Citation Nr: 1804455 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-11 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable disability rating for internal saphenous neuropathy of the left leg. REPRESENTATION Veteran represented by: Adam G. Werner, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2006 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the February 2010 and January 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Since that time, jurisdiction of the claim was transferred to Atlanta, Georgia. The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in January 2017. Transcripts of the hearing are of record. During the hearing, the VLJ indicate that the Board will take jurisdiction of the claim regarding increase rating for the Veteran's service-connected painful scar on the left lower extremity. After further review, the Board finds that the RO has assigned the maximum possible rating by way of a November 2016 rating decision. Therefore, the Board need not take jurisdiction over the issue and readjudicate at this time. The discussion at the time of the hearing was based on an understanding that the scar was currently rated as noncompensable. As it is rated as compensable and the Veteran has not asserted any error as to his scar symptomatology rating after this grant, the Board will not further consider this issue. The Board is also cognizant that the Veteran has multiple service-connected disabilities, to include of the lower extremities. This consideration of the Board in this appeal is limited to the specific contentions made on appeal and to respond to the Veteran's specific disagreement, while also liberally considering these contentions. FINDING OF FACT The Veteran's saphenous neuropathy of the left leg is not manifested by complete paralysis. CONCLUSION OF LAW The criteria for a compensable initial rating for saphenous neuropathy of the left leg are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8527 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), the VA has a duty to notify claimants about requirements to substantiate a claim for VA benefits, and assist in the development of their claim. 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). VA satisfied the duties to notify and assist in this appeal and neither the Veteran nor his representative has asserted any error as to these duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Veteran was provided a VA examination in April 2010, December 2012 January 2013, and September 2016; as discussed in greater details below, the Board finds these examinations adequate upon which to adjudicate the merits of this appeal. II. Increase Rating The VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2016). In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10 (2016). Where there is a question as to which of two evaluations shall be applied, the higher rating 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 (2016). The Veteran's internal saphenous neuropathy of the left leg is currently assigned a non-compensable rating under DC 8527. Pursuant to DC 8527, a 10 percent or compensable rating for internal saphenous nerve neuropathy requires severe to complete paralysis. 38 C.F.R. § 4.124a, DC 8527 (2017). The regulations do not provide a description of complete paralysis of the internal saphenous nerve. Here, a compensable rating for the Veteran's internal saphenous nerve condition is not is not warranted, as the evidence does not show severe to complete paralysis of the affected nerve. To the contrary, the December 2009, February 2010, and April 2010 VA examinations all noted that the Veteran does not have paralysis of the internal saphenous nerve. In addition, the December 2012 VA examination reflected that the Veteran had mild incomplete paralysis. Based on this evidence a 10 percent rating is appropriate. The Board has considered the Veteran's testimony that he has severe numbness and pain. See hearing transcript at 3. However, even when accounting for his pain, absent evidence showing of complete paralysis, the Board finds that the evidence of record does not reflect a level of impairment contemplated by a 10 percent. In summary, under DC 8527, moderate incomplete paralysis of the internal saphenous nerve of the left lower extremity warrants a noncompensable (0 percent) rating. The evidence does not establish paralysis of this nerve that would allow for a higher rating. The evidence does not evidence that this disability would be better compensated under another diagnostic code. ORDER An initial compensable rating for internal saphenous neuropathy of the left leg is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs