PARALYSIS OF THE SCIATIC NERVE

DEBORAH W. SINGLETON · 2020 · Case ID: 20081791

MIXED

Summary

The veteran served from August 1970 to August 1974. The veteran appeals the denial of increased disability ratings for peripheral neuropathy of the sciatic nerves in both lower extremities, and the femoral nerves in both upper and lower extremities. The veteran also appeals the denial of earlier effective dates for service connection for diabetic peripheral neuropathy and peripheral vascular disease in the right lower extremity. The Board denied increased ratings for the lower extremity sciatic nerve neuropathies, finding that the veteran's symptomatology, including moderate pain, paresthesias, numbness, decreased strength, absent reflexes, and trophic changes, was consistent with the existing 40 percent ratings and did not meet the criteria for severe incomplete paralysis required for higher ratings. For the upper extremity neuropathies, the Board denied increased ratings, finding that the evidence did not demonstrate severe incomplete paralysis of the radial, median, or ulnar nerves, and that the existing ratings of 30 percent for the right upper extremity and 20 percent for the left upper extremity were appropriate for the mild to moderate incomplete paralysis described in the examinations. The case was remanded for further development regarding earlier effective dates for diabetic peripheral neuropathy and vascular disease in the lower extremities, as well as for increased ratings for peripheral neuropathy of the femoral nerves and entitlement to TDIU, due to the need for retrospective medical opinions.

Rationale

Symptoms consistent with existing 40% rating; Did not meet criteria for severe incomplete paralysis; No muscle atrophy found

Special Benefit

TDIU

Docket No.

18-45 245

Full Decision Text

Citation Nr: 20081791
Decision Date: 12/30/20 Archive Date: 12/30/20

DOCKET NO. 18-45 245
DATE: December 30, 2020

ORDER

Entitlement to a disability rating in excess of 40 percent for peripheral neuropathy of the sciatic nerve of the right lower extremity (RLE) is denied.

Entitlement to a disability rating in excess of 40 percent for peripheral neuropathy of the sciatic nerve of the left lower extremity (LLE), is denied.

Entitlement to a disability rating in excess of 30 percent prior to May 8, 2018, and in excess of 40 percent thereafter, for peripheral neuropathy of the right upper extremity (RUE) (dominant), is denied.

Entitlement to a disability rating in excess of 20 percent prior to May 8, 2018, and in excess of 30 percent thereafter for peripheral neuropathy of the left upper extremity (LUE), is denied.

REMANDED

Entitlement to an effective date earlier than February 13, 2014, for the grant of service connection for diabetic peripheral neuropathy of the RLE, femoral nerve, is remanded.

Entitlement to an effective date earlier than February 13, 2014, for the grant of service connection for diabetic peripheral neuropathy of the LLE, femoral nerve, is remanded.

Entitlement to an effective date earlier than February 13, 2014, for the grant of service connection for diabetic peripheral vascular disease of the RLE, is remanded.

Entitlement to an increased rating for peripheral neuropathy of the femoral nerve of the RLE, rated as 20 percent disabling, is remanded.

Entitlement to an increased rating for peripheral neuropathy of the femoral nerve of the LLE, rated as 20 percent disabling, is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran's service-connected peripheral neuropathy of the RLE (sciatic nerve) has not been manifested by at least severe incomplete paralysis.

2. The Veteran's service-connected peripheral neuropathy of the LLE (sciatic nerve) has not been manifested by at least moderate incomplete paralysis.

3. For the period prior to May 8, 2018, the Veteran's service-connected peripheral neuropathy of the RUE (dominant) has not been manifested by at least moderate incomplete paralysis of all radicular groups; severe incomplete paralysis of the radial nerve; severe incomplete paralysis of the median nerve; or severe incomplete paralysis of the ulnar nerve.

4. For the period beginning May 8, 2018, the Veteran's service-connected peripheral neuropathy of the RUE (dominant) has not been manifested by at least moderate incomplete paralysis of all radicular groups; severe incomplete paralysis of the radial nerve; severe incomplete paralysis of the median nerve; or severe incomplete paralysis of the ulnar nerve.

5. For the period prior to May 8, 2018, the Veteran's service-connected peripheral neuropathy of the LUE (dominant) has not been manifested by at least moderate incomplete paralysis of all radicular groups; severe incomplete paralysis of the radial nerve; severe incomplete paralysis of the median nerve; or severe incomplete paralysis of the ulnar nerve.

6. For the period beginning May 8, 2018, the Veteran's service-connected peripheral neuropathy of the LUE has not been manifested by at least severe incomplete paralysis of all radicular groups; severe incomplete paralysis of the radial nerve; severe incomplete paralysis of the median nerve; or complete paralysis of the ulnar nerve.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating in excess of 40 for peripheral neuropathy of the RLE (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 7104(a) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.124a, Diagnostic Code 8520 (2019).

2. The criteria for entitlement to a rating in excess of 40 for peripheral neuropathy of the LLE (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 7104(a) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2,
, 7104(a) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.124a, Diagnostic Code 8520 (2019).

3. The criteria for entitlement to a rating in excess of 30 percent prior to May 8, 2018, and in excess of 40 percent thereafter for peripheral neuropathy of the RUE have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 7104(a) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.124a, Diagnostic Codes 8513-8516 (2019).

4. The criteria for entitlement to a rating in excess of 20 percent prior to May 8, 2018, and in excess of 30 percent thereafter for peripheral neuropathy of the LUE have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 7104(a) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.124a, Diagnostic Codes 8513-8516 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from August 1970 to August 1974.

These matters come before the Board of Veterans’ Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.

These matters were most recently before the Board in September 2019, at which time the Board, inter alia, denied claims of entitlement to an effective date earlier than February 13, 2014, for the grant of service connection for diabetic peripheral neuropathy of the right lower extremity, femoral nerve; entitlement to an effective date earlier than February 13, 2014, for the grant of service connection for diabetic peripheral neuropathy of the left lower extremity, femoral nerve; and entitlement to an effective date earlier than February 13, 2014, for the grant of service connection for diabetic peripheral vascular disease of the right lower extremity. The Veteran appealed that part of the Board's decision which denied earlier effective dates for the awards of service connection for peripheral neuropathy of the right lower extremity, femoral nerve; peripheral neuropathy of the left lower extremity, femoral nerve; and peripheral vascular disease of the right lower extremity. In July 2020, the United States Court of Appeals for Veterans Claims (CAVC) issued a Joint Motion for Partial Remand (JMPR) vacating in part the September 2019 Board decision, only to the extent that it denied the aforementioned issues.

In September 2019, the Board also remanded claims of entitlement to an increased rating for peripheral neuropathy of the sciatic nerve of the right lower extremity, rated 40 percent disabling; entitlement to an increased rating for peripheral neuropathy of the sciatic nerve of the left lower extremity, rated 40 percent disabling; entitlement to an increased rating for peripheral neuropathy of the femoral nerve of the right lower extremity, rated as 20 percent disabling; entitlement to an increased rating for peripheral neuropathy of the femoral nerve of the left lower extremity, rated as 20 percent disabling; entitlement to an increased rating for peripheral neuropathy of the right upper extremity (dominant), rated 30 percent disabling prior to May 8, 2018, and 40 percent disabling thereafter; entitlement to an increased rating for peripheral neuropathy of the left upper extremity, rated 20 percent disabling prior to May 8, 2018, and 30 percent disabling thereafter; and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

Increased Ratings

Disability ratings are determined by applying the criteria set
rated as 20 percent disabling; entitlement to an increased rating for peripheral neuropathy of the femoral nerve of the left lower extremity, rated as 20 percent disabling; entitlement to an increased rating for peripheral neuropathy of the right upper extremity (dominant), rated 30 percent disabling prior to May 8, 2018, and 40 percent disabling thereafter; entitlement to an increased rating for peripheral neuropathy of the left upper extremity, rated 20 percent disabling prior to May 8, 2018, and 30 percent disabling thereafter; and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

Increased Ratings

Disability ratings are determined by applying the criteria set forth in 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. If two evaluations are potentially applicable, 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3.

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21.

1. Entitlement to an increased rating for peripheral neuropathy of the sciatic nerve of the RLE, rated 40 percent disabling.

2. Entitlement to an increased rating for peripheral neuropathy of the sciatic nerve of the left LLE, rated 40 percent disabling.

In the July 2013 VA rating decision on appeal, the AOJ increased the disability ratings to 40 percent effective from May 30, 2013 (i.e., date of claim for increased rating). See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (sciatic nerve). The Board notes that the Veteran is in receipt of separate ratings for his peripheral neuropathy of the LLE and RLE which affects the femoral nerves.

Diagnostic Code 8520 denotes paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. The next-higher rating of 40 percent is warranted for moderately severe incomplete paralysis, 60 percent is warranted for severe (with marked muscular atrophy) incomplete paralysis, and 80 percent, the maximum available, is warranted for complete paralysis. Id.

The rating schedule does not define the terms "moderately severe" or "severe" as used in this Diagnostic Code to describe the degree of deformity of the lower extremities. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "severe" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. § § 4.2, 4.6.

For VA purposes, the term "incomplete paralysis" with diseases of the peripheral nerves and other peripheral nerve injuries, 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
. It should also be noted that use of descriptive terminology such as "severe" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. § § 4.2, 4.6.

Review of the relevant evidentiary record documents the following symptomatology of peripheral neuropathy of the RLE and LLE (sciatic nerve).

The Veteran underwent a VA Peripheral Nerves Examination in July 2013. He reported moderate pain in the bilateral lower extremities; severe intermittent pain of the bilateral lower extremities; moderate paresthesias and/or dysesthesias of the bilateral lower extremities; and moderate numbness of the lower extremities. Strength testing was 5/5 throughout. Deep tendon reflexes were normal (2+) throughout. Light touch/monofilament, position sense, and vibration sensation testing was decreased throughout the lower extremities. Cold sensation was normal. There was no atrophy. Trophic changes were present (bilateral thin skin and absent hair). The examiner described the Veteran’s LLE and RLE peripheral neuropathy of the sciatic nerves as moderately severe incomplete paralysis.

The Veteran underwent another VA examination in April 2014. Symptoms included moderate bilateral lower extremity constant pain; moderate intermittent pain of the bilateral lower extremities; moderate paresthesias and/or dysesthesias of the bilateral lower extremities; and moderate numbness of the lower extremities. Strength testing was 4/5 (bilateral knee extension and flexion) and 5/5 (ankles). DTRs were decreased throughout, bilaterally (+1). Light touch/monofilament testing was absent bilaterally in the ankles/lower legs and foot/toes. Vibration sensation was decreased bilaterally throughout. There was no atrophy. Trophic changes were present. The examiner described the Veteran’s LLE and RLE peripheral neuropathy of the sciatic nerves as moderate, incomplete paralysis. An EMG was performed; however, the results of the study were essentially unchanged when compared to a 2010 EMG.

The Veteran underwent another VA examination in May 2018. Symptoms included moderate bilateral lower extremity constant pain; severe intermittent pain of the bilateral lower extremities; severe paresthesias and/or dysesthesias of the bilateral lower extremities; and moderate numbness of the lower extremities. Strength testing was 4/5 throughout. DTRs were absent in the knees and ankles. Light touch/monofilament testing was decreased in the knees/thighs and ankles/lower legs, and absent in the feet and bilateral toes. Cold sensation, position sensation, and vibration sensation were absent bilaterally throughout. There was no atrophy. Trophic changes were present. The examiner described the Veteran’s LLE and RLE peripheral neuropathy of the sciatic nerves as moderate, incomplete paralysis.

The Veteran underwent another VA examination in December 2019. Symptoms included moderate bilateral lower extremity constant pain; severe intermittent pain of the bilateral lower extremities; severe paresthesias and/or dysesthesias of the bilateral lower extremities; and severe numbness of the lower extremities. Strength testing of the bilateral lower extremities ranged from 3/5 to 4/5. DTRs were absent in the knees and ankles. Light touch/monofilament testing was decreased in the knees/thighs and ankles/lower legs, and absent in the feet and bilateral toes. Cold sensation, position sensation, and vibration sensation were absent bilaterally throughout. There was no atrophy. Trophic changes were present. The examiner described the Veteran’s LLE and RLE peripheral neuropathy of the sciatic nerves as moderately severe incomplete paralysis.

The Board finds that such symptomatology, as discussed above, is contemplated in the currently assigned 40 percent disability ratings. In fact, clinical findings from the July 2013, April 2014, May 2018, and December 2019 VA examinations
in the knees and ankles. Light touch/monofilament testing was decreased in the knees/thighs and ankles/lower legs, and absent in the feet and bilateral toes. Cold sensation, position sensation, and vibration sensation were absent bilaterally throughout. There was no atrophy. Trophic changes were present. The examiner described the Veteran’s LLE and RLE peripheral neuropathy of the sciatic nerves as moderately severe incomplete paralysis.

The Board finds that such symptomatology, as discussed above, is contemplated in the currently assigned 40 percent disability ratings. In fact, clinical findings from the July 2013, April 2014, May 2018, and December 2019 VA examinations showed no clinical findings of muscle atrophy nor has the Veteran asserted such is present. The VA examiners have also consistently described the Veteran’s RLE and LLE peripheral neuropathy of the sciatic nerves to be, at most, moderately severe incomplete paralysis. To meet the next-higher 60 percent ratings, severe (with marked muscular atrophy) incomplete paralysis would need to have been shown. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. For these reasons, the claims for ratings in excess of 40 percent for peripheral neuropathy of the RLE and LLE (sciatic nerve) are denied. 38 C.F.R. §§ 4.3, 4.7.

3. Entitlement to an increased rating for peripheral neuropathy of the right upper extremity (dominant), rated 30 percent disabling prior to May 8, 2018, and 40 percent disabling thereafter.

4. Entitlement to an increased rating for peripheral neuropathy of the left upper extremity, rated 20 percent disabling prior to May 8, 2018, and 30 percent disabling thereafter.

In the July 2013 VA rating decision on appeal, the AOJ increased the disability ratings to 30 percent for the RUE (dominant) and 20 percent for the LUE, effective from May 30, 2013 (i.e., date of claim for increased rating). See 38 C.F.R. § 4.124a, Diagnostic Code 8515 (median nerve). Subsequently, in a February 2019 rating decision, the AOJ again increased the disability ratings to 40 percent for the RUE (dominant) and 30 percent for the LUE, effective from May 8, 2018, under DC 8513 (all radicular groups).

Diagnostic Code 8513 provides ratings for paralysis for all radicular groups (upper, middle, and lower) of the upper extremities. Disability ratings of 20, 40, and 70 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of all major (or dominant) radicular groups. Disability ratings of 20, 30, and 60 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of all minor radicular groups. A maximum 90 percent rating is warranted for complete paralysis of all major radicular groups, and a maximum of 80 present is warranted for complete paralysis of all minor radicular groups. 38 C.F.R. § 4.124a, DC 8513.

Under Diagnostic Code 8514 (radial nerve), a 30/20 percent evaluation is warranted for moderate incomplete paralysis major/minor arm. A 50/40 percent evaluation is warranted for severe incomplete paralysis of the major/minor arm. A 70/60 percent evaluation is warranted for complete paralysis of the radial nerve with drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb or make lateral movement of the wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity. 38 C.F.R. § 4.124a, DC 8514.

Diagnostic Code 8515 addresses complete and incomplete paralysis of the medial nerve. Under this diagnostic code, moderate incomplete paralysis warrants a 20 percent rating for the minor wrist and a 30 percent rating for the major wrist. Severe incomplete paralysis warrants a 40 percent rating for the minor wrist and a 50 percent rating for the major wrist. Complete paralysis with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of thenar eminence, the thumb in the plane of the hand; pronation incomplete and effective, absence of flexion of the index finger and feeble flexion of the middle finger, that cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances warrants a 60 percent rating for the minor wrist and a 70 percent disability rating for the major wrist. 38 C.F.R. § 4.124a, Diagnostic Code 8515.

Under Diagnostic Code 8516 (ulnar nerve), a 30/20 percent evaluation is warranted for moderate incomplete paralysis of the major/minor arm. A 40/30 percent evaluation is warranted for severe incomplete paralysis the major/minor arm. A 60/50 percent evaluation is warranted for complete paralysis of the ulnar nerve with the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a, DC 8516.

Again, the rating schedule does not define the term "severe" as used in this Diagnostic Code to describe the degree of deformity of the upper extremity. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. § § 4.2, 4.6.

The Veteran underwent a VA Peripheral Nerves Examination in July 2013. He reported no constant pain in the bilateral upper extremities; mild intermittent pain of the bilateral upper extremities; mild paresthesias and/or dysesthesias of the bilateral upper extremities; and mild numbness of the upper extremities. Strength testing was 5/5 throughout. Deep tendon reflexes were normal (2+) throughout. Light touch/monofilament, position sense, vibration sensation testing, and cold sensation testing were all normal throughout. There was no atrophy. Trophic changes were not present. The examiner described Veteran’s RUE and LUE peripheral neuropathy as affecting the median nerve and moderate incomplete paralysis.

The Veteran underwent a VA Peripheral Nerves Examination in April 2014. He reported no constant pain in the bilateral upper extremities; mild intermittent pain of the bilateral upper extremities; mild paresthesias and/or dysesthesias of the bilateral upper extremities; and mild numbness of the upper extremities. Strength testing ranged from 4/5 to 5/5 throughout. Deep tendon reflexes were +1 throughout. Light touch/monofilament, position sense, and vibration sensation testing were all normal throughout. There was no atrophy. Trophic changes were not present. The examiner described Veteran’s RUE and LUE peripheral neuropathy as mild incomplete paralysis affecting the radial, median, and ulnar nerves. An EMG was performed; however, the results of the study were essentially unchanged when compared to a 2010 EMG.

The Veteran underwent a VA Peripheral Nerves Examination in May 2018. He reported mild constant pain in the bilateral upper extremities; moderate intermittent pain of the bilateral upper extremities; moderate paresthesias and/or dysesthesias of the bilateral upper extremities; and mild numbness of the upper extremities
position sense, and vibration sensation testing were all normal throughout. There was no atrophy. Trophic changes were not present. The examiner described Veteran’s RUE and LUE peripheral neuropathy as mild incomplete paralysis affecting the radial, median, and ulnar nerves. An EMG was performed; however, the results of the study were essentially unchanged when compared to a 2010 EMG.

The Veteran underwent a VA Peripheral Nerves Examination in May 2018. He reported mild constant pain in the bilateral upper extremities; moderate intermittent pain of the bilateral upper extremities; moderate paresthesias and/or dysesthesias of the bilateral upper extremities; and mild numbness of the upper extremities. Strength testing ranged from 4/5 to 5/5 throughout. Deep tendon reflexes were +1 throughout. Light touch/monofilament and position sense were normal, while and vibration sensation and cold testing were decreased bilaterally. There was no atrophy. Trophic changes were not present. The examiner described Veteran’s RUE and LUE peripheral neuropathy as mild incomplete paralysis affecting the radial nerves; moderate incomplete paralysis affecting the median nerves; and mild incomplete paralysis of the ulnar nerves.

The Veteran underwent a VA Peripheral Nerves Examination in December 2019. He reported mild constant pain in the bilateral upper extremities; moderate intermittent pain of the bilateral upper extremities; moderate paresthesias and/or dysesthesias of the bilateral upper extremities; and moderate numbness of the upper extremities. Strength testing ranged from 3/5 to 5/5 throughout. Deep tendon reflexes were +1 throughout. Light touch/monofilament testing was normal bilaterally, while and vibration sensation, position, and cold testing were decreased bilaterally. There was no atrophy. Trophic changes were not present. The examiner described Veteran’s RUE and LUE peripheral neuropathy as moderate incomplete paralysis affecting the radial nerves; moderate incomplete paralysis affecting the median nerves; and moderate incomplete paralysis of the ulnar nerves.

Prior to May 8, 2018

For the period prior to May 8, 2018, the Veteran’s peripheral neuropathy of the RUE and LUE has been rated as 30 percent and 20 percent disabling, respectively.

The Board finds that such symptomatology, as discussed above, to include mild constant pain in the bilateral upper extremities; mild intermittent pain of the bilateral upper extremities; mild paresthesias and/or dysesthesias of the bilateral upper extremities; mild numbness of the upper extremities; decreased DTRs (+1); and some reduced strength (4/5) are contemplated in the currently assigned 30 percent (dominant RUE) and 20 percent (LUE) ratings. To meet the next-higher ratings under the applicable diagnostic codes, the evidence would have needed to approximate severe incomplete paralysis of the median nerve (DC 8515); severe incomplete paralysis of the ulnar nerve (DC 8516); severe incomplete paralysis of the radial nerve (DC 8514); or moderate incomplete paralysis of all radicular groups (DC 8513). This simply has not been demonstrated by the evidence of record for the period prior to May 8, 2018. Notably, the April 2014 VA examiner described the Veteran’s RUE and LUE peripheral neuropathy (of the radial, median, and ulnar nerves) to be, at most, mild incomplete paralysis. The July 2013 VA examination identified RUE and LUE peripheral neuropathy affecting the median nerve only and the examiner described this as moderate incomplete paralysis which is consistent with the 30 and 20 percent ratings assigned under DC 8514.

The Board considers the Veteran's reported history of symptomatology related to the service-connected peripheral neuropathy. In this case, although the descriptions of his symptoms are competent and credible, they do not show that the criteria for a rating in excess of 30 percent for his peripheral neuropathy of the RUE, or a rating in excess of 20 percent for peripheral neuropathy of his LUE have been met at any time for the period prior to May 8, 2018. For these reasons, the claim is denied. 38 C.F.R. §§ 4.3, 4.7.

From May 8, 2018

For the period beginning May 8, 2018, the Veteran’s peripheral neuropathy of the RUE and LUE has been rated as 40 percent and 30 percent disabling, respectively.

The Board finds that such symptomatology, as discussed above, to include mild constant pain; moderate intermittent pain; moderate paresthesias and/or dyse
athy of the RUE, or a rating in excess of 20 percent for peripheral neuropathy of his LUE have been met at any time for the period prior to May 8, 2018. For these reasons, the claim is denied. 38 C.F.R. §§ 4.3, 4.7.

From May 8, 2018

For the period beginning May 8, 2018, the Veteran’s peripheral neuropathy of the RUE and LUE has been rated as 40 percent and 30 percent disabling, respectively.

The Board finds that such symptomatology, as discussed above, to include mild constant pain; moderate intermittent pain; moderate paresthesias and/or dysesthesias; mild numbness of the bilateral upper extremities; some less than normal strength in the bilateral upper extremities; decreased DTRs (+1), and decreased vibration sensation and cold testing are contemplated in the currently assigned 40 percent (dominant RUE) and 30 percent (LUE) ratings. To meet the next-higher ratings under the applicable diagnostic codes, the evidence would have needed to approximate severe incomplete paralysis of all radicular groups (DC 8513); severe incomplete paralysis of the radial nerves (DC 8514); severe incomplete paralysis of the median nerves; or complete paralysis of the ulnar nerves. This simply has not been demonstrated by the evidence of record for the period beginning May 8, 2018. Notably, the December 2019 VA examiner described the Veteran’s RUE and LUE peripheral neuropathy (of the radial, median, and ulnar nerves) to be, at most, moderate incomplete paralysis.

The Board considers the Veteran's reported history of symptomatology related to the service-connected peripheral neuropathy. In this case, although the descriptions of his symptoms are competent and credible, they do not show that the criteria for a rating in excess of 40 percent for his peripheral neuropathy of the RUE, or a rating in excess of 30 percent for peripheral neuropathy of his LUE have been met at any time for the period beginning to May 8, 2018. For these reasons, the claim is denied. 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to an effective date earlier than February 13, 2014, for the grant of service connection for diabetic peripheral neuropathy of the right lower extremity, femoral nerve.

2. Entitlement to an effective date earlier than February 13, 2014, for the grant of service connection for diabetic peripheral neuropathy of the left lower extremity, femoral nerve.

3. Entitlement to an effective date earlier than February 13, 2014, for the grant of service connection for diabetic peripheral vascular disease of the right lower extremity.

4. Entitlement to an increased rating for diabetic peripheral neuropathy of the femoral nerve of the right lower extremity, rated as 20 percent disabling.

5. Entitlement to an increased rating for diabetic peripheral neuropathy of the femoral nerve of the left lower extremity, rated as 20 percent disabling.

6. Entitlement to a TDIU rating.

Remand is required for retrospective medical opinions. The duty to assist may include development of evidence through a retrospective medical opinion where there is a lack of medical evidence for the time period being rated. Chotta v. Peake, 22 Vet. App. 80 (2008).

With respect to the claim relating to an earlier effective date for diabetic peripheral vascular disease of the right lower extremity, the Veteran reported to an April 2014 VA examiner “that since a long time ago he has noted bilateral lower extremities pain and cramps.” Additionally, a July 7, 2010, VA Electrodiagnostic test result noted “bilateral leg cramps suggestive of vascular claudication (in addition of physical findings of periferal [sic] vascular disease.”

With respect to the claims relating to earlier effective dates for diabetic peripheral neuropathy of the lower extremities (femoral), an April 2014 VA examination report stated that the Veteran “continues with bilateral upper and lower extremity pain[], and numbness especially in his legs which he also experiences cramps.”

In the July 2020 JMPR, the parties agreed that, given the retrospective language in the April 2014 VA examination reports, the Board was required to provide a statement of reasons or bases as to why a retrospective medical examination would not be necessary and helpful under the facts of this case. Given this, coupled with the lack of medical evidence for the rating period, the Board finds that retrospective examinations and opinions should be obtained on remand. See Chotta, supra.

The
neuropathy of the lower extremities (femoral), an April 2014 VA examination report stated that the Veteran “continues with bilateral upper and lower extremity pain[], and numbness especially in his legs which he also experiences cramps.”

The issues relating to higher ratings for diabetic peripheral neuropathy of the bilateral lower extremities (femoral nerve) and entitlement to a TDIU rating are inextricably intertwined with the earlier effective date issues.

The matters are REMANDED for the following action:

1. Obtain medical opinions regarding the Veteran's claims for earlier effective dates for (a) diabetic peripheral neuropathy of the right lower extremity, femoral nerve; (b) diabetic peripheral neuropathy of the left lower extremity, femoral nerve; and (c) diabetic peripheral vascular disease of the right lower extremity from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination(s) is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided.

The examiner is asked to determine when, if other than April 3, 2013 (i.e., the date of a VA Diabetes Mellitus/Diabetic Sensory-Motor Peripheral Neuropathy Examination), it is factually ascertainable that the Veteran had diabetic peripheral neuropathy of the right lower extremity, femoral nerve; (b) diabetic peripheral neuropathy of the left lower extremity, femoral nerve; and (c) diabetic peripheral vascular disease of the right lower extremity?

2. Thereafter, readjudicate the claims of entitlement to effective dates earlier than February 13, 2014, for the grants of service connection for diabetic peripheral neuropathy of the RLE (femoral nerve), diabetic peripheral neuropathy of the LLE (femoral nerve), and diabetic peripheral vascular disease of the RLE; entitlement to higher ratings for diabetic peripheral neuropathies of the RLE and LLE (femoral nerves); and entitlement to a TDIU rating.

DEBORAH W. SINGLETON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board H. Hoeft

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.

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