Citation Nr: 18148010 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 09-07 267 DATE: November 7, 2018 ORDER Entitlement to a compensable disability rating for left lower extremity nerve impairment affecting the internal saphenous nerve is granted. FINDING OF FACT For the entire period on appeal, the preponderance of the evidence demonstrates that the Veteran’s left lower extremity was primarily manifested by a severe neurological impairment affecting the internal saphenous nerve with sensory symptoms of moderate intermittent pain, paresthesias and/or dysesthesias, and numbness, as well as some weakness in the left leg and mild muscle atrophy; the 10 percent rating herein assigned is the maximum schedular rating provided for impairment of the internal saphenous nerve; symptoms or impairment not encompassed by schedular criteria are not shown, or alleged. CONCLUSION OF LAW For the entire period on appeal, the criteria for a separate disability rating of 10 percent, but no higher, for left lower extremity nerve impairment affecting the internal saphenous nerve have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8527. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from April 1983 to April 1986. This matter comes before the Board on remand from the United States Court of Appeals for Veterans Claims (CAVC). The case was originally before the Board on appeal from a January 2008 rating decision which, in pertinent part, granted the Veteran’s claim of entitlement to service connection for radiculopathy of the left lower extremity and assigned a 10 percent rating, effective February 27, 2007. In May 2010, the Veteran testified before the undersigned Veterans Law Judge at a live videoconference hearing; a transcript of the hearing is of record. A September 2015 Board decision determined that the issue of entitlement to separate disability ratings for a left lower extremity nerve impairment affecting the posterior tibial and the internal saphenous nerves was properly on appeal, and then remanded the claims for an increased rating and entitlement to separate disability ratings. A December 2016 rating decision granted a separate disability rating of 20 percent for left lower extremity nerve impairment affecting the sciatic and posterior tibial nerves, and separate noncompensable disability ratings for a left lower extremity nerve impairment affecting the internal saphenous nerve and the external cutaneous nerve of the thigh, each effective February 27, 2007. A July 2017 Board decision granted a 40 percent initial rating for left lower extremity nerve impairment affecting the sciatic nerve, and a 10 percent initial rating for left lower extremity nerve impairment affecting the posterior tibial nerve, and denied compensable ratings for left lower extremity nerve impairment affecting the internal saphenous nerve and for left lower extremity nerve impairment affecting the external cutaneous nerve of the thigh. The Veteran appealed the Board’s decision to the CAVC. In May 2018, the CAVC issued an order vacating the Board’s July 2017 decision with respect (only) to the issue listed above, and remanding the matter to the Board for further action consistent with a May 2018 Joint Motion for Partial Remand by the parties. The appeal as to the remaining issues was dismissed. Entitlement to a compensable disability rating for left lower extremity nerve impairment affecting the internal saphenous nerve is granted. When evaluating the severity of a particular disability, it is essential that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of a disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in the favor of the Veteran. 38 C.F.R. § 4.3. If the evidence for and against a claim is in equipoise, then the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities at 38 C.F.R. Part 4. These percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The words “slight”, “moderate”, and “severe”, as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions”. 38 C.F.R. § 4.6. 38 C.F.R. § 4.124a, Diagnostic Code 8527 concerns impairment of the internal saphenous nerve. A noncompensable rating is assigned for mild or moderate incomplete paralysis. A (maximum) 10 percent rating is assigned for severe to complete paralysis. Code 8527 specifically allows only a maximum 10 percent rating unless there are exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration. 38 C.F.R. § 3.321. The term “incomplete paralysis”, with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to the varied level of the nerve lesion or partial regeneration. When the involvement is wholly sensory, the rating should be evaluated as mild, or at most, the moderate degree. See NOTE under “Diseases of the Peripheral Nerves”. 38 C.F.R. § 4.124a. The Board notes that the evaluation of the same disability under various diagnostic codes is to be avoided, however the assignment of separate evaluations for separate and distinct symptomatology is permitted where none of the symptomatology that justifies an evaluation under one diagnostic code is duplicative of, or overlapping with, the symptomatology that justifies an evaluation under another, separate, diagnostic code. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Since February 27, 2007, the Veteran’s left lower extremity nerve impairment is evaluated under separate diagnostic codes for each affected nerve. Currently, the Veteran is in receipt of a noncompensable disability rating for a left lower extremity nerve impairment affecting the internal saphenous nerve. He contends that the disability warrants a higher, compensable, rating. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. On December 2007 VA examination, the Veteran reported pain located in the lower back, left buttock and posterior, and the subsequent lateral aspect of the left leg down to the foot; the pain was described as sharp, stabbing, and cutting. On physical examination of the left knee, the examiner indicated that there appeared to be a trigger point that produced paresthesias. Strength of dorsiflexion was slightly diminished and there was no foot drop noted. The examiner found left lower extremity radiculopathy, associated with the Veteran’s degenerative disk disease, and neuroma of the infrapatellar branch of the left saphenous nerve, with some distal atrophy, paresthesias, and pain. On February 2008 treatment, the Veteran was noted to have some decreased sensation along the bottom of his feet and toes. On September 2008 treatment, he was noted to have chronic nerve irritation that had been waxing and waning; the physician found significant sciatic piriformis complex inflammation and, in tandem with midline epidural steroid injections to treat the Veteran’s back pain, the physician indicated that the plan was to relieve the leg pain and foot numbness with sciatic piriformis blocks. On December 2008 treatment, it was noted that the sciatic nerve was impinged coming through the sciatic knot by the piriformis muscle, and the Veteran underwent a left sciatic nerve block and left posterior femoral nerve block. On January 2009 treatment, the Veteran reported pain from his low back down the S1 nerve root to the plantar aspect of the foot and to the third, fourth, and fifth digits of the foot; this was associated with numbness also down the S1 nerve root, tingling in the toes and left foot, and weakness to the left leg; the physician noted that the Veteran had 5/5 strength to all muscle groups with the exception of decrease to left flexion and extension of the left leg. On June 2009 VA examination, the Veteran reported pain in the left leg, loss of motion, and limpness; he reported constant radiation of pain to the posterior left thigh, lower leg, and foot of moderate to severe severity, and constant heavy dullness in the foot. It was noted that he underwent back surgery in January 2009. The examiner indicated that the Veteran had reduced sensation to light touch and pinprick over the left third, fourth, and fifth toes and lateral foot, posterior and lateral calf. Mild atrophy of the left thigh and calf was noted. The examiner noted that the left sciatic nerve was affected. At the May 2010 Board hearing, the Veteran testified that his whole left knee gets completely numb and whatever is not numb, is painful. He testified that his left foot is completely numb all the time, which he had experienced for about 20 years, and every now and again he gets a throbbing pain. On June 2011 VA examination, the Veteran reported that his left knee was weak, the knee pain was increasing in intensity, and the left knee locked several times a day. On examination, there was inflammation at the front of the knee, with heat, swelling, and tenderness. He reported flare-ups of severe knee pain and stiffness every 2 to 3 weeks. He reported numbness of the left knee that was progressively worse since onset in 1984. He reported repeated episodes of locking and giving way of the left knee. The examiner found neuroma of the left saphenous nerve and radiculopathy of the left lower extremity. The examiner indicated that the neurological impairment affected the deep and superficial peroneal nerves. Sensation to vibration was absent on the left plantar surface and upper lateral surface. Light touch sensation was decreased; sharp sensation could not be distinguished from soft/full sensation at the left mid-tibia to the ankle on the lateral side. Dysesthesias were noted on the bottom of the left foot. The diagnosis was neuroma of the infrapatellar branch of the left saphenous nerve residual from recurrent exostosis of the left knee. The examiner noted that the Veteran had symptoms of numbness, aching, tingling, and dull pain in the left leg and foot on a constant basis, and muscle atrophy was noted to the left gastrocnemius. No paralysis was noted. The examiner opined that the manifestation was severe. The examiner opined that, at that time, there were severe effects on function and daily/occupational activities. On July 2014 VA examination, the Veteran reported a sharp pain in the area of the medial distal thigh if the area gets hit or bumped. He reported that the left knee gave out about twice a month. He reported pain radiating down the left leg to the bottom of the foot, with random sharp severe pain in the left foot while driving. The examiner indicated that the Veteran had left lower extremity radicular symptoms of moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. No muscle atrophy was noted. The examiner determined there was a moderate neurological impairment in the left lower extremity affecting the sciatic nerve, mild incomplete paralysis of the posterior tibial nerve, and mild incomplete paralysis of the internal saphenous nerve. The examiner opined that the symptomatology was considered to be moderate at the distal left femur due to the hyperesthesia. On June 2016 VA examination, the Veteran reported tripping and falling; he had a new knee brace that helped the foot come forward more because of neuropathy to the left foot. He reported having no Achilles reflex on the left for approximately 2 to 3 years. He reported pain to the low back traveling down the left buttock to the back of the left leg and the middle of the left calf, then spreading out to the feet; he reported very little feeling in the left foot and third, fourth, and fifth toes. He reported numbness and tingling to the left distal femur. No muscle atrophy was noted, though the Veteran was noted to have poor muscle tone and bulk to both lower extremities most likely from general deconditioning. The examiner indicated that the Veteran had left lower extremity radicular symptoms of moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner opined that there was moderate neurological impairment in the left lower extremity affecting the sciatic nerve and the internal saphenous nerve, as well as a mild neurological impairment affecting the posterior tibial nerve and the external cutaneous nerve of the thigh; the damage to the sciatic nerve was noted as the most dominant. The Veteran also submitted lay statements indicating that on a daily basis, pain radiates from his lower back down the left buttock, through the left leg, to the left foot, and the foot will typically go numb completely. He stated that he has atrophy of the left calf and there are times when he has throbbing pain in the foot. As previously noted, Diagnostic Code 8527 concerns impairment of the internal saphenous nerve. Severe incomplete paralysis of the internal saphenous nerve, as well as complete paralysis of the nerve, warrants a (maximum) 10 percent rating. The Board concludes that the evidence of record supports a separate disability rating of 10 percent for the entire period on appeal. As noted above, the June 2011 VA examiner specifically opined that the manifestation of the left saphenous nerve impairment was severe and that there were severe effects on function and daily/occupational activities; the July 2014 VA examiner opined that there was mild incomplete paralysis of the internal saphenous nerve and that the symptomatology was considered to be moderate at the distal left femur due to the hyperesthesia; and the June 2016 VA examiner opined that there was moderate neurological impairment affecting the left internal saphenous nerve. Although he has reported progressive worsening of his symptoms, the Veteran’s lay statements and testimony describe symptomatology, and severity thereof, that has been largely consistent throughout the appeal period. Therefore, as the Veteran is currently service-connected for left lower extremity nerve impairment affecting the internal saphenous nerve, effective February 27, 2007, the Board finds that an increased initial disability rating of 10 percent is warranted under Diagnostic Code 8527 for the entire period on appeal. While the assignment of the maximum schedular rating for left internal saphenous nerve impairment raises a question of whether referral of the claim for increase to the Director of Compensation for consideration of an extraschedular rating is warranted, the Board’s review of the evidence of record in the matter found that referral is not necessary. There is no evident showing or allegation of symptoms or functional impairment not encompassed by the schedular criteria. VA examiners have not opined that the Veteran is unable to work due to his service-connected left internal saphenous nerve impairment, and the symptoms the Veteran has reported   are all encompassed by the schedular criteria. For these reasons, referral for extraschedular consideration is not warranted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechner, Counsel