Citation Nr: 22013441 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 20-13 956 DATE: March 9, 2022 ORDER Entitlement to an initial rating higher than 40 percent for right lower extremity peripheral neuropathy is denied. Entitlement to an initial rating higher than 40 percent for left lower extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. The Veteran's right lower extremity peripheral neuropathy symptomatology does not more nearly approximate severe incomplete paralysis, with marked muscular atrophy. 2. The Veteran's left lower extremity peripheral neuropathy symptomatology does not more nearly approximate severe incomplete paralysis, with marked muscular atrophy. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 40 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, diagnostic code (DC) 8520. 2. The criteria for an initial rating higher than 40 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to March 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, among other things, granted service connection for right and left lower extremity peripheral neuropathy, evaluating each as 10 percent disabling. In May 2018, the Veteran filed his notice of disagreement with the 10 percent ratings assigned, was issued a statement of the case in January 2020, and in March 2020 perfected his appeal to the Board. In a January 2020 rating decision, the RO granted initial 40 percent ratings for both right and left lower extremity peripheral neuropathy. In April 2020, the RO continued the 40 percent ratings for right and left lower extremity peripheral neuropathy, notifying the Veteran in a supplemental statement of the case. The Board notes that the issue of entitlement to an increased rating for right and left upper extremity peripheral neuropathy has been raised by the record, as the Veteran indicated in his Form 9 that VA has not addressed his peripheral neuropathy in both arms. The issue, however, was not appealed by the Veteran following the grant of service connection for right and left upper extremity peripheral neuropathy, as the Veteran's notice of disagreement only addressed right and left lower extremity peripheral neuropathy. Therefore, the Board does not have jurisdiction over the claims. The issue of a higher initial rating for right and left upper extremity peripheral neuropathy is thus referred to the RO for appropriate action, to include informing the Veteran and his attorney that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150 (a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 20.904 (b) ("The Board shall refer to the agency of original jurisdiction for appropriate consideration and handling in the first instance all claims reasonably raised by the record that have not been initially adjudicated by the agency of original jurisdiction"). Finally, the Board notes that the Veteran has indicated that he wished to have a hearing before a Veterans Law Judge rescheduled in a March 2021 correspondence. However, the Veteran had previously indicated on his Form 9 that he did not wish to have a hearing for his claim for a higher initial rating for right and left lower extremity peripheral neuropathy, and also expressed satisfaction with the 40 percent rating. Since the Veteran also addressed symptoms which he felt warranted a higher rating, the Board will proceed with adjudication of the claim without a hearing, as the Veteran did not request a hearing on the Form 9. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Left and Right Lower Extremity Peripheral Neuropathy The Veteran's right and left lower extremity peripheral neuropathy are each currently rated 40 percent disabling under DC 8520. Under DC 8520, a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or (very rarely), lost. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." As to general definitions, "slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2 (last visited March 6, 2022). "Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited March 6, 2022). "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited March 6, 2022). The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type of 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 ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, note at "Diseases of the Peripheral Nerves." VA has generally considered that the mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuous assigned a lower medical grade reflecting less impairment and/or affecting a smaller area in the nerve distribution. The moderate level of evaluation would be reserved for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuously assigned a higher medical grade reflecting greater impairment and/or affecting a larger area in the nerve distribution. This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. A June 2017 disability benefits questionnaire (DBQ) indicates that the Veteran reported leg numbness and weakness progressing up his legs and thigh. The examiner noted moderate constant pain, and paresthesias and/or dysesthesias, and severe numbness in the right and left lower extremities. Muscle strength was normal, light touch testing reflected some decreased sensation in the lower extremities, the Veteran had no muscle atrophy, but did suffer hair loss on his feet up to his thighs. The examiner noted moderate right and left sciatic nerve peripheral neuropathy. The Veteran reported being off balance and prone to falls due to his right and left lower extremity peripheral neuropathy. A July 2017 DBQ reflects that the Veteran reported tingling in his hands and feet. The examiner noted moderate constant pain, and intermittent pain, and severe paresthesias and/or dysesthesias, and numbness in his right and left lower extremities. There was no muscle atrophy, absent sensation with light touch testing, and lower extremity hair loss reported in the DBQ. The Veteran indicated constant use of a cane, and pain in the lower legs which makes it difficult to walk without an assistive device. The examiner noted moderate incomplete paralysis of the right and left sciatic, common peroneal, musculocutaneous, deep peroneal, tibial, posterior tibial, femoral nerves, and mild incomplete paralysis of the right and left internal saphenous, and obturator nerves. The examiner reported that the Veteran's peripheral neuropathy impacted his ability to work with the Veteran stating that he cannot walk or stand for very long, and cannot climb a ladder. In a May 2018 DBQ, the Veteran reported severe intermittent pain, paresthesias and/or dysesthesias, and numbness of the right and left lower extremities, and absent sensation in the lower extremities. The examiner indicated that the Veteran did not have muscle atrophy, but did have trophic changes of hairless shiny skin on his shins. The DBQ reflects mild incomplete paralysis of the right and left sciatic nerves, with the examiner reporting mild lower extremity sensory neuropathy. The examiner indicated that the Veteran is limited in working with heights and temperature recognition in the bilateral upper and lower extremities, and is unable to walk without assistance of a cane, rendering him unable to run, bend, or stoop. A July 2018 DBQ indicates that the Veteran had moderate constant pain, paresthesias and/or dysesthesias, and numbness, and severe intermittent pain in the right and left lower extremities. There was some decreased muscle strength, and decreased light touch sensation noted, but no muscle atrophy. Trophic changes were noted, and the examiner reported moderately severe incomplete paralysis of the right and left sciatic nerves. The examiner stated that the Veteran had a high risk for fall/injury due to loss of sensation, and reported that the Veteran's lower extremity sensory neuropathy was moderate in severity. The evidence of record reflects that a higher 60 percent rating is not warranted for the Veteran's right and left lower extremity peripheral neuropathy. While the May 2018 and July 2018 examiners noted severe intermittent pain in the right and left lower extremities, the examiners also indicated that the Veteran suffered mild to moderately severe incomplete paralysis of the sciatic nerves. An examiner's characterization of the level of disability is in any event not binding on the Board. 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 overall findings above do not reflect that the peripheral neuropathy symptoms have consistently approximated the very painful or harmful discomfort or hardship along with muscle atrophy that is required for a higher rating. Each previously discussed DBQ reflects that the Veteran does not have muscle atrophy, and there is no evidence to the contrary. Therefore, the Veteran's left and right lower extremity peripheral neuropathy symptomatology does not more nearly approximate at least severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy, as there is no evidence of muscular atrophy. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). (Continued on the next page) As the Veteran's left and right lower extremity peripheral neuropathy symptomatology does not more nearly approximate severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy, a higher 60 percent rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.