Citation Nr: 21029041 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-53 553 DATE: May 12, 2021 ORDER Entitlement to an increased rating of 40 percent for right leg peroneal nerve damage is granted. FINDING OF FACT For the entirety of the appeal period, the Veteran's right leg peroneal nerve damage is most closely approximated as complete paralysis of the external popliteal nerve. CONCLUSION OF LAW The criteria for an evaluation of 40 percent for right leg peroneal nerve damage have been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8521. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December1961 to December 1963. Increased Rating Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.7. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an increased rating of 40 percent for right leg peroneal nerve damage Diagnostic Code 8521 provides ratings for paralysis of the external popliteal nerve. The Veteran is currently evaluated at a 30 percent rating and is seeking a 40 percent rating which under Diagnostic Code 8521 criteria includes complete paralysis of the external popliteal nerve, foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anaesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term "incomplete paralysis" with this and other peripheral nerve injuries 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. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a The Veteran's claims file documents that the Veteran's February 2017 VA examination includes the notation that the Veteran's right lower extremity pain is severe and noted that his paralysis while incomplete was severe. Importantly, under the functional impact section, the examiner wrote that the Veteran cannot walk unassisted and that the Veteran has constant pain and numbness in his right extremity, he cannot climb, lift, squat, or navigate sloping surfaces. A November 2018 VA examination noted that sensory testing for the Veteran's right foot indicated that he had no sensation with an antalgic gain. The Veteran's July 2018 VA treatment note documents that the Veteran "has been falling a lot and would appreciate more support," An August 2020 VA treatment note likewise documents that the Veteran "falls a lot; has bruised face [and] broken ribs." The Board upon review of this evidence finds that the totality of the evidence demonstrates that the Veteran's right popliteal nerve is more closely approximated to a 40 percent rating. The Veteran's lack of sensation in his foot, his inability to navigate sloped surfaces, and inability to walk unassisted are more akin to a complete paralysis of his popliteal nerve. Importantly, the Board notes that the guidance provided by 38 C.F.R. § 4.124a is particularly applicable to the Veteran situation. As it notes in evaluating the paralysis of a nerve disability the term incomplete indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis. Here the Veteran popliteal nerve has caused his loss of unassisted locomotion, constant falling, complete numbness and constant pain. Simply put, the Board finds that there is not a substantial difference between the Veteran's symptoms and complete paralysis. As such, the Board finds that the Veteran's right popliteal nerve disability is more closely approximated to the 40 percent rating criteria. See U.S.C. § 1155; 38 C.F.R. § 4.7. The Board notes that the 40 percent rating is the highest disability rating provided for external popliteal nerve (common peroneal), thus, a higher rating is not available under Diagnostic Code 8521, governing the evaluation of external popliteal nerve. See 38 C.F.R. § 4.124a, Diagnostic Code 8521. As this is the highest rating available under the diagnostic criteria 8521, no discussion of a higher rating is warranted. See 38 C.F.R. § 4.124a, DC 8521. Further, separate ratings cannot be assigned under DCs 8520, 8522, 8523, 8524 or 8525 along with DC 8521 as the symptomatology associated with the Veteran's disability was not shown by the evidentiary record to be separate and distinct. The symptomatology, such as pain, is overlapping and duplicative. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38C.F.R. §4.14. The Board has also considered whether higher ratings are available under the regulations pertaining to neuritis and neuralgia. However, in terms of neuritis, the maximum rating to be assigned for neuritis not characterized by organic changes referred to in the section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis, thus application of DCs 8621, 8622, 8623, 8623, 8624 or 8625, as relevant to the affected nerves, would not result in a higher rating. Further as to a higher rating as to neuritis under DC 8620, the February 2017 and November 2018 examiners did not find the Veteran had muscle atrophy of the right lower extremity, and each examiner found the Veteran had reflexes. Thus, a higher evaluation pursuant neuritis is not warranted at any point during the appeal period. In terms of neuralgia, a maximum rating of moderate incomplete paralysis is to be assigned, except for tic douloureux or trifacial neuralgia, which may be rated up to complete paralysis. Thus, application of DCs 8720, 8721, 8722, 8723, 8724 or 8725 would not result in a higher rating. In sum, a 40 percent rating is assigned for the Veteran's right popliteal nerve disability for the entire appeal period. GAYLE E. STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Acosta, 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.