Citation Nr: 21022593 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 19-09 543 DATE: April 16, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for left lower extremity peripheral neuropathy is denied. Entitlement to an initial rating in excess of 20 percent for right lower extremity peripheral neuropathy is denied. Entitlement to service connection for left upper extremity peripheral neuropathy is denied. Entitlement to service connection for right upper extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. The Veteran’s left lower extremity peripheral neuropathy is manifest by no more than moderate incomplete paralysis. 2. The Veteran’s right lower extremity peripheral neuropathy is manifest by no more than moderate incomplete paralysis. 3. The preponderance of the evidence of record is against finding that the Veteran has had left upper extremity peripheral neuropathy at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran has had right upper extremity peripheral neuropathy at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 2. The criteria for an initial disability rating in excess of 20 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 3. The criteria for service connection for left upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. 4. The criteria for service connection for right upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1963 to September 1967. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. In October 2019 the Board remanded this matter for additional development. It has returned to the Board for further appellate review. As a preliminary matter, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran currently has a 100 percent combined evaluation for compensation, effective November 23, 2015. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability demonstrates symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), reversed in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 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. The words “mild,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. 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. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. A claim is denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Furthermore, any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to an initial rating in excess of 20 percent for left lower extremity peripheral neuropathy is denied. 2. Entitlement to an initial rating in excess of 20 percent for right lower extremity peripheral neuropathy is denied. The Veteran’s service-connected left and right lower extremity peripheral neuropathy is rated under Diagnostic Code (DC) 8620. His left and right lower extremity peripheral neuropathy has been rated initially as 20 percent disabling. Thus, the question for the Board is whether he is entitled to an initial rating in excess of 20 percent for his left and right peripheral neuropathy of the lower extremities. DC 8620 provides that disability ratings of 10 percent, 20 percent, 40 percent, and 60 percent are assignable for incomplete paralysis, which is mild, moderate, moderately severe, or severe with marked muscular atrophy degree, respectively. A disability rating of 80 percent is assignable for complete paralysis if the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8620. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In rating peripheral nerve injuries and their residuals, the Board notes that 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. The words “mild,” “moderate,” and “severe” are not defined in the above rating criteria. 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. While the Veteran testified at the Board hearing that his lower extremity peripheral neuropathy clearly bothers him a great deal with tingling and numbness, it is important for the Veteran to understand that this is the basis for the current findings and the ratings cited above. If his lower extremity peripheral neuropathy did not cause him problems, there would be no basis for compensable ratings. The Veteran underwent two peripheral nerve examinations during the appeal period. During his first examination in June 2016, the VA examiner diagnosed the Veteran with mild diabetic peripheral neuropathy in his right and left lower extremities. During his second examination in January 2021, the VA examiner indicated that while the Veteran’s symptoms of bilateral lower extremity peripheral neuropathy of the sciatic nerve had worsened, it still resulted in incomplete paralysis that was mild in severity. Based on a comprehensive review of the record, the Board finds that the Veteran’s left and right lower extremity peripheral nerve disorder does not warrant ratings in excess of 20 percent for either lower extremity. The Veteran’s lower extremity nerve disorder has resulted in, at its worst, “mild” incomplete paralysis of the left and right lower sciatic nerves. However, the Board will not disturb the 20 percent rating previously assigned by the RO. Having considered the evidence of record, including the June 2016 and January 2021 VA examination reports, VA treatment records, and private treatment records, the Board concludes that the Veteran’s left and right lower extremity peripheral neuropathy has never resulted in “moderately severe” incomplete paralysis of the left and right lower extremity to entitle the Veteran to a 40 percent rating. Accordingly, the evidence of record does not support the assignment of a rating in excess of 20 percent for the Veteran’s service-connected left and right lower extremity peripheral neuropathy. The claims on appeal must be denied. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Service Connection 3. Entitlement to service connection for left upper extremity peripheral neuropathy is denied. 4. Entitlement to service connection for right upper extremity peripheral neuropathy is denied. The Veteran seeks service connection for right and left upper extremity peripheral neuropathy due to Agent Orange exposure in service or as secondary to his service-connected diabetes mellitus. As to the claims of service connection for left and right upper extremity peripheral neuropathy service medical records, including the July 1972 medical board examination, are negative for complaints of symptoms and/or a diagnosis of left and right upper extremity peripheral neuropathy. In fact, the July 1972 medical board examiner opined that his neurological system was normal, and this medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board finds that the detailed service treatment records, which document the Veteran’s complaints, diagnoses, or treatment for other disorders, provide highly probative evidence against the current claims. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). More importantly, the Board notes that the post-service record is negative for a diagnosis of left and right upper extremity peripheral neuropathy. Id. In this regard, the Board notes that some of the post-service treatment records noted a possible history of pain in the upper extremities and/or documented the Veteran’s claims of having peripheral neuropathy. However, none of these medical records actually diagnosed peripheral neuropathy in either upper extremity. See LeShore v. Brown, 8 Vet. App. 406 (1995); Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (holding that the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion). In fact, August 1983 and May 1984 VA examiners diagnosed the Veteran with gout and chronic intermittent musculoskeletal pains and arthritis, most probably gouty, mostly secondary to intermittent non-compliance, in response to complaints of pain in his upper extremities. No diagnosis of peripheral neuropathy of either upper extremity was given. Likewise, the Veteran underwent VA examinations in June 2016 and January 2021 and the VA examiners indicated there was no diagnosis of right or left upper extremity peripheral neuropathy. Further, while the Veteran is competent to report on the symptoms he observes, the Board finds that he is not competent to diagnose left and right upper extremity peripheral neuropathy because diagnosing it requires special medical training that he does not have and therefore he cannot provide the missing diagnosis. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board also finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because nothing in the record shows that the claimed disorders result in functional impairment that affects earning capacity. See Owens, supra. (Continued on the next page)   Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have left and right upper extremity peripheral neuropathy at any time during the pendency of the appeal despite his presumptive exposure to herbicides in the Republic of Vietnam, and service-connected diabetes mellitus and these claims are denied. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.