Citation Nr: 21021246 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 18-37 004 DATE: April 12, 2021 ORDER Entitlement to a disability rating higher than 20 percent for peripheral neuropathy of the right lower extremity for the period before July 18, 2018, is denied. Entitlement to a disability rating higher than 20 percent for peripheral neuropathy of the left lower extremity for the period before July 18, 2018, is denied. FINDINGS OF FACT 1. For the period prior to July 18, 2018, the Veteran’s right lower extremity peripheral neuropathy was characterized by moderate symptoms; a preponderance of the evidence is against a finding that moderately severe symptoms were shown. 2. For the period prior to July 18, 2018, the Veteran’s left lower extremity peripheral neuropathy was characterized by moderate symptoms; a preponderance of the evidence is against a finding that moderately severe symptoms were shown. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for peripheral neuropathy of the right lower extremity, for the period before July 18, 2018, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.124(a), diagnostic code (DC) 8520. 2. The criteria for a rating higher than 20 percent for peripheral neuropathy of the left lower extremity, for the period before July 18, 2018, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.124(a), DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1964 to April 1966. This case is before the Board of Veterans’ Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). A January 2020 Board decision denied entitlement to an increased initial rating higher than 20 percent for peripheral neuropathy of the bilateral lower extremities for the period prior to July 18, 2018. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran died in April 2020 while his appeal was pending before the Court. See Death Certificate. The Appellant, the Veteran’s surviving spouse, was substituted for the Veteran in this case. See June 2020 VA notification letter. The Appellant and the Secretary of Veterans Affairs (the Parties) filed a Joint Motion for Partial Remand (JMPR) with the Court in November 2020 and requested that the Court not disturb favorable grants in the Board’s January 2020 decision. The Court issued an order that same month granting the Parties’ JMPR. The claims are before the Board again for action consistent with the JMPR. The JMPR indicates that the Board failed to provide adequate reasons or bases. Specifically, the Board failed to adequately discuss a July 2018 VA examination report’s medical opinion wherein the examiner opined: The veteran does have a DPN and it is noted as severe effecting the lower bilateral extremities, he is on Lyrica dosing with some relief. The findings today are accurate and current. Possibly the time the Veteran was having the examination that are in conflict was when the Veteran’s Lyrica dosing was effective and the flares of intensity were reduced, needless to say, this Veteran is a SC Vietnam Veteran with a DPN dx and has a severity of DPN that causes imbalance and a guarded teatery [sic] stance and walk. The parties agreed that a remand is necessary so that the Board could provide an adequate statement of the reasons or bases addressing its findings and conclusions on all material issues of fact and law presented on the record including the July 2018 VA examination report’s medical opinion. In addition, The JMR also notes that Appellant, without opposition, submits that the Board should adequately address the use of medication for the Veteran’s bilateral peripheral neuropathy and discount any ameliorative effects of such medication pursuant to Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Appellant waived the remaining time to submit additional evidence or argument, noting that she has no additional evidence to submit, in a December 2020 Waiver. A handwritten note refers to Arguments submitted in November 2020. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Rating specialist are directed to review the recorded history of a disability to make a more accurate evaluation, but the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Where 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. By way of history, the Board notes that service connection for neuropathy of the bilateral lower extremities was granted in an April 2015 rating decision, at which time a 10 percent evaluation was assigned for each leg, effective June 4, 2014. The Veteran filed an April 2015 Notice of disagreement with the April 2015 rating decision requesting the Decision Review Officer process. The Veteran’s ratings were increased to 20 percent for each leg in a July 2018 rating decision, also effective June 4, 2014. A Statement of the Case issued the same day denied an increased rating higher than 20 percent. The Veteran filed a VA Form 9 formal appeal in July 2018. In a January 2020 decision, the Board granted entitlement to a rating of 40 percent, but no higher, for peripheral neuropathy, bilaterally, for the period from July 18, 2018. The same order denied entitlement to an increased rating higher than 20 percent, bilaterally, for the period prior to July 18, 2018. The Board’s decision was implemented in a January 2020 rating decision. The Appellant asserts that the Veteran’s bilateral peripheral neuropathy was worse than the then assigned 20 percent rating for the period prior to July 18, 2018. The Veteran’s peripheral neuropathy was rated under 38 C.F.R. § 4.124a, DC 8520 for Diseases of the sciatic nerve. Diseases of the peripheral nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia. See 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of impaired function substantially less than the type of picture for “complete paralysis” given for each nerve. Id. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. 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 to the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution to identify the nerve, is to be rated on the same scale, with maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Under DC 8520, a disability rating of 20 percent is warranted with moderate incomplete paralysis. A disability rating of 40 percent is warranted with moderately severe incomplete paralysis. A disability rating of 60 percent is warranted with severe incomplete paralysis, with marked muscular atrophy. Finally, the highest schedular rating allowable under DC 8520 is for 80 percent, which is appropriate when there is complete paralysis of the sciatic nerve. The rating criteria indicate that complete paralysis is present when the foot dangles and drops, there is no active movement possible of muscles below the knee, and where flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on 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. Post service treatment records include an April 2018 VA podiatry consult record that noted the Veteran was seen in consult from primary care provider for neuropathy, but a review of the chart showed no work up. The record also noted the Veteran’s desire to obtain diabetic shoes. The Veteran reported seeing a podiatrist for yearly examination but indicated that no special care was rendered and there was no prescription for feet. The Veteran denied numbness to feet, indicating they just burn and tingle at times. On examination, the Veteran’s skin was dry tone with no scaling or redness noted. Assessment for protective sensation with a 10-gram monofilament was noted intact bilaterally. However, the provider did note an assessment of altered sensations. A March 2018 VA primary care record noted the Veteran has painful neuropathy and he is followed by a private neurologist. A skin examination revealed no rashes, pruritis or lesions. A neurologic examination was positive for numbness in feet, and gait disturbances. Prescription medication was noted, and follow-up was recommended. A separate March 2018 VA nursing record noted the Veteran was complaining about pain, described as tingling, and rated at 5, in his bilateral legs and feet for the past two years. A fall risk screen noted the Veteran had not fallen within the past 12 months. A primary skin evaluation noted no pressure injuries or non-healing wounds and the Veteran denied being confined to bed, used a wheelchair, or require assistance to transfer or change position. Private post service private treatment records include a December 2017 progress record that noted the Veteran has diabetes mellitus, type 2 with secondary peripheral neuropathy. A January 2017 progress record noted the Veteran has diabetes mellitus, type 2 with mild peripheral neuropathy. That same record also notes the Veteran is prescribed medication which helps his symptoms. An August 2015 follow-up record noted the Veteran was afforded a foot examination that showed known neuropathy. A March 2015 record that noted the Veteran was diagnosed with diabetes mellitus type 2 approximately four years before, and approximately two years ago he started having symptoms including numbness and tingling with pain in the bilateral lower extremities. The Veteran reported pain and numbness to the mid-thigh. Sensation testing showed sensory loss to light touch, to both knees, with pain noted. Vibration sense is severely reduced in the distal lower extremities, bilaterally. The record goes on to note in the Impressions and plan section, that the Veteran has peripheral neuropathy, suspected diabetic peripheral neuropathy. A trial of prescription medication was recommended, and a three-month follow-up was planned. A February 2015 progress record noted the Veteran has diabetes mellitus, type 2 with neuropathy; he is having difficulty walking and has numbness and tingling in his legs. The same record noted that the Veteran remains vigorous and active and still runs his own business, however, he is limited in his physical activity by his neuropathy and claudication / pseudoclaudication. A January 2015 progress record noted the Veteran complained about neuropathy in his feet and has noticed increased difficulty walking. The Veteran reported being able to walk approximately one block before stopping because of pain in his feet and numbness and tingling in his lower legs. Neurological examination revealed the Veteran was alert and oriented, 4/5 strength on left knee flexion and extension, 5/5 strength right knee extension/flexion, ankle plantar flexion/dorsiflexion. Deep tendon reflexes were decreased (1+) at knee and ankle bilaterally. Monofilament/light touch testing showed decreased sensation in the feet/toes and ankle/lower leg bilaterally. No muscle atrophy noted. Skin examination noted numerous varicosities and trace pitting edema in the right lower leg. Some trophic changes with loss of hair and smooth shiny skin on bilateral lower extremities were noted. The claims file includes a March 2015 VA diabetes mellitus examination wherein the examiner confirmed the Veteran has complications of diabetes mellitus including diabetic peripheral neuropathy. The same examiner confirmed a diagnosis of diabetic peripheral neuropathy in the bilateral lower extremities in a March 2015 VA diabetic sensory-motor peripheral neuropathy examination. Symptoms included mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the right and left lower extremities. Strength testing in knee extension and flexion, and ankle plantar flexion and dorsiflexion was noted at 5/5, bilaterally. Deep tendon reflexes in knee and ankle were noted normal bilaterally. Light touch/monofilament testing was noted normal in the ankle/lower leg, bilaterally, and decreased in the foot/toes bilaterally. No vibration testing done. No muscle atrophy noted. Tropic changes to include smooth hairless skin on the dorsal surface of the feet was noted bilaterally. Diabetic peripheral neuropathy was noted with sciatic and femoral nerve indicated as normal. In the concluding remarks, the examiner noted it is not reasonable to identify the specific nerve involved as the Veteran’s symptoms are due to generalized sensory loss of small unmyelinated fibers distal in the lower extremities. The Veteran has mild sensory impairment with no functional loss. A December 2017 deferred rating requested a new examination after the receipt of identified private medical records. The examiner was requested to address conflicting medical evidence between the March 2015 VA examination that showed only subjective complaints of diabetic neuropathy and private medical evidence received in April 2015 that showed objective signs of sensory loss, reduced reflexes, and interference with gait. The examiner was asked to provide clinical testing results and resolve conflicting medical evidence as to the current severity of bilateral lower extremity neuropathy symptoms. The Veteran was subsequently afforded a July 2018 VA diabetic sensory-motor peripheral neuropathy examination. The examiner noted symptoms included severe constant pain, intermittent pain, mild paresthesias and/or dysesthesias, and numbness in both lower extremities. Strength testing in knee extension and flexion, and ankle plantar flexion and dorsiflexion was noted at 5/5, bilaterally. Deep tendon reflexes in knee and ankle were noted normal bilaterally. Light touch / monofilament testing was noted decreased in the ankle/lower leg, bilaterally, and absent in the foot/toes bilaterally. Vibration and cold sensation testing noted decreased in both lower extremities. No muscle atrophy noted. Tropic changes to include no hair growth on legs and feet was noted bilaterally. Diabetic peripheral neuropathy was noted with sciatic and femoral nerve indicated as normal. The Veteran’s diabetic peripheral neuropathy does not impact his ability to work. In the remarks section, the examiner notes that the Veteran retired normally and uses a golf cart to golf. The identification of nerves would include but not be limited to the peroneal, common peroneal and sural nerves. Incomplete paralysis (serve). No functional loss, the Veteran can walk and stand, the Veteran does have imbalance not no falls noted, and he does not use a cane. The attached medical opinion is identified above as the basis for the JMPR. The examiner noted all clinical findings for the Veteran’s diabetic peripheral neuropathy were contained within the examination report. As noted above, the examiner opined that the Veteran does have diabetic peripheral neuropathy and it is noted as severe, effecting the lower bilateral extremities. The examiner noted he is taking prescribed medication with some relief. Today’s findings are accurate and current. Possibly the time the Veteran was having the examination that are in conflict was when the Veterans medication was effective, and the flares of intensity were reduced. Nevertheless, the Veteran is a service-connected Vietnam Veteran with a diagnosis of diabetic peripheral neuropathy with a severity that causes imbalance and a guarded teatery [sic] stance and walk. The Board notes that the July 2018 examination report notes that the most recent diabetic peripheral neuropathy examination was in 2015, and this examination, three years later, shows increased severity in the symptoms and clinical findings. The Board agrees that the examination revealed the Veteran’s symptoms had worsened since the last examination. The Board also notes that the attached medical opinion provided no specific examples of incorrect clinical testing results cited to support the general conclusion that the Veteran’s bilateral lower extremity peripheral neuropathy was incorrectly assessed in the March 2015 VA examination. The medical opinion also failed to identify any private treatment records revealing an increased severity of symptomology prior to the examination. In addition, the Board notes the only noted resolution for conflicting evidence provided by the VA examiner, is the possibility that the Veteran’s prescription medication was more effective on the day of the March 2015 VA examination. The Board has considered the Appellant’s lay statements and arguments including her November 2020 Appellate Brief, wherein she asserted that the July 2018 medical opinion clearly shows the Veteran’s bilateral peripheral neuropathy was also severe in March 2015. The Board notes that the Appellate is competent to report those things for which she has direct knowledge, including any difficulty the Veteran experienced while they walked and the frequency that the Veteran reported pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). However, the she lacks the medical training and credentials to accurately ascertain the level of disability present during the March 2015 examination. On balance, the competent evidence that is of record on that issue reveals that the Veteran complained about foot and leg pain, bilaterally, which he described as numbness and tingling. Nonetheless, the Veteran’s private treatment records are negative for any indication that the Veteran’s bilateral lower extremity peripheral neuropathy was severe in nature. In fact, a thorough review of the private treatment records reveals that the Veteran often complained about foot pain and leg numbness, he only complained once about severe, constant pain in feet, numbness in his lower legs in January 2015. The Board recognizes that the rating criteria for assessing the severity of peripheral nerve diseases, including the sciatic nerve, do not specifically contemplate the use of medication to ameliorate symptoms and that the Veteran has reported the use of medication to treat his symptoms throughout the appeal. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Nevertheless, the Board finds that, even when considering the symptoms the Veteran may experience when not aided by the ameliorative effect of medication, a higher rating is not warranted, as there is no probative evidence indicating that, absent medication, the Veteran would experience considerable or severe sciatic nerve impairment. Based on the evidence noted above, the Board finds the appropriate rating for the Veteran’s bilateral lower extremity peripheral neuropathy or the period prior to July 18, 2018, is the assigned 20 percent rating, as there is no competent evidence of the disability being more than mild in degree during this period. As the preponderance of the evidence is against the claims for higher ratings, the doctrine of reasonable doubt is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. The claims are accordingly denied. K. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.