Citation Nr: 21026119 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-62 957 DATE: April 29, 2021 ORDER Entitlement to a disability rating of 20 percent, but no higher, prior to July 3, 2018, and to a disability rating of 30 percent, but no higher, from July 3, 2018, forward, for service-connected neuropathy of the external popliteal nerve of the left great toe and forefoot is granted. Entitlement to a disability rating of 20 percent, but no higher, prior to July 3, 2018, and to a disability rating of 30 percent, but no higher, from July 3, 2018, forward, for service-connected neuropathy of the external popliteal nerve of the right great toe and forefoot is granted. FINDINGS OF FACT 1. Prior to July 3, 2018, the Veteran’s service-connected neuropathy of the external popliteal nerve of the left great toe and forefoot was manifested by no more than moderate symptomatology, to include pain, paresthesias and/or dysesthesias, and decreased sensation. 2. From July 3, 2018, forward, the Veteran’s service-connected neuropathy of the external popliteal nerve of the left great toe and forefoot was manifested by severe incomplete paralysis, but not by complete paralysis. 3. Prior to July 3, 2018, the Veteran’s service-connected neuropathy of the external popliteal nerve of the right great toe and forefoot was manifested by no more than moderate symptomatology, to include pain, paresthesias and/or dysesthesias, and decreased sensation. 4. From July 3, 2018, forward, the Veteran’s service-connected neuropathy of the external popliteal nerve of the right great toe and forefoot was manifested by severe incomplete paralysis, but not by complete paralysis. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating, but no higher, for neuropathy of the external popliteal nerve of the left great toe and forefoot have been met prior to July 3, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521. 2. The criteria for a 30 percent disability rating, but no higher, for neuropathy of the external popliteal nerve of the left great toe and forefoot have been met from July 3, 2018, forward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521. 3. The criteria for a 20 percent disability rating, but no higher, for neuropathy of the external popliteal nerve of the right great toe and forefoot have been met prior to July 3, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521. 4. The criteria for a 30 percent disability rating, but no higher, for neuropathy of the external popliteal nerve of the right great toe and forefoot have been met from July 3, 2018, forward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to December 1971. He died in January 2021. The appellant is the Veteran’s surviving spouse who has been accepted as a substitute claimant for the purpose of processing this appeal to its completion. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for left and right foot neuropathy and assigned an initial noncompensable disability rating effective from June 13, 2016, the date of his claim. In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This case was remanded by the Board in February 2020. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial disability rating in excess of 10 percent prior to October 2, 2018 and in excess of 20 percent thereafter for service-connected neuropathy of the external popliteal nerve of the left great toe and forefoot 2. Entitlement to an initial disability rating in excess of 10 percent prior to October 2, 2018 and in excess of 20 percent thereafter for service-connected neuropathy of the external popliteal nerve of the right great toe and forefoot The Veteran’s bilateral feet neuropathy affecting the external popliteal nerve is rated pursuant to 38 C.F.R. § 4.124A, Diagnostic Code 8521 for paralysis of the external popliteal nerve. Under this diagnostic code, mild incomplete paralysis of the external popliteal nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; and severe incomplete paralysis is rated as 30 percent disabling. A maximum 40 percent rating is warranted for complete paralysis of the external popliteal nerve with foot drop and slight droop of the first phalanges of all toes, inability to dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of the toes is lost, abduction of the foot is lost, adduction is weakened, and anesthesia covers the entire dorsum of the foot and toes. Id. 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 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. 38 C.F.R. § 4.124a. The Veteran was afforded a VA examination in September 2016. At that time, the Veteran reported moderate intermittent pain in the right lower extremity and mild intermittent pain in the left lower extremity. Muscle strength testing was normal with no evidence of muscle atrophy. Additionally, deep tendon reflexes and sensory examinations were normal. The Veteran did not have any trophic changes attributable to peripheral neuropathy and his gait was normal. VA treatment records dated in November 2016 indicate that the Veteran had peripheral neuropathy affecting the bottoms of his bilateral feet. He was unable to walk on uneven ground as it caused significant discomfort. He also complained of mild sensory deficits in the bottom of his feet. Deep tendon reflexes were 2+ and equal, no atrophy of his muscles was noted, and his gait was normal. In May 2017, the Veteran’s podiatrist stated that he had peripheral neuropathy which can pain and discomfort and affect the ability to walk. Private treatment records dated in June 2017 reveal that the Veteran reported achy, sore, bilateral heel pain and his lower extremity muscle strength and range of motion was equal and symmetrical bilaterally. His gait was described as normal and his deep tendon reflexes were symmetrical and graded 2 out of 4, with his plantar reflexes showing that his toes were downgoing. Sensory testing of the lower extremities was intact. In February 2018, the Veteran reportedly had neuropathy symptoms that extended from the great toes and plantar, across the forefoot of both feet. He indicated it slowly progressed from his toes distally to more proximally. He had numbness extending from the toes proximally and across the forefoot on both feet. He had abnormal sensations and pain in both great toes. Motor strength was 5/5, sensation was intact, and the Veteran’s gait was normal. On July 3, 2018, the Veteran was noted to have increased sensitivity and pain with palpation and dorsiflexion. He was found to have limitations in lower extremity strength (4/5), sensation, and balance, and gait disturbances caused by peripheral neuropathy. In October 2018, the Veteran’s podiatrist, Dr. D.A., stated that the Veteran suffered from severe pain in both of his feet due to neuropathy. In February 2019, the Veteran reported moderate pain in his bilateral feet. The Veteran also stated he had burning, tingling, and numbness and was found to have mild edema in both feet. His hair growth was noted to be decreased bilaterally and monofilament sensation examination of the feet was absent. He was noted to have hypersensitivity to light stimuli. In August 2019, the Veteran reported increased neuropathy sensations with pain and burning on the forefoot of both feet. He described his symptoms as severe. An August 2019 statement from Dr. J.W. indicates that the Veteran reported constant, extreme pain in his feet that causes a decreased ability to sleep and ambulate. He had a hard time getting around on a daily basis to do activities of daily living and examination showed decrease in pinprick in the distal lower extremities. During the January 2020 Board hearing, the Veteran testified that he had difficulty standing, walking, sleeping, and participating in things he used to do like dancing and bowling. He stated that he was unable to put pressure on his feet and had to soak them in ice water for temporary pain relief. He noted that beginning in 2009, his ability to walk and stand had changed, and he spent most of the time in his recliner. He reported numbness and sensitivity with balance issues. The Veteran was afforded an additional VA examination in September 2020. At that time, the Veteran reported burning, numbness, and an unsteady gait related to his peripheral neuropathy. The examiner indicated that the Veteran had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the lower extremities. Muscle strength was normal bilaterally and there was no evidence of muscle atrophy. Deep tendon reflexes were normal but sensation testing for light touch was decreased in the feet/toes. No trophic changes were indicated and the Veteran’s gait was normal on observation. The examiner found that the Veteran had moderate incomplete paralysis of the external popliteal nerve bilaterally. No other pertinent physical findings were found and the examiner stated that the Veteran’s peripheral neuropathy would not impact his ability to work. An April 2020 statement from D.A., D.P.M., states that the Veteran had severe and painful peripheral neuropathy that affected his ability to ambulate and sleep. In May 2020, the Veteran reported that his neuropathic pain had been worsening. An October 2020 letter from D.A. reiterates that the Veteran has had “continual, life altering, severe pain that limits his ability to sleep and rest [and] affects his activities of daily living.” D.A. noted that the Veteran had been treated by him since 2016 but that he was a patient of the practice before then. After a careful review of the above, the Board finds that, for the appellate period prior to July 3, 2018, a 20 percent disability rating, but not higher, is warranted for the Veteran’s service-connected left and right foot neuropathy of the external popliteal nerve of the great toe and forefoot. In this regard, the evidence shows that the Veteran’s neuropathy was manifested by pain, numbness, and decreased sensation in varying degrees of severity. However, the evidence does not support of finding of severe incomplete paralysis in either foot. Rather, the evidence indicates that the Veteran retained full muscle strength and normal reflexes of his lower extremities without evidence of muscle atrophy. As of July 3, 2018, the Board finds that a 30 percent rating under DC 8521, for severe incomplete paralysis in each foot, is warranted. Beginning July 3, 2018, the Veteran was shown to have reduced strength in his feet, 4/5. Further, in February 2019 he was found to have mild edema in both feet, his hair growth was noted to be decreased bilaterally, monofilament sensation examination of the feet was absent, and he was noted to have hypersensitivity to light stimuli. As such, the Board finds that a 30 percent rating for each lower extremity is warranted as of July 3, 2018. However, the evidence does not support a finding of complete paralysis of the external popliteal nerve. There were no complaints or findings of foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, lost extension (dorsal flexion) of proximal phalanges of the toes, lost abduction of the foot, weakened adduction, and anesthesia covering the entire dorsum of the foot and toes. Therefore, the criteria for a 40 percent rating is not warranted for either lower extremity. The Board recognizes the Veteran’s assertion that his neuropathy interfered with his ability to ambulate and participate in activities of daily living. However, these manifestations that result from the pain and paresthesia in his feet are contemplated by the rating criteria. In this regard, a diagnostic code need not list every word or type of symptom to contemplate the functional loss associated with such disability. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the natural consequences of near constant foot and toe pain include difficulty with ambulating and sleeping. In sum, the Board finds that most probative evidence of record demonstrates that 20 percent disability ratings, but no higher, prior to July 3, 2018, and 30 percent disability ratings, but no higher, from July 3, 2018, forward, are warranted for the Veteran’s service-connected left and right foot neuropathy of the external popliteal nerve of the great toe and forefoot. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Lindsey Connor 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.