Citation Nr: 21008763 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 18-22 260 DATE: February 18, 2021 ORDER A rating of 20 percent, but no greater, for left lower extremity diabetic peripheral neuropathy, is granted, subject to the laws and regulations governing payment of monetary benefits. A rating of 20 percent, but no greater, for right lower extremity diabetic peripheral neuropathy, is granted, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. By resolving all reasonable doubt in favor of the Veteran, his left lower extremity diabetic peripheral neuropathy most closely approximates moderate incomplete paralysis of the sciatic nerve. 2. By resolving all reasonable doubt in favor of the Veteran, his right lower extremity diabetic peripheral neuropathy most closely approximates moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no greater, for left lower extremity diabetic peripheral neuropathy, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for a rating of 20 percent, but no greater, for right lower extremity diabetic peripheral neuropathy, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a., DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from October 1965 to September 1968. The matter is on appeal before the Board from a December 2017 rating decision. A Board hearing was scheduled for October 2019; however, the Veteran did not appear for the hearing and was deemed a “no show.” To date, the Veteran has neither requested a new Board hearing, nor has he provided good cause for his absence. As such, the Board considers his hearing request withdrawn. 38 C.F.R. § 20.704(d). Increased Rating Left and Right Lower Extremities Procedurally, the Veteran was granted service connection for both a left and right lower extremity diabetic peripheral neuropathy in a January 2014 rating decision, with a noncompensable evaluation for both lower extremities effective June 18, 2013. A November 2014 rating decision granted a 10 percent evaluation for both the left and right lower extremities effective March 18, 2014. In January 2017, the Veteran submitted a claim requesting an increased evaluation for both his left and right lower extremities. An April 2017 rating decision denied the Veteran a rating in excess of 10 percent for both his left and right lower extremities. In May 2017, the Veteran submitted a request for reconsideration of his evaluation. A December 2017 rating decision again denied the Veteran a rating in excess of 10 percent for both his left and right lower extremities. The Veteran filed a Notice of Disagreement (NOD) in December 2017, in which he reported that there was electrodiagnostic evidence of a moderately severe sensorimotor polyneuropathy in both legs. He also noted that he was wanting a 20 percent evaluation for each of his lower extremities. Subsequent to the issuance of a Statement of the Case (SOC) in March 2018, the Veteran filed a VA Form 9 Appeal to the Board in March 2018. In his Form 9, the Veteran explained that he believed the incomplete paralysis of both his lower extremities was moderate, as he had been experiencing much worse pain since he was first awarded disability. Both the Veteran’s left and right lower extremity diabetic peripheral neuropathy are rated under DC 8520. DC 8520 rates the sciatic nerve on the basis of paralysis, and provides the following: An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. A 60 percent evaluation is warranted with severe incomplete paralysis with marked muscular atrophy. A 40 percent evaluation is warranted with moderately severe incomplete paralysis. A 20 percent evaluation is warranted with moderate incomplete paralysis. A 10 percent evaluation is warranted with mild incomplete paralysis. 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. 38 C.F.R. § 4.124a, DC 8520. With his claim in January 2017, the Veteran submitted a statement from his personal neurologist dated December 2016, as well as an NCS and EMG report from October 22, 2016. In the statement from the Veteran’s neurologist, the Veteran was reported to have symptomatic neuralgic type pain, numbness and paresthesias in his feet and distal legs bilaterally. The findings from the October 2016 EMG were noted, and the neurologist stated that the findings clearly demonstrated a progression of the Veteran’s sensorimotor polyneuropathy first documented in 2014. On the October 2016 EMG report, the clinical impression reflects electrodiagnostic evidence of a moderately severe long fiber axonal and demyelinating sensorimotor polyneuropathy in both legs. It is noted that in comparison to his prior electrodiagnostic analysis from two years prior, the Veteran’s neuropathy condition had progressed. The Veteran’s private treatment records reflect an August 2016 appointment, at which the Veteran reported that the neuropathy in both his lower extremities, specifically his feet, had been worsening. He relayed having worsening pain with prolonged standing, and that he believed he needed an increase in dosage of his medication. In November 2016, the Veteran was seen with the same complaints, and his medication was increased as tolerated. At a February 2017 appointment, the Veteran’s symptoms were reported to have worsened over the past several years despite medication. The October 2016 EMG was noted to show progression consistent with the Veteran’s worsening symptoms. The Veteran underwent a VA examination in February 2017, at which the Veteran reported having numbness and tingling in his shoes and socks with any prolonged standing or walking. He relayed that he has pain in his feet at the end of the day after prolonged standing when he works part time as a security guard. He explained that the numbness, tingling, and pain had gradually increased in frequency and severity, and that he had to take some of his medication more frequently than in the past. The examiner noted that the Veteran did not have constant pain in either lower extremity, but did have moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness in both lower extremities. His strength was rated as five out of five for normal, and his deep tendon reflexes (DTRs) were decreased. The light touch/monofilament testing results were normal, except in his feet/toes where they were decreased. The Veteran did not have muscle atrophy, or any trophic changes. The examiner found the Veteran to have mild incomplete paralysis of the sciatic nerve for both the left and right lower extremity. The Veteran’s October 2016 EMG findings were noted. The Veteran’s VA treatment records reflect an EMG from March 1, 2018, that showed electrodiagnostic evidence of a mild length-dependent sensory polyneuropathy with predominantly axonal features affecting the lower extremities. It was noted that the study was similar to the Veteran’s private 2016 study. At the time of the EMG, the Veteran’s peroneal motor responses, his right and left tibial motor responses, and his right radial sensory response, were within normal limits. His right and left sural sensory responses, and his right superficial peroneal sensory response, could not be obtained. The Veteran underwent a VA examination in March 2018, at which he reported that his condition had progressively gotten worse since 2010. He relayed having tingling, burning, pain progressing to an occasional numbing sensation, and some balance problems. The examiner noted the Veteran to have moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of both the Veteran’s left and right lower extremities. The examiner also reported the Veteran to have occasional difficulty with his balance. Due to the Veteran’s symptoms, it was noted that his activity level had been reduced, and his sleep had been affected. The symptoms were reported to be evidenced even when the Veteran was not standing or walking. The Veteran’s strength was rated as five out of five for normal, and his DTRs were normal except for with his ankle, which were decreased. The light touch/monofilament testing results were decreased for both the right and left lower extremities in the areas of the knee/thigh, ankle/lower leg, and foot/toes. Position sense was normal. Both vibration sensation and cold sensation were decreased for both lower extremities. The Veteran did not have muscle atrophy, or any trophic changes. The examiner found the Veteran to have mild incomplete paralysis of the sciatic nerve for both the left and right lower extremity. Based upon the foregoing, the Board finds that a rating of 20 percent, but no greater, for both the Veteran’s left and right lower extremity peripheral neuropathy is warranted for the entire period on appeal. Overall, the Veteran’s physicians consider his symptoms to be between the range of mild and moderate. There are two EMG studies of record, the one from October 2016 was noted as moderately severe, and the one from March 2018 was noted as mild. The record shows the Veteran’s symptoms to be sensory, without any trophic changes or other limitations. As such, by resolving all reasonable doubt in favor of the Veteran, a rating of 20 percent for moderate, but no greater, for both a left and right lower extremity peripheral neuropathy is warranted for the entire period on appeal. Accordingly, a rating of 20 percent, but no greater, for left lower extremity diabetic peripheral neuropathy, is granted. Also, a rating of 20 percent, but no greater, for right lower extremity diabetic peripheral neuropathy, is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.