Citation Nr: 21011103 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-38 629 DATE: February 26, 2021 ORDER Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy is denied. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. The right lower extremity peripheral neuropathy has resulted in no more than moderate incomplete paralysis. 2. The left lower extremity peripheral neuropathy has resulted in no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent since May 21, 2013, for peripheral neuropathy of the right lower extremity have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8521. 2. The criteria for a rating in excess of 20 percent since May 21, 2013, for peripheral neuropathy of the left lower extremity have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1965 through April 1968. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2020, the Board remanded the issues to obtain a corrected supplemental statement of the case (SSOC). An SSOC was issued in November 2020. 1. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy is denied. 2. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy is denied. Legal Criteria Disability evaluations are determined by the application of VA’s Schedule of Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two evaluations shall be applied, a 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999). Diagnostic Code (DC) 8521 provides the rating criteria for paralysis of the external popliteal nerve (common peroneal), and therefore, neuritis and neuralgia of that nerve. Disability ratings of 10 percent, 20 percent, and 30 percent are assignable for incomplete paralysis, which is mild, moderate, or severe in degree, respectively. Complete paralysis of the external popliteal nerve, which is rated as 40 percent disabling, contemplates 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. 38 C.F.R. § 4.124a, DC 8521. Words such as “mild,” “moderate,” 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. Additionally, 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. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. Id. Factual Background The Veteran asserts that his service-connected peripheral neuropathy is more severe than his initial disability ratings reflect. An April 2020 rating decision granted service connection for the peripheral neuropathy disabilities and assigned 20 percent ratings effective May 21, 2013. His service-connected bilateral lower extremity disabilities are rated under DC 8521. At a December 2013 VA examination, the examiner diagnosed diabetic peripheral neuropathy bilateral nerves. The Veteran reported tingling and numbness in the bilateral feet with neuropathy. The examiner observed severe intermittent pain, paresthesias and/or dysesthesias and numbness in the bilateral extremities. The Veteran tested normal in light touch/monofilament testing in all lower extremities with decreased sensation in his feet and toes. The examiner observed mild incomplete paralysis in both lower extremities. At two separate VA examinations in April 2014, the Veteran reported chronic leg and knee pain and chronic burning in his feet. At a December 2017 VA examination, the examiner identified the Veteran as a level two moderate risk level due to diminished circulation as evidenced by absent/weak palpable pulses or minor foot infection and a diagnosis of diabetes. At a February 2018 VA examination, the Veteran was assessed with degenerative joint disease of the feet. In a May 2019 VA examination, the examiner observed symptoms of moderate constant pain, paresthesias and/or dysesthesias and numbness in the bilateral extremities. The Veteran exhibited normal strength in knee extension, ankle plantar flexion and ankle dorsiflexion, and normal rate deep tendon reflexes in the bilateral ankles and knees. Additionally, the examiner observed moderate incomplete paralysis in the lower radicular group. Legal Analysis After review, the Board finds that the preponderance of the evidence is against a finding that a rating in excess of 20 percent is warranted for peripheral neuropathy of either lower extremity, as symptoms did not result in worse than moderate incomplete paralysis of the external popliteal nerve at any time during the appellate period. The Veteran has consistently reported symptoms including numbness or tingling in the upper extremities. VA examination reports document, at most, symptoms of moderate incomplete paralysis. Assignment of a higher rating would require a severe incomplete paralysis level of severity, which is not supported by the evidence. The examiners of record explicitly identified the symptoms reported as no worse than moderate incomplete paralysis of the external popliteal nerve. Even after considering the Veteran’s subjective complaints, there is no other objective medical evidence indicating that the bilateral lower extremity disability symptoms were more severe for this appeal period. Accordingly, the Board concludes that the severity of the disability picture was no worse than moderate and finds that the preponderance of the evidence is against the assignment of a rating higher than 20 percent for the bilateral lower extremities under DC 8521. Staged ratings are not warranted. See Fenderson, 12 Vet. App. 119. As the preponderance of the evidence is against any higher ratings in this regard, the benefit of the doubt doctrine is not for application, and the claims must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hamilton, 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.