Case A22014677

Summary

The veteran, who served from October 1965 to October 1967, including service in Vietnam, appeals the effective dates for service connection for bilateral diabetic peripheral neuropathy of the sciatic and femoral nerves, and the assigned disability ratings. The Board granted service connection for bilateral diabetic peripheral neuropathy of the sciatic nerves effective April 24, 2015, and assigned a 20 percent rating from September 17, 2019, to January 20, 2020. For the period prior to September 17, 2019, and from January 21, 2020, forward, the Board found the evidence weighed against ratings exceeding 10 percent for the sciatic nerves. The Board denied earlier effective dates for service connection for bilateral diabetic peripheral neuropathy of the femoral nerves, finding the evidence did not establish effects prior to January 21, 2020. The Board also denied increased ratings for the femoral nerves, citing mild impairment and the risk of pyramiding with the sciatic nerve ratings. The veteran's service was recognized with a Purple Heart and Bronze Star.

Rationale

Service connection granted effective April 24, 2015.; 20% rating granted for moderate incomplete paralysis Sept 17, 2019 - Jan 20, 2020.; Denied higher rating for periods prior to Sept 17, 2019, and after Jan 20, 2020, due to mild impairment.

Full Decision Text

Citation Nr: A22014677
Decision Date: 07/29/22	Archive Date: 07/29/22

DOCKET NO. 200610-92166
DATE: July 29, 2022

ORDER

An effective date of April 24, 2015, for the award of service connection for diabetic peripheral neuropathy of the left sciatic nerve is granted.

An effective date of April 24, 2015, for the award of service connection for diabetic peripheral neuropathy of the right sciatic nerve is granted.

Entitlement to an effective date prior to January 21, 2020, for the award of service connection for peripheral neuropathy of the left femoral nerve is denied.

Entitlement to an effective date prior to January 21, 2020, for the award of service connection for peripheral neuropathy of the right femoral nerve is denied.

Entitlement to a disability rating in excess of 10 percent for diabetic peripheral neuropathy of the left femoral nerve is denied.

Entitlement to a disability rating in excess of 10 percent for diabetic peripheral neuropathy of the right femoral nerve is denied.

Entitlement to a 20 percent disability rating from September 17, 2019 to January 20, 2020, but not before and not after, for diabetic peripheral neuropathy of the left sciatic nerve is granted.

Entitlement to a 20 percent disability rating from September 17, 2019 to January 20, 2020, but not before and not after, for diabetic peripheral neuropathy of the right sciatic nerve is granted.

FINDINGS OF FACT

1. The evidence shows the Veteran suffered from bilateral peripheral neuropathy affecting the sciatic nerves at the time of his claim on April 24, 2015.

2. The evidence does not show effects of peripheral neuropathy on the femoral nerves prior to the January 21, 2020, examination.

3. The Veteran's bilateral peripheral neuropathy of the femoral nerve presented with mild incomplete paralysis. 

4. The Veteran's bilateral peripheral neuropathy of the sciatic nerve presented with mild incomplete paralysis prior to September 17, 2019, and from January 21, 2020 forward.

5. The Veteran's bilateral peripheral neuropathy of the sciatic nerve presented with moderate incomplete paralysis from September 17, 2019, to January 20, 2020.

CONCLUSIONS OF LAW

1. The criteria for an effective date of April 24, 2015, for the grant of service connection for peripheral neuropathy of the left and right sciatic nerves have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

2. The criteria for an effective date prior to January 21, 2020, for the grant of service connection for peripheral neuropathy of the right and left femoral nerves have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

3. The criteria for a disability rating in excess of 10 percent for bilateral diabetic peripheral neuropathy of the femoral have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

4. The criteria for a disability rating in excess of 10 percent prior to September 17, 2019, and from January 21, 2020 forward for bilateral diabetic peripheral neuropathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

5. The criteria for a 20 percent rating for bilateral diabetic peripheral neuropathy of the sciatic nerve September 17, 2019, to January 20, 2020, have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1965 to October 1967, including service in the Republic of Vietnam. As a result of his military service, the Veteran received a Purple Heart and Bronze Star, among other decorations.

This matter is on appeal to the Board of Veterans' Appeals (Board) from a June 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2020 VA Form 10182, Decision Review Request:
5, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1965 to October 1967, including service in the Republic of Vietnam. As a result of his military service, the Veteran received a Purple Heart and Bronze Star, among other decorations.

This matter is on appeal to the Board of Veterans' Appeals (Board) from a June 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the June 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran timely appealed the portion of the rating decision pertaining to the issue above and requested a hearing before the Board and an opportunity to submit evidence at the hearing and within 90 days following the hearing. 38 C.F.R. § 20.202. In March 2022, the Veteran's representative wrote that the Veteran's wished to withdraw all requests for Board hearings.

Earlier Effective Date

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Generally, the effective date of an evaluation and award of service-connected compensation is the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  

In the June 2020 rating decision, the RO granted service connection for diabetic peripheral neuropathy of the left and right sciatic nerves effective August 11, 2015, and of the left and right femoral nerves effective January 21, 2020. The Veteran asserts he is entitled to earlier effective dates for the grants of service connection for his bilateral diabetic peripheral neuropathy of the sciatic and femoral nerves.

The Veteran was originally denied service connection for neuropathy in a June 2008 rating decision. Although he initially appealed the denial, he withdrew his appeal in November 2008. Thus, the June 2008 rating decision became final. The Veteran next filed to reopen his claim for service connection on April 24, 2015. 

The record shows the Veteran had bilateral lower extremity neuropathy when he filed his claim on April 24, 2015. Treatment records show he was diagnosed with bilateral diabetic neuropathy on April 20, 2015, and again in August 2015. Moreover, the January 2020 examiner noted the onset of bilateral lower extremity neuropathy as 2015.

The treatment records showing diagnosis and treatment for lower extremity neuropathy do not discuss which nerves were involved. However, the December 2019 VA examiner found the Veteran's lower extremity peripheral neuropathy affected the sciatic nerves with the femoral nerves appearing normal. The first evidence establishing lower extremity diabetic neuropathy affecting the femoral nerves is the January 21, 2020, examination. Accordingly, the appropriate effective date for the award of service connection for bilateral diabetic peripheral neuropathy of the sciatic nerve is the date of claim, April 24, 2015, but the appropriate effective date for the award of service connection for peripheral neuropathy of the left and right femoral nerves is the date entitlement arose, January 22, 2020. Therefore, the Board grants the earlier effective date for the award of service connection for peripheral neuropathy of the left and right sciatic nerves and denies earlier effective dates for the awards of service connection for peripheral neuropathy of the femoral nerves.

Increased Rating 

Regulations provide that ratings for peripheral neurological disorders are to be assigned based 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 words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule.

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
 § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule.

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.  38 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).  

1. Entitlement to a disability rating in excess of 10 percent for bilateral diabetic peripheral neuropathy of the femoral nerve

Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. 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 disabling, and 40 percent is warranted for complete paralysis of quadriceps extensor muscles.  38 C.F.R. § 4.124a.  

The January 2020 VA examiner noted mild bilateral paresthesias and/or dysesthesias and numbness, decreased light touch sensation of the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The examiner recorded full strength, normal reflexes, no trophic changes and found the Veteran suffered from bilateral mild incomplete paralysis of the femoral nerve. Treatment records demonstrate that the Veteran complained of pain and tingling.

Based on the above, the Board finds the weight of the evidence persuasively favors the assignment of a rating for mild, rather than moderate or more severe impairment of the femoral nerve. First, the evidence shows the disability is wholly sensory in nature. Additionally, the Board finds the VA examiner's characterization of the Veteran's disability as mild highly probative. Finally, the Board notes that the Veteran's symptoms have not been separately attributed to one nerve group over the other and impairments of the femoral and sciatic nerves both affect the lower extremities. Given that the Veteran receives a separate rating for impairment of the sciatic nerves, the Board finds assignment of a rating for more than mild impairment of the femoral nerves would be duplicative and constitute impermissible pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for ratings in excess of 10 percent for diabetic peripheral neuropathy of the left and right femoral nerves.   

2. Entitlement to a disability rating in excess of 10 percent for bilateral diabetic peripheral neuropathy of the sciatic 

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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.  

Treatment records show the Veteran complained of discomfort, pain, and tingling. In June 2015, during a VA examination, the Veteran reported a burning sensation and occasional tingling. However, the examiner did not find that the Veteran suffered from peripheral neuropathy.

During the VA examination in September 2019, the examiner found no pain symptoms and moderate bilateral paresthesias and/or dysesthesias and numbness. The Veteran had reduced strength to 4/5 on bilateral knee extension, bilateral ankle plantar flexion, and left ankle dorsif
 the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a.  

Treatment records show the Veteran complained of discomfort, pain, and tingling. In June 2015, during a VA examination, the Veteran reported a burning sensation and occasional tingling. However, the examiner did not find that the Veteran suffered from peripheral neuropathy.

During the VA examination in September 2019, the examiner found no pain symptoms and moderate bilateral paresthesias and/or dysesthesias and numbness. The Veteran had reduced strength to 4/5 on bilateral knee extension, bilateral ankle plantar flexion, and left ankle dorsiflexion; right ankle dorsiflexion was 5/5. The examiner noted normal reflexes and sensation on the left upper thigh but decreased sensation to the knee/thigh, ankle/lower leg, and foot/toes bilaterally. The examiner found the Veteran suffered from moderately severe incomplete paralysis of the right sciatic nerve with a normal left sciatic nerve, moderate incomplete paralysis of the external popliteal nerve bilaterally, and incomplete paralysis of the anterior tibial nerve mild on the right and moderate on the left.

In December 2019, the VA examiner recorded no pain symptoms, moderate bilateral paresthesias and/or dysesthesias, and moderate numbness. The Veteran had full strength on knee flexion but 4/5 strength on knee extension and ankle plantar flexion and dorsiflexion. The examiner recorded normal reflexes, decreased light tough sensation at the bilateral knees/thighs, lower legs/ankles, and feet/toes, and decreased positional sense in the left lower extremity. The examiner found moderate incomplete paralysis of the sciatic nerves. 

The Veteran underwent a VA examination in January 2020. The examiner noted mild bilateral paresthesias and/or dysesthesias and numbness, decreased light touch sensation of the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The examiner recorded full strength, normal reflexes, no trophic changes and found the Veteran suffered mild incomplete paralysis of the sciatic nerves.

The Board finds prior to the September 17, 2019, examination, the Veteran had no more than mild impairment of the sciatic nerve. While the Veteran endorsed pain, burning, and tingling sensations and he had a diagnosis at that time, the June 2015 examiner did not find sufficient objective evidence to render a diagnosis, which supports that the Veteran's disability presentation was mild. 

From the date of the September 17, 2019, examination to the January 20, 2020, examination, the evidence shows a disability picture most consistent with moderate impairment and a 20 percent rating. Although the Veteran had some decreased strength, he retained active movement against some resistance and normal reflexes. His other symptoms were sensory and described as moderate. As such, the Board finds his disability presentation was most consistent with moderate impairment of the sciatic nerve. 

The Board notes the examiners' findings of involvement of other nerves but again finds that there is no evidence to attribute the symptoms to one nerve over another and the sciatic nerve encompasses the same areas as the other nerves affecting the lower extremities, such that assignment of separate ratings under additional diagnostic codes for the nerves would constitute pyramiding. See Esteban, 6 Vet. App. at 262; 38 C.F.R. § 4.14. More importantly, the rating criteria for disabilities of the sciatic nerve provide for higher ratings than those for the popliteal and tibial nerves, so the Veteran is better served by ratings under the Diagnostic Code for the sciatic nerve. See 38 C.F.R. § 4.124a.

(Continued on the next page)

 

Finally, from the January 21, 2020, examination forward, the Board again finds the Veteran's disability presentation is most consistent with mild impairment of the sciatic nerve. Again, the evidence shows the disability is wholly sensory in nature and the VA examiner characterized the Veteran's disability as mild. For this period, the Veteran receives a separate rating for mild impairment of the femoral nerve. The 10 percent ratings assigned for mild impairment of the femoral and sciatic nerves equate to a 20 percent rating for moderate impairment of the sciatic nerve. In this circumstance, the Board finds assignment of a rating for more than mild impairment of the sciatic nerves would overlap with and be duplicative of the ratings assigned for the femoral nerve beginning January 21, 2020, and constitute pyramiding. See Esteban, 6 Vet. App. at 262; 38 C.F.R. § 4.14.

In sum, the
 in nature and the VA examiner characterized the Veteran's disability as mild. For this period, the Veteran receives a separate rating for mild impairment of the femoral nerve. The 10 percent ratings assigned for mild impairment of the femoral and sciatic nerves equate to a 20 percent rating for moderate impairment of the sciatic nerve. In this circumstance, the Board finds assignment of a rating for more than mild impairment of the sciatic nerves would overlap with and be duplicative of the ratings assigned for the femoral nerve beginning January 21, 2020, and constitute pyramiding. See Esteban, 6 Vet. App. at 262; 38 C.F.R. § 4.14.

In sum, the Board finds the evidence supports a 20 percent rating for peripheral neuropathy of the left and right sciatic nerves from September 17, 2019 to January 21, 2020, but the evidence weighs persuasively against assignment of ratings in excess of a 10 percent for bilateral sciatic nerve peripheral neuropathy prior to September 17, 2019, and from January 21, 2020, forward.

 

 

A.P. Armstrong

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. H.

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.