Citation Nr: 21023804 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-27 405 DATE: April 21, 2021 ORDER Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy is denied. Entitlement to an increased rating of 100 percent rating for posttraumatic stress disorder (PTSD) with secondary major depression and alcohol use disorder, is granted. FINDINGS OF FACT 1. The Veteran’s right lower extremity peripheral neuropathy is manifested by no more than moderate incomplete paralysis. 2. The Veteran’s PTSD is manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 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 8522. 2. The criteria for entitlement to an increased rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to May 1978. A November 2020 rating decision increased the Veteran’s disability rating for right lower extremity peripheral neuropathy to 10 percent and PTSD to 70 percent. Regardless of the RO’s actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). These matters were previously before the Board of Veterans’ Appeals (Board) in July 2020 and were remanded for further development, which has been completed. In May 2020 the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy The Veteran contends that he is entitled to a higher rating for his right lower extremity peripheral neuropathy. Paralysis of the musculocutaneous (superficial peroneal) nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8522. Under these criteria, mild incomplete paralysis is rated as noncompensable. Moderate incomplete paralysis is rated as 10 percent disabling. Severe incomplete paralysis is rated as 20 percent disabling. Complete paralysis of the musculocutaneous nerve; eversion of foot weakened warrants a maximum 30 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8522. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based 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. The term “incomplete paralysis” 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). In October 2020, the Veteran underwent a VA examination to evaluate the current severity of his right lower extremity peripheral neuropathy. During the examination, the Veteran’s right lower extremity symptoms were noted as moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. The Veteran also experienced weakness and a lack of endurance in the right leg. The examiner opined that the musculocutaneous (superficial peroneal) nerve had incomplete paralysis at the moderate level. Based on the above, the Board finds that the disability is primarily manifest by moderate impairment of motor functions, sensory disturbance, and pain. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for right lower extremity peripheral neuropathy. In denying such a 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. 2. Entitlement to an increased rating of 100 percent for PTSD The Veteran contends his PTSD is worse than indicated by his 70 percent rating. The Veteran is currently rated under Diagnostic Code 9411 for PTSD with secondary major depression and alcohol use disorder. Under DC 9411, a 70 percent rating for PTSD contemplates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for PTSD resulting in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In October 2020, the Veteran underwent a VA examination to evaluate the current severity of his PTSD. The examiner opined that the Veteran experienced occupational and social impairment with deficiencies in most areas. During the examination, the Veteran endorsed passive suicidal thoughts but denied a plan or intent. The Veteran reported feeling that everyone’s life would be easier and better if he were no longer alive, contemplating suicide on a daily basis. See June 2020 Correspondence. When the Veteran wakes up, the idea of getting through another day fills him with panic and fear, where he lays in bed deciding if he even wants to get up. Id. The Veteran also has trouble remembering to take his medications and his spouse now has to dispense them to him. Id. Furthermore, the Veteran is unable to focus or concentrate and obsessively checks the same things over, panicking when he cannot remember passwords or basic math. Id. The Veteran’s wife must repeatably help him with a routine task and now takes over the finances, as the Veteran is unable to do so anymore. Id. Additionally, the Veteran’s wife must remind him to shower, shave, get dressed, and encourage him to get out of bed in the morning. Id. As for the Veteran’s social life, he has stopped planning anything social with family or friends. Id. The Veteran is also struggling with his occupation daily, finds his job impossible to do, and is forced to work because of income. See May 2020 Hearing Transcript. At the hearing, the Veteran’s problems were clear. In support of the Veteran’s claim, his wife provided a buddy statement describing how the Veteran will become triggered and explode in a rage. See May 2017 Buddy Statement. The Veteran’s wife described driving him to the hospital on several occasions because he thinks he is having a heart attack. However, after testing, he is cleared and doctors state that it is due to panic and fear. Id. A private physician noted that the Veteran experienced recurrent chest pain, found it to be non-cardiac and therefore most likely related to his PTSD. See June 2014 Stanford Internal Medicine Letter. A separate buddy statement noted that the Veteran continues to have problems with alcohol, outbursts, pugnacious yelling, occasionally driving erratically, and can become completely unsociable. See October 2017 Buddy Statement. The Board finds the medical evidence as discussed above along with the statements by the Veteran’s family and friends show the evidence to be at least in equipoise and granting the benefit of the doubt to the Veteran, finds his PTSD leads to total occupational and social impairment, warranting a higher 100 percent rating. Therefore, the claim will be granted. The Board notes this is the highest evaluation possible. . John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.