Citation Nr: 21022026 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-19 954 DATE: April 14, 2021 ORDER A disability rating greater than 10 percent disabling prior to November 5, 2014 for right lower extremity diabetic peripheral neuropathy of the sciatic nerve is denied. A disability rating greater than 10 percent disabling prior to November 5, 2014 for left lower extremity diabetic peripheral neuropathy of the sciatic nerve is denied. FINDINGS OF FACT 1. Prior to November 5, 2014, the Veteran’s right lower extremity diabetic peripheral neuropathy manifested as mild incomplete paralysis of the sciatic nerve. 2. Prior to November 5, 2014, the Veteran’s left lower extremity diabetic peripheral neuropathy manifested as mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to November 5, 2014, the criteria for a disability rating greater than 10 percent for right lower extremity diabetic peripheral neuropathy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.124a, Diagnostic Codes (DCs) 8520, 8521, 8525. 2. Prior to November 5, 2014, the criteria for a disability rating greater than 10 percent for left lower extremity diabetic peripheral neuropathy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.120, 4.124a, DCs 8520, 8521, 8525. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1970.  These matters come before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York which, in part, continued separate 10 percent disability ratings for diabetic peripheral neuropathy of each lower extremity. The Veteran disagreed with this decision and perfected this appeal. In December 2018, the Board, increased the Veteran’s separate disability ratings for diabetic peripheral neuropathy of each lower extremity from 10 to 40 percent disabling effective November 5, 2014, the date of a VA peripheral nerve examination report showing an increase in severity and denied ratings higher than 10 percent prior to November 5, 2014. These awards were effectuated in a December 2018 rating decision. The Veteran appealed the Board’s December 2018 decision pertaining to the period of time prior to November 5, 2014 to the United States Court of Appeals for Veteran’s Claims (Court).  In a June 2020 memorandum decision, the Court found that the December 2018 Board decision failed to provide an adequate statement of reasons or bases for finding that separate disability ratings greater than 10 percent were not warranted prior to November 5, 2014 for the Veteran’s diabetic peripheral neuropathy of each lower extremity and vacated this portion of the decision. Significantly, the decision which increased the Veteran’s separate disability ratings for diabetic peripheral neuropathy of each lower extremity from 10 to 40 percent disabling effective November 5, 2014 was not disturbed. Legal Criteria Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran’s service-connected bilateral lower extremity diabetic peripheral neuropathy is currently rated pursuant 38 C.F.R. § 4.124a, DC 8520 (pertaining to paralysis of the sciatic nerve). Under DC 8520 a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. A maximum rating of 80 percent is warranted for complete paralysis, where the foot dangles and drops, with no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. Also pertinent to the Veteran’s disability are DC 8521 (pertaining to paralysis of the external popliteal, or common peroneal, nerve) and DC 8525 (pertaining to paralysis of the posterior tibial nerve). Under DC 8521, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 30 percent rating is warranted for severe incomplete paralysis. A maximum 40 percent rating is warranted for complete paralysis, where the foot drops and there is slight drop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes is lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. Under DC 8525, a 10 percent rating is warranted for mild and moderate incomplete paralysis. A 20 percent rating is warranted for severe incomplete paralysis. A maximum 30 percent rating is warranted for complete paralysis, with paralysis of all muscles of sole of foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired. The term “incomplete paralysis” with peripheral nerve injuries such as this indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124 (a). The terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the regulations. Rather than applying a mechanical formula, the Board 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 such terms by VA examiners and others is evidence to be considered by the Board, it is not dispositive of the issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Factual Background By way of history, the Veteran submitted an initial claim for service connection for diabetes with associated neuropathy in June 2006. In connection with this claim, he was afforded a VA diabetes examination in January 2007. At that time, the Veteran reported that he had been diagnosed with diabetes in August 1997 and was experiencing symptoms of peripheral neuropathy related to his diabetes. As such, an electromyography (EMG) was ordered which showed mild sensory prolongation and decreased amplitude with mild motor slowing in the legs. These findings were noted to be consistent with a “mild” peripheral neuropathy involving mainly sensory fibers but motor as well. There was evidence of both demyelination as well as axonal loss. By rating decision dated in March 2007, the RO granted service connection for diabetes mellitus type II, with early diabetic nephropathy associated with herbicide exposure, assigning a 20 percent disability rating effective June 23, 2006. The RO also granted service connection for diabetic peripheral neuropathy of the bilateral lower extremities, assigning separate 10 percent disability ratings effective June 23, 2006 pursuant to DC 8521. In January 2012, the Veteran requested an increased for his service-connected diabetic peripheral neuropathy. As above, by rating decision dated in February 2013, the RO continued separate 10 percent disability ratings for diabetic peripheral neuropathy of each lower extremity. The Veteran disagreed with this decision and perfected this appeal. Subsequently, in December 2018, the Board found that DC 8520 was the most appropriate diagnostic code to use for the disability at issue and increased the Veteran’s separate disability ratings for diabetic peripheral neuropathy of each lower extremity from 10 to 40 percent disabling effective November 5, 2014, the date of a VA peripheral nerve examination report showing an increase in severity and denied ratings higher than 10 percent prior to November 5, 2014. In a June 2020 memorandum decision, the Court found that the December 2018 Board decision failed to provide an adequate statement of reasons or bases for finding that separate disability ratings greater than 10 percent were not warranted prior to November 5, 2014 for the Veteran’s diabetic peripheral neuropathy of each lower extremity and vacated this portion of the decision. Analysis Evidence relevant to the level of severity of the Veteran’s bilateral lower extremity diabetic peripheral neuropathy during the appeal period beginning January 2012 and prior to November 5, 2014 includes a July 2012 VA peripheral nerves examination. At that time, the Veteran reported that he felt like he was standing on hot sand, experienced feet numbness, and had to concentrate in order to stay balanced on his feet. Upon physical examination, the examiner noted bilateral moderate paresthesia and/or dysesthesias for the lower extremities, and bilateral mild numbness for the lower extremities. The Veteran had normal strength and mostly normal deep tendon reflexes with the exception of the ankles, which were only slightly abnormal, described as decreased. Light touch/monofilament was also normal for the knees but decreased for the ankles, feet, and toes. Position sense was normal but vibration sensation was decreased for the bilateral lower extremities. There was no muscle atrophy and there were no trophic changes. In conclusion, the examiner found that the Veteran suffered from bilateral lower extremity “mild” incomplete paralysis of the sciatic nerve. No paralysis was noted for the peroneal or tibial nerves nor was any muscle atrophy noted. Also of record are VA and private treatment records dated during the appeal period. Significantly, private treatment records dated from January 2012 through July 2104 show a normal gait. Based on the foregoing evidence of record the Board finds that, prior to November 5, 2014, the Veteran did not meet the criteria for disability ratings higher than 10 percent for diabetic peripheral neuropathy for either lower extremity. As above, in order to meet the criteria for the next higher rating of 20 percent rating under DC 8520, there must be evidence of moderate incomplete paralysis. Significantly, the June 2020 memorandum decision found that the December 2018 Board decision denying disability ratings higher than 10 percent prior to November 5, 2014 insufficiently explained how it applied the rating schedule to the Veteran’s neurological symptoms as presented before November 2014. Although it did discuss the pertinent evidence of record, it concluded that the Veteran’s condition was, at most, mild, based solely on the July 2012 VA examiner’s categorization of the Veteran’s condition as “mild,” without providing a standard by which it applied the term. See Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) (“The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.”). In Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018), the Court noted that “Diagnostic Code 8520 does not define ‘mild,’ ‘moderate,’ ‘moderately severe,’ or ‘severe,’ or generally associate those terms with specific symptoms.” One possible source for such definitions would be the dictionary. Webster’s II New College Dictionary defines “mild,” as relevant here, as “not severe.” Id. at 694 (1995). A synonym for “mild” is “slight,” and definitions for “slight” includes “small in size, degree, or amount.” Id. at 1038. The definitions for “moderate” include “of average or medium quantity, quality, or extent.” Id. at 704. Finally, definitions for “severe” include “extremely intense.” Id. at 1012. It is also noted that the term “moderately severe” includes impairment that is considered more than “moderate” but not to the extent as to be considered “severe.” Prior to November 5, 2014, there was no indication in the record that the Veteran suffered from moderate incomplete paralysis, indicative of a higher 20 percent rating under DC 8520. Indeed, while the July 2012 VA examiner noted that the Veteran experienced “moderate” paresthesias and/or dysesthesias as well as “mild” numbness, the examiner ultimately characterized the overall severity of the Veteran’s bilateral peripheral neuropathy as “mild.” Furthermore, while there was decreased light touch/monofilament noted in the Veteran’s bilateral ankles, feet, and toes, his strength was normal and he had mostly normal deep tendon reflexes with the exception of the ankles, which were only slightly abnormal, described as decreased. Also, while vibration sensation was decreased for the bilateral lower extremities, position sense was normal, there was no muscle atrophy, and there were no trophic changes. Moreover, prior to November 5, 2014, the Veteran demonstrated a normal gait. Thus, the Board finds that, in comparing the medical evidence to the standard definition of the words mild, moderate, and severe, the level of impairment is most analogous to mild incomplete paralysis. At no point during the period on appeal is there evidence demonstrating that the foot dangles and drops, with no active movement possible of muscles below the knee, or flexion of the knee weakened or (very rarely) lost, such as contemplated by the higher levels of severity under DC 8520. As for the potential for a higher rating under any other diagnostic code prior to November 5, 2014, the Board notes that the application of DCs 8521 and 8525 are not appropriate in the present matter. Significantly, the evidence of record is silent for any indication that the Veteran suffered from peripheral neuropathy involving the peroneal or posterior tibial nerves. As such, the application of DC 8520, for the sciatic nerve, is the most appropriate. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.