Citation Nr: 21013965 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 20-11 925 DATE: March 11, 2021 ORDER An initial rating in excess of 20 percent for sciatic neuropathy of the left lower extremity is denied. An initial rating in excess of 20 percent for sciatic neuropathy of the right lower extremity is denied. The appeal with respect to the Veteran’s entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s left lower extremity sciatica has been manifested by no more than moderate incomplete paralysis. 2. Throughout the appeal period, the Veteran’s right lower extremity sciatica has been manifested by no more than moderate incomplete paralysis. 3. In January 2021, while the current appeal was pending, the agency of original jurisdiction (AOJ) granted a TDIU for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for sciatic neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.123, 4.124a, Diagnostic Code 8520. 2. The criteria for a rating in excess of 20 percent for sciatic neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.123, 4.124a, Diagnostic Code 8520. 3. There remains no case or controversy with respect to the Veteran’s entitlement to a TDIU over which the Board may exercise jurisdiction. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.103, 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1958 to December 1960. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in a January 2018 rating decision, the RO granted service connection for sciatic neuropathy of both lower extremities, each evaluated as 10 percent disabling. After obtaining additional evidence, the RO issued another rating decision in July 2018 which, in pertinent part, confirmed and continued the prior 10 percent ratings and also denied entitlement to a TDIU. In a January 2021 rating decision, the RO increased the ratings to 20 percent for each lower extremity for the entire period on appeal, and granted the Veteran’s claim for TDIU for the same period. This case was previously before the Board in May 2020 and December 2020, when it was remanded to the AOJ for additional development. In its May 2020 remand, the Board remanded the case for additional records development and to afford the Veteran a new VA examination. In its December 2020 remand, the Board directed the AOJ to again undertake additional records development and to obtain an addendum medical opinion. The AOJ has substantially complied with the May 2020 and December 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In February 2021, the Veteran executed a new power of attorney in favor of the National Association of County Veterans Service Officers (NACVSO). As NACVSO has notified the Board that it is temporarily waiving the right to submit informal hearing presentations, the Board will proceed to consider the Veteran’s appeal forthwith, without routing the case to NACVSO for further review. Higher Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). 1. Entitlement to an initial rating in excess of 20 percent for sciatic neuropathy of the left lower extremity 2. Entitlement to an initial rating in excess of 20 percent for sciatic neuropathy of the right lower extremity The Veteran’s lower extremity sciatic neuropathy has been rated as 20 percent disabling for each lower extremity under Diagnostic Code (DC) 8520. The Veteran seeks higher ratings. Under DC 8520, a 20 percent rating is warranted when the evidence demonstrates that there is moderate incomplete paralysis. Moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy, warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, 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 note preceding the Schedule of Ratings for Diseases of the Peripheral Nerves provides that 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. The note further states that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 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. Neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123 will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. The Board notes that words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be 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 the assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In the present case, the Veteran submitted a statement from his treating provider, K.L., D.P.M. in September 2017. Dr. L. noted that the Veteran complained of painful feet, unstable balance, and progressive numbness bilaterally. He further noted that the Veteran was noted to have diminished sensation of the forefoot, and that vibratory sensation was significantly diminished at the hallux. He stated that the Veteran’s diagnoses included idiopathic progressive neuropathy. Electromyography (EMG) findings from October 2017 showed atypical peripheral polyneuropathy primarily affecting the lower limbs. The study also noted that the findings could be due to severe lumbar spinal stenosis causing bilateral radiculopathies at multiple levels, but that this would be rare, and that to explain the findings they would need to be accompanied by a peripheral sensory and polyneuropathy as well. The Veteran was afforded a VA examination in connection with his claim in January 2018. The examiner diagnosed lower extremity peripheral neuropathy and noted the Veteran’s report of constant numbness and intermittent tingling and pain in both calves and feet. The examiner indicated that the Veteran had intermittent pain to a moderate degree, moderate numbness, and mild paresthesias and/or dysesthesias in both lower extremities. He also noted decreased sensation throughout the lower extremities, but there was no atrophy, reflexes were normal, there were no trophic changes, the Veteran’s gait was normal, and he did not use an assistive device. The examiner indicated that the Veteran had mild incomplete paralysis of the sciatic nerve of both lower extremities and did not indicate that any other nerves were affected. He stated that the peripheral nerve condition impacted the Veteran’s ability to work in that it affected his prolonged ability to stand and walk. The examiner also offered a positive nexus opinion that the Veteran’s peripheral nerve condition was secondary to his service-connected pes planus. The Veteran submitted another statement from Dr. L. in March 2018. Dr. L. stated that the Veteran’s diagnosis of idiopathic progressive neuropathy had continued to progress to a point where the Veteran had difficulty standing, walking, and bearing weight comfortably. He added that the Veteran’s gait pattern had changed to a point where he was shuffling during gait instead of striding, and that he was dependent on good, supportive, protective shoes. The Veteran was afforded a second VA examination in May 2018. The examiner noted the Veteran’s report that his condition had gotten worse, that he used orthotics in his shoes, and that he had constant sciatica with moderate to severe numbness from both knees down to his feet with occasional shooting pain into his toes. The Veteran also reported that he felt numbness in both thighs at times. The examiner indicated that the Veteran had intermittent pain to a moderate degree and mild numbness in both lower extremities but indicated that he did not have paresthesias and/or dysesthesias. Sensation was again decreased but only in the foot/toes of both feet, and trophic changes were noted and attributed to peripheral neuropathy. The Veteran also had an abnormal, shuffling gait due to pain and guarding, but strength was full, reflexes were normal, there was no atrophy, and the Veteran did not use an assistive device. The examiner indicated that the Veteran had mild incomplete paralysis of the sciatic nerves of both lower extremities and stated that the condition limited the Veteran’s prolonged standing and walking. The Veteran was afforded a third VA examination in August 2020. The examiner noted diagnoses of several lumbar spine conditions and stated that lower extremity sciatic neuropathy had once again progressed/worsened, but also stated that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. He noted that the Veteran had decreased sensation in both lower extremities and indicated that he had severe radiculopathy. He noted severe intermittent pain, severe numbness, and severe paresthesias and/or dysesthesias in both lower extremities, and on examination found that strength was full in all areas tested except for ankle plantar flexion, which was 4/5. The examiner indicated that the Veteran had atrophy in the right leg and that his reflexes were hypoactive in the knees and absent in the ankles. Sensation in the lower extremities was decreased, the Veteran had trophic changes in both legs, and his gait was slow, wide-based, and akinetic due to radiculopathy. The examiner indicated that the Veteran had moderate incomplete paralysis of the sciatic nerves, the external popliteal nerves, and the internal popliteal nerves of both lower extremities, and indicated that all other nerves were normal. The Veteran did not use an assistive device, and the examiner stated that the condition impacted his ability to work in that it caused trouble with walking, bending, balance, stairs and ladders, and that he continued with pain even with sitting. Because the August 2020 VA examiner indicated that the Veteran did not have a peripheral nerve condition or peripheral neuropathy and attributed the Veteran’s symptoms of lower extremity sciatic neuropathy to his non-service-connected lumbar spine disability, the RO sought a clarifying opinion in late August 2020. The examiner opined that the claimed peripheral nerve condition was due solely to the diagnosed bilateral lower extremity radiculopathy, that it did not warrant a separate peripheral nerve diagnosis, and that there was no objective evidence to support an additional peripheral nerve condition. Because of the inconsistency between the January 2018 VA examination and the August 2020 VA examination regarding the etiology of the Veteran’s lower extremity sciatic neuropathy, the RO sought another clarifying opinion from the August 2020 VA examiner in December 2020. In the December 2020 opinion, the examiner opined that the Veteran’s lower extremity sciatic neuropathy was attributable to his service-connected pes planus. He reasoned that the record clearly indicated significant pes planus, that in the Veteran’s case his pes planus caused abnormal and undue pressure on his lumbar spine, and that this in turn caused sciatic neuropathy of both lower extremities. As an initial matter, the Board finds that the evidence demonstrates that the Veteran’s lower extremity sciatic neuropathy is wholly attributable to his service-connected pes planus. The January 2018 VA examiner opined that it was directly related to pes planus. In his December 2020 addendum opinion, the August 2020 VA examiner found that the Veteran’s pes planus caused lumbar spine disabilities, and that these in turn caused lower extremity sciatic neuropathy. In either case, the evidence clearly demonstrates that any symptoms of lower extremity sciatic neuropathy are attributable to the Veteran’s service-connected pes planus, either directly (as per the January 2018 VA examination), or secondarily (as per the August 2020 and December 2020 VA examination and opinions). Simply put, there is no evidence which suggests that the Veteran’s symptoms of lower extremity sciatic neuropathy should be differentiated between those caused by service-connected pes planus and those caused by his non-service-connected lumbar spine disabilities. The evidence demonstrates that all of his symptoms are attributable to his service-connected pes planus. Following review of the record, the Board finds that the evidence supports the initial 20 percent ratings for the Veteran’s lower extremity sciatic neuropathy. Dr. L.’s September 2017 and March 2018 statements, the October 2017 EMG findings, and the January 2018, May 2018, and August 2020 VA examinations all show that the Veteran has significant impairment due to his lower extremity neuropathy. The Board also finds, however, that the preponderance of the evidence is against the assignment of ratings in excess of 20 percent for either extremity. Ratings in excess of 20 percent require moderately severe incomplete paralysis. The evidence does not suggest incomplete paralysis that is moderately severe or severe incomplete paralysis, with marked muscular atrophy, as required to warrant the next higher ratings. The January 2018 and May 2018 VA examiners both indicated that the Veteran had only mild incomplete paralysis of the sciatic nerve. While the August 2020 VA examiner noted that the Veteran had severe pain, numbness, paresthesias and/or dysesthesias, as well as some atrophy, he did not describe the atrophy as marked, it was present only in the right leg, and the Veteran had decreased strength only in ankle plantar flexion. Even then, his strength was reduced to only 4/5. Still further, the August 2020 VA examiner indicated that the Veteran had only moderate incomplete paralysis of the lower extremity sciatic nerves, which is consistent with 20 percent ratings. In sum, the evidence does not establish that the Veteran’s lower extremity sciatic neuropathy has resulted in more than moderate incomplete paralysis any time during the period on appeal. As such, ratings in excess of 20 percent are not warranted. 38 C.F.R. § 4.124a, DC 8520. Inasmuch as the August 2020 VA examiner indicated that the Veteran also had moderate incomplete paralysis of the external and internal popliteal nerves of the lower extremities, the Board has also considered whether any other Diagnostic Code or separate rating would be appropriate to rate the Veteran’s lower extremity sciatic neuropathy. DC 8521 warrants a 20 percent rating when there is moderate incomplete paralysis of the external popliteal nerve; DC 8525 warrants a 20 percent rating when there is moderate incomplete paralysis of the internal popliteal nerve. Rating the Veteran’s lower extremity neuropathy under these DCs would therefore not result in higher ratings. The Board also finds that separate ratings under those DCs are not warranted, as separate ratings would compensate the same symptoms of pain and numbness and would therefore constitute impermissible pyramiding. 38 C.F.R. § 4.14; see also Esteban, 6 Vet. App. at 261-62; Lyles, at 107 (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). However, as the preponderance of the evidence is against the assignment of ratings in excess of 20 percent for neuropathy of either lower extremity, that doctrine does not apply. The appeal of these issues must be denied. 3. Entitlement to a TDIU Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. § 20.103. The Board may address questions pertaining to its jurisdictional authority to review a particular case. 38 C.F.R. § 20.101(d). In January 2021, while the current appeal was pending, the AOJ granted the Veteran’s claim for a TDIU for the entire period on appeal. As the full benefit sought on appeal has been allowed, there remains no case or controversy over which the Board may exercise jurisdiction. See 38 U.S.C. §§ 511, 7104; 38 C.F.R. §§ 20.103, 20.104; Harper v. Wilkie, 30 Vet. App. 356 (2018). The appeal of this issue must be dismissed. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.