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Court Wins

Peripheral Neuropathy Denial Did Not Provide Adequate Explanation

Jenna Zellmer

October 16, 2017

Updated: November 20, 2023



The Veteran served on active duty in the US Army from December of 1965 to October of 1967.  He filed a claim for lower leg problems in August of 2008.  VA granted service connection for peripheral neuropathy of the bilateral lower extremities at 0%, effective December of 2009.  He appealed the noncompensable rating, and was subsequently awarded a 10% rating in May of 2012.  In July of 2016, the Board issued a decision.  It determined that the Veteran was not entitled to a rating in excess of 10% prior to February 2012.  The Board did however find that a 20% rating was warranted from 2012 forward.

Board denied increased rating for lower extremity peripheral neuropathy prior to February 2012

The Board determined that a rating in excess of 10% was not warranted for the period prior to February 2012.  It determined that nothing in the record suggested that his condition could be described as moderate prior to that date, which is the standard for awarding a 20% rating.

CCK appeals to Court and the Court agrees

CCK argued, and the Court agreed, that the Board committed legal error in its decision.  Specifically, it failed to provide adequate reasons or bases for its determination that the Veteran’s condition could not be classified as moderate prior to February 2012.  In its decision, the Board relied on a December 2009 examination.  This exam provided symptoms of the Veteran’s disability, but did not classify it as mild or moderate.  A February 2012 examination was the first to classify the condition as moderate.  CCK argued that simply because the condition was classified as moderate as of February 2012, does not mean that it did not rise to a moderate level prior to that date.

The Court agreed that the Board erred in failing to explain why a moderate rating was not proper for the earlier time period.  The Court vacated the Board’s decision and remanded the issue of entitlement to a rating in excess of 10% prior to February 2012 for readjudication.

About the Author

Bio photo of Jenna Zellmer

Jenna joined CCK in January of 2014 as an appellate attorney, was named Managing Attorney in September of 2019, and now serves as a Partner at the firm. Her law practice focuses on representing disabled veterans at the Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit.

See more about Jenna