Citation Nr: 18143209 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-33 565 DATE: October 18, 2018 ORDER Entitlement to a compensable evaluation for left lateral cutaneous nerve neuropathy is denied. Entitlement to an effective date prior to September 5, 2013 for the grant of service connection for left lateral cutaneous nerve neuropathy is denied. Entitlement to an effective date prior to September 5, 2013 for the grant of service connection for a left groin scar is denied. Entitlement to an effective date prior to September 5, 2013 for the grant of service connection for a left groin scar status post surgery (painful scar) is denied. FINDINGS OF FACT 1. The Veteran’s left lateral cutaneous nerve neuropathy is not symptomatic. 2. The Veteran’s original claim of entitlement to service connection was received by VA on September 5, 2014. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for left lateral cutaneous nerve neuropathy have not been met. 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Code 8529 (2017). 2. The criteria for an effective date earlier than September 5, 2013 for the grant of service connection for left lateral cutaneous nerve neuropathy have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. The criteria for an effective date earlier than September 5, 2013 for the grant of service connection for a left groin scar have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 4. The criteria for an effective date earlier than September 5, 2013 for the grant of service connection for a left groin scar status post surgery (painful scar) have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to a compensable evaluation for left lateral cutaneous nerve neuropathy. The Veteran seeks a compensable evaluation for left lateral cutaneous nerve neuropathy. He maintains that his neurological symptoms affect his activities of daily living. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Service treatment records reflect that the Veteran underwent left inguinal hernia surgery in 1988, and he reports that he developed pain in the left groin following that surgery. On VA examination in June 2016, the Veteran’s history was reviewed. He reported that he began to have intermittent pain, numbness, and tingling in 1990 or 1991. He denied associated weakness. He stated that the pain had gradually progressed over the years, and that it was brought on by physical activity such as walking and bending. The examiner noted that service treatment records were negative for pain, numbness, tingling, or weakness in the legs. He diagnosed left sciatica, and noted that the etiology was unclear, but that it was unlikely to be related to previous left groin surgery. Objectively, the examiner noted moderate intermittent pain and paresthesias and mild numbness of the left lower extremity. Muscle strength testing was normal. Reflexes were normal. Sensory was normal in the lower extremities. The Veteran’s gait was normal. All lower extremity nerves were normal on objective examination. There were no other pertinent physical findings. The examiner stated that there was no objective evidence of neuropathy on examination. He indicated that based on the Veteran’s history, he appeared to be suffering from left sciatica. He noted that there was no evidence of left lateral cutaneous neuropathy on examination. He stated that, following file review, he was unable to understand the rationale behind the diagnosis and service connection for left lateral femoral cutaneous sensory neuropathy. He indicated that the symptoms of sciatica could not be explained by the left groin surgery, and that there was no evidence of the emergence of his symptoms following left groin surgery during service. The Veteran’s left lateral cutaneous neuropathy is evaluated pursuant to the criteria for paralysis of the external cutaneous nerve of the thigh. Mild or moderate incomplete paralysis warrants a noncompensable rating. A 10 percent rating requires severe to complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8529. A note in the Rating Schedule pertaining to “Diseases of the Peripheral Nerves” provides that the term “incomplete paralysis” indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. 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, DC’s 8510 through 8540 (2017). Neuritis of the peripheral nerves, 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 rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2017). Neuralgia of a peripheral nerve 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. The term incomplete paralysis, with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124 (2017). Upon careful review of the record, the Board has concluded that a compensable evaluation for left lateral cutaneous nerve neuropathy is not warranted. The current noncompensable evaluation contemplates mild or moderate incomplete paralysis of the external cutaneous nerve of the thigh. The maximum 10 percent evaluation requires evidence demonstrating severe to complete paralysis of the external cutaneous nerve. Such is not shown by the evidence of record. Rather, as set forth above, the June 2016 VA examiner stated that there was no objective evidence of lateral cutaneous neuropathy on examination. He indicated while the Veteran appeared to be suffering from left sciatica, this was unrelated to the left groin surgery in service. The Board notes that the Veteran is competent to report his symptoms. However, in the absence of objective evidence of cutaneous neuropathy, it cannot be stated that the criteria for a compensable evaluation are met. The more probative evidence consists of that prepared by the neutral skilled examiner, and such evidence demonstrates that the currently assigned noncompensable evaluation is appropriate. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to an effective date prior to September 5, 2013 for the grant of service connection for left lateral cutaneous nerve neuropathy. 3. Entitlement to an effective date prior to September 5, 2013 for the grant of service connection for a left groin scar. 4. Entitlement to an effective date prior to September 5, 2013 for the grant of service connection for a left groin scar status post surgery (painful scar). The Veteran asserts that earlier effective dates are warranted for the grant of service connection for his left lateral cutaneous nerve neuropathy and groin scars. In his notice of disagreement, he stated that his retroactive payment should date to 1990, or in the alternative, 10 years. Review of the record reflects that the Veteran’s original claim of entitlement to service connection was received by VA on September 5, 2014. In an August 2015 rating decision, the AOJ granted service connection for the left cutaneous nerve neuropathy and two groin scars. Pursuant to Section 506 of Public Law 112-154, the AOJ assigned an effective date of September 5, 2013. The Board observes that in general, the effective date of an award based on an original claim, or a claim reopened after final adjudication of compensation, shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Public Law 112-154, Section 506, amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date award of disability compensation based on fully developed original claims for compensation that VA received from August 6, 2013, through August 5, 2015. (CONTINUED ON NEXT PAGE) The pertinent and undisputed facts in this case are that the Veteran submitted an original claim of entitlement to service connection that was received by VA on September 5, 2014. There is no indication in the record of such a claim prior to the one received by VA in September 2014. Under the law, the earliest effective date and the appropriate effective date for the grant of service connection in this case is September 5, 2013, one year prior to the date of receipt of his original, fully developed claim of entitlement to service connection. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Barone, Counsel