Citation Nr: 21023789 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-31 733 DATE: April 21, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for nerve condition, right calf as secondary to the service-connected disability of scars, right calf, posterior aspect and right gluteus (nerve condition, right calf), is denied. FINDINGS OF FACT 1. The Veteran’s nerve condition, right calf manifests with mild paralysis of the right internal popliteal nerve. 2. The Veteran’s nerve condition, right calf does not manifest with impairment that more nearly approximates “moderate” incomplete paralysis of the right internal popliteal nerve. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for nerve condition, right calf have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8524. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1970 to March 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board remanded the matter for further development. As the requested development has been substantially completed, as discussed below, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, this matter is now properly before the Board. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s schedule for rating disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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 to be considered when making disability evaluations. 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, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Entitlement to a disability rating in excess of 10 percent for service-connected nerve condition, right calf The Veteran contends that she is entitled to a disability rating in excess of 10 percent for her nerve condition, right calf. As noted above, the Board remanded the Veteran’s claim for an increased disability rating in February 2020. The Board requested that the Agency of Original Jurisdiction (AOJ) contact the Veteran and request a properly executed VA Form 21-4142 authorization and consent to release information to the VA for any private care providers who have treated the Veteran for her right calf disability. The Veteran’s VA medical records indicate that she was receiving treatment from a private physician with regard to her right calf pain. In February 2020, the AOJ sent a subsequent development letter with a VA Form 21-4142 authorization and consent to release information form attached. The Board has conducted a thorough review of the Veteran’s claims file. The Veteran has failed to respond to the AOJ’s subsequent development letter and has not provided an authorization and consent to release nor has the Veteran submitted private treatment records on her own. The Veteran was notified of the alternative to submit records herself. The evidence of record does not indicate that the documents were returned as undeliverable or that the documents were sent to an incorrect address. While VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. See Wood v. Derwinski,1 Vet. App. 190 (1991). VA’s duty must be understood as a duty to assist a Veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. See Turk v. Peake, 21 Vet. App. 565 (2008). Here, the Veteran failed to respond to the AOJ’s request of information regarding the Veteran’s private physicians and private treatment records. The Board finds that the AOJ has substantially completed the development requested by the February 2020 Board remand; therefore, no further action to ensure compliance with the remand directives is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The January 2015 VA examination indicates that the Veteran reported experiencing an “intermittent burning sensation” of the lateral/calf ankle. On physical examination, the examiner indicated that the Veteran experienced mild incomplete paralysis of the internal popliteal (tibial) nerve. The examiner reported paresthesias on the right lower extremity that were described as “mild.” Treatment records from the Pensacola VA Medical Center (VAMC) report that the Veteran underwent nerve conduction studies in January 2015 due to reports of right leg symptoms, such as burning, stinging, and shooting pain down to the right lateral ankle and foot area. The examiner noted that the right sural sensory nerve demonstrated results that were half of left in terms of amplitude. The Board notes that the “sural nerves” are not nerves that are addressed under 38 C.F.R. § 4.124a. The sural nerve is “a cutaneous nerve, providing only sensation to the posterolateral aspect of the distal third of the leg and the lateral aspect of the foot, heel, and ankle. It is formed by terminal branches of the tibial and common peroneal nerves that joint together in the superficial aspect of the distal third of the leg. It is purely sensory.” https://www.ncbi.nlm.nih.gov/books/NBK546638/ (accessed April 19, 2021). The Veteran’s condition has been identified by the 2015 examiner as impairment of the internal popliteal (or tibial) nerve, which as noted forms the sural nerve; as such, the Veteran’s condition has been rated under these criteria. Under Diagnostic Code 8524 for paralysis of the tibial nerve, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis is rated as 40 disabling and manifests by loss of plantar flexion, loss of all frank adduction of the foot, no flexion and separation of toes, inability to move a muscle in the sole, and lesions of the nerve high in the popliteal fossa. 38 C.F.R. § 4.124a, DC 8524. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a 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. 38 C.F.R. § 4.124a. The terms “mild,” “moderate” and “severe” are not defined in the 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. Considering the lay and medical evidence, the Board finds that the Veteran’s impairment due to her nerve condition, right calf more nearly approximates “mild” incomplete paralysis of the internal popliteal nerve. As noted above, when the involvement is wholly sensory, the rating should be for mild degree. See 38 C.F.R. § 4.124a. While the Veteran reports symptoms of intermittent burning, stinging, and shooting pain and sensitivity to the touch in her right lower extremity, the Board notes sensory examinations and muscle strength testing of the right lower extremity in January 2015 reported normal findings. The Veteran’s right lower extremity also did not demonstrate evidence of muscle atrophy or reduced deep tendon reflexes. The Board finds probative the opinion of the 2015 VA examiner that the severity of the Veteran’s right incomplete paralysis of the internal popliteal nerve is “mild.” While a health care provider's characterization of the level of severity of a disability is not binding on the Board, the Board finds that the examiner's characterizations of the Veteran’s manifestations to be consistent with the evidence of record and did not indicate “moderate” symptoms of pain, paresthesias, or numbness. Additionally, the Veteran’s VA treatment records dated throughout the rating period for consideration do not demonstrate additional symptoms associated with the Veteran’s service-connected nerve condition, right calf that would warrant a higher evaluation during the appeal period. As the only objective symptoms of the Veteran’s right lower extremity symptoms are results of her nerve conduction studies demonstrating reduced amplitude of the right sural nerve, the Board finds that the Veteran’s impairment due to her nerve condition, right calf does not more nearly approximate “moderate” incomplete paralysis of the internal popliteal nerve. See 38 C.F.R. §§ 4.3, 4.124a, DC 8524. The Board acknowledges that the Veteran by virtue of filing an appeal believes that the disability on appeal has been more severe than the assigned disability rating reflects; however, she has not provided a specific basis for the Board to consider. In this regard, she does not assert, and medical treatment records do not show, that her disability more nearly approximates the criteria in the next higher rating. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for her nerve condition of the right calf. In denying such rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App.at 53-56. Accordingly, entitlement to a disability rating in excess of 10 percent for nerve condition of the right calf is denied. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.