Citation Nr: 21014796 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-00 601 DATE: March 15, 2021 ORDER Prior to February 13, 2020, entitlement to an initial disability rating of 30 percent for peroneal compression neuropathy of the right lower extremity with right foot drop, is granted. From February 13, 2020, entitlement to a disability rating of 40 percent for peroneal compression neuropathy of the right lower extremity with right foot drop, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, prior to February 13, 2020, the Veteran’s peroneal compression neuropathy of the right lower extremity, with right foot drop, was manifested by symptoms commensurate of complete paralysis of the anterior tibial (deep peroneal) nerve. 2. Resolving reasonable doubt in his favor, since February 13, 2020, the Veteran’s peroneal compression neuropathy of the right lower extremity, with right foot drop, has been manifested by symptoms commensurate of complete paralysis of the external popliteal nerve. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in his favor, prior to February 13, 2020, the criteria for an increased 30 percent rating for peroneal compression neuropathy of the right lower extremity, with right foot drop, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes (DCs) 8523 and 8524. 2. Resolving reasonable doubt in his favor, since February 13, 2020, the criteria for an increased 40 percent rating for peroneal compression neuropathy of the right lower extremity, with right foot drop, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DCs 8521, 8522, and 8523. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to April 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Regional Office (RO) of a Department of Veterans Affairs (VA). In November 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The issue was previously before the Board in January 2020 when it was remanded for further development. Increased Rating In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14. In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury, he should be compensated under different DCs. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a); See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence that is of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to an initial disability rating in excess of 20 percent for peroneal compression neuropathy of the right lower extremity with right foot drop The Veteran contends that the peroneal compression neuropathy of his right lower extremity with right foot drop is more severe than what is represented by the current rating. By way of background, in July 2013, the Veteran filed a claim for entitlement to compensation for a right foot neurological condition under U.S.C. 1151, due to complications form an abdominal perineal resection that was completed at VAMC Omaha in May 2012. See VA 21-256b, Veteran Supplemental Claim Form received July 23, 2013. Thereafter, in a February 2015 rating decision, the RO granted compensation for peroneal compression neuropathy (to include anterior and posterior tibial nerves), right lower extremity (claimed as right foot neurological condition) under 38 U.S.C. § 1151 with an evaluation of 20 percent, effective July 23, 2013. In June 2015, the Veteran filed a notice of disagreement (NOD) with the 20 percent disability rating. Soon after, he timely perfected a substantive appeal to the Board in December 2015. The Veteran’s right lower extremity peripheral neuropathy is currently rated as 20 percent disabling under Diagnostic Code (DC) 8523 which is the anterior tibial (deep peroneal) nerve. The Veteran’s medical records indicate that his disability involves the right anterior tibial nerve, right posterior tibial nerve, right external popliteal nerve, and right musculocutaneous nerve, which are all associated with the sciatic nerve. The Board observes that the Veteran’s right lower extremity demonstrates impairment of only one nerve branch. The external popliteal nerve (common peroneal), musculocutaneous nerve (superficial peroneal), anterior tibial nerve (deep peroneal), internal popliteal nerve (tibial) and posterior tibial nerve are all part of the sciatic branch and affect the same functions. See M21-1, Part III, Subpart iv, Chapter 4, Section N, Topic 4, Nerve Branches of the Lower Extremities for Which Separate Evaluations May be Assigned. Thus, a rating is assigned for the predominant nerve branch impairment among this group. Id. See also M21-1, Part III, Subpart iv, Chapter 4, Section N, Topic 4, Assigning Separate Evaluations for Lower Extremity Peripheral Nerves. Assigning separate evaluations for the Veteran’s symptoms from the external popliteal nerve (common peroneal), musculocutaneous nerve (superficial peroneal), posterior tibial nerve, and anterior tibial nerve (deep peroneal) are not warranted as these nerves are part of the same sciatic branch, and therefore the functions associated with these nerves are not separate and distinct, and separate ratings for these symptoms would constitute pyramiding. See Id. Neuritis, cranial or peripheral, 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 which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, 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. A note to 38 C.F.R. § 4.124a states that the term “incomplete paralysis,” where involving peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under DC 8521, pertaining to paralysis of the external popliteal nerve, a 10 percent rating is warranted for mild incomplete paralysis of the external popliteal nerve, a 20 percent rating is warranted for moderate incomplete paralysis of the external popliteal nerve, a 30 percent rating is warranted for severe incomplete paralysis of the external popliteal nerve, and a 40 percent rating is warranted for complete paralysis of the external popliteal nerve. When there is complete paralysis, the foot drops, there is a slight droop of first phalanges of all of the toes, the foot cannot dorsiflex, there is a loss of extension (dorsal flexion) of the proximal phalanges of the toes, there is a loss of abduction of the foot, adduction is weakened, and anesthesia covers the entire dorsum of the foot and toes. 38 C.F.R. § 4.124a. DC 8522 provides ratings for paralysis of the musculocutaneous (superficial peroneal) nerve and, therefore, neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, 8522. DC 8522 provides that mild incomplete paralysis is rated noncompensably disabling. Moderate incomplete paralysis is rated 10 percent disabling. Severe incomplete paralysis is rated 20 percent disabling. Complete paralysis of the musculocutaneous (superficial peroneal) nerve, eversion of foot weakened, is rated 30 percent disabling. A 30 percent disability rating is the maximum schedular disability rating available under DC 8522. DC 8622 refers to neuritis of the musculocutaneous (superficial peroneal) nerve while DC 8722 refers to neuralgia of the musculocutaneous (superficial peroneal) nerve. Under DC 8523, complete paralysis of the anterior tibial (deep peroneal) nerve of the lower extremity, characterized by complete loss of dorsiflexion, warrants a 30 percent rating. A noncompensable rating is warranted for mild incomplete paralysis of the nerve. A 10 percent rating is warranted for moderate incomplete paralysis, and a 20 percent rating is warranted for severe incomplete paralysis. Finally, under DC 8525, pertaining to paralysis of the posterior tibial nerve, a 10 percent rating is warranted for mild incomplete paralysis of the posterior tibial nerve, a 10 percent rating is warranted for moderate incomplete paralysis of the posterior tibial nerve, a 20 percent rating is warranted for severe incomplete paralysis of the posterior tibial nerve, and a 30 percent rating is warranted for complete paralysis of the posterior tibial nerve. When there is complete paralysis, there is paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature, the toes cannot be flexed, adduction is weakened, and plantar flexion is impaired. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes 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 VBA Adjudication Manual (M21-1) provides general guidelines for each level of incomplete paralysis of the upper and lower peripheral nerves. Mild incomplete paralysis can be described as a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate incomplete paralysis is the maximum evaluation reserved for the most significant cases of sensory-only impairment. Symptoms will likely be described as significantly disabling. Combinations of significant sensory changes and reflex or motor changes of a lower degree or motor and/or reflex impairment such as weakness or diminished hyperactive reflexes (with or without sensory impairment) are graded as medically moderate. Severe incomplete paralysis includes motor and/or reflex impairment such as atrophy, weakness, or diminished hyperactive reflexes at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. See M21-1, Part III, Subpart iv, Chapter 4, Section N, Topic 4, Assigning Level of Incomplete Paralysis, Neuritis, or Neuralgia. The Board acknowledges that when relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses. If after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. The Board may not simply rely on the nonbinding M21-1 position without analysis. Overton v. Wilkie, 30 Vet. App. 257 (2018). After review of the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that for the period prior to February 13, 2020, the lay and medical evidence demonstrates that an increased rating of 30 percent is warranted. In this regard, VA treatment record show that on July 23, 2013, the Veteran was seen for complaints of numbness and pain over the pretibial and dorsum area of his right foot. A September 17, 2013 VA treatment note indicates peroneal nerve palsy. Although that Veteran remained control of the foot and could dorsiflex, the dorsum and the instep of the foot were very sore. There were pins and needles sensations, and the right foot ached and hurt all the time. The Veteran also experienced right foot and leg pain that kept him awake at night. VA treatment notes dated November 19, 2013 show that the pain in the right foot brought the Veteran to tears. It bothered him every day. The Veteran was also quite frustrated and exhausted from the ongoing pain in his right leg. During a July 2014 VA examination, it was noted that the Veteran was diagnosed with right lower extremity peroneal compression neuropathy with foot drop since 2013. The Veteran reported having foot drop, and that he had tripped and fallen over a dozen times in the past year. He also reported that had nerve studies done which showed peripheral neuropathy. He conveyed that the pain to the foot and the numbness was getting progressively worse over time. He had tried narcotics, which did not help the pain. He expressed that the pain involved the foot only, mostly on top of the foot, as well as occasionally to the heel. He described “it feels like it is severely bruised.” As far as his activities of daily living (ADL’s), he reported that he had fallen in the shower and had difficulty driving due to the inability to feel the location of his foot on the accelerator or brake. His right foot drop had caused frequent falls. He was unable to go hunting or hiking. He gained 40 pounds due to his inability to exercise because of his right lower extremity disability. Upon objective examination, the examiner found severe constant pain and paresthesias and/or dysesthesias in the right lower extremity. There was reduced strength in right knee extension, right ankle plantar flexion, and right ankle dorsiflexion. Deep tendon reflexes were absent in the right ankle and hypoactive in the right knee. Upon sensory examination, there was decreased sensation for light and touch in the right thigh/knee, sensation was absent in the right lower leg ankle and the right foot/toes. There were no trophic changes. The Veteran walked with an abnormal gait due to foot drop and his right foot deviated laterally. There was severe incomplete paralysis of the anterior tibial nerve (deep peroneal) and mild incomplete paralysis of the posterior tibial nerve. The July 2014 VA examiner also noted that review of the Veteran’s medical records showed that the Veteran did not have a right lower extremity problem prior to his surgical procedure at the VA in 2012. During the November 2019 Board hearing, the Veteran testified that he had continuous pain in the right foot that did not go away and that he had drop foot, which caused him to catch things and fall. He testified that his right lower extremity hurt all the time, and that the pain woke him up in the middle of the night. He expressed that the pain limited him quite a bit, and although he used to be a hiker he could not hike anymore. He experienced severe pain with distance, even walking a block. He additionally testified that sometimes when he walked, his foot decided to go in a different direction than his head was going; and all of a sudden, he would be staggering off, usually to the right. He expressed that sometimes when he drove, he did not know if his foot was on the brake or on the accelerator because he had to feel with his leg and not his foot. He also expressed constant tingling sensation and pins and needles in the arch of his right foot. Overall, the Veteran’s testimony at the November 2019 Board hearing included pain in his foot, numbness, tingling, loss of sensation, difficulty feeling the gas or brake pedals while driving, and stumbling as a result of his right foot disability. Thus, prior to February 13, 2020, the evidence reflects paralysis of the anterior and posterior tibial nerves, sensory impairment, hypoactive reflexes, motor impairment, right foot drop, pain in his foot, numbness, tingling, loss of sensation, difficulty differentiating between the gas and brake pedals while driving, abnormal gait, stumbling, constant pain, tingling, and an inability to walk without falling due to the right lower extremity. Significantly, right foot drop had been present since 2013. When considering the relative impairment in motor function, reflexes, and sensory disturbance (38 C.F.R. § 4.120), the Board finds that the criteria for a higher 30 percent rating under DC 8523 for complete paralysis of the anterior tibial (deep peroneal) nerve is warranted. 38 C.F.R. § 4.124a. The severity of motor disturbance caused by the right foot drop is synonymous with loss of dorsal flexion of the foot which is commensurate of complete paralysis of the anterior tibial nerve, warranting a 30 percent rating. As discussed above, a separate rating for the posterior tibial nerve is not warranted and the rating under DC 8525 would not be more advantageous to the Veteran. Furthermore, after review of the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the Board finds that for the period since February 13, 2020, the lay and medical evidence demonstrates that an increased rating of 40 percent under DC 8521 is warranted in this case. In this regard, the Board notes that the February 2020 VA examiner diagnosed peripheral neuropathy with neuropraxias and right foot drop. He indicated that right foot drop had been present since June 1, 2012, and that the pain was worse since its onset in 2012. The examiner also noted current weakness and parenthesis of the right foot. Upon objective examination, there was moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the right lower extremity. There was no muscle atrophy. Deep tendon reflexes were hypoactive in the right ankle. Upon sensory examination, there was decreased sensation for light and touch in the right foot/toes. There were trophic changes as the Veteran had slightly less hair on his right lower leg. The Veteran’s gait was not normal due to right foot weakness and drop. There was moderate incomplete paralysis of right external popliteal nerve, severe incomplete paralysis of the right musculocutaneous nerve, and moderate incomplete paralysis of the right anterior tibial nerve. Therefore, since February 13, 2020, the evidence reflects paralysis of the right external popliteal, musculocutaneous, and anterior tibial nerves, as well as sensory impairment, absent and hypoactive reflexes, motor impairment, and trophic changes. When considering the relative impairment in motor function, trophic changes, and sensory disturbance (38 C.F.R. § 4.120), as well as the EMG findings, the Board finds that the criteria for a rating of 40 percent under DC 8521 for complete paralysis of the external popliteal (common peroneal) nerve is warranted. 38 C.F.R. § 4.124a. In this regard, the Veteran suffers from right foot drop with weakened adduction, absent reflexes, and numbness/anesthesia covering the entire dorsum of the right foot commensurate with the rating criteria for complete paralysis of the external popliteal nerve, and thus warranting the increased 40 percent rating. As discussed above, separate ratings for the musculocutaneous (superficial peroneal) nerve and anterior tibial nerve (deep peroneal) are not warranted and the rating under DC 8521 would be more advantageous to the Veteran than ratings under these DCs. Throughout the rating period on appeal, a rating in excess of 30 percent prior to February 13, 2020, and in excess of 40 percent thereafter, is not warranted for service-connected peroneal compression neuropathy of the right lower extremity with right foot drop, as these are the maximum ratings available under the applicable codes. The Veteran is not entitled to a higher rating under DC 8520, as sciatic neuropathy is not demonstrated. To the extent that the Veteran believes he is entitled to a higher disability rating than presently assigned, the Board notes that it has considered his assertions regarding the severity of the symptoms he has experienced as a result of the peroneal compression neuropathy of the right lower extremity with right foot drop in determining the appropriate disability evaluation. However, the Board finds that the clinical evidence of record is of the greatest probative value as to the level of impairment. In summary, the Board finds that the Veteran is entitled an initial disability rating of 30 percent, but no higher, prior to February 13, 2020, and a disability rating of 40 percent, but no higher, thereafter for his peroneal compression neuropathy of the right lower extremity with right foot drop. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.