Citation Nr: 21024358 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 19-01 908 DATE: April 22, 2021 ORDER Entitlement to a rating in excess of 10 percent from June 6, 2018 to April 29, 2019 for incomplete partial paralysis of the right external popliteal nerve (previously described as right extensor hallucis tendon deficit) is denied. Entitlement to a 30 percent rating, but not more, is granted from April 29, 2019 for incomplete paralysis of the right external popliteal nerve. FINDINGS OF FACT 1. From June 6, 2018 to April 29, 2019, the Veteran’s right external popliteal nerve manifested as mild incomplete paralysis. 2. From April 29, 2019, the Veteran’s right external popliteal nerve manifested as severe incomplete paralysis. CONCLUSIONS OF LAW 1. From June 6, 2018 to April 29, 2019, the criteria for a disability rating in excess of 10 percent for incomplete paralysis of the external popliteal nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521. 2. From April 29, 2019, the criteria for a disability rating of 30 percent, but not more, for incomplete paralysis of the external popliteal nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1960 to January 1963. The Veteran’s appeal was most recently before the Board of Veterans’ Appeals (the Board) in May 2020. The Board remanded claims for service connection for the following disorders: (1) a right arm condition, (2) left arm condition, (3) peripheral neuropathy of the right upper extremity, (4) peripheral neuropathy of the left upper extremity, and (5) a right leg condition. Following the develop directed by the Board’s May 2020 remand, the Agency of Original Jurisdiction (AOJ) granted all five claims in a February 2021 rating decision. The grants of service connection constituted full grants of the benefits sought on appeal, and those claims are no longer before the Board. The Board’s May 2020 remand also directed the AOJ to afford the Veteran a new Depart of Veterans Affairs (VA) examination to assess the severity of his service-connected right extensor hallucis tendon deficit, which was rated as the right external popliteal nerve. The Veteran received that examination in November 2020. An examination for peripheral nerve disorders was also afforded to the Veteran in February 2021. In a February 2021 rating decision, the AOJ assigned a rating of 30 percent from November 11, 2020. In a February 2021 supplemental statement of the case, the AOJ denied a rating in excess of 10 percent prior to November 11, 2020. The Veteran’s appeal as to this issue is once again before the Board.   1. Entitlement to an Increased Rating for Service-Connected Paralysis of the External Popliteal Nerve The Veteran’s service-connected paralysis of the right external popliteal nerve is evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8521. Under these criteria, 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. A 40 percent rating for complete paralysis of the external popliteal nerve is warranted for foot drop and slight droop of the first phalanges of all toes, inability to dorsiflex the foot, inability to extend (dorsal flexion) proximal phalanges of toes, inability to abduct the foot, weakened adduction; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521. 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). The Veteran contends that he is entitled to an increased rating for service-connected paralysis of the external popliteal nerve. Following the February 2021 rating decision, the Veteran’s rating is staged to reflect the increased severity of his service-connected disability during the period on appeal, which began when VA received the Veteran’s claim on June 6, 2018. See Fenderson v. West, 12 Vet. App. 119 (1999). In light of the evidence of record, the Board concludes that the Veteran’s service-connected paralysis of the external popliteal nerve worsened to the point that a 30 percent rating is warranted from April 29, 2019 rather than November 11, 2020. However, a rating in excess of 10 percent is not warranted prior to April 29, 2019. Each period will be discussed in detail below. A. From June 6, 2018 to April 29, 2019 The Board concludes that a rating in excess of 10 percent is not warranted from June 6, 2018 to April 29, 2019. The Veteran received a VA examination in August 2018. It did not show the severity of symptoms needed to warrant a rating in excess of 10 percent. Regarding impairment of motor functions in the right lower extremity, the Veteran’s strength on knee extension, ankle plantar flexion, and ankle dorsiflexion were 5/5. No muscle atrophy was noted. The Veteran’s reflexes were normal. His sensory examination was also normal. There were no trophic changes noted. The Veteran did not endorse constant or intermittent pain, and there was no paresthesias and/or dysesthesias. The Veteran did experience mild numbness, however. The examiner described the Veteran’s paralysis of the external popliteal nerve as mild. This supports a 10 percent rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8521. The Veteran’s treatment records during the period on appeal do not note neurological symptoms affecting the right lower extremity. Private treatment records proximate to the period on appeal note the Veteran’s reports that he experienced numbness in his lower extremities. For instance, November 2017 private treatment records note the Veteran’s reports of over-night right toe numbness dependent on the position of his leg. November 2017 treatment records associate the Veteran’s neuropathy with poor vascularization in his right leg. These treatment records accord with the August 2018 VA examination in so far as they identify numbness as the primary symptom of the Veteran’s service-connected neuropathy affecting the right lower extremity. Based on the above, the Board finds that the disability is primarily manifest by mild numbness of the right lower extremity associated with the external popliteal nerve. The evidence does not show the severity of symptoms that would warrant a rating in excess of 10 percent for mild incomplete paralysis. Thus, a rating in excess of 10 percent from June 6, 2018 to April 29, 2019 is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. B. From April 29, 2019 In his March 2020 hearing testimony, the Veteran stated that his symptoms considerably worsened when he stopped using oxycodone due to bowel complications. The Veteran testified that he has been in agony since the suspension of oxycodone. While the Veteran is not service connected for bowel complications, his testimony describes worsening neuropathy symptoms as a consequence of the cessation of oxycodone. The Veteran’s VA treatment records accord with his testimony. April 29, 2019 VA treatment records state that the Veteran stopped taking oxycodone after four years because of bowel problems. VA treatment records from April 2019 note, however, that the Veteran was not experiencing new neurological symptoms. The November 2020 VA examination showed significant worsening in the Veteran’s symptoms. Motor function was impaired in his right ankle. On plantar flexion, his strength was 2/5 and on right ankle dorsiflexion, his strength was 3/5. No muscle atrophy was noted, however. On examination, the Veteran’s reflexes were absent in his right ankle. The Veteran’s gait was described as antalgic, and the examiner noted that the Veteran did not bear much weight on his right side. His sensory examination was normal, and no trophic changes were noted. The examiner described the Veteran’s partial paralysis of the external popliteal nerve as severe. Given the symptoms noted during the examination and the Veteran’s March 2020 hearing testimony, the Board concludes that a 30 percent rating for severe incomplete paralysis of the external popliteal nerve is warranted from April 29, 2019, the earliest evidence regarding the cessation of oxycodone. A rating in excess of 30 percent is not warranted, however. The Veteran had trophic changes in a February 2021 examination. The other symptoms needed to warrant a rating for complete paralysis of the external popliteal nerve are not shown, however. The evidence does not show that the Veteran has foot drop. The Veteran’s dorsiflexion of the right ankle is weak; however, he retains motion, to include adduction, in his right ankle. A rating of 40 percent for complete paralysis of the external popliteal nerve is not warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.