Citation Nr: 25005308 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 16-40 143 DATE: April 18, 2025 ORDER An increased rating of 20 percent, no higher, for right lower extremity (RLE) peripheral neuropathy, sciatic nerve, prior to May 2, 2024, is granted. An increased rating of 20 percent, no higher, for RLE peripheral neuropathy, femoral nerve, prior to May 2, 2024, is granted. A rating in excess of 20 percent RLE peripheral neuropathy, sciatic nerve, from May 2, 2024, is denied. A rating in excess of 20 percent RLE peripheral neuropathy, femoral nerve, from May 2, 2024, is denied. FINDINGS OF FACT 1. The Veteran's RLE peripheral neuropathy, sciatic nerve, is manifested by no more than moderate incomplete paralysis. 2. The Veteran's RLE peripheral neuropathy, femoral nerve, is manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for RLE peripheral neuropathy, sciatic nerve, prior to May 2, 2024, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for a rating of 20 percent for RLE peripheral neuropathy, femoral nerve, prior to May 2, 2024, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. The criteria for a rating in excess of 20 percent for RLE peripheral neuropathy, sciatic nerve, from May 2, 2024, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 4. The criteria for a rating in excess of 20 percent for RLE peripheral neuropathy, femoral nerve, from May 2, 2024, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision. The Veteran appeared for a hearing before the undersigned Veterans Law Judge in July 2019. The hearing transcript is associated with the claims file. A September 2021 Board decision denied a rating in excess of 10 percent for RLE peripheral neuropathy, sciatic nerve, and denied a rating in excess of 10 percent for RLE peripheral neuropathy, femoral nerve. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). A June 2022 Court Order vacated the Board decision and remanded the matters on appeal for adjudication consistent with the Joint Motion for Partial Remand by the parties. A September 2022 Board decision denied entitlement to a rating greater than 10 percent for RLE peripheral neuropathy, sciatic nerve, and denied a rating greater than 10 percent for RLE peripheral neuropathy, femoral nerve. The Veteran appealed the decision to the Court. A June 2023 Court Order vacated the Board decision and remanded the matters on appeal for adjudication consistent with the Joint Motion for Remand by the parties. A February 2025 rating decision granted an increased rating to 20 percent for RLE peripheral neuropathy, sciatic nerve, with balance impairment, and granted an increased rating to 20 percent for RLE peripheral neuropathy, femoral nerve, effective May 2, 2024. As this increased rating does not constitute a full grant of the benefit sought for the entire appeal period, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating 1. A rating in excess of 10 percent for RLE peripheral neuropathy, sciatic nerve, prior to May 2, 2024 2. A rating in excess of 10 percent RLE peripheral neuropathy, femoral nerve, prior to May 2, 2024 3. A rating in excess of 20 percent RLE peripheral neuropathy, sciatic nerve, from May 2, 2024 4. A rating in excess of 20 percent RLE peripheral neuropathy, femoral nerve, from May 2, 2024 Prior to May 2, 2024, the Veteran is in receipt of a 10 percent rating for RLE peripheral neuropathy, sciatic nerve, and a 10 percent rating for RLE peripheral neuropathy, femoral nerve. From May 2, 2024, the Veteran is in receipt of a 20 percent rating for RLE peripheral neuropathy, sciatic nerve, and a 20 percent rating for RLE peripheral neuropathy, femoral nerve. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. Under DC 8520, 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; and 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. Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8526. Under DC 8526, mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; and severe incomplete paralysis is rated as 30 disabling. Complete paralysis, paralysis of quadriceps extensor muscles, is rated as 40 percent. The words "mild," "moderate," and "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 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. 38 C.F.R. §§ 4.123, 4.124. The Board will use the plain meaning dictionary definitions as a guide. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY (11th Ed. 2007), "mild" means gentle in nature or temperate. "Moderate" means average in amount, intensity, quality, or degree. "Severe" means very painful or harmful or of a great degree. While there is no dictionary definition for "moderately severe," the Board infers that "moderately severe" is considered more than "moderate" but not to the extent of "severe." 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. 8 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). Looking to the evidence of record, a May 2014 VA peripheral neuropathy examination noted the RLE symptoms attributable to peripheral neuropathy were constant pain to a severe severity, intermittent pain to a severe severity, paresthesias/dysesthesias to a severe severity, and numbness to a moderate severity. Neurologic examination of the RLE noted strength testing was normal; deep tendon reflex (DTR) testing was decreased (1+) at the knee and normal (2+) at the ankle; light touch/monofilament testing was normal at the knee/thigh, decreased at the ankle/lower leg, and decreased at the foot/toes; position sense testing was decreased; vibration sensation testing was normal; and cold sensation testing was decreased. There was no muscle atrophy. The clinician observed tropic changes, described as no hair. The Veteran reported difficulty walking distances and sleeping at night. A June 2014 VA treatment visit reported some numbness and dysesthesia to the right thigh. The clinician stated lower extremity reflexes were grossly symmetrical and normal. Gait was observed as normal. Strength testing was symmetrical and normal. The clinician noted normal monofilament testing with a curious hypoesthetic area of the right thigh laterally. A November 2014 VA treatment visit noted lower extremity reflexes were grossly symmetrical and normal. Gait was observed as normal. Sensory testing was normal. Strength testing was equal, symmetrical, and normal. A March 2015 VA treatment visit reported issues with peripheral neuropathy. The clinician noted lower extremity reflexes were grossly symmetrical and normal. Gait was observed as normal. Sensory testing noted slight decrease at lateral aspect left foot. The clinician assessed mild peripheral neuropathy. A June 2015 VA treatment visit noted lower extremity reflexes were grossly symmetrical and normal. Gait was observed as normal. Sensory testing was normal. Strength testing was equal, symmetrical, and normal. An October 2015 VA treatment visit noted lower extremity reflexes were grossly symmetrical and normal. Gait was observed as normal. Sensory testing was normal. Strength testing was equal, symmetrical, and normal. A March 2016 VA treatment visit reported numbness in his feet, with no loss of strength. Physical examination noted lower extremity reflexes were somewhat diminished. Gait was observed as normal. Sensory testing was normal. An April 2016 VA neurosurgery visit reported intermittent numbness and tingling to the bilateral feet. He denied loss of dexterity. He reported his gait feels off balance at times. The clinician observed the patient ambulated within normal limits. An October 2016 VA treatment visit noted lower extremity reflex testing was grossly symmetrical and normal. Gait was observed as normal. Sensory testing noted slight decreased monofilament testing at both medial and lateral aspect of feet. A February 2017 VA treatment visit noted lower extremity reflexes were grossly symmetrical and normal. Gait was observed as normal. Sensory testing was normal. A December 2017 VA treatment visit noted lower extremity reflexes were grossly symmetrical and normal. Gait was observed as normal. Strength testing was normal. An April 2018 VA treatment visit reported occasional flares of back pain/sciatica, reported meloxicam helps. The clinician noted lower extremity reflexes were diminished at the Achilles and patella bilaterally, but present. Gait was normal. Sensory testing was normal. Strength testing was equal, symmetrical, and normal. At the July 2019 Board hearing, the Veteran stated symptoms of his right knee were severe, described as numb, burns, and feels warm to touch. He reported there was no feeling. He denied loss of strength. An August 2020 VA treatment visit noted lower extremity reflexes were symmetrically diminished, but present. Gait was observed as normal. Sensory testing was normal. An August 2020 VA peripheral neuropathy examination reported his right thigh was completely numb with intermittent pain. He reported no current treatment for peripheral neuropathy. The examination report stated the RLE symptoms attributable to peripheral neuropathy were intermittent pain to a mild severity and numbness to a mild severity. Neurologic examination of the RLE noted strength testing was normal. DTR testing was decreased (1+) at the knee and normal (2+) at the ankle. Light touch/monofilament testing was normal at the knee/thigh, ankle/lower leg, and foot/toes. Position sense testing was normal. Vibration sensation testing was normal. Cold sensation testing was normal. There was no muscle atrophy. There were no tropic changes. A January 2022 VA orthopedic visit noted his left knee had gotten so severe that he required a cane to help ambulate. The clinician assessed left knee severe osteoarthritis. A May 2022 VA peripheral neuropathy examination reported the current symptoms of numbness and sensitivity to touch. He reported no current medications. He reported the impact of his condition on ordinary activities was it was hard to wear shoes, walk, and sleep. Muscle strength testing was normal. DTR testing was decreased at the thigh/knee, normal at the lower leg/ankle, and decreased at the foot/toes. The clinician observed normal gait. The clinician denied use of an assistive device. A May 2022 VA neurology visit reported his main complaint was toe pain. He denied falls. The clinician noted antalgic gait with a limp using a cane. A May 2022 VA treatment visit reported neuropathy, described general numbness of the lower extremities. The clinician recommended duloxetine for mood and neuropathic pain. At a June 2022 VA podiatry visit, the Veteran reported severe neuropathy in his feet, really bad at night, making it difficult to sleep. The clinician prescribed new shoes and inserts. An August 2022 VA treatment visit reported his main concern for the year had been left knee pain and difficulty with ambulation. The clinician noted the Veteran used a cane in his right hand. The clinician assessed knee osteoarthritis. An August 2022 VA treatment visit reported numbness in feet. The clinician assessed peripheral neuropathy and recommended duloxetine and lidocaine for neuropathy. A December 2022 VA treatment visit reported burning and tingling in his feet. The clinician assessed peripheral neuropathy and recommended topical capsaicin for neuropathy. At a January 2023 VA treatment visit, the Veteran reported capsaicin improved his neuropathy symptoms. A March 2023 VA neurology visit noted the Veteran had a left knee replacement in October 2022, now walking much better. The clinician noted use of a cane in prior clinic visits in August 2021, January 2022, and May 2022. Physical examination noted gait was improved from prior visits requiring no cane, minimally antalgic gait. A March 2023 VA treatment visit reported capsaicin improved his neuropathy symptoms, but reported still experiencing burning of the feet, described as walking on coals. A May 2023 VA treatment visit recommended to continue duloxetine and gabapentin for neuropathy. An August 2023 VA neurology consultation reported neuropathy around the Veteran's right knee with pain and weakness causing it to give out. Physical examination noted lower extremity reflexes were decreased, pinprick sensation was decreased, vibration sensation was decreased, and position sense was decreased. The clinician assessed generalized peripheral neuropathy, recommended starting Cymbalta in addition to gabapentin or Lyrica. A September 2023 and NCV and EMG test impression was normal study, no electrodiagnostic evidence of RLE nerve entrapment or neuropathy. Recommended followup to consider meralgia paresthetica or other diagnosis. A September 2023 Veteran statement reported taking Gabapentin for neuropathic pain, but had to stop due to severe side effects. A November 2023 VA medical opinion stated sciatic pain occurs due to irritation of the sciatic nerve that originates in the lumbar region, and can progress to neuropathic symptoms of numbness and tingling that radiates down the back of the leg. She stated femoral pain is related to the front of the leg. She stated the Veteran has taken a variety of medications for neuropathic pain, to include Duloxetine, Gabapentin, Tylenol, Meloxicam, OTC Biofreeze and SalonPas, and lidocaine patches. Regarding the ameliorative effects of the medications, she stated the medications help him live with the side effects that come with neuropathy. She stated the medications are not meant to cure, but reduce the pain. She stated Duloxetine works by blocking the reuptake of serotonin and norepinephrine, which are neurotransmitters that help to coordinate signals in the brain and nervous system. She stated there is no effect on the progression of neuropathy when taking the medication, but it helps reduce the pain and cope with the neuropathy. She stated Gabapentin works by changing the way in which nerves send messages to the brain. She stated there is no effect on the progression of neuropathy when taking the medication, but it helps reduce the pain and cope with the neuropathy. She stated Meloxicam is a non-steroidal anti-inflammatory drug (NSAID). It works by blocking two types of proteins in your body that cause inflammation, pain, and swelling. She stated there is no effect on the progression of neuropathy when taking the medication, but it helps reduce the pain and cope with the neuropathy. She stated Tylenol is an OTC pain reliever, which works by chemically blocking pain receptor signals in the body. She stated there is no effect on the progression of neuropathy when taking the medication, but it helps reduce the pain and cope with the neuropathy. A March 2024 neurology followup visit reported improved gait. The clinician stated his pain was mostly due to arthritic condition of the spine, right knee, and left shoulder; however, there is also neuropathic pain overlapping arthritic pain. The clinician recommended he continue Cymbalta and topical capsaicin. A July 2024 VA treatment visit noted the Veteran ambulated without assistance. An October 2024 VA orthopedic visit reported right knee pain. Physical examination noted a mild limp favoring right leg without assistive device. The clinician assessed severe osteoarthritis right knee with effusion. A November 2024 VA treatment visit noted the Veteran ambulated without assistance. A December 2024 VA treatment visit reported RLE sciatica. He reported pain and numbness in the thigh for years, but now has lateral calf and dorsal foot pain. Physical examination noted he ambulated with a slight limp on the right. Sensation light touch was decreased in the RLE. Reflex testing could not be elicited. The clinician assessed RLE sciatica and lumbar radiculopathy A December 2024 electroneuromyography report interpretation noted an abnormal electrodiagnostic study indicating both a diffuse and predominantly axonal sensorimotor polyneuropathy. It was noted changes of this nature may be seen with a toxic, metabolic, vascular or connective tissue disorder. It was noted there are overlapping degenerative changes in a predominantly L5 distribution, most commonly associated with lumbar radiculopathy. A January 2025 VA chiropractic health visit reported his right knee and leg have been bothering him. The clinician noted he continues to walk with moderate difficulty due to his knee. Regarding his right lower extremity, the clinician noted some degree of altered gait, likely due to issues with his knees. January 2025 VA treatment visits reported right knee and right foot pain. A January 2025 VA treatment visit noted the Veteran ambulated with a cane with compensatory gait. A January 2025 VA examination for peripheral neuropathy reported numbness, tingling, and burning sensation of the lower extremities. He reported no feeling in upper right leg and loss of balance. The clinician stated the RLE symptoms attributable to diabetic peripheral neuropathy were constant pain to a mild severity, paresthesias and/or dysesthesias to a moderate severity, and numbness to a moderate severity. Neurologic examination of the RLE noted strength testing was less than normal (4/5) at the knee and ankle. DTR testing was normal (2+). Light touch/monofilament testing was normal at the knee/thigh, decreased at the ankle/lower leg, and decreased at the foot/toes. Position sense testing was normal. Vibration sensation testing was decreased. Cold sensation testing was decreased. There was no muscle atrophy. There were tropic changes of smooth appearance. The clinician noted walking and standing for long periods of time causes pain and worsens neuropathy symptoms of tingling and numbness. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's RLE peripheral neuropathy was manifested by moderate incomplete paralysis prior May 2, 2024, warranting a 20 percent rating. A May 2014 VA examination report showed decreased DTR testing at the knee, decreased light touch/monofilament testing at the ankle/lower leg and foot/toes, decreased position sense testing, and decreased cold sensation testing. The examiner observed tropic changes, described as no hair. An August 2020 VA peripheral neuropathy examination showed DTR testing was decreased at knee. A May 2022 VA peripheral neuropathy examination showed DTR testing was decreased at the thigh/knee and foot/toes. Treatment records showed a March 2015 visit noting slight decreased sensory testing, a March 2016 visit noting reflexes were slightly diminished, an October 2016 visit noting sensory testing was slightly diminished, an April 2018 visit noting decreased reflexes, and an August 2020 visit noting reflexes were diminished. An August 2023 VA neurology visit noted decreased reflexes, pinprick sensation, vibration sensation, and position sense. The Board the objective and subjective evidence of record supports finding the Veteran's RLE peripheral neuropathy was manifested by moderate or "average in amount" incomplete paralysis prior to May 2, 2024. The evidence persuasively weighs against finding moderately severe incomplete paralysis of the sciatic nerve and/or severe incomplete paralysis of the femoral nerve prior to May 2, 2024. At the May 2014 VA examination, neurologic examination of the RLE noted strength testing was normal. DTR testing was normal at the ankle and decreased at the knee, but not absent. Light touch/monofilament testing was normal at the knee/thigh and decreased at the ankle/lower leg and foot/toes, but not absent. Position sense testing was decreased, not absent. Vibration sensation testing was normal. Cold sensation testing was decreased, not absent. There was no muscle atrophy. The August 2020 VA peripheral neuropathy examination noted strength testing was normal. DTR was normal at the ankle and decreased at the knee, not absent. Light touch/monofilament testing was normal. Position sense testing was normal. Vibration sensation testing was normal. Cold sensation testing was normal. There was no muscle atrophy. An August 2023 VA neurology visit noted reflexes, pinprick sensation, vibration sensation, and position sense testing were decreased, not absent. VA treatment visits in November 2014, June 2015, October 2015, and December 2017 noted lower extremity reflexes were grossly symmetrical and normal, gait was normal, sensory testing was normal and strength testing was normal. A March 2015 treatment visit noted slight decreased sensory testing, otherwise reflexes and gait were normal. A March 2016 visit noted reflexes were somewhat diminished, otherwise sensory testing and gait were normal. An October 2016 treatment visit noted slight decreased sensory testing at the feet, otherwise reflex testing and gait were normal. An April 2018 treatment visit noted reflexes were diminished, otherwise sensory testing and strength testing were normal. An August 2020 visit noted reflexes were diminished, otherwise sensory testing and gait were normal. The Veteran reported difficulty with walking distances and difficulty with balance at times, but the evidence does not show his RLE peripheral neuropathy required use of an assistive walking device. The evidence shows the Veteran used a cane related to his left knee. The Veteran did not require use of a walker or wheelchair, indicative of moderately severe or severe peripheral neuropathy. The Board finds the objective and subjective evidence of record does not support finding greater than moderate or "average in amount" incomplete paralysis prior to May 2, 2024. The Board considered that the Veteran described his RLE peripheral neuropathy symptoms as severe at the May 2014 VA examination, July 2019 Board hearing, and June 2022 VA podiatry visit. "Severe" is not defined in the Rating Schedule. In determining the severity of the Veteran's RLE peripheral neuropathy, the Board considered the Veteran's subjective lay statements, in relation to the record as a whole, specifically relative impairment of motor function, trophic changes, sensory disturbance, loss of reflexes, pain, and muscle atrophy. As discussed above, the Board finds the subjective and objective evidence of record supports finding RLE peripheral neuropathy manifested by moderate or "average in amount" incomplete paralysis prior to May 2, 2024. From May 2, 2024, the evidence persuasively weighs against finding moderately severe incomplete paralysis of the sciatic nerve and/or severe incomplete paralysis of the femoral nerve. An August 2024 VA chiropractic visit noted some degree of altered gait, without mention of an assistive device. A January 2025 VA examination report noted constant pain to a mild severity, paresthesias/dysesthesias to a moderate severity, and numbness to a moderate severity. Objectively, neurologic examination of the RLE noted strength testing was less than normal (4/5) at the knee and ankle, but not more limited. Light touch/monofilament testing was decreased, not absent. Vibration sensation testing was decreased, not absent. Cold sensation testing was decreased, not absent. There was no atrophy. The Veteran reported difficulty walking and standing for long periods of time, but the evidence did not show his treating clinicians recommended a cane for his RLE peripheral neuropathy. The Veteran did not require use of a walker or wheelchair, indicative of moderately severe or severe peripheral neuropathy. The Board finds the objective and subjective evidence of record do not support finding greater than moderate or "average in amount" incomplete paralysis from May 2, 2024. The Board considered the Veteran's representative's contention the Board must consider the ameliorative effects of medications. In Jones v. Shinseki, 26 Vet. App. 56 (2012), the Court held, in the context of assigning disability ratings, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. DC 8520 (paralysis of sciatic nerve) and DC 8526 (paralysis of anterior crural nerve (femoral)) do not reference the effects of medication. The Board gives probative weight to the November 2023 VA medical opinion finding the medications taken by the Veteran do not affect the progression of the neuropathy, but help reduce the pain and cope with the neuropathy. In evaluating the severity of the Veteran's RLE peripheral neuropathy, the Board considered that medications improved the severity of his pain. However, pain is only one factor to consider when evaluating the severity of the Veteran's peripheral neuropathy ratings. The Board considered the Veteran's pain level, in combination with the evidence as a whole, to include relative impairment of motor function, trophic changes, sensory disturbance, loss of reflexes, pain, and muscle atrophy. As discussed above, the Board finds the subjective and objective evidence of record most closely approximates moderate or "average in amount" incomplete paralysis. The Board considered whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, throughout the appeal period, the Board found the Veteran's RLE peripheral neuropathy was manifested by slight to moderate symptoms and impairment. The Board resolved reasonable doubt in favor of the Veteran by awarding a 20 percent rating prior to May 2, 2024. As discussed in detail above, the Board finds the objective and subjective evidence of record do not support finding greater than moderate or "average in amount" incomplete paralysis at any point during the appeal period to warrant a staged rating. Accordingly, the Board finds prior to May 2, 2024, a 20 percent rating for RLE peripheral neuropathy, sciatic nerve, and a 20 percent rating for RLE peripheral neuropathy, femoral nerve, is warranted. The Board finds from May 2, 2024, a rating in excess of 20 percent for RLE peripheral neuropathy, sciatic nerve, and a rating in excess of 20 percent for RLE peripheral neuropathy, femoral nerve, is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler 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.