Citation Nr: 18139637
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 16-07 319
DATE:	September 28, 2018
ORDER
Entitlement to an evaluation in excess of 20 percent for bilateral peripheral neuropathy of the lower extremities is granted.
FINDING OF FACT
Throughout the appeal period, peripheral neuropathy of the lower extremities has manifested moderately severity without marked muscle atrophy.
CONCLUSION OF LAW
The criteria for an evaluation of 40 percent (two separate 40 percent ratings), but not greater than, for both right and left peripheral neuropathy have been met. §§ 3.102, 3.159, 4.1, 4.2, 4.6, 4.7, 4.123, 4.124a, Diagnostic Code 8620.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from November 1968 to September 1970.

The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA).
Entitlement to an evaluation in excess of 20 percent for bilateral peripheral neuropathy of the lower extremities
The Veteran contends that his service connected bilateral peripheral neuropathy is more severe than the 20 percent evaluation he is currently assigned.
The Veteran’s bilateral peripheral neuropathy is rated as 20 percent disabling under DC 8620, corresponding with a disability manifested as moderate in severity. Incomplete paralysis of the sciatic nerve is rated under DC 8520 and may be considered as mild (10 percent), moderate (20 percent), moderately severe (40 percent), or severe with marked muscular atrophy (60 percent).
The words “mild, “moderate” and “severe” are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, 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 C.F.R. §§ 4.2, 4.6.
The Veteran was afforded a VA examination in September 2015. The examiner confirmed a diagnosis of bilateral lower extremity diabetic peripheral neuropathy. The examiner rated the Veteran’s left leg as moderate intermittent pain, moderate paresthesias, and moderate numbness. She rated the Veteran’s right leg as severe intermittent pain, severe paresthesias, and moderate numbness. Functionally, the examiner noted the Veteran’s frequent risk of falls.
VA treatment records indicate that a podiatrist evaluated the Veteran’s diabetic neuropathy as severe. Monofilament examination revealed severely diminished/absent sensation in the Veteran’s feet.
The Board finds that affording the Veteran the benefit of doubt, the probative medical evidence of record indicates that his bilateral lower extremity peripheral neuropathy manifests as moderately severe, which warrants a 40 percent evaluation. The Veteran’s right foot was rated as severe at the VA examination and podiatry treatment encounter. The Board recognizes that the VA examiner found only moderate levels of severity in the Veteran’s left foot based on intermittent pain, paresthesias, and numbness; however, when considering his high fall risk, the functional impact of severe neuropathy in his right leg, and his sensory deficits based on monofilament testing, the Board finds that the higher of the two evaluations, moderately severe, most closely resembles the Veteran’s bilateral lower extremity peripheral neuropathy. The Board notes that while there is greater severity in the Veteran’s right leg when compared with his left, it finds that both legs manifest as moderately severe in severity. The record does not indicate the Veteran presents with muscle atrophy; therefore, an evaluation of 60 percent is not warranted.  Although cognizant that a VA clinician noted that the disability was severe, the higher rating of 60 percent requires organic changes not shown by the competent evidence of record.  See 38 C.F.R. § 4.123, 4.124a.
 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. A. Macek, Associate Counsel 

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