federal Circuit has held that the M21 does not “carry the force of law.” DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (2017). It is “an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation.” Id. (quoting 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007)). The M21 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. Id.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board “is not bound by Department manuals, circulars, or similar administrative issues.” 38 C.F.R. § 20.105. In Overton v. Wilkie, 30 Vet. App. 257, 264 (2018), however, the CAVC held that the Board is required to discuss “any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision.” Thus, the Board now turns to the relevant M21 provisions. The M21 notes that “EMG results are required for evaluations of peripheral nerve disabilities unless there is a previous EMG test of record or the record contains sufficient clinical evidence to determine the extent of paralysis in the peripheral nerve.” III.iv.4.N.4.h. That section further states that EMG studies “are usually rarely required to diagnose specific peripheral nerve conditions in the appropriate clinical setting and, if EMG studies are in the medical record and reflect the Veteran’s current condition, repeat studies are not indicated.” Id. Ultimately, it is the role of the rating activity to determine if the examination was sufficient to confirm the question and extent of peripheral nerve involvement. Other clinical findings may be sufficient to document a peripheral nerve disability. These other findings include sensation to light touch testing, deep tendon reflex testing, certain signs for the median nerve, trophic changes, gait testing, muscle strength, and the presence of muscle atrophy. Id. There are two VA examinations of record—April 2016 and October 2019. The substantive nature of the reports will be discussed more fully below. Between the two examinations, the examiners included testing for/consideration of pain, paresthesias and/or dysesthesias, numbness, muscle strength, deep tendon reflexes, light touch/monofilament testing, position sense, vibration sensation, cold sensation, muscle atrophy, trophic changes, changes in gait, and use of assistive devices. Even considering the relevant M21 provision for EMGs, the Board does not find that one is appropriate. The M21 states that EMGs are required “unless . . . the record contains sufficient clinical evidence to determine the extent of paralysis in the peripheral nerve.” Id. (emphasis added). The clinical evidence available to the Board includes the two VA examinations mentioned, as well as VA and private treatment records, both of which document the care and symptoms of the Veteran’s peripheral neuropathy. The examinations conducted every type of testing listed in the M21 and then some. The Board is hard pressed to imagine a better evidentiary record that captures the nature and severity of the Veteran’s conditions, and the M21 vests VBA adjudicators with the ultimate authority to determine if the examination was sufficient to confirm nerve involvement. Even though the Board is not bound by the M21, see DAV, 859 F.3d at 1077, it nevertheless finds that an EMG is not required here given the sufficiency of the other clinical evidence of record discussed above and in more depth below. See Overton, 30 Vet. App. at 264. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Neurological or convulsive disorders ordinarily are to be rated in proportion to the impairment of motor, sensory or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc. In rating disability from the conditions in the preceding sentence refer to the appropriate schedule. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The opening paragraph to 38 C.F.R. § 4.124a states that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. The opening paragraph to the table for diseases of the peripheral nerves states that the term “incomplete paralysis,” with this and other peripheral nerve injuries, 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. For the sciatic nerve, an 80 percent disability rating is warranted for complete paralysis with the following symptoms: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. A 60 percent disability rating is warranted for incomplete paralysis with severe symptoms marked by muscular atrophy. A 40 percent disability rating is warranted for incomplete paralysis with moderately severe symptoms. A 20 percent disability rating is warranted for incomplete paralysis with moderate symptoms. A 10 percent disability rating is warranted for incomplete paralysis with mild symptoms. For the external popliteal nerve, a 40 percent disability rating is warranted for complete paralysis with the following symptoms: 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. Incomplete paralysis with severe, moderate, or mild symptoms warrants a 30, 20, or 10 percent rating, respectively. For the internal popliteal nerve, a 40 percent disability rating is warranted for complete paralysis with the following symptoms: plantar flexion lost, frank adduction of foot impossible, flexion and separation of toes abolished; no muscle in sole can move; in lesions of the nerve high in popliteal fossa, plantar flexion of foot is lost. Incomplete paralysis with severe, moderate, or mild symptoms warrants a 30, 20, or 10 percent rating, respectively. For the posterior tibial nerve, a 30 percent disability rating is warranted for complete paralysis with the following symptoms: paralysis of all muscles of sole of foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired. Incomplete paralysis with severe symptoms warrants a 20 percent rating, while moderate and mild symptoms both warrant a 10 percent rating. For the anterior crural (femoral) nerve, a 40 percent disability rating is warranted for complete paralysis with the following symptoms: paralysis of quadriceps extensor muscles. Incomplete paralysis with severe, moderate, or mild symptoms warrants a 30, 20, or 10 percent rating, respectively. The CAVC has stated, on at least two prior occasions, that, where the applicable rating criteria contains terms that are undefined, the Board must define those terms as it applies them to the veteran at hand in order to satisfy its obligation to provide adequate reasons or bases. Johnson v. Wilkie, 30 Vet. App. 245, 254–55 (2018); Spellers v. Wilkie, 30 Vet. App. 211, 219–20 (2018). With the CAVC’s instruction to consider all relevant M21 provisions, the Board notes that it need now discuss other sections as well. Section III.iv.4.N.4.e. notes that there are five nerve branches of the lower extremities for which separate evaluations may be assigned. The table below provides guidance to VBA adjudicators: Lower Extremity Nerve Branches Function Sciatic • sciatic nerve (DCs 8520, 8620, and 8720) • external popliteal nerve (common peroneal) (DCs 8521, 8621, and 8721) • musculocutaneous nerve (superficial peroneal) (DCs 8522, 8622, and 8722) • anterior tibial nerve (deep peroneal) (DCs 8523, 8623, 8723) • internal popliteal nerve (tibial) (DCs 8524, 8624, and 8724), and • posterior tibial nerve (DCs 8525, 8625, and 8725). Foot and leg sensory and motor function of the • buttock • leg • knee • muscles below knee • lower leg • fibula • foot, muscles of foot, sole of foot, plantar flexion, and • toes. Femoral • anterior crural nerve (femoral) (DCs 8526, 8626, and 8726), and • internal saphenous nerve (DCs 8527, 8627, and 8727). Thigh and leg sensory and motor function of the • quadriceps muscle, front of thigh • medial calf, and • medial malleolus. Obturator (DCs 8528, 8628, and 8728) Motor and sensory function of the • hip and muscles of the hip, and • medial thigh. External cutaneous nerve of thigh (DCs 8529, 8629, and 8729) Sensory function of the lateral thigh. Illio-inguinal nerve (DCs 8530, 8630, and 8730) Motor and sensory function of the • lower abdominal wall • thigh • scrotum, and • labia majora. Aside from instructing that the ratings for the peripheral nerves are for unilateral application with the ability to apply the bilateral factor, (see 38 C.F.R. § 4.124a, Opening Paragraph to Diseases of the Peripheral Nerves), the Board notes that there is no binding authority on how to apply separate ratings for the various peripheral nerves in the lower extremities. In other words, there is no instruction on when different nerves can be assigned separate ratings without running afoul of the rule against pyramiding. This rule states that the evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. 38 C.F.R. § 4.14. When determining whether separate ratings are applicable, the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In this regard, the Board finds the M21 particularly insightful and instructive when determining whether separate ratings are warranted and for which nerves. The table above shows that the lower extremities have five nerve branches, and each nerve branch affects different muscles/joints. Thus, to the extent a veteran experiences peripheral neuropathy within the same nerve branch, the Board must be careful not to grant separate ratings where, although multiple nerves are involved, the same symptoms occur. Furthermore, M21 III.iv.4.N.4.c. provides a table that assists VBA adjudicators in determining the appropriate level of severity for incomplete paralysis, neuritis, and neuralgia of the peripheral nerves. That table is as follows: Degree of Incomplete Paralysis Description Mild • As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for SC purposes. • In general look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. • A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate • Moderate is the maximum evaluation reserved for the most significant cases of sensory-only impairment (38 C.F.R. § 4.124a). • Symptoms will likely be described by the claimants and medically graded as significantly disabling. • In such cases a larger area in the nerve distribution may be affected by sensory symptoms. • Other sign/symptom combinations that may fall into the moderate category include • combinations of significant sensory changes and reflex or motor changes of a lower degree, or • motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. • Moderate is also the maximum evaluation that can be assigned for • neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, or • neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve (38 C.F.R. § 4.124). Moderately Severe • The moderately severe evaluation level is only applicable for involvement of the sciatic nerve. • This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. • Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. • Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124a, DC 8520. Severe • In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. • Trophic changes may be seen in severe longstanding neuropathy cases. • For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected. • Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. • Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123). There is scant–no guidance on how to define the severity terms for the peripheral nerves (mild, moderate, moderately severe, and severe). Where the Board otherwise is required to define these terms when adjudicating the Veteran’s appeal, see Overton, 30 Vet. App. at 264, it likewise finds the guidance contained in M21 III.iv.4.N.4.c. helpful and instructive. An April 2016 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The Veteran reported that he notices a burning sensation on the bottom of his feet, which is intermittent and annoying and increases in severity with colder weather or extended walking. The Veteran also characterized his condition as a feeling of ants going up and down his legs with an itch that he cannot scratch. Cold sensation for the bilateral lower extremities was normal. There was no indication of muscle atrophy or trophic changes. The report indicates that the Veteran experiences mild numbness in his bilateral lower extremities; there was no constant or intermittent pain or paresthesias/dysesthesias. Muscle strength and deep tendon reflexes were normal. The foot/toes had decreased sensation to light touch/monofilament testing. The only nerve affected at this time was the Veteran’s sciatic nerve, and the examiner labeled the Veteran’s symptoms as mild, which did not impact his ability to work. An October 2019 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. The report indicates that the Veteran experiences mild numbness and paresthesias and/or dysesthesias in his bilateral lower extremities; there was no constant or intermittent pain. Muscle strength testing was normal. Knee reflexes were normal, but ankle reflexes were hypoactive. There was decreased sensation to light touch in the foot/toes; other sensory findings were listed as: 1+ pitting edema bilaterally, feet warm to touch, no cyanosis. Hair on toes, DP/PT somewhat difficult to palp due ot edema. [M]ono decreased to ankles, reports can feel the testing but decreased [compared]to rest of LE and UE. [D]ecreased cold sensation to feet. [V]ibration reports can feel “just barely” in the right toes and not in the left toes There were no trophic changes or abnormal gait, nor did the Veteran require assistive devices. The report indicates that the Veteran’s bilateral sciatic, external and internal popliteal, posterior tibial, and femoral nerves were affected. All affected nerves were labeled as incompletely paralyzed with mild symptoms. The examiner noted that, with respect to occupational functioning, the Veteran would have difficulty with tasks requiring ambulation or uneven terrain. Private treatment records from March 2017 document that the Veteran experiences mild pain in his feet that is gradual and progressive. The medical provider noted that the Veteran complained of numbness and tingling in the bilateral plantar region, mainly in the morning. Walking reduces the pain, but it never fully goes away; his feet always feel like they are asleep. Numbness has increased over the past year, but the Veteran relates no pain associated with the abnormal sensation in his feet. VAMC records also are contained in the claims file and document the continued care and treatment for the Veteran to include his peripheral neuropathy condition. The Veteran made complaints of swelling in his legs, ankles, and feet. 1. Prior to March 27, 2017, entitlement to initial disability ratings in excess of 10 percent for service-connected peripheral neuropathy of the sciatic nerve branch of the right and left lower extremity is denied. For this time period, evaluating the evidence of record, the Board finds that the Veteran’s peripheral neuropathy of the sciatic nerve branch of his bilateral lower extremities manifests symptoms no greater than mild. The opening paragraph to the ratings for diseases of the peripheral nerves is clear: “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. The April 2016 VA examination notes that the Veteran did not experience any intermittent or constant pain. His symptoms wholly were sensory, i.e. numbness, and decreased sensation to light touch. Indeed, the Veteran himself described his symptoms as burning sensation on the bottoms of his feet and a feeling like ants are going up and down his legs. The Veteran himself classified his symptoms as “annoying.” There were no other symptoms pertinent to the rating criteria noted on this examination, and the nerve involved at this time was the sciatic nerve. The October 2019 examination also noted only sensory problems—mild numbness and paresthesias and/or dysesthesias—without any pain. There also was decreased sensation to cold and hypoactive ankle reflexes. This report, however, indicates that the Veteran’s sciatic, external and internal popliteal, and posterior tibial nerves all mildly were affected. In the Board’s view, the Veteran’s symptoms for his affected nerves in the sciatic branch constitute only mild symptoms. As the M21 notes, moderate impairment usually encompasses a larger area of nerve distribution, combination of significant sensory changes and reflex or motor changes, and motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The Veteran’s symptoms for this time period encompass none of these. For this time period, the evidence shows that only the Veteran’s sciatic nerve was affected, and that the vast majority of his symptoms were sensory related. True enough, private and VAMC records indicate the Veteran was experiencing some pain in his bilateral plantar region and swelling in his legs and ankles. The Veteran is competent to report such symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The evidence, however, still shows that the Veteran’s symptoms mostly are sensory and mild in nature and frequency. The Veteran himself, at his April 2016 VA examination, labeled his symptoms as “intermittent and annoying.” The term “mild” within the DCs for the peripheral nerves is not defined, but surely it encapsulates symptoms that are both non-constant and of so little severity that the Veteran would label it as more of an annoyance than something debilitating. Additionally, there is no evidence for this time period that indicates that the Veteran experienced any motor or reflex impairment, which, in line with the M21, further solidifies the Board’s belief that, prior to March 27, 2017, only a 10 percent rating is warranted. See 38 C.F.R. § 4.124a, DC 8520, M21 III.iv.4.N.4.c. 2. Beginning March 27, 2017, entitlement to initial 20 percent disability ratings for service-connected peripheral neuropathy of the sciatic nerve branch of the right and left lower extremity is granted. As noted in the Board’s previous decision, the Veteran alleged in his March 27, 2017, Notice of Disagreement (NOD), that his neuropathy condition had worsened. Thus, the Board remanded the claim from that date for an updated examination, which was the October 2019 report discussed above. Based on that report, the Board finds that a 20 percent disability rating is warranted for moderate symptoms. The examination reveals that almost all the nerves contained in the sciatic nerve branch are affected, something that, according to the M21, should be a factor for a moderate rating. The October 2019 report also shows that there are hypoactive ankle reflexes. Thus, the Board finds that these symptoms warrant a 20 percent rating for moderate symptoms. A rating in excess of 20 percent, however, is not warranted. As the M21 suggests, the next level of impairment—moderately severe—which is applicable for involvement of the sciatic nerve only, contemplates symptoms such as motor and/or reflex impairment at a high level of limitation. Atrophy could be present in such circumstances. The record wholly lacks evidence indicative of such severity. As noted, the Board has taken due consideration of the Veteran’s complaints of pain and swelling and his mild sensory disturbances. The most recent examination, however, discloses that the only reflex impairment the Veteran experiences is a +1 hypoactive ankle reflex—hardly synonymous with a high level of limitation showcasing significant disability. Thus, the Board does not find that a rating in excess of 20 percent is warranted for this time period. See 38 C.F.R. § 4.124a, DCs 8520, 8521, 8523, 8524, M21 III.iv.4.N.4.c, e. 3. Beginning March 27, 2017, entitlement to initial disability ratings in excess of 10 percent for service-connected peripheral neuropathy of the femoral nerve branch of the right and left lower extremity is denied. The October 2019 VA examination also reveals that the Veteran’s peripheral neuropathy is affecting his bilateral femoral nerve branch via his anterior crural nerve. VA already properly determined that this warranted separate ratings when it assigned him ones in the June 2020 rating decision. The RO awarded 10 percent ratings effective October 28, 2019—the date of the VA examination. First, the Board will extend the Veteran’s separate ratings for his anterior crural nerve back to March 27, 2017—the date he alleged that his condition had worsened since his last VA examination. The Board sees this as the only equitable outcome. The Veteran alerted the Board that his condition had worsened. The VA examination afforded to the Veteran indeed revealed as much, as the first examination showed that only the sciatic nerve was involved. The Veteran should not be penalized due to the amount of time it took to provide him with an additional examination. Thus, March 27, 2017, is the proper effective date for the separate award of peripheral neuropathy of the femoral nerve branch for the Veteran’s bilateral lower extremities. The assigned 10 percent rating, however, is appropriate. As the M21 notes, the femoral nerve branch impacts the quadriceps muscles, front of the thigh; medial calf; and medial malleolus. The severity of the peripheral neuropathy for anterior crural nerve mirror that of the nerves located in the Veteran’s sciatic nerve branch. The Board awarded the Veteran increase for his sciatic nerve branch largely because the multitude of nerves involved. The femoral nerve branch, like the initial stage for the sciatic nerve branch rating, affects only one nerve. Because there is no evidence that the symptoms the Veteran experiences in his calves and quadriceps is any more severe than the symptoms for the sciatic nerve branch, the Board applies that discussion and rationale to this rating as well. Thus, the Veteran is not entitled to a rating in excess of 10 percent for his anterior crural nerves. See 38 C.F.R. § 4.124a, DC 8526, M21 III.iv.4.N.4.c, e. Other Considerations On remand from the CAVC, the Veteran’s representative argues two points: that the Veteran is entitled to an (1) extraschedular rating and (2) earlier effective date. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Id. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494–95. With respect to the first point, the representative argues that an extraschedular rating is warranted because the October 2019 VA examination now shows the involvement of additional nerves. This assertion, however, fails the first prong of Thun. The representative does not allege, nor does the record show, that the Veteran experiences any symptoms not contemplated by the rating criteria for his peripheral nerve condition. Thus, the Board cannot find that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Thun, 22 Vet. App. at 115; see also Spellers, 30 Vet. App. at 219 (“In other words, entitlement to extraschedular referral based on severity is necessarily redundant of the schedular analysis under [DC 8520], at least until the veteran receives the maximum schedular rating for incomplete paralysis of the sciatic nerve.”). With respect to the second point, it is hard to discern the representative’s argument. The Veteran filed for his peripheral nerve condition in February 2016 and was awarded service connection in a May 2016 decision. Three months later, he filed for an increase and was denied in the October 2016 decision now on appeal. The Veteran timely appealed via a March 2017 NOD. While the Veteran never specifically appealed the effective date for his original award of service connection, the Board notes that his NOD to the October 2016 determination was received within the one-year appellate period for the original May 2016 decision. In adjudicating this claim, both now and the in the prior decision, the Board has considered evidence from the date of the Veteran’s original claim for service connection. Indeed, that is why the prior decision denied an increase from February 18, 2016—the original date of his award for service connection. Because the Veteran never appealed that effective date, he cannot circumvent the laws and regulations in hopes to achieve a date an earlier than that. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate 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.