Citation Nr: 21042602 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-55 967 DATE: July 13, 2021 ORDER 1. For the initial rating period from February 27, 2014 forward, a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied. 2. A higher initial disability rating for peripheral neuropathy of the left lower extremity, in excess of 10 percent from February 27, 2014, and in excess of 20 percent from January 2, 2020, is denied. FINDINGS OF FACT 1. For the initial rating period from February 27, 2014 forward, the peripheral neuropathy of the right lower extremity has been manifested by mild incomplete paralysis. 2. For the initial rating period from February 27, 2014 to January 2, 2020, the peripheral neuropathy of the left lower extremity was manifested by mild incomplete paralysis. 3. For the initial rating period from January 2, 2020 forward, the peripheral neuropathy of the left lower extremity has been manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. For the initial rating period from February 27, 2014 forward, the criteria for a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.124a, DC 8520. 2. For the initial rating period from February 27, 2014 to January 2, 2020, the criteria for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.124a, DC 8520. 3. For the initial rating period from January 2, 2020 forward, the criteria for a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to July 1970. The Veteran testified in a hearing before the Board of Veterans' Appeals (Board) in August 2019. The claims currently on appeal were remanded by the Board for further development in November 2019. Development has been completed, and the case is again before the Board. Disability Rating Legal Authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 1. Rating Peripheral Neuropathy of the Right Lower Extremity 2. Rating Peripheral Neuropathy of the Left Lower Extremity The Veteran appeals for higher ratings for the peripheral neuropathy of the right and left lower extremities, asserting that both conditions have become much worse over time. See January 2016 Statement in Support of Claim. For the initial rating period on appeal, the right and left lower extremity peripheral neuropathies were rated under the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520, for paralysis of the sciatic nerve. DCs 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the external popliteal nerve. 38 C.F.R. § 4.124a. 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. Although the use of similar terminology by medical professionals should be considered, such use is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that the criteria for an initial rating higher than 10 percent under DC 8520 were met or approximated for the initial rating period from February 27, 2014 forward for the right lower extremity peripheral neuropathy and for the initial rating period from February 27, 2014 through January 2, 2020 for the left lower extremity peripheral neuropathy. For the initial rating period from February 27, 2014 forward for the right lower extremity, and for the period from February 27, 2014 through January 2, 2020 for the left lower extremity, the peripheral neuropathies were manifested by mild incomplete paralysis. An August 2014 VA examiner wrote that the peripheral neuropathy of the right and left lower extremities was manifested by mild incomplete paralysis with moderate paresthesias and dysthesias in the right and left lower extremities. Similarly, a February 2016 VA examiner wrote that peripheral neuropathy of the right and left lower extremities was manifested by mild incomplete paralysis with moderate numbness and moderate paresthesias in the feet that stopped at the ankle. A review of VA medical records during the appeal period does not reflect specific treatment for bilateral neuropathy symptoms other than regular prescription of medication for the relief of those symptoms. An October 2019 podiatry note does indicate that the Veteran reported experiencing foot pain that he himself attributed to his neuropathy, but upon evaluation his treating VA physician dismissed this association, finding that the Veteran's description of his pain was not neuropathic in nature. Thus, the peripheral neuropathy symptoms in the right and left lower extremities are wholly sensory in nature, and 38 C.F.R. § 4.124a provides that, when neurological involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In consideration of the foregoing, as well as the assessments by the August 2014 and February 2016 VA examiners that the lower extremity peripheral neuropathies were mild, the Board finds that the right and left lower extremity peripheral neuropathies more closely approximate neuritis, neuralgia, or incomplete paralysis of the sciatic nerve that is mild in degree rather than moderate neuritis, neuralgia, or incomplete paralysis of the sciatic nerve; therefore, the criteria for initial ratings higher than 10 percent for right and left lower extremity peripheral neuropathies under DC 8520, 8620, or 8720 have not been met or approximated for the period from February 27, 2014 forward for the right lower extremity or for the period from February 27, 2014 through January 2, 2020 for the left lower extremity, and the appeal for higher initial rating is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Regarding left lower extremity peripheral neuropathy for the initial rating period from January 2, 2020 forward, the record shows that the manifestations of sciatic nerve neuropathy do not result in incomplete moderately severe paralysis of the left lower extremity for the period from January 2, 2020 forward. In the January 2020 VA examination report, the Veteran reported tingling in his feet, numbness in the bottoms of his feet, and trouble knowing where his feet were when climbing ladders for work. The Veteran also reported constant numbness, soreness, and tingling and shooting pain. The examiner wrote that peripheral neuropathy of the left lower extremity was manifested by moderate incomplete paralysis. Considering the lay and medical evidence, the Board finds that the Veteran's left lower extremity peripheral neuropathy does not more nearly approximate the level of disability for moderately severe incomplete paralysis for the period from January 2, 2020 forward. While a health care provider's characterization of the level of severity of a disability is not binding on the Board, here, the characterizations of mild and moderate were consistent with the evidence of record. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present"). The evidence of record, including the January 2020 VA examination report, reflects that the symptoms did not more nearly approximate moderately severe incomplete paralysis for the period from January 2, 2020 forward for the left lower extremity. For the reasons set forth above, the Board concludes that the preponderance of the evidence is against the claim for an initial rating in excess of 20 percent for left lower extremity peripheral neuropathy for the period from January 2, 2020 forward, and the claim for an initial rating in excess of 20 percent from that date is denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. C. M. Collins Acting Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.