Citation Nr: 22010552 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 18-09 620 DATE: February 23, 2022 ORDER Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity prior to May 24, 2017, is denied. As of May 24, 2017, a disability rating of 40 percent (and no higher) for peripheral neuropathy of the left lower extremity, is granted, subject to controlling regulations governing the payment of monetary benefits. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity prior to May 24, 2017, is denied. As of May 24, 2017, a disability rating of 40 percent (and no higher) for peripheral neuropathy of the right lower extremity, is granted, subject to controlling regulations governing the payment of monetary benefits. Service connection for residuals of left foot fracture, secondary to service connected left lower extremity peripheral neuropathy, is granted. FINDINGS OF FACT 1. Prior to May 24, 2017, the Veteran's left lower extremity peripheral neuropathy was productive of no more than moderate incomplete paralysis. 2. From May 24, 2017, the Veteran's left lower extremity peripheral neuropathy was manifested by an overall disability picture more nearly approximating no more than moderately severe incomplete paralysis of the sciatic nerve (or complete paralysis of the external popliteal nerve). 3. Prior to May 24, 2017, the Veteran's right lower extremity peripheral neuropathy was productive of no more than moderate incomplete paralysis. 4. From May 24, 2017, the Veteran's right lower extremity peripheral neuropathy was manifested by an overall disability picture more nearly approximating no more than moderately severe incomplete paralysis of the sciatic nerve (or complete paralysis of the external popliteal nerve). 5. Resolving reasonable doubt in the Veteran's favor, the evidence shows that he sustained a left foot fracture as a result of his service-connected left lower extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. Prior to May 24, 2017, the criteria for a disability rating in excess of 20 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code (Code) 8520, 8721. 2. As of May 24, 2017, the criteria for an increased 40 percent rating, but no higher, for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Code 8520, 8721. 3. Prior to May 24, 2017, the criteria for a disability rating in excess of 20 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Code 8520, 8721. 4. As of May 24, 2017, the criteria for an increased 40 percent rating, but no higher, for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Code 8520, 8721. 5. The criteria for entitlement to service connection for residuals of left foot fracture are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from June 1963 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In November 2018, the Board remanded the claims for increased ratings for diabetes mellitus, type II, and peripheral neuropathy of each lower extremity for additional development. In July 2020, the Board issued a decision by another Veterans Law Judge that denied these claims. Pursuant to a Joint Motion for Partial Remand (Joint Motion), an August 2021 Court Order vacated the portion of the Board's July 2018 decision which denied increased ratings for his left and right lower extremity peripheral neuropathy and remanded the claims for action consistent with the terms of the Joint Motion. The Court Order dismissed the appeal as to the remaining issue. In the Joint Motion, the parties agreed that the July 2018 Board decision required remand because "the Board did not make a finding on whether the service-connected PN [peripheral neuropathy] resulted in Appellant's fractured foot and bones." In Bailey v. Wilkie, 33 Vet. App. 188 (2021), the Court held that, in addition to considering entitlement to increased benefits, VA must consider entitlement to any additional benefits due to complications from the disability, and it is not necessary that the Veteran file a formal claim for service connection for such additional disability. In this case, the Veteran's appeal for greater compensation for his service-connected bilateral lower extremity peripheral neuropathy has raised the question of potential entitlement to service connection for residuals of left foot fracture as secondary to the left foot peripheral neuropathy. Accordingly, the Board has considered the issue of entitlement to service connection for residuals of left foot fracture as part of the appeal for increased compensation for left foot peripheral neuropathy, and has been characterized as stated on the title page. See also, Roberson v. Principi, 251 F. 3d 1378, 1384 (2001) ("VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations."). In July 2021, VA received a VA Form 21-22a, Appointment of Individual as Claimant's Representative, executed on July 26, 2021, that assigned Stacey-Rae Simcox, Esquire, as the Veteran's representative. Thereafter, in August 2021, VA received VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, executed on March 25, 2021, that assigned Florida Department of Veteran's Affairs as his representative. As the July 2021 VA Form 21-22a appointing Attorney Simcox is the Veteran's most recently executed communication of his desired representative, the Board recognizes Attorney Simcox, who has been continuously submitting evidence and argument on the Veteran's behalf since she was first appointed his attorney in July 2021, as the Veteran's representative in this appeal. 1. Left Lower Extremity Peripheral Neuropathy prior to May 24, 2017 2. Left Lower Extremity Peripheral Neuropathy from May 24, 2017 3. Right Lower Extremity Peripheral Neuropathy prior to May 24, 2017 4. Right Lower Extremity Peripheral Neuropathy from to May 24, 2017 Disability ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of the Veteran's symptoms increased sometime prior to the date of the examination reports. The Veteran's left and right lower extremity peripheral neuropathy is rated under the criteria found at 38 C.F.R. § 4.124a, Code 8721 which compensates for neuralgia affecting the external popliteal (common peroneal) nerve, and applies the rating criteria for disabilities affecting that nerve, to include neuralgia, neuritis, and incomplete or complete paralysis of that nerve. This is because the May 2014 VA examination upon which the grant of service connection was based found that the sciatic and femoral nerves were not affected. The nerve affected was identified by the examiner as "small distal nerve fibers; small fiber sensory polyneuropathy stocking distribution [consistent with] diabetes." However, at the time of the October 2019 VA examination report, the nerve affected was the sciatic nerve. Accordingly, the Board finds that his left and right lower extremity peripheral neuropathy is more appropriately characterized under Code 8520, for paralysis of the sciatic nerve, from at least that time. In this respect, it is noted that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the diagnostic code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Paralysis of the external popliteal nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Code 8521. (Neuritis and neuralgia of that group are evaluated under 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. Complete paralysis, foot drop and slight droop of the first phalanges of all toes; cannot dorsiflex the foot; extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost; adduction weakened; anesthesia covers entire dorsum of foot is rated as 40 percent disabling. 38 C.F.R. § 4.124a. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Code 8520. (Neuritis and neuralgia of that group are evaluated under 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. Terms such as "mild," "moderate," "moderately severe," and "severe" are not defined in the regulations. Mild is generally defined as not being or involving what is extreme or not severe. Merriam-Webster's Collegiate Dictionary, 787 (11th ed. 2003). Moderate is generally defined as tending toward the mean or average amount. Id. at 798. Severe is generally defined as of a great degree or serious. Id. at 1140. Thus, moderately severe, by extension, lies somewhere in the middle of these definitions. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. See 38 C.F.R. § 4.6. Regulations provide that ratings for peripheral neurological disorders are assigned based on 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 levels 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 Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for wholly sensory conditions instead of a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Pursuant to the Veteran's August 2013 claim for an increased rating for his service connected diabetes mellitus, a VA Diabetes Mellitus Disability Benefits Questionnaire (Diabetes DBQ) was completed in May 2014. The examination report shows the Veteran reported it was hard to do much walking due to bilateral foot pain. Diabetic peripheral neuropathy was noted as a complication of the Veteran's diabetes mellitus. A May 2014 Diabetic Sensory-Motor Peripheral Neuropathy DBQ (Peripheral Neuropathy DBQ) shows symptoms of moderate intermittent bilateral lower extremity pain, paresthesias and/or dysesthesias and numbness. Strength was normal (5/5) and deep tendon reflexes were normal (2+) for each extremity tested. Light touch/monofilament testing was absent for each foot/toes and vibration sensation was absent for each lower extremity. The examiner noted no muscle atrophy but noted trophic changes, described as "loss of lower extremity hair" attributable to diabetic peripheral neuropathy. In assessing the severity of the Veteran's peripheral neuropathy of each lower extremity, the examiner noted that the sciatic and femoral nerves were normal and described the Veteran's neurologic impairment as "small distal nerve fibers; small fiber sensory polyneuropathy stocking distribution c/w [consistent with] diabetes." The Veteran described his functional impact as his "feet and lower legs hurt, are numb, and tingle; no prolonged walking or standing." Based on the above examination reports, the August 2014 rating decision on appeal granted service connection for left and right lower extremity peripheral neuropathy, associated with diabetes mellitus, type II, and assigned a 20 percent rating for each lower extremity from August 23, 2013, the date of receipt of the Veteran's claim for an increased rating for diabetes mellitus, type II. The Diagnostic Code applied was 8721 for neuralgia of the external popliteal nerve. VA treatment records include an October 2015 physicians note which shows the Veteran's "neuropathy doesn't really bother him in his feet even throughout the day" and he had had no falls. Objective findings included normal gait and "some hair growth even on his feet and toes." Although an August 2016 VA physician's note shows the Veteran reported experiencing "a stabbing pain from his knees to his shins and across his forefoot as well as above knees radiating to the right pinky toe;" on examination, he continued to have "some" residual hair growth on his feet and toes and normal gait. A November 2016 physician's note shows the Veteran reported having "some pain and some numbness in the feet, some arthralgias." These records show the Veteran reported no falls, near falls or fear of falling until May 24, 2017, when he reported he had fallen twice, recently. He reported having fallen on March 7, 2017 and March 20, 2017; he did not need to seek medical attention after the falls but was identified as "High Risk for Falls." The Veteran reported "he sometimes will drag his left leg if he walks for too far, between that and some peripheral neuropathy he has had a couple falls since last visit. No injuries." Neurologic examination included a finding of "[v]ery slight weakness to left ankle dorsiflexion." The assessment included a "history of falls related to diabetic peripheral sensory neuropathy and possibly slight left foot drop." Subsequent August 2017 physical therapy treatment records note the Veteran was having "issues with his feet which are effecting his balance and ability to walk without pain. Right leg gives out, pain with diabetes in both feet, right leg begins to 'drag it' for some time." It is noted the Veteran ambulated with no assistive device with marginal antalgic gait. Active range of motion testing showed reduced strength (3/5) in all extremities. These records show the Veteran was provided with a cane and walker to aid with ambulation. He also reported swelling in his ankles and the physical therapist noted he "may benefit from a trial of diabetic socks for ankle edema, or if necessary an evaluation for compression stockings, only if appropriate." In his January 2018 substantive appeal, the Veteran claimed that both of his feet were numb, with his toes curling under; that he had trouble walking due to his feet dragging and drooping; that his right leg collapsed under him; and that he shuffled when he walked because he could not feel the floor. VA treatment records show the Veteran continued to have difficulty with walking due to his diabetic peripheral neuropathy and, a February 2019 treatment report notes he requested a foot examination because he had fallen on December 22, 2018 and again one week prior to the date of consultation. X-ray examination showed multiple fractures involving some of the left toes and possible a metatarsal and a non-specific 1st distal phalangeal lesion. An October 2019 Peripheral Neuropathy DBQ (and October 2019 Diabetes DBQ) notes the Veteran reported pain in his feet and ankles along with numbness, paresthesia and diminished balance. His left and right lower extremity symptoms were mild constant pain, paresthesias and/or dysesthesias and numbness. He had normal (5/5) strength throughout. Bilateral ankle deep tendon reflexes were absent (0) and light touch/monofilament testing to the left and right foot/toes, vibration sensation to both lower extremities and cold sensation to both lower extremities was decreased. The examiner noted no muscle atrophy or trophic changes. The severity of the Veteran's bilateral lower extremity peripheral neuropathy was described as mild incomplete paralysis of the sciatic nerve. The functional impact was the "Veteran cannot operate foot controls, should not work around dangerous machines or in high places." More recent VA treatment records show the Veteran's continued problems walking due to his bilateral peripheral neuropathy. These records include a May 2020 physician note showing that the Veteran "walks about a half mile daily with his cane, sometimes has to stop and rest a few minutes." The same practitioner noted the Veteran's "left foot dropped down and drags on the ground." A December 2019 physical medicine and rehabilitation note notes a history of "[n]europathy causing falls and sustained foot fractures and footdrop." At this time, the Veteran was evaluated in the wheelchair seating and positioning clinic. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that, for the period prior to May 24, 2017, the Veteran's left and right lower extremity peripheral neuropathy was manifested by no more than moderate symptoms, warranting no more than the assigned 20 percent rating and, for the period from May 24, 2017, his bilateral lower extremity peripheral neuropathy was manifested by an overall disability picture more nearly approximating moderately severe incomplete paralysis of the sciatic nerve or complete paralysis of the external popliteal nerve, warranting an increased 40 percent rating (and no higher). A rating in excess of 20 percent prior to May 24, 2017 is not warranted because, prior to this date, the evidence shows the Veteran reported bilateral feet and lower leg pain, numbness and tingling with no prolonged walking or standing; however, he had no balance or gait problems and reported no incidents of having fallen. See, e.g., May 2014 Peripheral Neuropathy DBQ and October 2015, August 2016 and November 2016 VA treatment records. An increased 40 percent rating is warranted for left and right lower extremity peripheral neuropathy from May 24, 2017, when the Veteran reported his symptoms had gotten worse, he had imbalance issues, had fallen a couple of times and the assessment included a "history of falls related to diabetic peripheral sensory neuropathy and possibly slight left foot drop." These increased symptoms were also shown in the August 2017 physical therapy treatment records, which note "[r]ight leg gives out, pain with diabetes in both feet, right leg begins to 'drag it' for some time," marginal antalgic gait and reduced strength (3/5) in all extremities on active range of motion testing. Notwithstanding the October 2019 Peripheral Neuropathy DBQ assessment of "mild" incomplete paralysis of the sciatic nerve, VA treatment records show the Veteran's bilateral lower extremity peripheral neuropathy have resulted in a December 2018 fall and left foot fracture and December 2020 treatment records note the Veteran's "left foot dropped down and drags on the ground." As such, the Board finds this evidence is sufficient to establish a moderately severe level of incomplete paralysis of the left and right sciatic nerve from May 24, 2017 or a severe paralysis of the external popliteal nerve. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2006) (reaffirming that the Board's role is to assess the weight of all evidence). The Board further finds that a rating higher than 40 percent for left and/or right lower extremity peripheral neuropathy is not warranted from May 24, 2017. Under 8721, the Diagnostic Code assigned by the RO, a 40 percent rating encompasses all of the Veteran's symptomatology for complete paralysis of the external popliteal nerve. A 40 percent rating is the maximum schedular rating under this Diagnostic Code. The Board has also considered whether a higher rating is warranted under Code 8520. However, in order to receive a rating in excess of 40 percent, the evidence must demonstrate severe incomplete paralysis, with marked muscular atrophy (60 percent rating) or complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost (maximum 80 percent rating). See 38 C.F.R. § 4.124a, Code 8520. Here, the Veteran has not claimed and the evidence is persuasively against a finding of marked muscular atrophy. Significantly, the 2019 VA examiner clearly stated "no" to the question as to whether the Veteran has muscle atrophy, which is required for the next higher rating under Code 8520. Moreover, the Veteran's peripheral neuropathy involving the sciatic nerve has been consistently described as incomplete paralysis and the October 2019 examiner described numbness, paresthesias and/or dysesthesias as mild. The evidence is persuasively against a finding of no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The 2019 VA examination report noted bilateral knee and ankle strength was 5/5. Accordingly, the evidence persuasively weighs against a finding the Veteran has severe incomplete paralysis, or, that he experienced complete paralysis of the sciatic nerve at any time during this appeal. The Board has also considered the other Diagnostic Codes pertaining to the peripheral nerves. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicable or overlapping with the symptomatology of any other disability. Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment); Esteban v. Brown, 6 Vet. App. 259, 261-61 (1994). In the present case, as discussed above, the Veteran's bilateral peripheral neuropathy was originally rated under Code 8721 for neuralgia affecting the external popliteal (common peroneal) nerve. The Board notes that the rating schedule provides similar criteria for paralysis of the external popliteal nerve as paralysis of the sciatic nerve. These symptoms included foot drop, loss of movement below the knee and severe numbness. As such, the awarding of separate ratings under Codes 8520 and 8721 would constitute impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14. Consequently, the Veteran is not entitled to separate ratings under Codes 8520 and 8721. Accordingly, for left and right lower extremity peripheral neuropathy, ratings in excess of 20 percent prior to May 24, 2017 are denied; from that, resolving reasonable doubt in the Veteran's favor, increased ratings of 40 percent, but no higher, under Code 8520 is granted for peripheral neuropathy of each lower extremity. The Board has considered the Veteran's claims for increased ratings for his bilateral lower extremity peripheral neuropathy and decided entitlement based on the evidence. Other than the matter of service connection for residuals of left foot fracture, addressed below, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to these claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 5. Residuals of Left Foot Fracture As noted above, in Bailey v. Wilkie, 33 Vet. App. 188 (2021), the Court held that "VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." Service connection may be secondarily established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To be awarded secondary service connection, there must be evidence sufficient to show: (1) That a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As discussed above, the Veteran is service connected for left and right lower extremity peripheral neuropathy. March 24, 2017 VA treatment records include an assessment of "history of falls related to diabetic peripheral sensory neuropathy and possibly slight left foot drop." A February 2019 treatment report notes the Veteran had fallen on December 22, 2018 and again one week prior to the date of consultation. X-ray examination showed multiple fractures involving some of the left toes and possible a metatarsal and a non-specific 1st distal phalangeal lesion. A December 2019 physical medicine and rehabilitation note notes a history of "[n]europathy causing falls and sustained foot fractures and footdrop." As the record shows the Veteran's service-connected lower extremity peripheral neuropathy has caused falls and resulted in foot fractures, all of the requirements for establishing secondary service connection are met; service connection for residuals of left foot fracture is warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.