Citation Nr: 21025721 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-12 202 DATE: April 28, 2021 ORDER A disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity prior to December 2, 2020 is denied. A disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity prior to December 2, 2020 is denied. A disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity from December 2, 2020 is denied. A disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity from December 2, 2020 is denied. FINDINGS OF FACT 1. For the period prior to December 2, 2020, the service-connected peripheral neuropathy of the right lower extremity was productive of no more than mild incomplete paralysis of the sciatic nerve. 2. For the period prior to December 2, 2020, the service-connected peripheral neuropathy of the left lower extremity was productive of no more than mild incomplete paralysis of the sciatic nerve 3. For the period from December 2, 2020, the service-connected peripheral neuropathy of the right lower extremity has been productive of no more than moderate incomplete paralysis of the sciatic nerve. 4. For the period from December 2, 2020, the service-connected peripheral neuropathy of the left lower extremity has been productive of no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an award of a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity for the period prior to December 2, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for an award of a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity for the period prior to December 2, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8520. 3. The criteria for an award of a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity for the period from December 2, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8520. 4. The criteria for an award of a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity for the period from December 2, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1964 to October 1971, to include service in Vietnam. His decorations include the Combat Infantryman Badge and the Vietnam Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia. In March 2020, the Veteran and his spouse testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In June 2020, the Board remanded the matter of the Veteran’s entitlement to ratings in excess of 10 percent for peripheral neuropathy of each lower extremity to the agency of original jurisdiction (AOJ) for additional development. In February 2021, after taking further action, the AOJ increased the ratings for each lower extremity to 20 percent, effective December 2, 2020. The 10 percent ratings in effect prior to December 2, 2020 were otherwise confirmed and continued and the case was returned to the Board. See February 2021 supplemental statement of the case. The June 2020 Board decision also remanded the issues of entitlement to service connection for hypertension, a heart disability, and peripheral neuropathy of the upper extremities. In the February 2021 rating decision, the AOJ granted service connection for all three disabilities, which constituted a full grant of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Accordingly, they are no longer in appellate status. Higher Ratings The Veteran seeks to establish higher disability ratings for the service-connected peripheral neuropathy of his lower extremities. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The peripheral neuropathy of the Veteran’s lower extremities has been rated pursuant to the criteria found at 38 C.F.R. § 4.124a, DC 8520. Under that diagnostic code, incomplete paralysis of the sciatic nerve warrants a 10 percent rating if it is mild; a 20 percent rating if it is moderate; a 40 percent rating if it is moderately severe; and a 60 percent rating if it is severe with marked muscular atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 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. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of 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. The Board notes that, for reference and illustrative purposes, the definition for “mild” includes not very severe. WEBSTER’S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for “mild” is “slight” and definitions for “slight” include small in size, degree, or amount. Id. at 1038. The definitions for “moderate” include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for “severe” include extremely intense. Id. at 1012. It is also noted that the term “moderately severe” indicates impairment that is considered more than “moderate” but not to the extent as to be considered “severe.” 1. A disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity prior to December 2, 2020 is denied. 2. A disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity prior to December 2, 2020 is denied. A November 2014 VA examiner assessed that the Veteran’s peripheral neuropathy of the lower extremities was productive of mild incomplete paralysis of the sciatic nerves. Although the Board is not bound by the examiner’s assessment of severity, it is evidence to be taken into consideration. Further, the examiner’s description is consistent with the examination findings themselves, which reflect impairment that was small in size, degree, or amount (i.e., mild), and do not reflect that the Veteran met or more nearly approximated impairment that was of medium quantity, quality, or extent (i.e., moderate) at any point during the period on appeal prior to December 2, 2020. The November 2014 VA examination report noted that the Veteran experienced symptoms of numbness that were mild in nature, and paresthesias and/or dysesthesias that were moderate in nature. While the Veteran had 4/5 strength on left ankle plantar flexion and dorsiflexion, he had normal strength on bilateral knee extension and flexion, and with right ankle plantar flexion and dorsiflexion. He also had normal deep tendon reflexes in the right knee and ankle, decreased deep tendon reflexes in the left knee, and absent deep tendon reflexes in the left ankle. Light touch/monofilament testing showed normal sensation in the right lower extremity and decreased sensation in the left lower extremity. Position sense testing of both extremities was normal. Vibration sensation testing showed normal sensation in the right lower extremity and decreased sensation in the left lower extremity. Cold sensation was decreased in both lower extremities, and the Veteran did not have muscle atrophy of either lower extremity. The Board finds that these findings are consistent with no more than mild impairment/incomplete paralysis. Treatment records during the appeal period do not otherwise demonstrate that the service-connected peripheral neuropathy of either lower extremity was productive of more than mild incomplete paralysis of the sciatic nerve at any point during the period on appeal prior to December 2, 2020. The Board further notes that the Veteran has not challenged the accuracy of the findings reported on the November 2014 VA examination report. He has also not contended, nor does the record otherwise reflect, that he would have greater impairment but for the use of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Similarly, he has not contended that either disability warrants consideration of a schedular alternative to DC 8520; nor is such reasonably raised by the record. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). In light of the foregoing, the Board concludes that the record does not reflect that the Veteran’s service-connected right and left lower extremity peripheral neuropathy met or more nearly approximated the criteria of moderate incomplete paralysis at any time during the period on appeal prior to December 2, 2020. As the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for either disability for the period prior to December 2, 2020, the appeal as to these issues must be denied. 3. A disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity from December 2, 2020 is denied. 4. A disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity from December 2, 2020 is denied. A December 2020 VA examiner assessed that the Veteran’s peripheral neuropathy of the lower extremities was productive of moderate incomplete paralysis of the sciatic nerves of the lower extremities. Although the Board reiterates that it is not bound by the examiner’s assessment of severity, it is evidence to be taken into consideration. Further, the description is consistent with the examination findings themselves, which reflect impairment that is of medium quantity, quality, or extent (i.e., moderate), and do not reflect that he meets or more nearly approximates impairment that is severe. The December 2020 VA examination report noted that the Veteran experienced symptoms of pain, numbness, and paresthesias and/or dysesthesias that were moderate in nature. He had 4/5 strength on bilateral knee extension, ankle plantar flexion, and ankle dorsiflexion. He also had normal deep tendon reflexes in the knees and ankles, and decreased sensation to light touch in the lower extremities. He did not have muscle atrophy or trophic changes of either lower extremity. The Board finds that these results are consistent with no more than moderate impairment/incomplete paralysis. Treatment records during the appeal period do not otherwise demonstrate that service-connected peripheral neuropathy of the lower extremities has been productive of more than moderate incomplete paralysis of the sciatic nerve of the respective extremity at any point during the period from December 2, 2020. As above, the Veteran has not challenged the accuracy of the findings reported on the December 2020 VA examination report. He has also not contended, nor does the record otherwise reflect, that he would have greater impairment but for the use of medication. See Jones, 26 Vet. App. 56. Similarly, he has not contended that either disability warrants consideration of a schedular alternative to DC 8520, nor is such reasonably raised by the record. See Morgan, 31 Vet. App. 162. In light of the foregoing, the Board concludes the record does not reflect that the Veteran’s service-connected right and left lower extremity peripheral neuropathy has met or nearly approximated the criteria of moderate incomplete paralysis at any time during the period on appeal from December 2, 2020. As the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for either disability for the period from December 2, 2020, the appeal of these issues must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.