Citation Nr: 21012772 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-22 506 DATE: March 5, 2021 ORDER Prior to February 8, 2018, an initial rating in excess of 10 percent for peripheral neuropathy with incomplete paralysis of the sciatic nerve of the left lower extremity is denied. Prior to February 8, 2018, an initial rating in excess of 10 percent for peripheral neuropathy with incomplete paralysis of the sciatic nerve of the right lower extremity is denied. From February 8, 2018, an initial rating of 40 percent, but no higher, for peripheral neuropathy with incomplete paralysis of the sciatic nerve of the left lower extremity is granted. From February 8, 2018, an initial rating of 40 percent, but no higher, for peripheral neuropathy with incomplete paralysis of the sciatic nerve of the right lower extremity is granted. From September 4, 2019 to November 26, 2019, an initial rating of 10 percent, but no higher, for peripheral neuropathy with incomplete paralysis of the femoral nerve of the left lower extremity is granted. From September 4, 2019 to November 26, 2019, an initial rating of 10 percent, but no higher, for peripheral neuropathy with incomplete paralysis of the femoral nerve of the right lower extremity is granted. From November 27, 2019 to November 23, 2020, an initial rating in excess of 10 percent for peripheral neuropathy with incomplete paralysis of the femoral nerve of the left lower extremity is denied. From November 27, 2019 to November 23, 2020, an initial rating in excess of 10 percent for peripheral neuropathy with incomplete paralysis of the femoral nerve of the right lower extremity is denied. From November 24, 2020, an initial rating in excess of 20 percent for peripheral neuropathy with incomplete paralysis of the femoral nerve of the left lower extremity is denied. From November 24, 2020, an initial rating in excess of 20 percent for peripheral neuropathy with incomplete paralysis of the femoral nerve of the right lower extremity is denied. REMANDED Entitlement to a total disability rating due to individual unemployability is remanded. FINDINGS OF FACT 1. Prior to February 8, 2018, symptoms of the Veteran’s left lower extremity peripheral neuropathy have more nearly approximated mild, and not moderate, incomplete paralysis of the sciatic nerve. 2. Prior to February 8, 2018, symptoms of the Veteran’s right lower extremity peripheral neuropathy have more nearly approximated mild, and not moderate, incomplete paralysis of the sciatic nerve. 3. From February 8, 2018, symptoms of the Veteran’s left lower extremity peripheral neuropathy have more nearly approximated moderately severe, and not severe, incomplete paralysis of the sciatic nerve. 4. From February 8, 2018, symptoms of the Veteran’s right lower extremity peripheral neuropathy have more nearly approximated moderately severe, and not severe, incomplete paralysis of the sciatic nerve. 5. From September 4, 2019 to November 23, 2020, symptoms of the Veteran’s left lower extremity peripheral neuropathy have more nearly approximated mild, and not moderate, incomplete paralysis of the femoral nerve. 6. From September 4, 2019 to November 23, 2020, symptoms of the Veteran’s right lower extremity peripheral neuropathy have more nearly approximated mild, and not moderate, incomplete paralysis of the femoral nerve. 7. From November 24, 2020, symptoms of the Veteran’s left lower extremity peripheral neuropathy have not more nearly approximated severe, incomplete paralysis of the femoral nerve. 8. From November 24, 2020, symptoms of the Veteran’s right lower extremity peripheral neuropathy have not more nearly approximated severe, incomplete paralysis of the femoral nerve CONCLUSIONS OF LAW 1. Prior to February 8, 2018, the criteria for a rating in excess of 10 percent for sciatic neuropathy of the left lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 2. Prior to February 8, 2018, the criteria for a rating in excess of 10 percent for sciatic neuropathy of the right lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. From February 8, 2018, the criteria for a rating of 40 percent, but no higher, for sciatic neuropathy of the left lower extremity are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. From February 8, 2018, the criteria for a rating of 40 percent, but no higher, for sciatic neuropathy of the left lower extremity are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 5. From September 4, 2019 to November 23, 2020, the criteria for a rating of 10 percent, but no higher, for femoral neuropathy of the left lower extremity are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 6. From September 4, 2019 to November 23, 2020, the criteria for a rating of 10 percent, but no higher, for femoral neuropathy of the right lower extremity are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 7. From November 24, 2020, the criteria for a rating in excess of 20 percent for femoral neuropathy of the left lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 8. From November 24, 2020, the criteria for a rating in excess of 20 percent for femoral neuropathy of the right lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to March 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal of March 2014, February 2015, June 2017, March 2018, and December 2020 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board acknowledges the April 2015 notice of disagreement ( NOD ) that led to the present appeal was actually filed in response to the February 2015 rating decision which denied increased ratings claims for left and right lower extremity radiculopathy; however, the Board finds the Veteran’s August 2014 increased rating claim is more properly considered new and material evidence relating back to the initial rating assigned for left and right lower extremity radiculopathy in the March 2014 rating decision. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (holding that a new claim for an increased rating filed during the appeal period may constitute new and material evidence under § 3.156(b), in which case it relates back to the original claim). Accordingly, these claims are reviewed as seeking increased initial ratings for left and right lower extremity radiculopathy. In April 2019, the Veteran testified at a hearing held before the undersigned. In August 2019 and October 2020, the Board remanded the claim for additional development. Increased Rating 1. Entitlement to an increased rating for left lower extremity peripheral neuropathy 2. Entitlement to an increased rating for right lower extremity peripheral neuropathy Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Over the appeal period, the Veteran’s diabetic peripheral neuropathy of the left and right lower extremities has been rated under Diagnostic Code 8520, which evaluates incomplete paralysis of the sciatic nerve and under Diagnostic Code 8526 which evaluates incomplete paralysis of the anterior crural (femoral) nerve. Under Diagnostic Code 8520, mild incomplete paralysis is rated 10 percent; moderate incomplete paralysis is rated 20 percent disabling, moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis of the sciatic nerve is marked by 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. Under Diagnostic Code 8526, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 30 percent rating is warranted for severe incomplete paralysis. A 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral) resulting in paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The term “incomplete paralysis” 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, Diseases of the Peripheral Nerves. The words “mild,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In August 2013, the Veteran filed a claim seeking service connection for bilateral lower extremity neuropathy associated with diabetes. A VA diabetic peripheral neuropathy examination was provided in January 2014. The Veteran reported tingling in his feet. The examiner diagnosed left and right lower extremity neuropathy. He described severe paresthesias or dysesthesias in both legs and moderate numbness and decreased sensitivity to light touch in the right leg. The Veteran’s strength and reflexes were normal. The examiner found incomplete paralysis of the left and right sciatic nerve with mild severity. Femoral nerve involvement was not indicated, and the examiner stated sensitivity to touch in the upper left and right anterior thigh was normal. The examiner also found the Veteran’s ability to work was not impacted. A second VA diabetic peripheral neuropathy examination was provided in December 2014. The Veteran reported pain in his left and right feet and toes. The examiner noted mild, usually dull, intermittent pain in the lower extremities. Sensitivity to light touch was decreased in the feet and toes. Muscle strength and reflexes were normal. The examiner described mild incomplete paralysis of the left and right sciatic nerve. No femoral nerve involvement was indicated, and sensitivity to light touch in the right and left anterior thigh was normal. The Veteran’s ability to work was impacted because he would be “limited from working at heights or hazards.” In April 2015, the Veteran submitted a NOD and asserted his peripheral neuropathy symptoms, below the knees, were moderate to severe. He did not describe any symptoms associated with the neuropathy. In April 2017, he submitted a new claim form and requested “reevaluation for bilateral sciatic nerve neuralgia” but he did not describe his condition or explain why a revaluation was needed. A third VA diabetic peripheral neuropathy examination was provided in April 2017. The Veteran reported numbness in his feet up to the mid tibia. He also reported nighttime burning on the plantar aspect of his feet and tingling in his toes. The examiner observed mild, usually dull, intermittent pain and moderate numbness in the bilateral lower extremities. Sensitivity to vibration was decreased. Muscle strength, reflexes, and sensitivity to light touch were all normal. Overall, the examiner described mild incomplete paralysis of the left and right sciatic nerve. The left and right femoral nerves were described as normal. The examiner stated peripheral neuropathy would not impact the Veteran’s ability to work. On February 8, 2018, the Veteran filed an additional claim form. He listed right and left lower extremity neuropathy on the form, but he did not include any description of his symptoms. In March 2018, a fourth VA diabetic peripheral neuropathy examination was provided. The Veteran reported pain and numbness in his feet. The examiner observed severe constant pain, severe intermittent pain, severe paresthesias or dysesthesias, and severe numbness associated with peripheral neuropathy in the right and left lower extremities. Sensitivity to light touch was decreased in the bilateral ankles, lower legs, feet, and toes. Vibration and cold sensation were reduced in the lower extremities. Muscle strength and reflexes were normal. Although the examiner observed severe symptoms associated with the Veteran’s neuropathy, he evaluated the incomplete paralysis of the right and left sciatic nerve as mild. Involvement of the femoral nerve was not noted, and sensitivity to light touch in the right and left upper anterior thigh was normal. The Veteran’s ability to work was not impacted by his peripheral neuropathy. VA treatment records include nursing notes from October 2018, documenting the Veteran’s report of bilateral leg pain, and from May 2019, documenting his report of losing balance and experiencing a burning sensation, cramps, and shooting pains in his lower extremities. In April 2019, the Veteran testified that his condition had worsened, and he felt near constant pain over the lower half of his legs. VA treatment records include a July 2019 right lower extremity electrodiagnostic study with normal results. On September 4, 2019, the Veteran was evaluated in a VA neurology clinic. He described “spells of neuropathy,” with pain in his feet and occasional pain in his thighs and groin. The spells lasted about an hour and they usually occurred at night as he was going to sleep. The spells generally occurred daily and every three or four days he described a severe spell. In November 2019, a fifth VA diabetic peripheral neuropathy examination was provided. The Veteran reported burning in his feet. He had difficulty walking, sleeping, flying, going on long car trips, and sitting or standing for long periods. Despite the Veteran’s report of burning in his feet, the examiner noted only mild numbness in the left and right lower extremities and decreased sensitivity in the left and right feet and toes. Muscle strength and reflexes were normal. Vibration sensation was not tested. Cold sensation was normal. The examiner also observed no level of paralysis associated with the sciatic nerve. He indicated there was mild incomplete paralysis of the left and right femoral nerve. These conditions did not impact the Veteran’s ability to work. VA treatment records include neurology telephone encounter notes from May 2020. During these appointments, the Veteran reported burning pain in his feet and lower legs, especially at night. In November 2020, a sixth VA diabetic peripheral neuropathy examination was provided. The Veteran reported lower extremity pain, sensory changes, burning sensation and tingling sensation. The examiner noted moderate paresthesias or dysesthesias and severe numbness and severe intermittent, usually dull, pain in the lower extremities. Strength was reduced (to 4/5) for right ankle dorsiflexion; deep tendon reflexes were decreased in the bilateral knees and ankles. Sensitivity to light touch was reduced in the bilateral thigh, knee, ankle, lower leg, feet, and toes. Right lower extremity position sense and vibration sense was absent. Left lower extremity position sense was decreased and vibration sensation was absent. The examiner described moderate incomplete paralysis of the left and right sciatic nerve. No paralysis of the femoral nerve was indicated. The examiner noted EMG studies, performed in October 2019, were normal. He found peripheral neuropathy impacted the Veteran’s ability to work because he had difficulty walking distances longer than 100 yards and he sometimes used a cane for balance. In an additional medical opinion, the examiner observed the Veteran’s peripheral neuropathy had more effect on his bilateral sciatic nerve with “possible sensory only involvement of the femoral nerve.” He explained that the femoral nerve mainly controlled the thigh muscles. The Veteran reported some sensory changes, but no other symptoms, in his thighs. The Veteran reported sharp burning pain below his knees and the sensation of pins and needles in his feet. Currently, the Veteran’s left and right lower extremity peripheral neuropathy disabilities, with incomplete paralysis of the sciatic nerve, are each rated as 10 percent disabling prior to November 24, 2020 and as 20 percent thereafter. The evidence of record shows, prior to February 8, 2018, the Veteran reported, and VA examiners confirmed, mild, dull, intermittent pain (usually described as burning), tingling, and numbness in his feet and lower legs. Examiners measured reduced sensitivity in his lower legs and feet. His muscle strength and reflexes were not reduced. While the December 2014 examiner indicated the Veteran would have difficulty working at heights or in hazardous situations, the Veteran did not report any difficulty walking or problems with balance. Although the Veteran’s April 2015 and April 2017 submissions might indicate he felt his condition was worsening, the April 2017 VA examination did not confirm increasingly severe symptoms. Accordingly, prior to February 8, 2018, the Veteran’s symptoms reflect a mild level of disability and rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. On February 8, 2018, the Veteran filed another new claim form which may have indicated he perceived his condition was worsening. Thereafter, VA treatment records, the Veteran’s testimony, and VA examinations of March 2018 and November 2020 documented increasing symptoms. In particular, the Veteran began to describe constant or daily pain in his lower legs and feet and problems with walking and balance. Different VA examiners observed some of his symptoms, including pain, numbness, and parrhesias, were severe. Although the November 2019 VA examiner did not describe severe symptoms, this is contrary to the Veteran’s reports and inconsistent with other medical records and evaluations. Thus, from February 8, 2018, the Veteran’s symptoms increased, and a moderately-severe level of disability related to his left and right peripheral neuropathy associated with incomplete paralysis of the sciatic nerve is shown and 40 percent ratings are warranted. As no muscle atrophy was noted in either extremity, however, a rating in excess of 40 percent is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Currently, the Veteran’s left and right lower extremity peripheral neuropathy disabilities, with incomplete paralysis of the femoral nerve, are each rated as 10 percent disabling from November 27, 2019 to November 23, 2020 and as 20 percent disabling from November 24, 2020. The Board notes, VA treatment records show the Veteran first reported occasional pain in his thighs and groin on September 4, 2019. In October 2019, he reported occasional burning in his thighs. On November 24, 2020, a VA examiner observed some sensory changes in the Veteran’s bilateral thighs. As the Veteran reported occasional pain, a mild level of disability related to incomplete paralysis of the left and right femoral nerve is indicated from September 4, 2019. From November 24, 2020, a 20 percent rating is applied indicating a moderated level of disability. The Board will not disturb this rating. However, as there is no evidence of any severe disability associated with incomplete paralysis of the left or right femoral nerve, a rating in excess of 20 percent is not warranted at any time. 38 C.F.R. § 4.124a, Diagnostic Code 8526. REASONS FOR REMAND Entitlement to a total disability rating due to individual unemployability is remanded. In October 2020, the Board found the issue of entitlement to a TDIU had been raised by the record. This issue was remanded for initial adjudication by the Agency of Original Jurisdiction (AOJ). In December 2020, the AOJ issued a supplemental statement of the case (SSOC) which included a denial of entitlement to a TDIU. There is no indication that the AOJ contacted the Veteran to provide a TDIU claim form or otherwise inform the Veteran as to the information and evidence necessary to establish entitlement to a TDIU. Thus, VA has not fulfilled its duty to notify the Veteran. The issue of entitlement to a TDIU must be remanded for additional development and adjudication. The matters are REMANDED for the following action: Ask the Veteran to complete a TDIU claim form and complete any development necessary for adjudication of entitlement to a TDIU. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.