Citation Nr: 0810901 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-06 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial compensable rating for right lateral thigh meralgia paresthetica. ATTORNEY FOR THE BOARD R. Kessel, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1996 to August 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In February 2007, the Board remanded the claim to the Appeals Management Center (AMC) for additional development. In the February 2007 decision, the Board referred to the RO a claim of service connection for erectile dysfunction secondary to service-connected right lateral thigh meralgia paresthetica. It does not appear as if this issue has been addressed and it is again referred for appropriate action. REMAND In February 2004, the veteran was awarded service connection for right lateral thigh meralgia paresthetica. The RO assigned a noncompensable (zero percent) rating and the veteran appealed the initial evaluation. Significantly, the RO evaluated the veteran's disability by analogy to incomplete paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a (Diagnostic Code 8520) (2007). However, in a subsequent statement of the case, the RO evaluated the disability under the diagnostic code pertaining to the external cutaneous nerve of the thigh. See 38 C.F.R. § 4.124a (Diagnostic Code 8529). This uncertainty as to which diagnostic code to utilize to evaluate the veteran's service-connected meralgia paresthetica highlights the primary reason for the Board's remand in February 2007. At that time, the information in the record was simply not adequate to properly evaluate the veteran's condition considering all possible diagnostic codes. An October 2003 examination report contained a diagnosis of right leg meralgia paresthetica, but the affected nerve was not identified by the examiner. Additionally, the veteran's service medical records suggested that the femoral nerve was affected. As noted in the remand, the assignment of a particular diagnostic code is dependant on the facts of the case, the veteran's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Given the lack of medical information, the Board remanded the claim for a new VA examination to address the issue. The Board requested a VA neurological examination to be scheduled for the examination of the veteran's right lower extremity. The examiner was to determine whether any or all of the following nerves were affected by meralgia paresthetica: (1) sciatic, (2) external popliteal (common peroneal), (3) musculocutaneous (superficial peroneal), (4) anterior tibial (deep peroneal), (5) internal popliteal (tibial), (6) posterior tibial, (7) anterior crural (femoral), (8) internal saphenous, (9) obturator, (10) external cutaneous nerve of the thigh, and (11) ilio- inguinal. The examiner was also requested to indicate whether the impairment of any nerve was in the nature of a neuritis, a neuralgia, and/or incomplete paralysis or paralysis. Any impairment was to be characterized as mild, moderate, moderately severe, or severe. Finally, the examiner was to note whether the veteran's right hip pain was associated with the meralgia paresthetica or if it was due to a separate and distinct disability. Pursuant to the remand, the veteran underwent VA neurological examination in July 2007. Unfortunately, the information requested by the Board was not set forth in the examination report. The examiner noted decreased sensation for an area of the right thigh extending from below the hip proximally to just at the knee distally, and at the middle of the thigh anteriorly and posteriorly, as well. The examiner noted complaints of numbness in the right upper leg and the veteran described the leg as 50 percent of normal. The examiner ultimately concluded that the symptoms may be related to meralgia paresthetica or to other neurological involvement. Thus, although the examiner found that the symptoms may be related to meralgia paresthetica, which suggests involvement of lateral femoral cutaneous nerve, the examiner failed to opine that this was the most likely source of his symptoms, and, in fact, the examiner specifically left open the possibility other possible nerve involvement. Following subsequent EMG-NCV testing, which was normal, the examiner further opined that there was no electrophysiological evidence to support either right lumbosacral radiculopathy and focal neuropathy; however, the examiner did not offer any further opinion as to the actual source of his symptoms. In addition to failing to identify the affected nerve or nerves, the examiner also failed to render an opinion as to the severity of impairment, or as to whether the right upper leg pain was due to a separate and distinct disability, as requested in the Board's remand. The uncertainty of the appropriate diagnostic code was again seen in the most recent supplemental statement of the case (SSOC), dated in September 2007. The AMC appeared to evaluate the disability under the diagnostic code for external cutaneous nerve of the thigh. However, in the body of the SSOC, the AMC cited to the diagnostic code for the sciatic nerve. In a November 2007 statement, the veteran contended that his service-connected meralgia paresthetica had not been properly evaluated and that the affected nerve had not been correctly identified by VA. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given those pronouncements, and the fact that the development sought by the Board in this case has not been fully completed, another remand is now required. 38 C.F.R. § 19.9 (2007). Accordingly, another VA examination is warranted. Accordingly, this case is REMANDED for the following actions: 1. Schedule the veteran for another VA neurological examination of his right lower extremity. After reviewing the claims file, examining the veteran, and performing any indicated testing, the examiner must indicate, with respect to the veteran's right lower extremity, whether any or all of the following nerves are affected by meralgia paresthetica: (1) sciatic, (2) external popliteal (common peroneal), (3) musculocutaneous (superficial peroneal), (4) anterior tibial (deep peroneal), (5) internal popliteal (tibial), (6) posterior tibial, (7) anterior crural (femoral), (8) internal saphenous, (9) obturator, (10) external cutaneous nerve of the thigh, and (11) ilio-inguinal. For each affected nerve, the examiner must indicate, whether the impairment is in the nature of a neuritis, a neuralgia, and/or incomplete paralysis or paralysis. The examiner must indicate whether the impairment is best characterized as mild, moderate, moderately severe, or severe. Finally, the examiner must also note whether the veteran's right hip pain is a result of his meralgia paresthetica or if the right hip pain is due to a separate and distinct disability. A complete rationale for all opinions should be provided. If the examiner is unable to respond to any of the specified inquiries, the examiner should provide a complete explanation for his or her inability to do so. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. 2. After undertaking any other development deemed appropriate, re- adjudicate the issue on appeal. If the benefit sought is not granted, furnish the veteran with a SSOC and afford him an opportunity to respond before the record is returned to the Board for further review. Consider whether staged ratings are warranted. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by VA. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).