Citation Nr: 21032584 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-50 850 Advanced on the Docket DATE: May 27, 2021 ORDER Entitlement to a 40 percent for rating for right lower extremity (RLE) diabetic peripheral neuropathy for the period from September 6, 2016 to January 8, 2021 is granted. Entitlement to a 60 percent rating for RLE peripheral neuropathy for the period since January 9, 2021, is granted. Entitlement to a 40 percent for rating for left lower extremity (LLE) diabetic peripheral neuropathy for the period from September 6, 2016 to January 8, 2021 is granted. Entitlement to a 60 percent rating for LLE peripheral neuropathy for the period since January 9, 2021, is granted. FINDINGS OF FACT 1. For the period from September 6, 2016 to January 8, 2021, the Veteran's RLE peripheral neuropathy was no more than moderately severe. 2. Since January 9, 2021, the Veteran's RLE peripheral neuropathy has been no more than severe, and complete paralysis of the sciatic nerve is not shown. 3. For the period from September 6, 2016 to January 8, 2021, the Veteran's LLE peripheral neuropathy has been no more than moderately severe. 4. Since January 9, 2021, the Veteran's LLE peripheral neuropathy has been no more than severe, and complete paralysis of the sciatic nerve is not shown. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for RLE peripheral neuropathy for the period from September 6, 2016 to January 8, 2021 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2020). 2. The criteria for a 60 percent rating for RLE peripheral neuropathy for the period since January 9, 2021 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2020). 3. The criteria for a 40 percent rating for LLE peripheral neuropathy for the period from September 6, 2016 to January 8, 2021 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2020). 4. The criteria for a 60 percent rating for LLE peripheral neuropathy for the period since January 9, 2021 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to December 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A February 2019 Board decision granted initial ratings of 20%, but no higher, for peripheral neuropathy of each lower extremity prior to September 6, 2016, but denied ratings in excess of 20% thereafter. In light of the Court's holding in Manlincon v. West, 12 Vet. App. 238 (1999), the Board remanded claims for effective dates prior to March 31, 2008 for service connection for bilateral hearing loss and for tinnitus, and an initial compensable rating for bilateral hearing loss. The Board also remanded claims for: service connection for hypertension; an initial rating higher than 10% prior to November 24, 2010, and a rating higher than 20% since November 24, 2010, for type 2 diabetes mellitus; initial ratings higher than 20% for left upper extremity peripheral neuropathy and for the right upper extremity peripheral neuropathy; and a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). A June 2019 rating effectuated the Board's grants of initial 20% ratings for peripheral neuropathy of each lower extremity, effective March 31, 2008 (date of receipt of claim). The Veteran appealed the February 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (Court) which entered an order in December 2019, pursuant to a Joint Motion for Partial Remand (JMR), upholding the grant of initial 20% ratings for peripheral neuropathy of each lower extremity prior to September 6, 2016, but vacating those portions of the decision which denied ratings in excess of 20% prior to and after September 6, 2016. In a December 26, 2019 letter the Veteran's attorney stated that the appeal was being limited to the claims for ratings higher than 20% for diabetic peripheral neuropathy of each lower extremity since September 6, 2016. An August 2020 Board decision dismissed claims for a compensable rating for bilateral hearing loss, a rating higher than 20% for RLE peripheral neuropathy prior to September 6, 2016, and a rating higher than 20% LLE peripheral neuropathy prior to September 6, 2016, because those claims had been withdrawn. That decision remanded claims for ratings higher than 20% for RLE and LLE peripheral neuropathy from September 6, 2016. A January 25, 2021 rating decision granted service connection for diabetic nephropathy with hypertension and assigned an initial 60% rating; granted entitlement to a total rating based on individual unemployability; and granted basic eligibility to Dependents' Educational Assistance (DEA), all effective August 8, 2016. A February 16, 2021 rating decision continued a 20% rating for diabetes mellitus, type II, with noncompensable bilateral nuclear sclerosis cataracts, since November 24, 2010. A February 26, 2021 rating decision denied service connection for a glioblastoma. A February 27, 2021, supplemental statement of the case (SSOC) addressed claims for ratings higher than 20% for RLE and LLE peripheral neuropathy since September 6, 2016. On April 19, 2021, VA Form 20-0996, Decision Review Request: Higher Level of Review, was received as to the adjudications by the January 25, 2021 rating decision as to the effective dates of August 8, 2016 for the TDIU rating; service connection for diabetic nephropathy rated 60%, and entitlement to DEA benefits. An April 20, 2021 rating decision determined that, as to the Veteran's request for a Higher Level Review, it was found that there was a duty to assist error as to claims for diabetic nephropathy with hypertension, individual unemployability, and for ancillary benefits, i.e., DEA, and that because of not having obtained medical examinations and/or opinions there would be further development for clarification and reconciliation of medical records. A VA Form 20-0999, Higher-Level Review Return, dated April 20, 2021, states that because the issues of TDIU and entitlement to DEA benefits were intertwined and currently both used the date of nephropathy as the assigned effective date, these issues were deferred for a decision as to the proper effective date for the grant of service connection for diabetic nephropathy. A May 20, 2021 rating decision denied an earlier effective date for the evaluation of diabetic nephropathy with hypertension, denied entitlement to an earlier effective date for TDIU and denied entitlement to an earlier effective date for DEA. In May 2021, the Veteran requested his case be Advanced on the Docket. The Board has granted this motion and the Veteran's appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a)(2) (2012). Rating Principles Disability evaluations are determined by the application of the VA 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 service-connected diseases and injuries and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Different ratings may be assigned for varying periods impairment from disability. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). If two ratings are potentially applicable, the higher rating 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified in a Diagnostic Code. Findings sufficiently characteristic to identify the disability therefrom, and above all, coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The criteria for rating peripheral nerve impairment are set forth in 38 C.F.R. §§ 4.120, 4.123, 4.124a. 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. The words "mild," "moderate," and "severe" (as well as "moderately 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. Under Diagnostic Code 8526 paralysis of the anterior crural (femoral) nerve when mild warrants a 10% rating; when moderate a 20% rating is assigned; when severe a 30% rating is assigned; and when complete, with paralysis of the quadriceps extensor muscles a 40% rating is assigned. 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. INCREASED RATINGS Entitlement to a rating no higher than 40% for RLE diabetic peripheral neuropathy from September 6, 2016, and to a rating no higher than 60% since January 9, 2021 Entitlement to a rating no higher than 40% for LLE diabetic peripheral neuropathy from September 6, 2016, and to a rating no higher than 60% since January 9, 2021 Because the severity and degree of functional impairment of the diabetic peripheral neuropathy has been essentially the same in each lower extremity throughout the relevant time frame, the proper disability ratings to be assigned for each will be discussed simultaneously. Initially, the Board notes that the 20% rating for the diabetic peripheral neuropathy of each lower extremity was assigned under Diagnostic Code 8526 for moderate disability of the anterior crural (femoral) nerve. However, the most recent rating examination of January 9, 2021, found that the femoral nerve was not affected. Because past examinations had variously reported that the diabetic peripheral neuropathy had affected either the anterior crural (femoral) or the sciatic nerve of the Veteran's lower extremities, the January 9, 2021, physician was requested to clarify which nerve was affected. In a February 23, 2021 addendum that examiner reported that the disease of diabetic peripheral neuropathy started at the ends of limbs and then proceeds up the leg and stated that the involvement of the legs and feet involved the sciatic nerves and did not involve the femoral nerves. In this regard, ratings under Diagnostic Code 8526, anterior crural (femoral) nerve and Diagnostic Code 8520, sciatic nerve, are the same for mild and moderate impairment, i. e., 10% and 20%, respectively. However, they differ in that Diagnostic Code 8520 also provides for a rating of 40% for moderately severe impairment, which Diagnostic Code 8526 does not; and the rating for severe impairment under Diagnostic Code 8526 is 30% but severe sciatic neuropathy warrants a 60% rating. Similarly, complete paralysis of the anterior crural nerve would warrant a 40% rating; whereas, complete sciatic nerve paralysis would warrant an 80% rating. Although prior examiners had indicated that the anterior crural nerve was affected, the January 9, 2021 examiner was the only clinician who was requested to, and did, express an opinion as to which of these two nerves was affected and that opinion was sufficiently succinct for the Board to find that there has been only impairment of the sciatic nerve throughout the entire appeal. Thus, the appropriate ratings will be premised upon the rating criteria in Diagnostic Code 8520 for impairment of the sciatic nerves of each lower extremity. As to the period beginning September 6, 2016, a comparison of the official neurologic examination at that time with the prior examination on March 8, 2011 reveals that the Veteran continued to have decreased sensations in each leg. However, in keeping with the progressive nature of his diabetic peripheral neuropathy, his reflexes were diminished from normal in 2011 to being diminished at 1+ in each leg. There continued to be normal muscle strength and no muscle atrophy but, unlike the 2011 examination, the September 6, 2016 examination found that he had trophic changes in each lower extremity, consisting of sparse hair and shiny skin. Although moderate impairment is the highest rating assignable premised solely upon sensory impairment, and without motor impairment, an adjunct Diabetes Mellitus Disability Benefits Questionnaire (DBQ) of September 6, 2016 noted that the neurologic examination was abnormal because the Veteran had a wide-based gait. In other words, the September 6, 2016 examinations found more than simply sensory changes but trophic changes signifying a greater progression of the diabetic neuropathy to the extent that the Veteran's impairment of his gait demonstrated motor impairment. Accordingly, the Board finds that since September 6, 2016, and prior to January 9, 2021, the diabetic peripheral neuropathy in each lower extremity was no more than moderately severe and, as such, the diabetic peripheral neuropathy in each lower extremity warranted a 40% disability rating. However, this does not end the matter. Rather, the January 9, 2021 VA rating examination found that the Veteran's diabetic peripheral neuropathy in each lower extremity had continued to worsen. In this regard, none of the VA examinations have found any muscle atrophy, much less the marked muscle atrophy listed as a criterion for severe sciatic neuropathy. However, VA's Adjudication Procedures Manual (Manual or M21-1) states that trophic changes may be seen in severe longstanding neuropathy cases. See M21-1, III.iv.4.G.4.a. The January 9, 2021 examination, more than four years after the 2016 examination, again found trophic changes, with loss of hair distal to the mid-tibias. That same M21-1 provision also references loss of reflexes and sensory disturbance as factors for consideration. In this regard, the January 9, 2021 examination found not merely depresses reflexes at the ankles of 1+ but noted that the Veteran had more than simply decreased sensations in his lower extremities. Rather, sensation was completely absent in each lower extremity to light touch, position sense, vibration, and cold sensation. That examiner noted that the Veteran's numbness of the ankles and feet, having started in about 2008, had progressively worsened, such that he now had dense numbness of the ankles and feet. The VA examiner that conducted the January 9, 2021 neurology examination commented that the Veteran's diabetic peripheral neuropathy caused the Veteran to have limited ambulation and limited ability to drive because he could not feel his feet. That same examiner conducted the Diabetes Mellitus DBQ of January 9, 2021 and in the "Remarks" section stated that the Veteran was "confined to wheelchair has neuropathy (weakness) and also numbness from knee distal[ly] but ankle and feet have dense numbness." The report of that Diabetes Mellitus DBQ further commented that, as to functional impact, that due to peripheral neuropathy the Veteran had weakness, with his legs giving way with progressive walking. Moreover, when walking in his own home he had to hold onto counters or walls, and when outside of his house he used a wheelchair. All of this leads to the January 9, 2021 examiner's opinion, following the Diabetic Sensory-Motor Peripheral Neuropathy DBQ examination, that findings indicated moderate sciatic neuropathy; whereas, in the "Remarks" section it was reported that there was severe impairment. In this regard, that examiner stated in the February 23, 2021 addendum that "the lower neuropathy is considered moderate. It was an error in Remarks to mention severe." Upon closer examination of the report of the January 9, 2021 Diabetic Sensory-Motor Peripheral Neuropathy DBQ the "Remarks" section requested an opinion as to "the severity of any lower extremity sensory neuropathy found," as to which the examiner stated it was "[s]evere." However, the query only called for an opinion as to "sensory neuropathy" and did not request an opinion as to the severity of any motor impairment, or any overall impairment from both sensory and motor impairment. Thus, when the examiner revised the opinion in the February 23, 2021 addendum from "severe" to "moderate," and giving the benefit of the doubt to the Veteran, it must be concluded that the revised opinion dealt with only the severity of the sensory impairment alone, and not the severity of any motor impairment, or any overall impairment from both sensory and motor impairment. Notwithstanding the absence of found marked muscular atrophy, given that examiner's additional comments as to the Veteran's clearly demonstrated impairment in his ability to ambulate due to his diabetic peripheral neuropathy in each lower extremity, the Board finds that since January 9, 2021, the diabetic peripheral neuropathy has been productive of severe sciatic neuropathy in the RLE as well as in the LLE. Accordingly, since January 9, 2021, a rating of no more than 60% for severe sciatic neuropathy of the RLE and for the LLE is warranted. No higher rating is assignable under Diagnostic Code 8520 unless there is complete paralysis of the sciatic nerve and, here, it is neither contended nor shown that such impairment exists. that such impairment exists. James A. DeFrank Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.