Citation Nr: 21032568 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-11 914 DATE: May 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. Entitlement to an increased rating in excess of 20 percent for left lower extremity neuropathy is denied. Entitlement to an increased rating in excess of 20 percent for right lower extremity neuropathy is denied. FINDING OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran was awarded a TDIU. 2. The Veteran's left lower extremity neuropathy is not manifested by complete paralysis of the anterior tibial nerve or the posterior tibial nerve, or severe incomplete paralysis of the external popliteal nerve. 3. The Veteran's right lower extremity neuropathy is not manifested by complete paralysis of the anterior tibial nerve or the posterior tibial nerve, or severe incomplete paralysis of the external popliteal nerve. CONCLUSION OF LAW 1. The criteria for dismissal of the appeal regarding entitlement to a TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55, 20.204. 2. The criteria for a rating in excess of 20 percent for left lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.124a, DC 8521, 8523, 8525. 3. The criteria for a rating in excess of 20 percent for right lower extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.124a, DC 8521, 8523, 8525. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1968 to October 1969. These matters are before the Board of Appeals (Board) on appeal from a July 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board and were remanded in June 2019 for further development. The development has been completed and the matters are again before the Board. Dismissed Claim Regarding the claim to a TDIU that was before the Board in its previous remand, the claim was granted by the RO in a June 2020 rating decision. As the full benefit sought was granted, further appellate review is moot, and the claim is no longer on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Claims Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). There are multiple diagnostic codes that pertain to the Veteran's claim. Currently, the Veteran's bilateral lower extremity neuropathy is rated under DC 8521. Under DC 8521, complete paralysis warrants a 40 percent rating. Severe incomplete paralysis warrants a 30 percent rating, moderate incomplete paralysis warrants a 20 percent rating, and mild incomplete paralysis warrants a 10 percent rating. In his January 2020 examinations, the examiner noted the Veteran's peroneal nerve (anterior tibial nerve) was affected. Under DC 8523, complete paralysis of the anterior tibial nerve warrants a 30 percent rating. Severe incomplete paralysis warrants a 20 percent rating, moderate incomplete paralysis warrants a 10 percent rating, and mild incomplete paralysis is rated as noncompensable. The January 2020 examiner also reported the Veteran's posterior tibial nerve was affected. Under DC 8525, complete paralysis of the posterior tibial nerve warrants a 30 percent rating, severe incomplete paralysis warrants a 20 percent rating, moderate and mild incomplete paralysis both warrant 10 percent ratings. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The term "incomplete paralysis," with this and other peripheral nerve injuries, 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 should be for the mild, or at most, the moderate degree of impairment. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings are combined with application of the bilateral factor. 38 C.F.R. § 4.124a. The Veteran contends his bilateral lower extremity radiculopathy is worse than indicated by his 20 percent disability rating. The Veteran said his neuropathy had gotten much worse and that he had pain and numbness. (See e.g. October 2011, March 2016 statements.) In an August 2011 diabetes examination, the Veteran reported burning and pain in his lower extremities, especially at night. The Veteran was found to have paranesthesia, dysesthesias, numbness, and pain. The Veteran had a normal gait with no muscle atrophy. The Veteran had an examination for his lower extremity neuropathy in March 2015. The examiner saw the Veteran in person, reviewed his file, and noted the Veteran's symptoms of mild intermittent pain, severe paresthesias, and severe numbness in both of his lower extremities. The Veteran also had decreased touch sensation, but no problems with muscle strength or atrophy. The examiner opined the Veteran had lower extremity diabetic neuropathy but that his sciatic nerve and femoral nerves were normal. On remand, the Veteran had an examination for his peripheral nerves. The examiner saw the Veteran in person, reviewed his file, and reported the Veteran's history and current symptoms. The Veteran said he had trouble sleeping, had pain and numbness, and that he used a cane on uneven ground due to his bilateral lower level peripheral neuropathy. The examiner noted the Veteran had severe numbness and paresthesias in his lower extremities. The Veteran had no muscle strength loss or muscle atrophy, but did not have light touch sensation in his bilateral lower extremities and had an abnormal gait. The examiner opined overall, the Veteran had moderate incomplete paralysis in both of his lower extremity peroneal nerves (anterior tibial). The examiner also said the Veteran had moderate incomplete paralysis of his posterior tibial nerve. The Veteran's medical records indicate that he continues to been seen for his neuropathy with a March 2020 treatment record noting his condition, but not reporting how severe his condition was. Indeed, the Veteran's neuropathy has often been mentioned in his treatment records, but often without noting the severity of his condition. (See e.g. December 2014, January 2015 treatment records.) Often, the Veteran complained of foot pain, burning, and balance trouble due to his neuropathy. (See e.g. July 2015, January 2016, August 2019 treatment records.) The Veteran has also often reported his activity is limited due to his neuropathy, but also reported in June 2019 that he was able to walk about a half of a mile around the perimeter of his hay field, weather permitting. The Veteran's record also shows that in October 2019, he asked to increased his medication due to increasing pain in his feet and that he was having trouble sleeping due to his condition. The Board has reviewed the evidence in light of all possible diagnostic codes that may be applicable to the Veteran's condition. However, while the Veteran's treatment records, his examinations, and his statements all show that the Veteran continues to suffer from bilateral lower extremity neuropathy, the most probative evidence does not indicate that it is severe enough to warrant a higher than 20 percent rating. The majority of the objective evidence shows that the overall severity of the Veteran's neuropathy does not rise to the level of complete paralysis or severe incomplete paralysis. Regarding the claim above, the Board acknowledges the Veteran's statements that his lower extremity neuropathy continues to affect his daily life and still causes symptoms and pain and his statements of his symptoms from his treatment records. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his complex medical condition or what rating is should get. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the examinations and medical records on file and has weighed them as discussed above. The Board also finds the VA examinations to be adequate as the examiners reviewed the Veteran's file, saw him in person, accounted for his statements as well as his medical history, and offered opinions backed by detailed explanations. The Veteran's complaints are in most part the basis for the current findings, including the TDIU grant. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his lower extremity neuropathy warrants a higher rating. This does not mean that the Veteran's neuropathy does not cause him problems; clearly, his condition is quite serious. The only question is the degree. (Continued on the next page) Indeed, VA has found the Veteran's neuropathy, along with his other service-connected disabilities, is of such concern as to warrant a TDIU (a 100% rating), which has been granted in an RO rating decision as noted above. This TDIU has been awarded for the entire time period on appeal. Thus, the Board also notes that even if a higher disability rating had been granted in this decision, it would not generally have resulted in a higher monetary award that the currently 100% rating. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.