Citation Nr: 0600041	
Decision Date: 01/03/06    Archive Date: 01/19/06

DOCKET NO.  98-03 079A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to an evaluation in excess of 10 percent for 
neuralgia (meralgia) paresthetica of the left thigh.



REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.



ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel




INTRODUCTION

The veteran served on active duty from August 1957 to October 
1959.  

Initially, this matter came before the Board of Veterans' 
Appeals (Board) on appeal from a rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Petersburg, Florida, which, in part, granted compensation 
under 38 U.S.C.A. § 1151 for neuralgia paresthetica of the 
left thigh due to surgery; a 0 percent evaluation was 
assigned, effective July 13, 1995.  Thereafter, in a February 
1998 rating action, the RO increased the evaluation for 
neuralgia paresthetica from 0 percent to 10 percent, 
effective October 25, 1995.  

By a decision, dated in April 1999, the Board granted an 
effective date of July 13, 1995 for the assignment of a 10 
percent rating for neuralgia paresthetica.  However, the 
Board denied the veteran's claim for an evaluation in excess 
of 10 percent for neuralgia paresthetica.  The veteran 
appealed the Board's decision to the United States Court of 
Appeals for Veterans Claims (Court).  In an Order dated in 
June 2001, the Court vacated the Board decision and remanded 
the matter to the Board for readjudication and disposition in 
accordance with the Court's Order.  

The case was received back to the Board in September 2001.  
At that time, the Board determined that further development 
was required to properly evaluate the veteran's claim for an 
evaluation in excess of 10 percent for neuralgia 
paresthetica.  In July 2002, the Board undertook additional 
development pursuant to 38 C.F.R. § 19.9(a) (2).  However, on 
May 1, 2003, the United States Court of Appeals for the 
Federal Circuit in Disabled American Veterans v. Secretary of 
Veterans Affairs (DAV), 327 F.3d 1339 (Fed. Cir.) held that 
38 C.F.R. § 19(a) (2) was inconsistent with 38 U.S.C.A. 
§ 7104(a) because it denies appellants a "review on appeal" 
when the Board considers additional evidence without having 
to remand the case to the agency of original jurisdiction for 
initial consideration.  Accordingly, in August 2003, the 
Board remanded the case to the RO for further development.  
Following the requested development, a supplemental statement 
of the case was issued in July 2005.  

The record indicates that the veteran was previously denied 
service connection for a back disorder in a January 1997 
rating action.  In the informal hearing presentation, dated 
in November 2005, the veteran's service representative has 
requested that the claim for service connection for a back 
disorder be reopened.  This issue is referred to the RO for 
appropriate action.  As noted by the representative, the RO 
has not issued a decision regarding the veteran's attempt to 
reopen his claim of entitlement to service connection for a 
back disorder.  Therefore, absent a decision, a remand is not 
required by Manlincon v. West, 12 Vet. App. 238 (1999).  


FINDING OF FACT

Neuralgia paresthetica is manifested by some sensory loss and 
numbness on the lateral aspect of the left thigh, resulting 
in no more than mild incomplete paralysis.  


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for 
neuralgia (meralgia) paresthetica of the left thigh have not 
been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 
& Supp. 2005); 38 C.F.R. Part 4, including §§ 4.1, 4.7, 4.124 
and Codes 8629, 8726 (2005).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act (VCAA).

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in her or his possession 
that pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b) (1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004); see also Mayfield v. 
Nicholson, 19 Vet. App. 103 (2005).  

The Board finds that any defect with respect to the timing of 
the VCAA notice requirement was harmless error.  While the 
notice provided to the veteran in March 2004 was not given 
prior to the first AOJ adjudication of the claim, the notice 
was provided by the AOJ prior to the transfer and 
recertification of the veteran's case to the Board and notice 
complied with the requirements of 38 U.S.C. § 5103(a) and 38 
C.F.R. § 3.159(b).  That letter informed the veteran of the 
evidence required to substantiate the claim and of his and 
VA's respective duties for obtaining evidence.  The veteran 
was also asked to submit evidence and/or information in his 
possession to the AOJ.  

In this case, all identified medical records relevant to the 
issue on appeal have been requested or obtained.  VA provided 
the veteran with a medical examination in November 2002.  The 
available medical evidence is sufficient for an adequate 
determination of the veteran's claim.  Therefore, the Board 
finds the duty to assist and duty to notify provisions of the 
VCAA have been fulfilled.  



II.  Factual background.

The veteran filed his claim for compensation benefits for 
neuralgia paresthetica under the provisions of 38 U.S.C.A. 
§ 1151 (VA Form 21-4138) in October 1995.  The veteran's 
claim stems from a July 1995 VA hospitalization.  The records 
indicate that the veteran was hospitalized at a VA hospital 
from July 12, 1995 through July 18, 1995, for removal of 
lesions from his face and neck.  On July 13, 1995, the 
veteran had frozen section biopsies of bilateral mole lesions 
and lower lip lesion as well as right infra-auricular lesion; 
bilateral cheek advancement flaps, cervical fascial; brow 
elevation; and bilateral blepharoplasty.  

Progress notes show that on July 15, 1995, the veteran 
complained that he had no feeling in his thigh or the shin 
area of his left leg.  He was sent for a neurologic 
examination.  The consultation report shows the veteran 
complained of decreased sensation in the left lateral femoral 
cutaneous nerve distribution.  Findings led to the impression 
that there was femoral neuropathy, motor and sensory.  A 
distribution on the left lateral thigh was diagrammed.  The 
etiology was unclear.  

A VA neurology clinic note dated July 25, 1995, reported the 
veteran's lower extremity complaints and findings.  The 
physician expressed the opinion that there was a likely 
sacral plexus injury or prolonged compression during surgery, 
given a distribution involving mild back symptoms without 
neurologic deficits in the femoral nerve distribution or a 
clear dermatomal distribution.  A VA neurology clinic note, 
dated in September 1995, reported that electrodiagnostic 
studies had suggested a lumbosacral plexus partial injury as 
demonstrated by leg lower extremity findings.  The iliopsoas 
nerve was principally affected.  Further studies were 
recommended.  

The veteran was admitted to a VA medical center in October 
1995, at which time he complained of bilateral leg pain and 
numbness without back pain.  He reported a history of lumbar 
surgery with instrumentation 30 years earlier.  On 
examination, ankle jerk and patellar responses were absent.  
There was left quadriceps weakness.  Both legs had numbness 
and pain.  A computerized tomography scan (CT) revealed 
lumbar changes.  The impression was a nerve root compression 
or stenosis at multiple levels.  During the hospitalization, 
a lumbar CT/myelogram showed no gross compressive pathology.  
Hardware was in place.  It was concluded that there was no 
canal stenosis or nerve root compression responsible for his 
symptoms.  

A VA pain clinic assessment of November 1995 shows the 
veteran complained that following left facial surgery four 
months earlier, he awoke with pain in the left groin, knee 
and ankle.  He also had low back pain since the surgery.  
Additionally, there was numbness of the left anterior thigh 
and leg.  Symptoms reportedly remained unchanged with 
constant dull pain, increased by certain movements.  There 
was claimed to be a burning sensation in the left knee and 
ankle and left leg weakness.  The low back pain was described 
by the veteran as dull, 4/10, and constant.  The examiner 
found sensory responses intact to proprioception, vibration 
and touch.  The left leg had decreased response to pin prick 
in the L2-L3 distribution and all L4 dermatomes.  The 
assessment was L2, L3, L4 plexopathy and nerve irritation.  

The veteran was afforded a VA orthopedic examination in 
August 1996, at which time he reported that he developed pain 
in his left leg in August 1995 after an operation for plastic 
surgery for his face at a VA hospital.  It was noted that the 
veteran's past history was significant for back surgery in 
1965, which consisted of fusion in the lumbar area, but he 
had been doing well since that time and had had no problems.  
The veteran complained of pain in the left leg and anterior 
thigh above the knee cap.  He reported no problems following 
his 1965 back surgery.  Examination revealed mild atrophy and 
some mild weakness of the left thigh.  There was pain on 
straight leg raising of the left lower extremity with pain 
radiating into the suprapatellar area of the thigh.  There 
was good heel and toe rising.  The left patellar deep tendon 
reflex was absent.  There was decreased sensation in the L4, 
L5 and S1 nerve roots of the left leg.  There was no weakness 
in the extensors of the ankles or toes.  The diagnosis was 
radiculitis of the left lower extremity, of unknown etiology.  

A VA peripheral nerve examination was also conducted in 
August 1996.  The veteran reported that he did well following 
private back surgery in 1965.  He said that when he awoke 
from the July 1995 VA surgery, he had increased pain and 
weakness in his left leg and numbness in the lateral aspect 
of his left thigh.  The physician found some mild weakness of 
the left quadriceps and hamstring muscle groups.  There was 
no atrophy.  There was a "rachety, nonphysiologic" weakness 
of the more distal muscles of the anterior tibialis, peroneus 
longus and posterior tibialis.  No objective weakness was 
demonstrated.  Reflexes were absent in both lower 
extremities.  There was a loss of sensation in the L3 
distribution, perhaps consistent with the left lateral 
femoral cutaneous nerve.  Gait was very abnormal.  It was the 
physician's impression that the veteran had findings 
consistent with a chronic lumbar radiculopathy of L3-L4 with 
motor weakness and sensory loss although the sensory loss 
could be consistent with meralgia paresthetica.  The examiner 
stated "[T]hat would not, of course, explain his motor 
weakness which may be chronic from his previous surgery 
performed in 1965.  In any event, he has residual motor 
weakness, sensory loss and gait disturbance with findings 
consistent with a chronic lumbar radiculopathy."  

In October 1996, another neurologic examination was conducted 
by the examiner who previously examined the veteran in August 
1996.  At that time, the veteran reported progressive 
difficulty with his gait and a worsening of symptoms since 
the August 1996 examination.  The veteran's back had a well 
healed surgical scar with some tenderness and positive 
straight leg raising, bilaterally.  There was weakness on the 
right at the extensor hallucis longus tendon.  On the left, 
there was some minimal weakness of the quadriceps femoris and 
other muscle groups were intact.  Gait was impaired with a 
short stepped ataxic gait, worse on the right leg.  Sensory 
examination revealed some right L5 sensory loss, particularly 
over the lateral aspect of the right foot and over the right 
toes; there was some left sensory loss in the region of the 
left neuralgia paresthetica controlling nerve.  It was the 
examiner's impression that the veteran had two problems.  One 
problem was a chronic lumbar radiculopathy, most prominent at 
L5-S1 on the right and the second problem was neuralgia 
paresthetica, which was a compressive neuropathy which may 
have occurred during surgery.  The examiner stated that he 
could not relate the weakness to the surgery; rather, he was 
of the opinion that it was most likely secondary to the 
veteran's longstanding lumbar radiculopathy which was 
definitely present on the right as well.  

Of record is a medical statement from Dr. Craig N. Bash, 
dated in July 1998, who noted that the veteran was being 
treated prior to entering the hospital for surgery in July 
1995.  He noted that the records show that the veteran had 
some back pain, but there were no medical records showing 
radiculopathy prior to the 11 hour and 25 minute surgery in 
July 1995.  Dr. Bash stated that he agreed with the opinion 
of Dr. K. Fischer that the weakness is most likely secondary 
to the veteran's longstanding lumbar radiculopathy; however, 
he noted that there was no evidence the radiculopathy caused 
the veteran a problem prior to his hospitalization for 
treatment and surgery in July 1995.  

Received in January 1999 were records from North Shore 
Hospital, which show that the veteran was admitted to the 
hospital in February 1965 with complaints of severe pain in 
the back and right leg.  The admitting diagnosis was 
herniated intervertebral disc and spondylolisthesis.  

The veteran was afforded another VA examination in November 
2002, at which time he stated that the numbness on the 
lateral aspect of his left thigh had been persistent and had 
increased in intensity over the past several years.  The 
veteran was appropriately responsive and ambulatory.  
Examination of the lower extremities revealed no weakness or 
muscle atrophy in either leg.  There was an area of numbness 
on the lateral aspect of the left thigh, which had decreased 
sensation to pinprick and touch when compared with the right 
side.  There was decreased sensation to pinprick in a 
stocking and glove distribution bilaterally and diminished 
vibratory sensation in both great toes.  The deep tendon 
reflexes were 1+and symmetrical at the knees and trace at the 
ankles.  The dorsal pedal pulses were easily palpable on the 
right and trace on the left.  Trophic skin changes and fungal 
nail changes were present in both feet.  The impression was 
meralgia paresthetica, left thigh, secondary to diabetes 
mellitus type II.  

Received in December 2001 was a VA progress note, indicating 
that the veteran was seen for complaints of numbness in the 
left leg, and pain after walking 1 block unresolved by 
standing still; he also complained of numbness in his toes.  
The assessment was veteran with 1 block pain unresolved by 
standing in place; it noted that pain occurred at night with 
numbness.  A vascular study demonstrated bilateral lower 
extremities with excellent arterial perfusion; based on that 
study, it was determined that it did not appear that the 
veteran's symptoms were due to arterial insufficiency.  

Received in March 2004 were VA progress notes, dated from 
December 2001 to February 2004, which show that the veteran 
received ongoing clinical evaluation and treatment for 
several disabilities, including recurring leg pain.  A 
November 2002 treatment note indicates that the veteran 
complained of leg pain; it was noted that PVRs were normal, 
and that the left pain was most likely due to diabetic 
neuropathy.  In July 2003, it was again noted that leg pain 
was most likely neuropathic.  When seen in October 2003, the 
veteran complained of pain with walking; he was offered 
spinal injections, but he declined.  

Received in March 2005 were treatment records from Memorial 
Pembroke Hospital, reflecting treatment for unrelated 
disabilities.  Also received in March 2005 were treatment 
records from Ramchandra Maharajh, dated from July 2001 to 
January 2003, reflecting treatment primarily for non-insulin 
diabetes mellitus.  An October 2001 treatment report revealed 
no edema in the lower extremities.  In December 2001, the 
veteran complained of pain in the legs.  In August 2002, the 
veteran complained of constant pain in the left hip for the 
past two weeks; there was minimal edema in the lower 
extremities.  

Received in May 2005 were VA progress notes, dated from May 
2004 to December 2004, which show that the veteran received 
clinical attention for several disabilities.  During a 
clinical visit in November 2004, the veteran complained of 
occasional numbness and tingling in the lower extremities.  
Subsequently received in July 2005 were VA progress notes, 
dated from December 2001 to December 2004.  


III.  Legal Analysis.

Disability evaluations are determined by evaluating the 
extent to which a veteran's service-connected disability 
adversely affects his ability to function under the ordinary 
conditions of daily life, including employment, by comparing 
his symptomatology with the criteria set forth in the 
Schedule for Rating Disabilities (rating schedule).  38 
U.S.C.A. § 1155 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.1, 
4.2, 4.10 (2005).  If two evaluations are potentially 
applicable, the higher evaluation will be assigned if the 
disability picture more nearly approximates the criteria 
required for that evaluation; otherwise, the lower rating 
will be assigned.  38 C.F.R. § 4.7 (2005).  

Where an award of service connection for a disability has 
been granted and the assignment of an initial evaluation is 
at issue, separate evaluations can be assigned for separate 
periods of time based on the facts found.  In other words, 
the evaluations may be "staged."  Fenderson v. West, 12 Vet. 
App. 119, 126 (2001).  A disability may require re-evaluation 
in accordance with changes in a veteran's condition.  It is 
thus essential, in determining the level of current 
impairment, that the disability be considered in the context 
of the entire recorded history.  38 C.F.R. § 4.1 (2005).  

Neurologic disabilities are ordinarily rated in proportion to 
the impairment of motor, sensory, or mental function, with 
special consideration of any psychotic manifestations, 
complete or partial loss of use of one or more extremities, 
speech disturbances, impairment of vision, disturbances of 
gait, tremors, visceral manifestations, injury to the skull, 
etc. In rating peripheral nerve injuries and their residuals, 
attention should be given to the site and character of the 
injury, the relative impairment in motor function, trophic 
changes, or sensory disturbances.  38 C.F.R. § 4.120 (2005).  

Neuritis, cranial or peripheral, characterized by loss of 
reflexes, muscle atrophy, sensory disturbances, and constant 
pain, at times excruciating, is to be rated on the scale 
provided for injury of the nerve involved, with a maximum 
equal to severe, incomplete, paralysis.  The maximum rating 
which may be assigned for neuritis not characterized by such 
organic changes will be that for moderate, or with sciatic 
nerve involvement, for moderately severe, incomplete 
paralysis.  38 C.F.R. § 4.123 (2005).  

Neuralgia, cranial or peripheral, characterized usually by a 
dull and intermittent pain, of typical distribution so as to 
identify the nerve, is to be rated on the same scale, with a 
maximum equal to moderate incomplete paralysis.  38 C.F.R. 
§ 4.124.  

Compensation under 38 U.S.C.A. § 1151 was initially 
established in a rating action in January 1997; at that time, 
the RO assigned a noncompensable evaluation under Diagnostic 
Code 8629.  The record indicates that, in a February 1998 
rating decision, the RO assigned a 10 percent disability 
rating for neuralgia paresthetic of the left thigh under 
Diagnostic Code 8726.  It was noted that the revision was 
based on a "Difference of Opinion."  

A 10 percent evaluation is assigned for mild incomplete 
paralysis, neuritis or neuralgia of the anterior crural nerve 
(femoral); a 20 percent evaluation is warranted for moderate 
incomplete paralysis, neuritis or neuralgia of the nerve; a 
30 percent evaluation is warranted for severe incomplete 
paralysis, neuritis, or neuralgia of the nerve.  Complete 
paralysis involves paralysis of the quadriceps extensor 
muscles.  38 C.F.R. § 4.124a, Diagnostic Codes 8526, 8626, 
8726.  In this regard, it is important to note that the 
evaluation of the same disability under various diagnoses is 
to be avoided.  38 C.F.R. § 4.14.  Thus, the Board may not 
take into consideration difficulties the veteran is having 
with radiculopathy from his unrelated back disorder when 
making this determination.  As noted by the VA examiner, 
there are two problems radiculopathy and neuralgia (meralgia) 
paresthetica.  Dr. Bash also noted that there was 
radiculopathy.  The VA examiner distinguished the 
manifestations, not relating the weakness to the surgery.  

According to the schedule for rating disabilities of the 
peripheral nerves, the term "incomplete paralysis" of a nerve 
indicates a degree of lost or impaired function substantially 
less than that for complete paralysis; when the involvement 
is wholly sensory, the rating should be for the mild, or at 
most, the moderate degree. 38 C.F.R. § 4.124a.  

As noted above, a neurologic disorder is to be rated in 
proportion to the motor or sensory function with attention 
given to the site and character of the injury.  38 C.F.R. 
§ 4.120 (2005).  In this case, the veteran's neuralgia 
paresthetica is not characterized by trophic changes, motor 
changes, muscle atrophy, organic changes or excruciating pain 
38 C.F.R. §§ 4.123. 4.124 (2005).  In this regard, although 
the rating is for neuralgia paresthetica, the examiners have 
also identified the condition as "meralgia" paresthetica.  As 
such, the Board concludes that the initial rating decision 
that rated the condition as analogous to the lateral 
cutaneous nerve is the better analogy.  

Upon a thorough review of the evidentiary record, the Board 
notes that the veteran is not show to have any manifestations 
of paralysis.  The veteran's disability has been manifested 
primarily by complaints of pain, weakness, and numbness in 
the left lower extremity.  Objective clinical findings are 
negative for any atrophy or weakness due to neuralgia 
(meralgia) paresthetica.  The examinations have revealed only 
sensory loss.  In August 1996, a VA examiner attributed the 
motor weakness from the veteran's longstanding lumbar 
disorder.  Again, in October 1996, a VA examiner noted that 
the weakness noted on examination was more likely secondary 
to the veteran's longstanding lumbar radiculopathy.  The more 
recent VA examination in November 2002 revealed an area of 
numbness in the later aspect of the thigh and decreased 
sensation to pinprick, but no weakness or muscle atrophy was 
noted in either leg.  There is no clinical evidence that the 
veteran has more than mild neuropathy.  Given the evidence of 
record, the Board finds that the veteran's complaints do not 
meet the criteria for an evaluation in excess of 10 percent 
under DC 8726.  

The Board has also considered whether a "staged" rating is 
appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126 
(1999).  However, the disability has not significantly 
changed and a uniform evaluation is warranted.  

Furthermore, the Board finds, as did the RO, that the 
evidence of record does not present such an exceptional or 
unusual disability picture so as to render impractical the 
application of the regular rating schedule standards and to 
warrant assignment of an increased evaluation on an 
extraschedular basis.  See 38 C.F.R. § 3.321(b) (1).  


ORDER

Entitlement to an evaluation in excess of 10 percent for 
neuralgia (meralgia) paresthetica of the left thigh is 
denied.  



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs