Citation Nr: 21022615 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 19-27 242 DATE: April 16, 2021 ORDER For the period prior to August 21, 2019, entitlement to ratings in excess of 20 percent for right and left lower extremity peripheral neuropathy is denied. Entitlement to a rating in excess of 60 percent for the period prior to June 10, 2019 and a rating in excess of 80 percent for the period from June 10, 2019, onward, for nephrosclerosis with hypertension is denied. FINDINGS OF FACT 1. For the period prior to August 21, 2019, the Veteran’s right and left lower extremity peripheral neuropathy did not manifest in moderately severe paralysis or marked muscular atrophy, dangling and dropping of the foot, no active movement possible of muscles below the knee, or weakened or lost flexion of the knee. 2. For the period prior to June 10, 2019, the preponderance of the evidence is against finding that the Veteran’s nephrosclerosis with hypertension manifested in persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80mg%; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 3. For the period from June 10, 2019, the preponderance of the evidence is against finding that the Veteran’s nephrosclerosis with hypertension required regular dialysis or precluded more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems. CONCLUSIONS OF LAW 1. For the period prior to August 21, 2019, the criteria for entitlement to ratings in excess of 20 percent for right and left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code (DC) 8520. 2. For the period prior to June 10, 2019, the criteria for entitlement to a rating in excess of 60 percent for nephrosclerosis with hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.21, 4.115a, 4.115b, DCs 7507 and 7541. 3. For the period from June 10, 2019, onward, the criteria for entitlement to a rating in excess of 80 percent for nephrosclerosis with hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.21, 4.115a, 4.115b, DC 7507. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1960 to November 1964 and October 1966 to May 1970. He served honorably in the U.S. Air Force, including service in the Philippines and the Republic of Vietnam during the Vietnam era. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in November 2019. A transcript of the hearing is of record. The claims were previously before the Board in January 2020, when the Board remanded the issue of an increased rating for nephrosclerosis for additional development and granted ratings of 20 percent, but no higher, for left and right lower extremity neuropathy for the period prior to August 21, 2019. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a November 2020 Order, granting an October 2020 Joint Motion for Partial Remand (Joint Motion), the Court vacated and remanded the January 2020 Board decision only to the extent it denied a rating in excess of 20 percent for the period prior to August 21, 2019 for bilateral lower extremity peripheral neuropathy consistent with the terms of the Joint Motion. That issue has now returned to the Board for further appellate review and readjudication consistent with the terms of the Joint Motion. The issue of an increased rating for nephrosclerosis has also returned to the Board for further appellate review. Increased Rating Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran’s entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, as in this case, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The current claim for increase was filed in May 2018, and the Board will look at the evidence within the year prior to that filing to determine whether an increase occurred within that time frame. The Board has reviewed all of the evidence in the Veteran’s record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board’s analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000). 1. For the period prior to August 21, 2019, entitlement to ratings in excess of 20 percent for right and left lower extremity peripheral neuropathy is denied. The Board finds that, prior to August 21, 2019, ratings in excess of 20 percent for right and left lower extremity peripheral neuropathy are not warranted. The Veteran’s right and left lower extremity sciatic nerve peripheral neuropathy is currently rated under DC 8520. Under DC 8520, 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 schedular 80 percent rating is warranted for complete paralysis of the sciatic nerve: 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 8520. The terms “mild,” “moderate,” and “severe” under applicable diagnostic codes are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Moderate is generally defined as tending toward the mean or average amount. Merriam-Webster’s Collegiate Dictionary at 798 (11th ed. 2003). Severe is generally defined as of a great degree or serious. Id. at 1140. Moderately severe is not a precisely defined term because moderately, as an adverb, modifies severe. Thus, the Board finds that moderately severe indicates an injury that is more than moderate but less than severe, although it may encompass symptoms associated with either a moderate or severe injury. The term “incomplete paralysis,” with these and other peripheral nerve injuries, 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. See “note” at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124a. In this case, in a September 2017 private note, the Veteran reported a little tingling on the bottom of the feet. It was noted that he had previously reported a little numbness of the toes. In an August 2018 VA examination report, the examiner noted that the Veteran had severe bilateral constant and intermittent pain and moderate bilateral paresthesias/dysesthesias and numbness. The examiner noted normal muscle strength, including knee flexion and ankle plantar flexion and dorsiflexion; decreased deep tendon reflexes in the ankle; decreased light touch/monofilament testing in the foot and toes; decreased bilateral position sense; and absent vibration and cold sensations bilaterally. The examiner noted mild trophic changes bilaterally. The examiner affirmatively indicated that he does not have muscle atrophy. The examiner characterized his disorder as mild bilateral incomplete paralysis and concluded that it had no functional impact. In an August 2018 podiatry note, the Veteran complained of burning, pins and needles, and/or numbness to the feet. He reported tingling in both feet and the feeling of having a pebble in his shoe. In a December 2018 VA examination report, the examiner noted that the Veteran had severe constant pain, intermittent pain, paresthesias/dysesthesias, and numbness. The examiner noted normal muscle strength, including knee flexion and ankle plantar flexion and dorsiflexion; decreased deep tendon reflexes in the ankle; and decreased light touch/monofilament testing in the foot and toes. The examiner affirmatively indicated that he does not have muscle atrophy. The examiner characterized his disorder as mild bilateral incomplete paralysis and concluded that it had no functional impact. In a February 2019 primary care note, the Veteran’s primary care physician noted that he was there for a follow-up. There are no notations of complaints related to peripheral neuropathy and no new manifestations were noted on physical examination or in the provider’s assessment. A March 2019 podiatry note again recorded his complaints of burning, pins and needles, and/or numbness to the feet with tingling and a feeling of having a pebble in his shoe. The podiatrist noted that he had a history of diabetes and foot pain and that there were no new problems since his last visit. In a June 2019 note, the primary care provider noted his complaints of cramping and tingling in his feet that worsen at night. In a mental health note from the same day, in relaying his concerns regarding his diabetes, he reported cramping in his feet causing intermittent and significant pain. The treating psychiatrist noted that duloxetine would be started to “target mood and neuropathic pain.” A July 2019 podiatry note noted his history of diabetes and foot pain and that there were no new problems since the last visit. In a July 2019 primary care note, his primary care physician noted that he was there for a follow-up, that he was receiving care from podiatry and happy with his custom-made shoes and inserts, and that he was receiving care from the mental health clinic for anxiety. There are no notations of complaints related to peripheral neuropathy and no new manifestations were noted on physical examination. In the assessment and plan, the primary care provider noted that diabetes mellitus was “trending up” but did not indicate any increase in severity in peripheral neuropathy. In a note dated August 21, 2019, the Veteran’s primary care physician noted that he has severe neuropathy in both lower extremities. The physician noted that he gets off balance at times. The physician noted that he was had been prescribed duloxetine by the mental health clinic. In the assessment and plan, the provider noted that he was already on duloxetine from the mental health clinic and that the provider would add on gabapentin. The active outpatient medications list indicated that gabapentin was pending. In a letter from later that month, the primary care physician again characterized his bilateral lower extremity neuropathy as severe with a pins and needle sensation of both lower extremities for which he is prescribed duloxetine and gabapentin. The physician also stated that he gets off balance and stumbles at times, that activities like prolonged standing and walking are limited, and that he was advised of fall precautions as medications prescribed for his disorder have sedating effects. In July 2017, August 2018, and August 2019 treatment notes, the Veteran denied a history of falls within the past 12 months. During the period on appeal there are no notations of abnormal gait. Prior to August 21, 2019, the Veteran reported no more than moderate symptoms which were primarily or wholly sensory: pain and cramping, tingling, numbness, pins and needles, and the feeling of having a pebble in his shoe. While decreased deep tendon reflexes in the ankle were noted on examination, the preponderance of the evidence is against a finding that moderately severe or severe functional impairment was more nearly approximated. There is no evidence of functional impairment related to decreased deep tendon reflexes. Normal muscle strength was noted on examination and there is no evidence of muscle atrophy. Normal ankle flexion and dorsiflexion and normal knee flexion were also noted on examination. Further, the Veteran was consistently noted to have a normal gait and denied a history of falls. The Board observes that in August 2019 the Veteran’s primary care physician characterized his neuropathy as severe and noted that he gets off balance and stumbles “at times” and that activities like prolonged standing and walking are limited, suggesting that manifestations of motor involvement affecting functionality may have predated the August 21, 2019 note. However, there is no medical or lay evidence establishing a date prior to August 21, 2019 when these limitations manifested. VA examinations showed the Veteran to have no more than moderate symptoms, including normal muscle strength, no muscle atrophy, and normal knee flexion and ankle flexion and dorsiflexion. Neither examiner noted any functional impact. For the period from the January 2019 VA examination to August 21, 2019, the Veteran received regular treatment and repeatedly relayed sensory symptoms of the disability to various treatment providers including his primary care provider, a podiatrist, and a psychiatrist; however, he did not report manifestations of moderately severe or severe impairment. In July 2019 his mental health provider prescribed duloxetine to treat his mood and “neuropathic pain” (emphasis added); his primary care provider did not prescribe gabapentin until his August 21, 2019 visit in which he reported stumbling at times. Accordingly, the preponderance of the evidence is against finding that prior to August 21, 2019, moderately severe or severe manifestations were shown, in conjunction with the moderate symptoms, including sensory involvement. The preponderance of the evidence is against a finding that the symptoms were of such severity, frequency, and duration to warrant a higher rating. The Board therefore finds that, prior to that date, a rating in excess of 20 percent for either extremity is not warranted. The Board has considered the doctrine of reasonable doubt finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. For the period prior to June 10, 2019, entitlement to a rating in excess of 60 percent for nephrosclerosis with hypertension is denied. For the period from June 10, 2019, onward, entitlement to a rating in excess of 80 percent for nephrosclerosis with hypertension is denied. The Veteran, through his representative, contends that a 100 percent rating for nephrosclerosis is warranted. The Board finds that ratings in excess of 60 percent prior to June 10, 2019, and in excess of 80 percent from June 10, 2019, onward, are not warranted for this disability. During the period on appeal, nephrosclerosis with hypertension was rated 60 percent disabling under DC 7541 prior to September 10, 2018; 60 percent disabling under DC 7507 from September 10, 2018 through June 9, 2019; and 80 percent disabling under DC 7507 from June 10, 2019, onward. Under 7541, the disability is to be rated as renal dysfunction. 38 C.F.R. § 4.115b, DC 7541. Under DC 7507, the disability is to be rated according to predominant symptoms as renal dysfunction, hypertension, or heart disease. 38 C.F.R. § 4.115b, DC 7507. The rating for renal dysfunction is found at 38 C.F.R. § 4.115a. A 100 percent rating is warranted for dysfunction requiring regular dialysis or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80mg%; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 38 C.F.R. § 4.115a. The Board observes that for the period on appeal the Veteran’s rating is the same or higher than the 60 percent maximum rating available under DC 7101 for hypertension. Further, there is no evidence of the disability manifesting in symptoms of heart disease. In August 2018 and November 2020 VA nephrology examination reports, the examiner concluded that the Veteran had hypertension and/or heart disease due to the renal disability and, instructed to complete a hypertension or heart disease questionnaire, as appropriate, completed only the hypertension questionnaires (in a January 2019 VA examination report, the examiner indicated that the Veteran did not have hypertension and/or heart disease due to the disability but also completed only a hypertension questionnaire). Accordingly, the Board will rate the Veteran’s disability as renal dysfunction. In a July 2017 note, the Veteran reported that he was diet and exercise compliant. In a September 2017 private treatment note, BUN and creatinine levels of 22 and 1.32, respectively, were noted. A January 2018 note relayed that the Veteran had been counseled on the importance of regular exercise and/or physical activity and that, while his ability to exercise was limited, he was encouraged to increase physical activity as much as possible. In a July 2018 VA nephrology examination report, the examiner noted that the Veteran did not require regular dialysis for the disability. The examiner noted reduced renal function as a symptom of renal dysfunction and indicated by omission that he did not have recurring, constant, or persistent proteinuria (albuminuria); some, transient, slight, or persistent edema; weight loss, generalized poor health, lethargy, weakness, or limitation of exertion due to renal dysfunction; the ability to perform only sedentary activity due to persistent edema; or markedly decreased function of other organ systems caused by renal dysfunction. Normal BUN of 24 mg/dL and high creatinine level of 1.39 mg/dL were noted. Urinalysis showed a trace amount of proteinuria. The examiner concluded that the disability did not impact his ability to work and noted that no signs of malaise were present. In a January 2019 VA examination report, the examiner noted that the Veteran did not require regular dialysis for the disability. The examiner indicated by omission that he did not have recurring, constant, or persistent proteinuria (albuminuria); some, transient, slight, or persistent edema; weight loss, generalized poor health, lethargy, weakness, or limitation of exertion due to renal dysfunction; the ability to perform only sedentary activity due to persistent edema; or markedly decreased function of other organ systems caused by renal dysfunction. Normal BUN of 24 mg/dL and high creatinine level of 1.75 mg/dL were noted. The examiner indicated that there were no other significant diagnostic test findings or results. The examiner concluded that the disability did not impact his ability to work and noted that no signs of malaise were present. A January 2019 primary care note lists laboratory results containing BUN and creatinine levels, respectively: 20 and 1.46 in January 2019, 19 and 1.38 in October 2018, 24 and 1.59 in July 2018, and 19 and 1.40 in April 2018. In a February 2019 note, the Veteran reported taking care of shopping needs independently; planning, preparing, and serving adequate meals; maintaining the house alone or with occasional assistance; doing personal laundry completely; and driving or traveling independently on public transit. In a June 10, 2019 note, the Veteran’s primary care provider noted that he reported feeling depressed and did not have the energy or motivation to do anything and that his wife reported that she had noticed a change in his attitude. The provider referred the Veteran to the mental health clinic. In a mental health initial evaluation note from that same day, he reported his concern about increasing feelings of depression and a lack of motivation. He reported that his wife had been telling him more often than not that his attitude was not good, that he did not feel like doing anything for recreation, and that he had decreased motivation to work out and no longer walked. In a patient health questionnaire, he endorsed having little interest or pleasure; feeling down, depressed, or hopeless; and being tired and having low energy more than half the days. The provider concluded that he had mild depressive symptoms. An August 2019 primary care note notes BUN and creatinine levels, respectively, of 31 and 1.67 in July 2019 and 23 and 1.95 in June 2019. In a November 2019 primary care note, the Veteran reported that he was adhering to his diet but not exercise. The provider noted BUN and creatinine levels, respectively, of 27 mg/dL and 1.49 mg/dL in November 2019 and 33 and 1.64 in August 2019 and included in the plan that he should continue diet and exercise. In a February 2020 primary care note, the provider again included in the plan that he should continue diet and exercise. In a patient health summary generated in October 2019, edema of the arms and legs, noted in March 2015, was included in an active problems list. Otherwise, throughout the period on appeal, providers consistently noted that the Veteran did not have edema. At the November 2019 hearing the Veteran’s spouse testified that he has fatigue, weakness, anorexia, weight loss, and limitation of exertion. In a March 2020 VA mental disorders examination report, the Veteran reported feeling “down and out” sometimes and “picked on” at times. He stated that he felt like he was being left alone and not respected as he ought to be for 15 to 20 years. The examiner noted a diagnosis of mood disorder due to diabetes mellitus and indicated that depressed mood, chronic sleep impairment, and disturbances of motivation and mood were symptoms of the diagnosis. In a November 2020 VA nephrology examination report, the Veteran complained of generalized malaise and fatigue as well as generalized weakness, stating, “I do not have the strength sometimes like I should.” The examiner noted that the Veteran did not require regular dialysis for the disability. The examiner noted persistent proteinuria (albuminuria), anorexia, generalized poor health, lethargy, weakness, and limitation of exertion as symptoms of renal dysfunction and indicated by omission that he did not have some, transient, slight, or persistent edema. The examiner additionally indicated by omission that he was not able to perform only sedentary activity and did not have markedly decreased function of other organ systems due to renal dysfunction. Normal BUN of 20 mg/dL, a high creatinine level of 1.39 mg/dL, and a trace amount of proteinuria were noted. The examiner concluded that the Veteran had functional limitations related to fatigue which cause generalized malaise and tiredness, impairing the ability to concentrate, focus, and complete manual tasks in an occupational setting. In an accompanying November 2020 opinion, the examiner concluded that the Veteran’s disability manifested in generalized poor health as his complaints of general malaise, weakness, and fatigue were consistent with his service-connected disability. In an assessment of current severity of the disability, the examiner noted that he had Stage 3b chronic kidney disease (severe) and that his hypertension was poorly controlled based on a recent estimated glomerular filtration rate and blood pressure readings taken during the examination. While the examiner stated that a prior mental health evaluation had not been provided for the examination, the Board finds that there is no prejudice to the Veteran as the examiner was remarking as to which current symptoms (emphasis added) could be attributed to the Veteran’s psychiatric disorder, as opposed to generalized poor health, and the Veteran already carries an 80 percent rating for this period. For the period prior to June 10, 2019, the Veteran’s weight decreased from 201 in January 2018 to 197 in April 2018 and 195 in August 2018 and from August 2018 increased to 202 in February 2019. In a February 2019 note, the Veteran noted no significant weight change. For the period prior to June 10, 2019, the highest noted levels of BUN and creatinine were, respectively, 31 and 1.75 mg/dL. In both the August 2018 and January 2019 VA examination reports, the examiner indicated that the Veteran did not have persistent albuminuria or edema or weight loss, generalized poor health, lethargy, weakness, or limitation of exertion due to renal dysfunction. Further, the examiner concluded that no signs of malaise were present. The earliest indication of generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion was in the June 10, 2019 notes in which the Veteran reported lack of energy and motivation and endorsed having little interest or pleasure; feeling down, depressed, or hopeless; and being tired and having low energy. There is no medical or lay evidence establishing a date prior to June 10, 2019 when generalized poor health due to renal dysfunction manifested. The Board acknowledges the Veteran’s report of feeling “down and out” and “picked on” for 15 to 20 years. However, the evidence is against finding that his report demonstrates generalized poor health prior to June 10, 2019. He did not characterize his feeling “down and out” as lethargy, weakness, loss of appetite, or limitation of exertion but clarified that he felt like he was being left alone and not respected as he ought to be; further, following an in-person examination and review of the Veteran’s claims file, the March 2020 examiner indicated that depressed mood and disturbances of motivation and mood were manifestations of his mood disorder. Moreover, as noted above, both the August 2018 and January 2019 examiners concluded that there was no generalized weakness due to renal dysfunction and no signs of malaise present; the Board finds these conclusions to be of great probative value as they were based on in-person examination of the Veteran. The Board therefore finds that, prior to June 10, 2019, a rating in excess of 60 percent is not warranted. During the period on appeal, there are no notations of treatment by dialysis and the August 2018, January 2019, and November 2020 examiners all noted that he was not receiving regular dialysis. Further, during the period on appeal, the Veteran’s primary care provider consistently included continued exercise in his treatment plan, demonstrating that he was not precluded from more than sedentary activity; moreover, all of the examiners concluded that the Veteran’s disability did not manifest in the ability to perform only sedentary activity. There is one notation of edema and all examiners concluded that he did not have persistent edema. The highest noted levels of BUN and creatinine were, respectively, 33 and 1.95 mg/dL. Finally, the examiners concluded that he did not have markedly decreased function of other organ systems caused by renal dysfunction. Accordingly, a rating in excess of 80 percent is not warranted during the period on appeal. The Board has considered the doctrine of reasonable doubt finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Higher ratings prior to and from June 10, 2019, onward, are, therefore, denied. Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Vashaw, 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.