Citation Nr: 1820243 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-34 712A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an initial rating in excess of 20 percent for left lower leg femoral-saphenous neuropathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Casey, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Navy from September 1972 to June 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2013 by a Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In February 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. The Board notes that the RO has granted a separate 10 percent rating for left lower leg deep peroneal neuropathy pursuant to Diagnostic Code (DC) 8523, effective February 4, 2013. The Veteran has not appealed this separate assigned rating. FINDING OF FACT The Veteran's left lower leg femoral-saphenous neuropathy resulted in no more than moderate incomplete paralysis. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for left lower leg femoral-saphenous neuropathy are not met. 38 U.S.C. § 1155 (2012), 38 C.F.R. § 4.124a, Diagnostic Codes (DCs) 8527-8526 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his left lower leg femoral-saphenous neuropathy is more severe than currently rated. In an October 2014 statement, the Veteran indicated that he had to stop about 80 percent of his daily routine due to the pain in his left leg, and this pain wakes him up two to four times per night. At the February 2018 hearing, the Veteran testified that his left leg pain has forced him to limit daily activities such as walking outside, and he can no longer play golf. The Veteran indicated that he could not perform any activity that requires extreme pressure on the left leg, and medication such as Gabapentin provided little relief. General Criteria for Disability Ratings 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board will consider whether separate ratings may be assigned for separate periods based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). When all the evidence is assembled, a determination will be made on the claim. Reasonable doubt will be resolved in favor of the Veteran. If there is a preponderance of the evidence against the claim, the claim will be denied. If the evidence supports the claim or is in relative equipoise, the Veteran will prevail. 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Specific Criteria for Diseases of the Peripheral Nerves The Veteran's disability has been evaluated as 20 percent disabling under 38 C.F.R. § 4.97, DC 8527-8526. See 38 C.F.R. § 4.27 (2017) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.) DC 8526 evaluates femoral nerve impairments based on level of paralysis. See 38 C.F.R. § 4.124a, DC 8526. A 10 percent rating is warranted for mild, incomplete paralysis. Id. A 20 percent rating is warranted for moderate, incomplete paralysis. Id. A 30 percent rating is warranted for severe, incomplete paralysis. Id. A 40 percent rating (maximum schedular) is warranted for complete paralysis (of the quadriceps extensor muscles). Id. The words "moderate" and "severe" are not defined in 38 C.F.R. §§ 4.120-4.124a. In applying the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Analysis The Veteran has received VA examinations and ongoing VA treatment for his lower left leg neuropathy. In December 2013, the Veteran reported to his VA treatment provider that he suffers from paresthesia in the left lower extremity, with shooting pains down the medial aspect of the leg to the foot. The Veteran indicated that Tramadol did not help with pain, and Gabapentin caused excessive fatigue. In March 2016, a CT scan of the left lower leg revealed saphenous nerve infrapatellar branch neuroma. The VA treatment provider discussed surgical excision options with the Veteran. The Veteran was afforded a VA peripheral nerve examination in September 2013. The Veteran reported the following symptoms related to his neuropathy of the left lower extremity: moderate constant pain, mild intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. A physical examination of the left leg revealed normal gait and strength but decreased sensation in the lower leg, ankle, feet, and toes. The left ankle had hypoactive reflexes. A severity evaluation of the lower extremity nerves was normal except for mild incomplete paralysis of the internal saphenous nerve and mild incomplete paralysis of the left anterior tibial (deep peroneal) nerve. Based on this examination, the examiner concluded that the Veteran's neuropathy does not impact his ability to work. A second VA peripheral nerve examination was conducted in June 2016. The Veteran reported the following symptoms related to his neuropathy of the left lower extremity: moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The left ankle had hypoactive reflexes. A severity evaluation of the lower extremity nerves was normal except for moderate incomplete paralysis of the internal saphenous nerve and moderate incomplete paralysis of the left anterior tibial (deep peroneal) nerve. Based on this examination, the examiner concluded that the Veteran's neuropathy does not impact his ability to work. The Board finds that the evidence of record demonstrates that the Veteran has experienced moderate incomplete paralysis of the left lower leg femoral-saphenous nerve. In this regard, he is entitled to no more than a 20 percent rating. At both the September 2013 and June 2016 examinations, the Veteran described his pain, paresthesias and/or dysesthesias, and numbness as moderate. The September 2013 and June 2016 examiners found that the Veteran suffered from mild to moderate incomplete paralysis of the internal saphenous nerve. As discussed above, the Veteran's moderate incomplete paralysis of the left anterior tibial (deep peroneal) nerve has been assigned a separate rating. A rating of 30 percent under DC 8526 for the Veteran's service-connected left lower leg femoral-saphenous neuropathy is not warranted because there is no evidence showing that it results in a severe incomplete paralysis. 38 C.F.R. § 4.124a. His examinations evaluated his incomplete paralysis as moderate, and his muscle strength and gait have remained normal throughout the appeal period. In reaching the foregoing conclusions, the Board acknowledges the Veteran's belief that his neuropathic symptoms are more severe than the current disability ratings reflect. The Veteran is competent to report his symptoms, and therefore his statements as to the pain and numbness he experienced are probative to the severity of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran's left leg, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such conditions. The Board has also considered whether staged ratings are appropriate for the Veteran's service-connected disability. However, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings for the Veteran's disability is not warranted. In sum, the Board finds that an increased rating for the disability on appeal is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to an initial rating in excess of 20 percent for left lower leg femoral-saphenous neuropathy is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs