Citation Nr: 21008581 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-04 961A DATE: February 17, 2021 ORDER From August 18, 2011, an initial disability rating of 40 percent, but no higher, for right upper extremity diabetic peripheral neuropathy is granted, subject to the laws and regulations governing monetary benefits. From August 18, 2011, an initial disability rating of 30 percent, but no higher, for left upper extremity diabetic peripheral neuropathy is granted, subject to the laws and regulations governing monetary benefits. From August 18, 2011, a disability rating of 40 percent, but no higher, for right lower extremity diabetic peripheral neuropathy (sciatic) is granted, subject to the laws and regulations governing monetary benefits. From August 18, 2011, a disability rating of 40 percent, but no higher, for left lower extremity diabetic peripheral neuropathy (sciatic) is granted, subject to the laws and regulations governing monetary benefits. REMANDED Entitlement to an initial disability rating in excess of 20 percent for right lower extremity diabetic peripheral neuropathy (femoral) is remanded. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy (femoral) is remanded. FINDINGS OF FACT 1. From August 18, 2011, the Veteran’s right and left upper extremity diabetic peripheral neuropathy more nearly approximated moderate incomplete paralysis. At no point during the appeal period have they approximated severe incomplete paralysis. 2. From August 18, 2011, the Veteran’s right and left lower extremity diabetic peripheral neuropathy (sciatic) more nearly approximated moderately severe incomplete paralysis. At no point during the appeal period have they approximated severe incomplete paralysis with marked muscular atrophy. CONCLUSIONS OF LAW 1. From August 18, 2011, the criteria are met for an initial disability rating of 40 percent for right upper extremity diabetic peripheral neuropathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8513. 2. From August 18, 2011, the criteria are met for an initial disability rating of 30 percent for left upper extremity diabetic peripheral neuropathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8513. 3. From August 18, 2011, the criteria are met for a disability rating of 40 percent for right lower extremity diabetic peripheral neuropathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 4. From August 18, 2011, the criteria are met for a disability rating of 40 percent for left lower extremity diabetic peripheral neuropathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to April 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In a January 2017 rating decision, the Veteran’s service-connected diabetic peripheral neuropathy was increased to 20 percent, effective July 27, 2016, in all four of his extremities. In a July 2019 rating decision, the Veteran was granted service connection for right lower extremity (femoral) and left lower extremity (femoral), evaluated as 20 percent disabling, effective March 28, 2019. As this does not constitute full grants, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Ratings Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 1. From August 18, 2011, an initial disability rating of 40 percent for right upper extremity diabetic peripheral neuropathy is granted. 2. From August 18, 2011, an initial rating of 30 percent for left upper extremity diabetic peripheral neuropathy is granted. 3. From August 18, 2011, disability ratings of 40 percent for right and left lower extremity diabetic peripheral neuropathy (sciatic) is granted. As there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. Legal Criteria Under DC 8513, for paralysis of all radicular groups, the minimum 20 percent rating is assigned for major and minor mild incomplete paralysis. 38 C.F.R. § 4.124a, DC 8513. A 40 percent rating is assigned for moderate incomplete paralysis in the major hand while a 30 percent rating assigned for the minor hand. Id. A 70 percent rating is assigned for severe incomplete paralysis in the major hand while a 60 percent rating is assigned for severe incomplete paralysis in the minor hand. Id. Finally, the maximum 90 percent rating is assigned for complete paralysis in the major hand while an 80 percent rating is assigned for complete paralysis in the minor hand. Id. Under DC 8520, for paralysis of the sciatic nerve, the minimum 10 percent rating is assigned for mild incomplete paralysis of the external popliteal nerve. 38 C.F.R. § 4.124a, DC 8520. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. Id. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. Id. A 60 percent rating is assigned for severe paralysis of the sciatic nerve with marked muscular atrophy. Id. The maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Id. The term “incomplete paralysis” 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. The terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence. 38 C.F.R. § 4.6. Factual Background Prior to July 27, 2016, the Veteran’s right and left lower extremity peripheral neuropathy (sciatic) were rated 10 percent under DC 8520. 38 C.F.R. § 4.124a, DC 8520. From July 27, 2016, they were rated 20 percent. Id. From March 28, 2019, the Veteran’s left lower extremity peripheral neuropathy (sciatic) was rated 40 percent. Id. Prior to July 27, 2016, the Veteran’s right and left upper extremity peripheral neuropathy were rated 10 percent under DC 8513. 38 C.F.R. § 4.124a, DC 8513. From July 27, 2016, they were rated 20 percent. Id. In a November 2011 VA examination report, the examiner noted that the Veteran’s lower extremity peripheral neuropathy existed since June 2009. Due to his nerve disease, the Veteran experienced tingling and numbness, abnormal sensation, pain, anesthesia, weakness, and paralysis in the affected parts. He had symptoms of constant pain except when losing sensation, tingling that occurred frequently, and weakness that occurred when not being active for a short length of time. When the Veteran’s legs and feet went numb, the paralysis was present, and the affected areas were cold to the touch. The Veteran’s symptoms occurred constantly. He had difficulty walking in a normal manner, restricting his ability to perform regular activities. The VA examiner also noted that the Veteran’s upper extremity peripheral neuropathy existed since April 2010. Due to his nerve disease, the Veteran experienced tingling and numbness, abnormal sensation, pain, anesthesia, weakness, and paralysis of the affected parts. He had symptoms of losing feeling in his arms and hands frequently, and being unable to grip. The examiner reported that the pain in the Veteran’s upper extremities was not as severe as in his lower extremities. The Veteran noted that he was unable to grip or lift as he had in the past. His symptoms occurred constantly. The Veteran had loss of strength in his hands and arms. The Board notes that this examination report did not evaluate the Veteran’s bilateral upper and lower peripheral neuropathy in terms of constant pain, intermittent pain, numbness, and paresthesias and/or dysesthesias. Additionally, this examination report did not characterize his peripheral neuropathy in terms of whether it was mild, moderate, moderately severe, etc. In a July 2016 VA examination report, the Veteran was diagnosed with peripheral neuropathy in his upper and lower extremities. The Veteran noted that the condition began with tingling and numbness and has progressively gotten worse, starting out in his legs and feet and moving to his arms and hands. The pain made it hard for the Veteran to walk or stand for long periods of time or to hold things. He also had difficulty sleeping. The Veteran is right hand dominant. The Veteran had symptoms attributable to his diabetic peripheral neuropathy. He had moderate constant pain in both upper extremities and severe constant pain in both lower extremities. The Veteran had no intermittent pain in any of his extremities. He had severe paresthesias and/or dysesthesias in his upper and lower extremities. The Veteran had moderate numbness in his upper extremities and severe numbness in his lower extremities. The Veteran had no muscle atrophy. Concerning the Veteran’s upper extremities, the VA examiner noted that the Veteran had mild incomplete paralysis in his bilateral radial nerves, mild incomplete paralysis in his bilateral median nerves, and mild incomplete paralysis in his ulnar nerves. Concerning the Veteran’s lower extremities, the examiner noted that the Veteran had moderate incomplete paralysis in his bilateral sciatic nerves. The Board notes that no evaluation of the Veteran’s femoral nerves was marked. In a March 2019 VA examination report, the Veteran was diagnosed with bilateral upper and lower diabetic peripheral neuropathy. According to the VA examiner, the Veteran’s peripheral neuropathy symptoms consisted of no constant pain in his upper extremities, moderate constant pain in his right lower extremity, and severe constant pain in his left lower extremity. He had mild intermittent pain in his right upper extremity, moderate intermittent pain in his left upper extremity, severe intermittent pain in his right lower extremity, and no intermittent pain in his left lower extremity. The VA examiner noted that the Veteran had no paresthesias and/or dysesthesias in his upper extremities, moderate in his right lower extremity, and severe in his left lower extremity. The Veteran had symptoms of mild numbness in both upper extremities, mild numbness in his right lower extremity, and severe numbness in his left lower extremity. The VA examiner characterized the Veteran’s upper extremity peripheral neuropathy as mild incomplete paralysis in his bilateral radial nerves, median nerves, and ulnar nerves. Concerning his lower extremities, the examiner characterized the Veteran’s sciatic nerve as moderate incomplete paralysis in the right lower extremity and moderately severe in the left lower extremity. Additionally, the Veteran’s bilateral femoral nerves were characterized as moderate incomplete paralysis. Overall, the VA examiner characterized the Veteran’s upper extremity peripheral neuropathy as mild and his lower extremity peripheral neuropathy as moderate. At his January 2021 Board hearing, the Veteran provided competent and credible testimony that the observable symptoms of his diabetic peripheral neuropathy were the same as when he originally submitted his claim in August 2011. The Board notes that the November 2011 VA examination report did not fully evaluate the Veteran’s diabetic peripheral neuropathy symptoms. Because of this, affording the Veteran the benefit of the doubt, the Board will assume that the symptoms he exhibited in the July 2016 VA examination report were present and continuous since he first filed his claim in August 2011. The Board notes that throughout the appeal period, the Veteran received medical treatment for his diabetic peripheral neuropathy. These treatment reports did not measure the severity of his peripheral neuropathy and did not evaluate the nature, extent, and severity during the appeal period. Analysis As noted above, the Veteran’s diabetic peripheral neuropathy was not evaluated in a VA examination between November 2011 and July 2016. Additionally, the November 2011 exam was not complete and did fully evaluate the nature, extent, and severity of the Veteran’s upper and lower diabetic peripheral neuropathy. Because of this, and affording the Veteran the benefit of the doubt, combined with his competent and credible January 2021 testimony, the Board will assume that the Veteran’s symptoms exhibited in the July 2016 examination report were present when he originally filed his claim in August 2011. The Veteran should not be held responsible, or suffer negatively, for VA’s lack of development in his claim. Affording the Veteran the benefit of the doubt, the Board concludes that from August 18, 2011, the date of his claim, his bilateral upper extremity peripheral neuropathy more closely approximates “moderate” incomplete paralysis. Because of this, an initial rating of 40 percent for the right upper extremity is warranted because it is the Veteran’s major (dominant) hand, and an initial rating of 30 percent is warranted for the left upper extremity because it is his minor hand. 38 C.F.R. §§ 3.102, 4.124a, DC 8513. At no time during the appeal period has the Veteran’s upper extremity diabetic peripheral neuropathy symptoms more closely approximated “severe” incomplete paralysis. Rather, his symptoms have been described as a mixture of moderate and severe, and this is reflected in his initial 40 percent and 30 percent ratings respectively. Id. Additionally, affording the benefit of the doubt, the Board concludes that from August 18, 2011, the date of his claim, his bilateral lower extremity peripheral neuropathy more closely approximates “moderately severe” incomplete paralysis. Because of this, disability ratings of 40 percent for the right and left lower extremities are warranted. 38 C.F.R. §§ 3.102, 4.124a, DC 8520. While many of the Veteran’s lower extremity peripheral neuropathy symptoms have been characterized as “severe,” he has never been diagnosed with muscular atrophy, a requirement for the higher 60 percent rating. Id. Rather, his symptoms more nearly approximate the 40 percent rating for “moderately severe”. Id. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. The Veteran has not asserted that he was unable to work because of his service-connected disabilities, nor does the record reflect that he could not work because of his service-connected disabilities. Accordingly, the Board concludes that a claim for TDIU has not been raised. The Board is sympathetic to the Veteran’s reports and understands that his diabetic peripheral neuropathy symptoms have significant effects on his daily life. However, these disabilities more nearly approximate the now assigned ratings and do not warrant higher increases at this time. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 20 percent for right lower extremity diabetic peripheral neuropathy (femoral) is remanded. 2. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy (femoral) is remanded. At his January 2021 Board hearing, the Veteran provided competent and credible testimony that the observable symptoms of his right and left lower extremity (femoral) diabetic peripheral neuropathy was worse than they were in 2019, when he was last provided a VA examination. Additionally, the Board notes that in the November 2011 and July 2016 VA examination reports, the Veteran’s femoral nerves were not evaluated. Because of this, a new VA examination is necessary to determine the current nature, extent, and severity of the Veteran’s right and left lower extremities (femoral), from August 18, 2011 to the present. The matters are REMANDED for the following actions: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims, 3. Schedule the Veteran for a VA examination to assist in determining the nature, extent, and severity of his right and left lower extremity (femoral) diabetic peripheral neuropathy. The Veteran’s claims folder must be made available to the examiner. All indicated tests and studies must be performed in accordance with the pertinent Disability Benefits Questionnaires for this disability, and all findings should be set forth in detail. The examiner should identify all complications and symptoms attributable to the Veteran’s service-connected right and left lower extremity (femoral) disabilities in accordance with the rating criteria. Additionally, the examiner should provide a “retrospective” medical opinion concerning the nature, extent, and severity of the Veteran’s right and left lower extremity (femoral) diabetic peripheral neuropathy ankle symptoms from August 18, 2011 to the present. All pertinent symptoms and findings must be reported in detail.   4. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.