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Board Erred in Denying an Initial Increased Rating for Peripheral Neuropathy of the Bilateral Lower Extremities

Board Erred in Denying an Initial Increased Rating for Peripheral Neuropathy of the Bilateral Lower Extremities

Summary of the Case

The Veteran served in the United States Army from November of 1968 to July of 1970 with service in the Republic of Vietnam.  He initially filed for service-connected compensation for peripheral neuropathy of the bilateral lower extremities in September of 1996, but was denied.  In June of 2012, he filed for benefits based on service connection for diabetes mellitus as due to Agent Orange exposure and sought to re-open his claim for peripheral neuropathy as secondary to diabetes mellitus.  While service connection was granted for diabetes mellitus in December of 2012, it was again denied for peripheral neuropathy due to a lack of diagnosis.  The Veteran continued to appeal this issue until he was granted service connection in August of 2013 with a 10 percent disability rating for each leg effective June of 2011.  From here, the Veteran continued to appeal for an initial rating in excess of 10 percent.

Board denies an initial increased rating for peripheral neuropathy

In July of 2017, the Board issued a decision denying an initial rating in excess of 10 percent for the Veteran’s peripheral neuropathy of the bilateral lower extremities.  The Board found that the Veteran’s symptoms at most approximate a 10 percent rating because the impairment caused by those symptoms is no more than mild in severity.  While the Board acknowledged that the Veteran reported severe pain and weakness, it gave higher probative value to the “convincing and consistent medical evidence showing predominantly normal results upon objective neurological testing”.  Specifically, a July 2013 VA examiner concluded the Veteran suffers from mild paresthesia, dysesthesias, or both, and mild numbness in both lower extremities, with no other abnormalities.  Ultimately, the examiner opined the Veteran’s neuropathy was mild, without either complete or incomplete paralysis.

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied an initial increased rating in excess of 10 percent for the Veteran’s peripheral neuropathy of the bilateral lower extremities.  CCK argued that the Board misinterpreted and misapplied the law in determining that the medical evidence was more probative than the credible lay evidence regarding the severity of the Veteran’s symptoms.  Specifically, the Veteran continuously reported severe symptomology including “red burning legs” that hurt him for 4-5 hours at a time on a daily basis, nerve pain that feels like “bee stings”, and throbbing pain that “takes his breath away”.  Additionally, the Veteran’s treatment records show that he complained of chronic, episodic weakness in his legs, during which he can hardly walk and requires the assistance of crutches and a caregiver.

CAVC agrees with CCK’s arguments

The Court agreed with CCK that the Board provided an inadequate statement of reasons and bases for finding that the impairment caused by the Veteran’s peripheral neuropathy was at most mild in severity.  The Board’s analysis relied almost exclusively on sensory symptoms and limited consideration of the appellant’s nerve-related pain, placing the greatest weight on the July 2013 VA examination.  Additionally, the Court asserted that it is unclear as to how the July 2013 VA examination was adequate, considering it did not take into account the Veteran’s lengthy history of complaints of pain.  As such, the Court vacated the Board’s decision and remanded the issue of an initial increased rating for the Veteran’s peripheral neuropathy of the bilateral lower extremities back to the Board for readjudication.

To read the Court’s full decision, click here.

Category: Court Wins

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