Citation Nr: 25005207 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 18-05 431 DATE: April 17, 2025 ORDER A disability rating greater than 20 percent for service-connected right lower extremity diabetic neuropathy and radiculopathy is denied. A disability rating greater than 20 percent for service-connected left lower extremity diabetic neuropathy and radiculopathy is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At no point during the period on appeal did the Veteran's right lower extremity diabetic neuropathy and radiculopathy approximate moderately severe nerve damage. 2. At no point during the period on appeal did the Veteran's left lower extremity diabetic neuropathy and radiculopathy approximate moderately severe nerve damage. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating greater than 20 percent for service-connected right lower extremity diabetic neuropathy and radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to a disability rating greater than 20 percent for service-connected left lower extremity diabetic neuropathy and radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1986 to February 2006. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In April 2019 and December 2022, the Board remanded the case for further development and adjudicative action. In a July 2023 decision, the Board denied the increased rating claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a May 2024 Court Order granting a Joint Motion for Remand (JMR), the Court vacated the Board's July 2023 decision and remanded the case for further development in compliance with the directives specified in the JMR. In August 2024, the Board remanded the case to comply with the terms of the JMR. In a February 2025 rating decision, the RO granted increased ratings of 20 percent for each disability. As higher ratings are available under the applicable rating criteria, that rating decision did not constitute a full grant of the benefits sought on appeal as to either issue. The RO issued a supplementary statement of the case (SSOC) in February 2025, and the case is now properly before the Board for purposes of adjudication. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). When adjudicating an increased rating claim, the effective date of an increase may date back as much as one year before the date of the claim for increase if it is factually "ascertainable that an increase in disability had occurred" within that timeframe. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997) (stating that § 3.400 (o)(2) applies to claim where increase in disability precedes claim, providing that that claim is received within one year after increase, otherwise general rule in § 3.400 (o)(1) applies). Nevertheless, the effective date for an increased disability rating, initial rating, or staged rating is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). 1. Entitlement to an increased disability rating for service-connected right lower extremity diabetic neuropathy and radiculopathy 2. Entitlement to an increased disability rating for service-connected left lower extremity diabetic neuropathy and radiculopathy The Veteran seeks an increased disability rating for service-connected right lower extremity and left lower extremity diabetic neuropathy and radiculopathy (hereinafter "right lower extremity disability" and "left lower extremity disability"). Each disability is rated as 20 percent disabling throughout the period on appeal under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. Radiculopathy - Rating Criteria Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Under that code, a 10 percent rating is provided for mild, incomplete paralysis. Id. A 20 percent rating is provided for moderate, incomplete paralysis. Id. A 40 percent rating is provided for moderately severe, incomplete paralysis. Id. A 60 percent rating is provided for severe, incomplete paralysis with muscular atrophy. Id. An 80 percent rating is provided for complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement is possible for muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement. Id. The Board notes that neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Sellers v. Wilkie, 30 Vet. App. 157 (2018) ("DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms"). It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. According to Merriam Webster's online dictionary, "mild" means "gentle in nature or behavior" or "not being or involving what is extreme," "moderate" means "tending toward the mean or average amount or dimension" or "limited in scope or effect," and "severe" means "very painful or harmful" or "of a great degree." See www.merriam-webster.com/dictionary/. A March 2016 electromyography and nerve conduction velocity study report reveals mild to moderate sensory and motor denervation of the lower extremities compatible with axonal and demyelinating in etiology compatible with a diffuse polyneuropathy. The Veteran had a VA examination in January 2018. The examiner noted diagnosis of intervertebral disc syndrome with bilateral L5-S1 radiculopathy, and the Veteran described a shooting pain down the back of the legs at times. The examiner reviewed the March 2016 nerve testing and noted flare-ups described as "knees wobble at times" due to shooting pain. The examiner indicated mild sciatic nerve involvement without ankylosis or other neurologic abnormalities. The Veteran had another VA examination in March 2023. The Veteran reported a constant pins and needles sensation with numbness. Muscle strength was normal. Mild intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness were observed in either lower extremity. Shiny smooth skin from the mid-shin down to ankle was observed bilaterally. The examiner reviewed the March 2016 diagnostic testing results. The examiner indicated mild incomplete sciatic nerve paralysis in each lower extremity and explained that the Veteran's reported history, in-person examination findings from that day, and the March 2016 EMG results were consistent with "mild to moderate sensory and motor denervation of the lower extremities." The remainder of the medical records, particularly the VA treatment records, show that the Veteran has received treatment for sciatica for a number of years. See, e.g. May 2016 VA treatment records (Veteran requesting neurology appointment for pain in his legs); January 2022 VA record (Veteran reporting pain (7/10) and tingling/numbness to his legs); April 2022 VA record (Veteran denying numbness, tingling, or burning at night or with rest); August 2022 VA treatment record (Veteran presenting with lower leg swelling bilaterally, tenderness, 6/10 pain that was sharp and throbbing, numbness to both fee, and stiffness in the toes). With the above in mind, and having reviewed the Veteran's voluminous claims file, the analysis turns to whether a higher rating is warranted for either disability. As noted above, the next higher rating of 40 percent is warranted for moderately severe, incomplete paralysis. Here, the VA examination findings consistently show that the Veteran's bilateral lower extremity radiculopathies and neuropathies were to a mild or, at most moderate, degree of severity. While the Veteran was seen for treatment of various symptoms at VA facilities throughout the period on appeal, the consistency of the VA findings suggests a degree of severity lower than moderately severe. The examination findings are corroborative, and reflect consideration of the Veteran's entire claims file, including in-person examination findings, diagnostic testing results, and the medical records. For those reasons, the examination findings carry significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-4 (2008). Notably, there is no evidence in the record to dispute such findings. As so, the probative weight weighs persuasively against finding that the Veteran's right lower extremity diabetic neuropathy and radiculopathy or left lower extremity diabetic neuropathy and radiculopathy approximated moderately severe incomplete paralysis of the sciatic nerve at any time during the period on appeal. REASONS FOR REMAND 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) The Veteran argues that a total disability rating based upon individual unemployability (TDIU) is warranted due to service-connected disabilities, including those addressed within this decision. See August 2024 Appellate Brief. Considering that argument and as allowed under Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board will infer a claim for TDIU. However, a remand is necessary to obtain necessary information concerning the Veteran's relevant occupational history. The matter is REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Application for Increased Compensation Based on Unemployability and any other documentation necessary to obtain a full and complete occupational history covering the period on appeal. 2. Adjudicate the claim of entitlement to a total disability rating based upon individual unemployability (TDIU). If the issue cannot be granted in full, issue a supplementary statement of the case (SSOC) explaining why that is so. Paulette Vance Burton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hukill, Benjamin 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.