Citation Nr: 19145802 Decision Date: 06/13/19 Archive Date: 06/12/19 DOCKET NO. 12-16 653 DATE: June 13, 2019 ORDER Entitlement to an initial rating of 20 percent, but no higher, for sciatic nerve neuropathic pain syndrome of the left lower extremity is granted. Entitlement to an initial rating in excess of 10 percent for sciatic nerve neuropathic pain syndrome of the right lower extremity is denied. Entitlement to an initial compensable rating for external cutaneous nerve neuropathic pain syndrome of the right lower extremity is denied. Entitlement to an initial compensable rating for external cutaneous nerve neuropathic pain syndrome of the left lower extremity is denied. Entitlement to an initial compensable rating for ilio-inguinal nerve neuropathic pain syndrome of the right lower extremity is denied. Entitlement to an initial compensable rating for ilio-inguinal neuropathic pain syndrome of the left lower extremity is denied. Entitlement to an increased rating in excess of 20 percent for neuropathic pain syndrome of the femoral nerve of the right lower extremity is denied. Entitlement to an increased rating in excess of 20 percent for femoral nerve neuropathic pain syndrome of the left lower extremity is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from March 9, 2018, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 9, 2018 is remanded. FINDINGS OF FACT 1. The Veteran’s sciatic nerve neuropathy pain syndrome of the left lower extremity has risen to moderate incomplete paralysis. 2. The Veteran’s sciatic nerve neuropathy pain syndrome of the right lower extremity has primarily been manifested by mild incomplete paralysis. 3. The Veteran’s external cutaneous nerve neuropathy pain syndrome of the right and left lower extremities has only manifested to mild or moderate incomplete paralysis. 4. The Veteran’s ilio-inguinal nerve neuropathy pain syndrome of the right and left lower extremities has only manifested to mild or moderate incomplete paralysis. 5. The Veteran’s femoral nerve neuropathic pain syndrome of the right and left lower extremities has only manifested to primarily mild to moderate symptoms. 6. From March 9, 2018, the probative evidence of record shows Veteran is unable to obtain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent, but no higher, for sciatic nerve neuropathic pain syndrome of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8520. 2. The criteria for an initial rating in excess of 10 percent for sciatic nerve neuropathic pain syndrome of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8520. 3. The criteria for an initial compensable rating for external cutaneous nerve neuropathic pain syndrome of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8529. 4. The criteria for an initial compensable rating for external cutaneous nerve neuropathic pain syndrome of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8529. 5. The criteria for an initial compensable rating for ilio-inguinal nerve neuropathic pain syndrome of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8530. 6. The criteria for an initial compensable rating for ilio-inguinal neuropathic pain syndrome of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8530. 7. The criteria for an increased rating in excess of 20 percent for neuropathic pain syndrome of the femoral nerve of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8726. 8. The criteria for an increased rating in excess of 20 percent for femoral nerve neuropathic pain syndrome of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8726. 9. The criteria for a TDIU rating from March 9, 2018 have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1972 to March 1995. In June 2017, the Veteran was a provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. In September 2017, the Board granted the Veteran an initial 20 percent rating for his femoral nerve neuropathic pain syndrome of the right and left lower extremities and remanded the issues of increased rating in excess of 20 percent for femoral nerve neuropathic pain syndrome for the right and left lower extremities following the retrieval of updated examinations. Since the Board has already made a decision on the Veteran’s femoral nerve neuropathic pain syndrome prior to September 2017, the Board will only be discussing his increased rating claim for femoral nerve neuropathic syndrome of the bilateral lower extremities from September 2017. Regarding the issues of entitlement to an increased initial rating for sciatic nerve neuropathic pain syndrome of the right and left lower extremities, an increased initial rating for external cutaneous nerve neuropathic pain syndrome of the right and left lower extremities, and an increased initial rating for ilio-inguinal nerve neuropathic pain syndrome of the right and left lower extremities, the Board notes that the Veteran was granted service connection for the disabilities in a March 2019 rating decision, following an examination that was provided for his femoral nerve condition. As this determination was made in the development of the Veteran’s increased rating claim for femoral nerve neuropathic syndrome, these issues are intertwined, and the Board will also analyze whether an initial increased rating is warranted for the listed conditions. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. 1. Neuropathic Pain Syndrome- Sciatic Nerve, Femoral Nerve, Ilio-Inguinal Nerve, and External Cutaneous Nerve The Veteran’s neuropathic pain syndrome of the right and left lower extremities is currently rated under Diagnostic Codes (DC) 8726 for the anterior crural (femoral) nerve, 8530 for the ilio-inguinal nerve, 8529 for the external cutaneous nerve of the thigh, and 8520 for the sciatic nerve. Under Diagnostic Code 8726, a non-compensable rating is assigned for mild to moderate complete paralysis, a 20 percent rating is assigned for moderate incomplete paralysis, 30 percent for severe incomplete paralysis, and 40 percent for complete paralysis. 38 C.F.R. § 4.124a, DC 8726. Under DC 8529 and 8530, a non-compensable rating is assigned for mild to moderate incomplete paralysis; and a 10 percent rating for severe to complete paralysis. 38 C.F.R. § 4.124a, DC 8529-30. Lastly, under 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires evidence of complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The Board notes that the terms “mild,” “moderate” and “severe” are not defined. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as “mild” or “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In March 2018, the Veteran received a VA examination. The symptoms associated with the Veteran’s peripheral nerve conditions were bilateral mild intermittent pain and moderate numbness. The Veteran had all normal reflexes. He had decreased sensation to light touch in his upper anterior left thigh, left thigh/knee, and left lower leg/ankle. The Veteran did have an unsteady gait. The Veteran had mild sciatic nerve incomplete paralysis on right and left lower extremities and mild external cutaneous nerve incomplete paralysis on his right, and moderate external cutaneous nerve incomplete paralysis on the left. The Veteran’s external popliteal nerve was normal bilaterally, as well as his musculocutaneous nerve, anterior tibial nerve, internal popliteal nerve, posterior tibial nerve, internal saphenous nerve, and obturator nerve. The Veteran did have need for occasional use of a cane. The examiner noted the overall severity of the Veteran’s lower extremities peripheral neuropathy as mild. The Veteran received another VA examination in January 2019. The Veteran had moderate constant pain bilaterally, and moderate paresthesias in his left lower extremity. The Veteran had slightly decreased flexion in his ankle and no muscle atrophy. His reflexes were all normal and he had no tropic changes. The Veteran’s gait was not normal. The Veteran had mild incomplete paralysis of the sciatic nerve on the right lower extremity, and moderate incomplete paralysis on the left; mild incomplete paralysis of the femoral nerve on the right lower extremity and moderate on the left; and mild incomplete paralysis of the ilio-inguinal nerve on the right lower extremity and moderate on the left. The Veteran’s external popliteal nerve, musculocutaneous nerve, anterior tibial nerve, internal popliteal nerve, posterior tibial nerve, internal saphenous nerve, and obturator nerve were all normal. The Veteran did not need use of assistive devices as normal mode of locomotion. The Board notes that VA treatment records do not show descriptions of the severity of specific nerves in the Veteran’s lower extremities. Although neuropathic pain is noted, there are no mentions of the severity or to which nerve the pain is designated for. Regarding the Veteran’s sciatic nerve disability, after review of the record, the Board finds that the probative evidence of record shows that the Veteran’s sciatic nerve neuropathic pain syndrome for the left lower extremity is considered to be moderate and therefore, warrants an increased evaluation of 20 percent for the entire appeal period. See 38 C.F.R. § 4.71a, DC 8520. However, the Board finds that the probative evidence does not warrant an increased rating higher than 20 percent, nor a rating in excess of 10 percent for his right lower extremity sciatic nerve disability. The medical evidence of record does not show the Veteran’s sciatic nerve disability symptoms of the left lower extremity were considered moderately severe or severe. The evidence of record also does not show the Veteran’s sciatic nerve disability of the right lower extremity as being considered moderate at any time during the pendency of the appeal. His medical records do not show his sciatic nerve condition described as severe at any time or referred to as moderate on the right side. Regarding the Veteran’s external cutaneous nerve and ilio-inguinal nerve disabilities, the Board finds that the probative evidence of record does not warrant compensable ratings. In the Veteran’s March 2018 VA examination, the Veteran’s external cutaneous nerve neuropathy was noted as mild incomplete paralysis on the right lower extremity, and as moderate on the left, and the same results were found for the Veteran’s ilio-inguinal nerve disability in his January 2019 examination. The Board notes that DC 8529 and DC 8530 do not provide compensable ratings unless severe symptoms are shown, for which the codes then provide a 10 percent rating. See 38 C.F.R. § 4.71a, DC 8529-30. The Board notes that at no time during the pendency of the appeal have the Veteran’s external cutaneous nerve and ilio-inguinal nerve neuropathic pain syndromes, or his neuropathic pain in general, been referred to as severe. Even the Veteran’s VA treatment records do not show complaints of severe pain or notations of severe pain for his lower extremity neuropathies at any time. Therefore, compensable ratings are not warranted for his external cutaneous nerve and ilio-inguinal nerve disabilities. Lastly, the Veteran’s femoral nerve disability of both the right and left lower extremities do not warrant ratings in excess of 20 percent. The probative evidence of record has not shown the Veteran’s femoral nerve neuropathic pain syndrome as having severe incomplete paralysis or complete paralysis, which would warrant a 30 percent or 40 percent rating. See 38 C.F.R. § 4.71a, DC 8726. At no time during the pendency of the appeal has the Veteran been found to have any complete paralysis nor has his incomplete paralysis of the femoral nerve been referred to as severe. Thus, a rating in excess of 20 percent is not warranted. The Board acknowledges that the Veteran’s numbness in his March 2018 examination and pain in his January 2019 examination were marked as moderate. However, the Board has considered these symptoms as relating to the overall symptomatology of his neuropathic pain disabilities collectively, and not for any individual nerve disability. Further, the Board notes that the Veteran’s moderate pain and limitation were already considered in the Veteran’s September 2017 Board decision to grant the Veteran initial ratings of 20 percent for his bilateral femoral nerve neuropathic pain syndrome, and thus, additional consideration among all his nerve disabilities would result in prohitbited pyramiding. See 38 C.F.R. § 4.14. Moreover, the Board has also considered whether any other diagnostic codes are applicable to the Veteran’s service-connected neuropathic pain syndrome conditions. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.”). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Here, however, the objective evidence shows that the Veteran’s symptomatology most closely reflects the current diagnostic codes, DC 8520, DC 8529-30, and DC 8726, as well as the other nerves were found to be normal in the March 2018 and January 2019 VA examinations. The Board also acknowledges the Veteran’s June 2017 hearing testimony where he stated he suffers from pain and fatigue that fluctuates due to his condition. However, the Board notes that the Veteran received his March 2018 VA examination less than a year after this hearing and his muscle strength was found to be normal, and the examiner marked his overall severity as mild. Accordingly, the Board finds that an initial rating of 20 percent for neuropathic pain syndrome of the sciatic nerve in the left lower extremity is warranted, and the benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). However, a rating in excess of 10 percent for sciatic nerve neuropathy of the right lower extremity, compensable ratings for his external cutaneous nerve and ilio-inguinal nerve neuropathies of the bilateral lower extremities, and ratings in excess of 20 percent for his femoral nerve neuropathy of the bilateral extremities are not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. TDIU The Veteran contends that he is unemployable due to his service-connected disabilities, especially his service-connected neuropathic pain conditions. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the Veteran’s age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). The Veteran already meets the necessary schedular rating criteria under 38 C.F.R. § 4.16(a), as his service-connected disabilities provide a combined rating of 70 percent from March 9, 2018. Therefore, the question at hand is whether his service-connected disabilities keep him from securing substantially gainful employment. After review of the evidence of record, the Board finds it does. The evidence of record shows the Veteran has a PhD, and his occupational history has primarily consisted of as working as a physician’s assistant. In the Veteran’s March 2018 VA examination, the examiner noted that the Veteran’s peripheral nerve conditions impact his ability to work. The examiner provided that the Veteran cannot stand for long periods of time, cannot walk long distances without assistance, and due to spontaneous leg weakness and foot drop, he is a fall risk. The examiner further provided that the Veteran cannot sit for prolonged periods of time, as it affects his legs and causes pain. The Board notes that the Veteran has consistently reported his pain prevents him from walking much and that during his last year of work he was forced to use a wheelchair. Further, the Board notes that the Veteran is also service-connected for a left shoulder disability, which would additionally limit any physical labor. Upon review of the foregoing evidence, the Board finds that the Veteran’s service-connected disabilities severely limit the occupational work the Veteran can perform. Not only would the Veteran not be able to hold a position that required standing for long periods of time, the Veteran also cannot perform non-physical work as sitting for prolonged periods also causes pain. Further, the Veteran’s spontaneous leg weakness and foot drop causes the Veteran to occasionally fall without notice, which would not only put the Veteran at risk, but others as well. Further, the Veteran’s left shoulder disability would also hinder the Veteran from performing any work that required lifting. Accordingly, the Board concludes that the Veteran has been rendered unemployable due to his service-connected disabilities since March 9, 2018, and a grant of TDIU is warranted. REASONS FOR REMAND Although the Board regrets further delay, another a remand is necessary to afford the Veteran every possible consideration. TDIU Prior to March 9, 2018 The Veteran contends that his service-connected neuropathic pain syndromes of multiple nerves, as well as his service-connected left shoulder condition and other service-connected disabilities, affected his abilities to work and caused him to be fired in November 2011. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In this case, prior to March 2018, the Veteran’s compensable service-connected disabilities are femoral nerve neuropathic pain of the bilateral lower extremities as 20 percent disabling each from January 2010, left shoulder dislocation rated as 20 percent disabling from April 1995, and tinnitus rated as 10 percent disabling from April 1995. (The Veteran is also service-connected fir low back strain, bilateral hearing loss, varicose veins, bilateral plantar fasciitis, hemorrhoids, hiatal hernia, and anemia; however, he has a 0 percent rating for these disabilities). The Veteran’s compensable disabilities give him a combined rating of 60 percent, and thus, the Veteran does not meet the requirements of 38 C.F.R. § 4.16 (a). However, during the Veteran’s June 2017 hearing, the Veteran reported that his neuropathic pain syndrome required him to be in a wheelchair at work due to not being able to stand for long periods of time. The Veteran further reported that his occupation as a physician’s assistant required him to go from room to room to see patients and stand to examine them; however, he was not able to do this. The Veteran reported that this eventually led to his firing. The Board notes that an extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. (2001); Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board finds that a remand is required in order to refer the claim to the Director of VA’s Compensation and Pension Service for consideration of entitlement to TDIU, prior to March 9, 2018, in accordance with 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the claim to the Director of VA’s Compensation and Pension Service for consideration of entitlement to TDIU in accordance with 38 C.F.R. § 4.16(b). The Director should consider all available medical evidence of record, to include all VA examinations related to his service-connected neuropathic pain syndrome and other service-connected disabilities. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.