Citation Nr: 21024390 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-32 495 DATE: April 22, 2021 ORDER Increased disability ratings of 20 percent for the Veteran’s diabetic peripheral neuropathy of the bilateral lower extremities involving the sciatic nerve are granted prior to August 26, 2019. Increased disability ratings of 40 percent for the Veteran’s diabetic peripheral neuropathy of the bilateral lower extremities involving the sciatic nerve are granted from August 26, 2019. REMANDED Entitlement to service connection for the Veteran's obstructive sleep apnea (OSA) is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. VETERAN’S CONTENTIONS The Veteran contends that he is entitled to an increased rating for peripheral neuropathy of his bilateral lower extremities. Specifically, the Veteran asserts that a rating of 20 percent is warranted from a date earlier than August 26, 2019. See January 2020 Correspondence. The Veteran contends that the claims files shows other nerve involvement such as deep peroneal, superficial peroneal and sural nerves. See December 2015 Notice of Disagreement. The Veteran also requested an extraschedular rating for his loss of hair on his bilateral lower extremities because it is not reflected in the schedular rating. Id. The Veteran also contended that the September 2019 VA examination is inadequate because it failed to provide adequate rationale to support its finding that the Veteran’s OSA was not caused by or aggravated by his psychiatric condition. FINDINGS OF FACT 1. The Veteran’s left and right lower extremity diabetic peripheral neuropathy was productive of moderate incomplete paralysis of the sciatic nerve prior to August 26, 2019 with symptoms of loss of sensation, decreased deep tendon reflexes, mild paresthesias and/or dysesthesias, and loss of hair on the bilateral lower extremities. It was not manifested by muscle atrophy or foot drop. See May 2015 VA Examination. 2. Since August 26, 2019, the Veteran’s left and right lower extremity diabetic peripheral neuropathy has been productive of moderately severe incomplete paralysis of the sciatic nerve from with symptoms of mild constant pain, moderate paresthesias, and/or dysesthesias, moderate numbness, moderate intermittent pain, and loss of hair on the bilateral lower extremities. See May 2015 VA Examination. It has not been manifested by muscle atrophy or foot drop. Id. CONCLUSIONS OF LAW 1. The criteria for increased disability ratings of 20 percent for diabetic peripheral neuropathy of the bilateral lower extremities are met for the period prior to August 26, 2019. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.71a, Diagnostic Code 8520. 2. The criteria for increased disability ratings of 40 percent for bilateral lower extremity diabetic peripheral neuropathy are met, effective August 26, 2019. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.71a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1969. This matter comes before the Board of Veteran’s Appeal (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in May 2018 and April 2019 for further development. In January 2020, the Board denied the Veteran’s claim for service connection for his sleep apnea. The Board also denied an increased rating for the Veteran’s peripheral neuropathy in excess of 10 percent prior to August 26, 2019 and in excess of 20 percent from August 26, 2019. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board’s decision and remand the case for readjudication. The Court granted the JMR and returned the case to the Board for further development and readjudication in compliance with the directives specified. An increased disability rating of 20 percent prior to August 26, 2019 and an increased disability of 40 percent from August 26, 2019 for the Veteran’s diabetic peripheral neuropathy of the bilateral lower extremities involving the sciatic nerve is granted. At the outset, the Board notes that the Veteran has diabetic peripheral neuropathy in his bilateral lower extremities, each currently rated as 10 percent disabling prior to August 26, 2019 and as 20 percent disabling thereafter under 38 C.F.R. § 4.124a Diagnostic Code 8520. The Board finds Diagnostic Code 8520 to be the appropriate diagnostic code to evaluate the Veteran’s disabilities as, during the claim period, the Veteran’s lower extremity peripheral neuropathy has involved the sciatic nerves. See VA Examination Reports dated May 2015, August 2019, and December 2020. Diagnostic Code 8520 contemplates incomplete or complete paralysis of the sciatic nerve. Mild incomplete paralysis warrants a 10 percent disability rating; moderate incomplete paralysis warrants a 20 percent disability rating; moderately severe incomplete paralysis warrants a 40 percent disability rating; and, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating; complete paralysis: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost warrants a 80 percent disability rating. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of 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. Within this context, the terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined. 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. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. After review of the evidence, the Board finds that the Veteran’s peripheral neuropathy of the bilateral lower extremities most closely approximated moderate incomplete paralysis of the sciatic nerves prior to August 26, 2019 and moderately severe incomplete paralysis from August 26, 2019. In this regard, on VA examination in May 2015, an examiner noted peripheral neuropathy symptoms which included loss of sensation. The examiner further noted numbness in the lower extremities. Deep tendon reflexes were decreased in the bilateral knees and were absent in the ankles. There was decreased sense of light touch in the lower extremities and feet. There were also trophic changes that were manifested by loss of hair on both lower extremities. The examiner noted that the Veteran had mild paresthesias and/or dysesthesias and mild numbness in the bilateral lower extremities. However, there was no muscle atrophy noted. The examiner indicated that the Veteran had mild incomplete paralysis of the sciatic nerves of the bilateral lower extremities. On VA examination in August 2019 and December 2020, the examiner noted moderate paresthesias and/or dysesthesias, moderate numbness, intermittent pain, and mild constant pain. Deep tendon reflexes were decreased in the knees and absent in the ankles. On neurological testing, strength testing was normal. Light touch/monofilament was decreased in the ankle/lower leg and feet/toes. Vibration sensation, position sensation, and cold sensation were decreased in the bilateral lower extremities. Additionally, the examiner noted that there was hair loss on the bilateral lower extremities. There was no muscle atrophy found. The examiner indicated that the Veteran had moderate incomplete paralysis of the sciatic nerves of the bilateral lower extremities. Based upon the above, the Board finds that increased disability ratings of 20 percent, but no higher, are warranted prior to August 26, 2019, as there were objective findings of loss of sensation, decreased deep tendon reflexes, paresthesias and/or dysesthesias, and trophic changes prior to August 26, 2019. Ratings higher than 20 percent are not warranted prior to August 26, 2019, as there was no evidence of muscle atrophy, or other signs indicative of incomplete paralysis of a greater severity. The Board finds that increased disability ratings of 40 percent, but no higher, are warranted from August 26, 2019, as there were objective findings of mild constant pain, moderate paresthesias and/or dysesthesias, moderate intermittent pain, and moderate numbness. The Board acknowledges that the Veteran contends that his peripheral neuropathy has increased in severity including increased cramping, numbness, and pain. The Board finds that the 40 percent rating accounts for the increased severity in the Veteran’s peripheral neuropathy pain. Ratings higher than 40 percent are not warranted from August 26, 2019, as there is no evidence of muscle atrophy. Further, the Board acknowledges that Veteran’s representative’s argument that due to his hair loss he is entitled to an extraschedular rating. However, the Board has compared the level of severity and symptomatology of the Veteran’s service-connected peripheral neuropathy of the bilateral lower extremities with the established criteria found in the rating schedule, and finds that the rating schedule adequately contemplates all associated symptoms, to include trophic changes. Indeed, loss of hair on his legs is specifically contemplated by the ratings pertaining to neurological conditions. Specifically, 38 C.F.R. § 4.120 notes that, “[i]n rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment of motor function, trophic changes, or sensory disturbances.” As noted above, the August 2019 VA examiner noted that his loss of hair on his legs represented trophic changes associated with his peripheral neuropathy of the bilateral lower extremities. Thus, the rating criteria contemplates the Veteran’s loss of hair as a trophic change associated with his service-connected peripheral neuropathy of the bilateral lower extremities, and referral for extraschedular consideration is not warranted because there is no exceptional and unusual disability picture. See Thun v. Peake, 22 Vet. App. 111,115-16; see also Doucette v. Shulkin, 28 Vet. App. 366 (2017). Furthermore, it has neither been alleged nor shown that the Veteran’s service-connected peripheral neuropathy of the bilateral lower extremities specifically has resulted in frequent hospitalization. The Board also acknowledges that the Veteran’s representative contended that the Veteran had a right foot drop as evidenced by a September 2008 diagnostic report. See December 2015 Notice of Disagreement. However, the December 2020 VA examination noted that the Veteran did not have a foot drop and that his peroneal nerve was normal. See December 2020 VA Examination Report. Further, the Veteran contended that he had nerve involvement such as deep peroneal, superficial peroneal and sural nerves. See December 2015 Notice of Disagreement. However, the December 2020 VA examination report did not find any nerve impairment of any nerves other than the sciatic nerve. Therefore, the Board acknowledges the Veteran’s contention but finds that the evidence relevant to the period on appeal does not demonstrate that the Veteran had a foot drop or impairment of any other nerves. Accordingly, the Board finds that a 20 percent rating prior to August 26, 2019 and a 40 percent from August 26, 2019 for the Veteran’s peripheral neuropathy of the bilateral extremities is warranted. REASONS FOR REMAND 1. Entitlement to service connection for the Veteran's obstructive sleep apnea (OSA) is remanded. This matter was previously remanded in in May 2018 and April 2019 for further development to include a VA examination. The case has now returned to the Board for appellate review and, although it again regrets the further delay, the Board finds that additional remand is required. The November 2020 JMR noted that the Board failed to address the Veteran’s contention that the September 2019 VA examiner failed to provide clear rationale regarding why the Veteran’s OSA was not caused by or aggravated by his psychiatric disorder and/or diabetes in compliance with the April 2019 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, although the Veteran asserted that his OSA disability may be related to his diabetes condition, the September 2019 examiner failed to address whether the Veteran’s diabetes caused and/or aggravated the Veteran’s OSA disability. See December 2015 Correspondence. Further, in the April 2019 Board remand, the Board instructed the VA examiner to consider the December 2013 and April 2019 medical articles submitted by the Veteran. However, the September 2019 examiner only addressed the April 2019 medical article’s finding that OSA and depression may share risk factors and that it did not establish that depression caused OSA. See September 2019 VA Medical Opinion. However, the September 2019 examiner failed to address the April 2019 medical article’s finding that sedative antidepressants and treatment for depression may exacerbate OSA. See April 2019 Medical Article. The Veteran has been diagnosed with generalized anxiety disorder with PTSD symptoms and depressive disorder NOS and is taking Xanax and Sertraline for this, but the examiner did not address this in the September 2019 medical opinion. See June 2020 Correspondence. Therefore, the Board finds that September 2019 VA medical opinion is inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As the September 2019 VA medical opinions obtained on remand are inadequate, the Board finds that a VA addendum opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The VA addendum opinion should comment on whether the Veteran’s diabetes caused and/or aggravated his OSA. The examiner should also determine whether the Veteran’s antidepressants aggravate his OSA condition. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran’s lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran’s own descriptions of the history of his OSA disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). 2. A total disability rating based on individual unemployability (TDIU) is remanded. The Veteran's claim for a TDIU is inextricably intertwined with the Veteran’s service connection for OSA, and so disposition of the issue is deferred. See Harris v. Derwinski, 1 Vet. App.180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain a new opinion from a new clinician addressing the etiology of the Veteran’s OSA. The clinician should be given a copy of this Board remand. If the examiner request, an examination may be ordered to address the below: a. Please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s OSA disability and/or narcolepsy disability was caused by the service-connected diabetes disability. b. Please state whether it is at least as likely as not that the Veteran’s OSA disability and/or narcolepsy disability was aggravated by his service-connected diabetes disability. Here, aggravated means worsened beyond the natural progression of the condition. c. Please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s OSA disability and/or narcolepsy disability was caused by the service-connected psychiatric disability. d. Please state whether it is at least as likely as not that the Veteran’s OSA disability and/or narcolepsy disability was aggravated by his service-connected psychiatric disability. Here, aggravated means worsened beyond the natural progression of the condition. In providing this opinion, please review the April 2019 medical article’s statement that that sedative antidepressants and treatment for depression may exacerbate OSA. The article states “hypnotics used to treat depression might further decrease the muscle tone in the already functionally impaired upper airway dilatator muscles, blunt the arousal response to hypoxia and hypercapnia as well as increase the arousal threshold for the apneic event, therefore increasing the number and duration of apneas.” In offering any opinion, the examiner should consider medical and lay evidence dated both since the filing of the claim (June 2014) including but not limited to the December 2015 Medical Article and April 2019 Medical Article. The examiner should provide a complete rationale for any opinion rendered. If the examiner’s opinion is negative, he or she must clearly explain why. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Foster, 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.