Citation Nr: 21014615 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 13-00 603 DATE: March 15, 2021 ORDER Entitlement to a rating in excess of 40 percent for peripheral neuropathy, right lower extremity, is denied. Entitlement to a rating in excess of 40 percent for peripheral neuropathy, left lower extremity, is denied. FINDINGS OF FACT 1. The Veteran’s peripheral neuropathy, right lower extremity, is manifest by no more than moderately severe incomplete paralysis. 2. The Veteran’s peripheral neuropathy, left lower extremity, is manifest by no more than moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for peripheral neuropathy, right lower extremity, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for a disability rating in excess of 40 percent for peripheral neuropathy, left lower extremity, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to November 1968, in Vietnam from September 1966 to August 1967. These matters come before the Board of Veterans’ Appeals (Board) from a July 2010 rating decision of the United States Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland. The issues were previously before the Board, most recently in May 2020, when remanded for further development that has been substantially completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Entitlement to a rating in excess of 40 percent for peripheral neuropathy, right lower extremity, is denied. 2. Entitlement to a rating in excess of 40 percent for peripheral neuropathy, left lower extremity, is denied. In September 2009, the Veteran filed for disability ratings higher than 40 percent for right and left lower extremity peripheral neuropathy. Due to a considerable overlap of the medical evidence, the issues are considered together. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various DC are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The medical evidence of record does not support higher ratings. In September and October 2008, the Veteran reported to a VA neurologist about worsening sharp or numbing pain in feet and legs, tingling, weakness, and trouble working. The sharp pain was worse when standing. Physical examination showed “5/5” muscle strength and “1” or “2” reflexes. Sensation was inconsistent to pinprick and vibration, but otherwise intact. Coordination was within normal limits. The Veteran walked with a rolling walker. The neurologist concluded that the routine nerve conduction testing was normal, finding no electrophysiological documentation of a peripheral neuropathy affecting the large nerve fibers, despite the history very longstanding diabetes. On the other hand, the neurologist found the described symptoms of burning pain in feet, and longstanding erectile dysfunction (already prior to starting on antidepressants), were likely related to small fiber neuropathy. The neurologist therefore found it likely the Veteran had small fiber neuropathy with neuropathic pain from the longstanding diabetes that could not be measured in the testing. The neurologist adjusted the Veteran’s medication. In November 2009, the Veteran reported to a VA neurologist about worsening symptoms: pain extending from the feet to the lower legs that burned and felt like “pins-and-needles.” The Veteran also reported numbness in the feet and legs and trouble standing for long periods. The pain was alleviated when the patient is off feet. Physical examination showed “1” or “2” reflexes and “5/5” muscle strength with “normal” bulk and tone. Sensation was “intact and equal throughout.” The Veteran “performed well” in coordination tests. The Veteran had a “normal” gait. The Veteran used a rolling walker for additional support, reportedly because knees sometimes buckled, but walked without the walker for the gait examination. The neurologist assessed “severe” lower extremity small-fiber neuropathy related to long-standing diabetes, with insufficient pain relief on current regimen. The Veteran had “preserved” strength, sensation, and reflexes. In January 2010, the Veteran reported to a VA neurologist about worsening symptoms. Sensation testing showed “mild” stocking gradient to pinprick in the lower extremities. In April 2010, the Veteran underwent a VA examination. The Veteran reported progressively worse symptoms since onset with “poor” response to treatment with medication that caused “dizziness.” Symptoms included weakness, stiffness, numbness, paresthesias (“pins and needles” and burning), and pain. Physical examination showed “4+” to “5-” muscle strength with “mild” weakness requiring a walker. Testing showed “decreased” vibration and light touch sensation and “1+” to “2+” reflexes. The April 2010 VA examiner diagnosed diabetic neuropathy and found that the neuropathic pain could interfere with sleep, resulting in daytime fatigue, had a major impact on quality of life, and a significantly negative impact on self-image. In September 2010, the Veteran reported to a VA neurologist about new cramping in the thigh muscles since the last visit. The Veteran reduced his work schedule to one day per week due to difficulty standing for long periods. The Veteran used a rolling walker to maintain balance and had no falls. Physical examination showed “preserved” strength, coordination, and reflexes, with stocking and glove decrement in pinprick and temperature. The neurologist assessed the peripheral neuropathy was “stable” with incomplete pain relief on current regimen. In May and November 2012, the Veteran reported to a VA neurologist that the neuropathy in his legs was “stable.” The neurologist assessed progressive worsening that sometimes caused the Veteran to lose balance and walk slower. In November 2012, a VA podiatrist found “intact” sensation. In October 2014, the Veteran reported to a VA neurologist about pain “6-7/10” in severity (although sometimes it was faint), lasting seconds, eight to ten episodes per day, in the lateral leg area. The Veteran described the pain as aching and was unsure if it was running up leg or down leg. The pain occurred mostly at night and was aggravated by rest and alleviated by movement. Physical examination showed full strength, “2” reflexes, and “normal” coordination. Testing showed “decreased” vibration, greater right than left, but otherwise “intact” and symmetric sensation. Gait testing showed that the Veteran walked using a rolling walking with a slightly stooped stance, normal to decreased stride, and normal step. Romberg test was negative. In January 2015, the Veteran reported to a VA neurologist about “stable” neuropathy but also pain from time to time. In October 2015, the Veteran reported to a VA neurologist that neuropathy was “mostly stable” but issues with balance. Romberg test was still negative. Between December 2015 and January 2019, the Veteran had physical therapy. In March 2016, the Veteran reported one and a half weeks of persistent left lower extremity swelling worsened by movement over course of day and improved after lying in bed and intermittent burning but preserved sensation. In July 2016, the Veteran underwent another VA examination. The July 2016 VA examiner diagnosed left and right lower extremity peripheral neuropathy. The Veteran reported worsening symptoms: weakness as well as constant dull aching, numbness, tingling sensation, and weakness with limited sensation in both lower extremities. On physical examination, muscle strength was “4/5” with no atrophy. Reflexes and sensation were “all normal.” There were no trophic changes. The Veteran had an antalgic gait with pain and weakness in both legs, walking with a walker due to the peripheral neuropathy. Nerve evaluation was “normal” (no paralysis). In November 2017, the Veteran underwent another VA examination. The November 2017 VA examiner diagnosed left and right lower extremity peripheral neuropathy. The Veteran reported worsening symptoms and having to use a walker more often. The Veteran also reported the need for more help getting up and down the stairs than before, worse in the morning; stumbling and tripping due to lost coordination; numbness, tingling and aching of the entire legs; and burning in the calves. The Veteran described constant pain as “mild” and intermittent pain, paresthesias, and numbness as “moderate.” On physical examination, the Veteran had “3/5” muscle strength, “1+” reflexes, and “decreased” sensation, but no muscle atrophy. The November 2017 VA examiner assessed “moderate” incomplete paralysis. The November 2017 VA examiner found that the Veteran would have difficulty performing in any role that required frequent walking or the need to carry or grasp items. In December 2017, a VA podiatrist found “intact” sensation, but an “abnormal” gait that did not seem to be diabetic neuropathy. In December 2019, the Veteran reported stiffness and pain in knees and a fall a few months prior due to not using his rolling walker. In November 2020, a VA podiatrist found the Veteran’s sensation “severely diminished.” In December 2020, the Veteran underwent another VA examination. The December 2020 VA examiner diagnosed left and right lower extremity diabetic peripheral neuropathy (2005). The Veteran reported numbness, burning, tingling of bilateral feet (especially toes) that had worsened in frequency and severity. The Veteran reported pain all the way up both legs. The Veteran reported balance issues over the previous 15 years and regularly used a walker specifically because of neuropathy. The Veteran did not report motor weakness. The Veteran described “moderate” intermittent pain, paresthesias, and numbness. On physical examination, muscle strength was “5/5” with no atrophy. Reflexes were “all normal.” Sensation was “decreased” in ankles and feet. There were no trophic changes. The Veteran’s gait was antalgic due to diabetic neuropathy. Nerve evaluation was “normal” (no paralysis). The VA examiner found that the Veteran had significant long standing diabetic peripheral neuropathy of legs, the Veteran used a walker and was unable to stand for more than 15 minutes due to this condition and related imbalance, and the condition functionally limited Veteran in any task that required prolonged standing and walking. The evidence of record demonstrates that an increased rating is not warranted at any time during the appeal period. Regarding impairment of motor functions, the medical evidence of record showed none. Regarding trophic changes, the medical evidence of record showed none. Regarding sensory disturbance, the Veteran had normal to severely diminished sensation on testing during the period at issue as noted above. Regarding loss of reflexes, the Veteran had “1” to “2+” reflexes on testing performed during the period at issue as noted above. Regarding pain, the Veteran reported worsening pain over the entire period on appeal as noted above. Regarding muscle atrophy, the medical evidence of record showed none. Regarding complete paralysis, the medical evidence of record showed none. Based on the above, the Board finds that the disability is primarily manifest by difficulty with balance due to numbness, tingling, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by muscle atrophy or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderately severe incomplete paralysis. There is no evidence demonstrating the presence of marked muscular atrophy. There is no evidence demonstrating that the service connected disability is productive of foot dangle or drop, restriction active movement of muscles below the knee, or that flexion of knee is weakened. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different DC is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for right and left lower extremity peripheral neuropathy. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.