Citation Nr: 21010498 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 10-18 510A DATE: February 25, 2021 ORDER Prior to September 20, 2016, entitlement to a 40 percent rating, but no higher, for left lower extremity peripheral neuropathy (sciatic nerve involvement) is granted, subject to the laws and regulations governing the payment of monetary benefits. Beginning September 20, 2016, entitlement to a rating in excess of 40 percent for left lower extremity peripheral neuropathy (sciatic nerve involvement) is denied. Prior to September 20, 2016, entitlement to a 40 percent rating, but no higher, for right lower extremity peripheral neuropathy (sciatic nerve involvement) is granted, subject to the laws and regulations governing the payment of monetary benefits. Beginning September 20, 2016, entitlement to a rating in excess of 40 percent for right lower extremity peripheral neuropathy (sciatic nerve involvement) is denied. Entitlement to a rating in excess of 30 percent for left lower extremity peripheral neuropathy (femoral nerve involvement) is denied. Entitlement to a rating in excess of 30 percent for right lower extremity peripheral neuropathy (femoral nerve involvement) is denied. Entitlement to TDIU prior to September 20, 2016, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s bilateral lower extremity sciatic nerve involvement is best described as moderately severe; the preponderance of the evidence weighs against a finding that worse impairment has been shown. 2. Prior to December 4, 2019, the preponderance of the evidence weighs against a finding that the Veteran’s bilateral lower extremities were manifested by femoral nerve involvement and, during this time, the ratings for his sciatic nerve involvement contemplate all functional impairment due to his lower extremities. 3. Beginning December 4, 2019, the preponderance of the evidence weighs against a finding the Veteran has complete paralysis of the quadriceps extensor muscles in either extremity. 4. Prior to September 20, 2016, the preponderance of the evidence weighs in favor of a finding that the Veteran’s service-connected disabilities alone prevented him from obtaining and maintaining a substantially gainful occupation consistent with his education, training, and experience. CONCLUSIONS OF LAW 1. Prior to September 20, 2016, the criteria for entitlement to a 40 percent rating, but no higher, for left lower extremity peripheral neuropathy (sciatic nerve involvement) have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 2. Beginning September 20, 2016, the criteria for entitlement to a rating in excess of 40 percent for left lower extremity peripheral neuropathy (sciatic nerve involvement) have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. Prior to September 20, 2016, the criteria for entitlement to a 40 percent rating, but no higher, for right lower extremity peripheral neuropathy (sciatic nerve involvement) have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. Beginning September 20, 2016, the criteria for entitlement to a rating in excess of 40 percent for right lower extremity peripheral neuropathy (sciatic nerve involvement) have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 5. The criteria for entitlement to a rating in excess of 30 percent for left lower extremity peripheral neuropathy (femoral nerve involvement) have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 6. The criteria for entitlement to a rating in excess of 30 percent for right lower extremity peripheral neuropathy (femoral nerve involvement) have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 7. The criteria for entitlement to TDIU prior to September 20, 2016, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to September 1970. These claims are on appeal from a January 2009 rating decision. In November 2019, the Board remanded the Veteran’s claims for additional development, to include a more recent examination, and readjudication. The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board’s prior remand directives and the case is now again properly before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a June 2019 Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In December 2020, the Board sent a letter to the Veteran offering him the opportunity to testify at another optional Board hearing before another VLJ who would decide his case. The Veteran did not respond to that letter and it was not returned as undeliverable; therefore, the Board will proceed with adjudication of his case. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 claimant. 38 C.F.R. § 4.3. Involvement of the sciatic nerve (affecting the lower leg, i.e. the muscles associated with the knee and foot) is evaluated under Diagnostic Code 8520, which provides that a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A 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. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Involvement of the femoral nerve (affecting the upper leg, i.e. the quadriceps muscles) is evaluated under Diagnostic Code 8526, which provides that a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 30 percent rating is assigned for moderately severe incomplete paralysis. A maximum 40 percent rating is warranted for complete paralysis of the quadricep muscle. 38 C.F.R. § 4.124a, Diagnostic Code 8526. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The words “slight,” “moderate,” “moderately severe,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. 1. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy (sciatic nerve involvement) prior to September 20, 2016, and in excess of 40 percent thereafter 2. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy (sciatic nerve involvement) prior to September 20, 2016, and in excess of 40 percent thereafter 3. Entitlement to a rating in excess of 30 percent for left lower extremity peripheral neuropathy (femoral nerve involvement) 4. Entitlement to a rating in excess of 30 percent for righty lower extremity peripheral neuropathy (femoral nerve involvement) Relevant Procedural History Left and right lower extremity peripheral neuropathy (sciatic nerve involvement) have been separately rated as 20 percent disabling beginning November 7, 2007, and prior to September 20, 2016, and are each separately rated as 40 percent disabling thereafter. In an August 2020 rating decision, the AOJ service connection for left and right lower extremity peripheral neuropathy (based on femoral nerve impairment) and assigned separate 30 percent ratings for each extremity, effective December 4, 2019. Although the Veteran has not disagreed with these ratings, they are part and parcel of his appeal for increased ratings for lower extremity peripheral neuropathy with sciatic nerve involvement. Therefore, they are now properly before the Board. Factual Background and Analysis At a November 2007 VA appointment, the Veteran reported numbness and tingling in his feet and on examination there was decreased sensation in the feet. He reported a prior history of working construction but was not employed at the time of the appointment. In his August 2008 application for Social Security Administration (SSA) disability benefits, the Veteran indicated he woke up with pain in his feet and legs, had difficulty with balance, and could no longer climb ladders, stand for long periods of time, or walk long distances. He indicated he experienced pain with sitting and that standing for long periods of time caused unbearable pain in his feet and legs and loss of balance. He reported numbness in his feet and stated at times he was able to drive, but that at other times the pain in his feet precluded him from doing so. At a December 2008 VA neurological examination, the Veteran indicated he stopped working approximately six months prior due to his bilateral lower extremities, which caused difficulty balance and pain with standing and walking. He indicated for the past six to seven years he had noticed numbness in both legs with tingling sensation and with pain, particularly with standing and walking. He stated he was unable to stand more than one hour and unable to walk more than 200 feet. He indicated his balance had been off for the past year, he had fallen twice, and that was the main reason he stopped working because he handled electrical circuits. Examination revealed normal power and coordination in the lower extremities with no atrophy; knee jerks were decreased and ankle jerks were absent. There was reduced sensation to pinprick in stocking distribution to the middle of the legs bilaterally. The record contains a December 2008 letter from the Veteran’s electrical workers’ union which indicates that due to his “physical limitations and required medications which he is prescribed, [the union] is unable to dispatch him to a job.” In a February 2009 statement, the Veteran indicated he was unable to work due to his medication condition and that the nerve damage in his feet contributed to his inability to perform his customary job of an electrician. In a May 2010 statement, the Veteran indicated he had problems with numbness in his legs when sitting for more than an hour and pain and tingling in his legs when standing for too long. He stated he was unable to perform his prior job as an electrician because he could not climb ladders or get down on his knees. At podiatry appointments in November 2010, March 2011, July 2011, November 2011, and January 2012, monofilament testing to both feet revealed the absence of sensation. At a February 2012 VA general medical examination, the Veteran indicated that in the past twelve months of his employment there was not much work, as the union was unable to dispatch him to many jobs due to his inability to climb ladders and squat. At a March 2012 VA neurological examination, strength testing of the lower extremities was normal and there was no atrophy. Deep tendon reflexes were decreased in the bilateral knees and absent in the ankles, and light touch/monofilament testing was decreased in the ankle/lower leg and foot/toes but was normal in the knee/thigh. The examiner found the Veteran had incomplete paralysis of the sciatic nerve, described as mild, and that there was no involvement of the femoral nerve. At podiatry appointments in March and June 2013, monofilament testing to both feet revealed the absence of sensation. Pedal pulses at February and June 2016 podiatry appointments were decreased. At a September 20, 2016, VA neurological examination, the Veteran reported he continued to experience numbness and pain when barefooted in addition to instability with walking. He reported moderate intermittent pain and tingling and severe numbness. On examination, deep tendon reflexes were decreased in the knee and ankle and light touch/monofilament testing results revealed decreased sensation in the ankle/lower leg and foot/toes but was normal in the knee/thigh. There was no evidence of muscle atrophy. In December 2016, the Veteran voiced a chief complaint of recurrent leg numbness and coldness in the lower extremities; it was noted his pulses were weak from pervious exams. In January 2017, the Veteran presented to a VA medical appointment with complaints of cold lower extremities from the knees to the feet. At a January 2018 appointment, neurological tests showed decreased sensation in the bilateral lower extremities. At November 2019 podiatry appointment, pedal pulses were decreased and there was diminished sensation to the feet with monofilament testing. At a December 2019, VA neurological examination, the Veteran reported moderate intermittent pain and numbness and mild tingling in his lower extremities; he stated he had difficulty walking and standing. Deep tendon reflexes of the knees were normal and were decreased in the ankle. Light tough/monofilament testing was normal for the knee/thigh and decreased in the ankle/lower leg and foot/toes. Cold sensation testing was also decreased in the bilateral lower extremities. There was no evidence of muscle atrophy. The examiner concluded the Veteran’s lower extremity peripheral neuropathy was affected by the sciatic nerve and femoral nerve, both described as moderate incomplete paralysis. The Board has considered the evidence of record and finds that prior to September 20, 2016, a 40 percent rating for each lower extremity based on peripheral neuropathy with sciatic nerve impairment is warranted, as his disability picture is best described as moderately severe. During this time, the Veteran complained of pain and numbness affecting his lower extremities which impaired his ability to walk and stand for long periods of time. Neurological testing was consistently decreased or absent in the lower leg and feet. He has further complained of balance issues and has had to modify behaviors (i.e. taking a bath instead of a shower) due to his bilateral peripheral neuropathy. Thus, the Board finds a 40 percent rating for each extremity is warranted under Diagnostic Code 8520 as the Veteran’s symptoms are best described as moderately severe. Throughout the appeal period, ratings in excess of 40 percent for each lower extremity based on sciatic nerve involvement is not warranted. Crucially, under Diagnostic Code 8520, in order to receive a higher rating, the evidence must demonstrate severe incomplete paralysis, with marked muscular atrophy (60 percent rating) or 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 (maximum 80 percent rating). See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Here, the Veteran has not claimed and there is no objective evidence of marked muscular atrophy, which is required for the next higher rating. Moreover, the Veteran’s peripheral neuropathy has been described as incomplete paralysis; the preponderance of the evidence weighs against a finding he has experienced complete paralysis. Notably, he is still able to walk, although it is difficult, and he demonstrates active movement of the lower extremities. Next, the Board turns to whether a rating in excess of 30 percent for each lower extremity is warranted based on femoral nerve involvement. Significantly, the femoral nerve affects the upper leg, while the sciatic nerve affects the lower leg and feet. Here, prior to the effective date of December 4, 2019, the preponderance of the evidence weighs against a finding that there was femoral nerve involvement. Even if there was, the Board finds that to assign a separate rating for femoral nerve involvement and sciatic nerve involvement would amount to pyramiding in this case. See 38 C.F.R. § 4.14. This is so because the rating for sciatic nerve involvement is predicated on each lower extremity as a whole and the resulting impairment (i.e. inability to stand or sit for long periods of time, pain, numbness, tingling, etc.). Moreover, beginning December 4, 2019, a rating in excess of 30 percent for each lower extremity based on femoral nerve impairment is not warranted. In order to receive the next higher and maximum rating complete paralysis of the quadricep muscle must be demonstrated, which has not been shown during the appeal period in either lower extremity. See 38 C.F.R. § 4.124a, Diagnostic Code 8526. The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against higher ratings than those assigned or continued in the instant decision, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 5. Entitlement to TDIU Entitlement to TDIU is already in effect beginning September 20, 2016. Thus, the question before the Board is whether the Veteran was unable to obtain or maintain substantially gainful employment consistent with his education, training, and experience, due solely to his service-connected disabilities prior to that date. Total disability ratings will be assigned “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. § 3.340(a). TDIU may be assigned to a veteran who meets certain disability percentage thresholds and is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 C.F.R. § 4.16(a). The central inquiry is “whether [a] veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Unlike the regular disability Rating Schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009); see also Beaty v. Brown, 6 Vet. App. 532, 534 (1994) (considering a veteran’s eighth-grade education and sole occupation as a farmer). Prior to September 20, 2016, the Veteran’s service connected disabilities included: diabetes mellitus, type II, with erectile dysfunction (rated as 20 percent disabling); bilateral lower extremity peripheral neuropathy (with each lower extremity separately rated as 40 percent disabling); and status post right inguinal hernia (rated as noncompensable). Service connection was in effect for bilateral carpal tunnel syndrome of the upper extremities from November 7, 2007, through December 1, 2015, with each extremity separately rated as 10 percent disabling. Given the recent increase in his bilateral lower extremity peripheral neuropathy in the instant decision, he has not met the requirements for entitlement to TDIU on a schedular basis throughout the appeal. Following a thorough review of the evidence, the Board finds that prior to September 20, 2016, the Veteran’s service-connected disabilities alone prevented him from obtaining or maintaining a substantially gainful occupation consistent with his education, training, and experience. The Veteran’s highest level of education is a high school degree. Nearly his entire civilian career was as an electrician, from 1979 to 2008. The Board has considered that the Veteran does not have many transferable skills and acknowledges that he is precluded from returning to his work as an electrician, as this job required a significant amount of squatting and climbing ladders. Further, given that his bilateral lower extremity peripheral neuropathy affects his ability to both stand and sit for long periods of time, this would make any job difficult. Moreover, throughout the appeal period, while his diabetes mellitus, type II, has not required any hospitalizations, it has remained uncontrolled. (Continued on the next page)   Given the circumstances of this particular case, the Board finds that prior to September 20, 2016, the Veteran’s diabetes mellitus, type II, and bilateral lower extremity peripheral neuropathy prevented him from obtaining and maintaining a substantially gainful occupation consistent with his education, training, and experience. Accordingly, prior to September 20, 2016, the Board finds entitlement to TDIU is warranted. The effective date will be set by the AOJ as this preserves the Veteran’s right to appeal. See DAV v. Sec’y of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.