Citation Nr: 21031997 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 19-25 991A DATE: May 25, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for right lower extremity diabetic peripheral neuropathy, sciatic nerve, is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy, sciatic nerve, is denied. Entitlement to separate 10 percent rating for right lower extremity diabetic peripheral neuropathy, external popliteal nerve, is granted. Entitlement to separate 10 percent rating for left lower extremity diabetic peripheral neuropathy, external popliteal nerve, is granted. REMANDED Entitlement to a total disability rating based on service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right lower extremity diabetic peripheral neuropathy results in moderate incomplete paralysis of the sciatic nerve. 2. The Veteran's left lower extremity diabetic peripheral neuropathy results in moderate incomplete paralysis of the sciatic nerve. 3. Diabetic peripheral neuropathy is shown to result in mild incomplete paralysis of the right and left external popliteal nerves. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating in excess of 20 percent for right lower extremity diabetic peripheral neuropathy, sciatic nerve, have not been met. 38 U.S.C. §§ 1155, 5107, 5117; 38 C.F.R. §§ 3.105(e), 3.344, 4.130, Diagnostic Code (DC) 8520. 2. The criteria for a higher initial rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy, sciatic nerve, have not been met. 38 U.S.C. §§ 1155, 5107, 5117; 38 C.F.R. §§ 3.105(e), 3.344, 4.130, Diagnostic Code 8520. 3. The criteria for a separate 10 percent rating for right lower extremity diabetic peripheral neuropathy, external popliteal nerve, have been met. 38 U.S.C. §§ 1155, 5107, 5117; 38 C.F.R. §§ 3.105(e), 3.344, 4.130, Diagnostic Code 8521. 4. The criteria for a separate 10 percent rating for left lower extremity diabetic peripheral neuropathy, external popliteal nerve, have been met. 38 U.S.C. §§ 1155, 5107, 5117; 38 C.F.R. §§ 3.105(e), 3.344, 4.130, Diagnostic Code 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a May 2020 Board hearing. The hearing transcript is of record. The Board remanded the appeal in June 2020 and February 2021 for an updated VA examination and to obtain updated VA treatment records. All requested development has been completed. On March 2021, the Veteran requested that his appeal be held open for 30 days to submit a response to a February 2021 supplemental statement of the case. An April 2021 letter informed the Veteran that his motion for a 30-day extension of time had been approved and the Veteran was afforded an additional 30 days from the date of the letter to submit evidence or argument. In March 2021, the Veteran submitted additional argument and lay evidence in support of his appeal. The Veteran raised a claim for a TDIU in the context of his increased rating claim. The appeal for a TDIU has been remanded for additional development. Increased Rating 1. Entitlement to an initial rating in excess of 20 percent for right and left lower extremity diabetic peripheral neuropathy The Veteran contends that he is entitled to a higher rating for right and left lower extremity diabetic peripheral neuropathy. He contends in May 2020 Board hearing testimony that his symptoms had gotten worse since he was awarded his 20 percent ratings for the right and left lower extremity. He described numbness in the lower side. He also reported that his feet were painful at night such that he would have to get up and try to walk around, and that he had gone to the emergency room three times for foot pain. Subsequent to his hearing, the Veteran was afforded updated October 2020 and November 2020 VA examinations to address the current severity of his diabetic peripheral neuropathy. The Veteran more recently alleged in a March 2021 statement that VA treatment records were not adequately considered in evaluating his appeal, that he had been seen at the VA hospital for severe neuropathic pain, and he described frequent and continuous problems with falling due to his lower extremity neuropathy. He reported that due to his fall risks, he has been prescribed a walker and a caine, and a stair chair has been installed in his home to assist his access to the second floor. He reported increased dosage in his medications for neuropathic pain. Updated VA treatment records have been obtained on remand and have been reviewed. VA treatment records support the Veteran's allegations of neuropathic pain in the lower extremities. The Veteran has been seen for repeated complaints related to falls, decreased balance and coordination, and decreased gait strength possibly leading to increased falls. Symptoms include an abnormal gait and physical therapy was recommended. Right and left lower extremity diabetic peripheral neuropathy is currently rated under Diagnostic Code 8520 for impairment of the sciatic nerve. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. 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 maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. A June 2018 VA examination identified moderate right and left lower extremity symptoms attributable to diabetic peripheral neuropathy. Regarding sensory disturbance, the Veteran had normal light touch, position, vibration, and cold sensation. The Veteran had moderate intermittent pain, paresthesias or dysesthesias, and moderate numbness in the lower extremities bilaterally. Regarding impairment of motor functions, he had less than normal strength in the bilateral lower extremities. Regarding loss of reflexes, he had decreased deep tendon reflexes in the knee and ankle. He did not have muscle atrophy or trophic changes. The examiner described the Veteran as having moderate incomplete paralysis of the sciatic nerve on both the left and the right. He did not have complete paralysis. An October 2020 VA examination noted the Veteran's medical treatment history and complaints related to poor balance, numbness, and emergency room visits for pain, treated by gabapentin. Regarding sensory disturbance, he had decreased light touch, position, and cold sensation. The Veteran had moderate intermittent pain bilaterally. He had mild right and moderate left lower extremity paresthesias or dysesthesias. He had mild right and moderate left lower extremity numbness. Regarding impairment of motor functions, he had less than normal strength in the bilateral lower extremities. Reflexes were normal. There was no muscle atrophy or trophic changes. The examiner described the Veteran as having moderate incomplete paralysis of the left sciatic nerve and mild incomplete paralysis of the right sciatic nerve. A November 2020 VA examination showed, regarding sensory disturbance, that the Veteran had decreased light touch sensation. He had moderate intermittent pain bilaterally. He had mild paresthesias or dysthesias and mild numbness in the lower extremities bilaterally. Regarding impairment of motor functions, he had normal strength in the bilateral lower extremities. Reflexes were normal. There was no muscle atrophy. Trophic changes described as shiny skin and hair loss was identified in the lower legs. Gait was unsteady due to neuropathy. The examiner described the Veteran as having mild incomplete paralysis of both the right and the left sciatic nerve. The Veteran has provided credible lay evidence identifying severe neuropathic pain, and he described frequent and continuous problems with falling due to his lower extremity neuropathy supported by findings in VA treatment records. VA treatment records identify current symptoms which include abnormal gait, increased falls, decreased balance and coordination, and decreased gait strength. Based on the above, the Board finds that the disability is primarily manifest by decreased sensation, moderate intermittent pain, paresthesias or dysthesias, and numbness, less than normal strength, and some trophic changes in the lower legs resulting in moderate symptoms in the sciatic nerve of both the right and left lower extremity. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis of the sciatic nerve. The Board acknowledges the credible lay assertions of gait imbalance, numbness, and pain in the lower extremities which lead to functional limitations to walking, and to frequent falls. The Board finds that the Veteran's symptoms and his functional limitations due to his symptoms, to include gait imbalance and frequent falls, are contemplated by his current rating based on decreased strength and sensation, intermittent pain, numbness, paresthesias or dysthesias, and other factors affecting the sciatic nerve. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for a higher initial rating in excess of 20 percent for left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy insomuch as it affects the sciatic nerve. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to separate ratings for right and left lower extremity diabetic peripheral neuropathy, external popliteal nerve The Veteran has described in hearing testimony that he has pain symptoms specific to the feet. The Veteran alleged in a March 2021 statement that he has been prescribed diabetic shoes and socks, and that he was informed by doctors that his constant tingling and cold feeling in his lower extremities would never go away. The Board has considered all other potentially applicable Diagnostic Codes. The November 2020 VA examination shows that in addition to involvement of the sciatic nerve bilaterally, the Veteran had neurological impairment of the external popliteal, common peroneal, nerve in the right lower extremity affecting the feet. This was described as mild incomplete paralysis of both the right and the left external popliteal nerve. Paralysis of the external popliteal nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8521. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8621 and 8721. 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. 38 C.F.R. § 4.124a. As discussed above, VA examinations show that the Veteran's disability is primarily manifest by decreased sensation, moderate intermittent pain, paresthesias or dysthesias, and numbness, less than normal strength, and some trophic changes in the form of hair loss and shiny skin in the lower legs which affect both the sciatic and external popliteal nerves. VA treatment records and lay statements support these findings and describe concerns with regard to gait imbalance, numbness, and severe pain in the lower extremities which lead to frequent falls. The November 2020 VA found with respect to the right and left external popliteal nerves, specifically, that the impairment represented mild incomplete paralysis. Based on the above, the Board finds that the disability is primarily manifest by mild incomplete paralysis of the left and right external popliteal nerves. Therefore, the Board finds that separate 10 percent ratings under Diagnostic Code 8521 are warranted for both the right lower extremity and the left lower extremity diabetic peripheral neuropathy of the external popliteal nerves. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran asserts in a March 2021 statement that his work was been terminated because of frequent falls due to peripheral neuropathy and his inability to lift and transport items. Thus, a TDIU was raised as part of his increased rating claim. The Board observes that the grant of separate 10 percent ratings for right and left lower extremity peripheral neuropathy of the external popliteal nerves in this decision will result in a combined 100 percent rating. However, the Veteran asserted in a March 2021 statement that a continuation of a prior award of special monthly compensation under 38 U.S.C. § 1114 (s) (previously awarded based on a temporary 100 percent rating for prostate cancer) was warranted. For the purpose of entitlement to special monthly compensation under 38 C.F.R. § 1114(s), a TDIU rating could serve as the "total" service-connected disability if TDIU entitlement was solely predicated upon a single disability. Bradley v. Peake, 22 Vet. App. 280, 292-94 (2008). The Veteran's service-connected diabetes mellitus and peripheral neuropathy result from a common etiology, thus, they will be considered as one disability. See 38 C.F.R. § 4.16 (a). A remand is necessary to address entitlement to a TDIU on the basis of a single disability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form. Then, schedule the Veteran for an examination(s) by an appropriate clinician(s) regarding the current severity of the combination of his diabetes mellitus and secondary upper and lower extremity peripheral neuropathy alleged as causing unemployability. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his disabilities on employment. The examiner should identify all limitations or functional impairment caused solely by service-connected diabetes mellitus and secondary diabetic peripheral neuropathy. 2. Thereafter, adjudicate the issue of entitlement to a TDIU. If entitlement to a TDIU on the basis of a single disability (or disabilities of common etiology) is found, the AOJ should consider whether special monthly compensation may be awarded. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.