Citation Nr: 20042871 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 17-52 104 DATE: June 24, 2020 ORDER An effective date earlier than March 30, 2016, for the assigment of a 20 percent rating for left lower extremity peripheral neuropathy of the femoral nerve is denied. An effective date earlier than March 30, 2016, for the assigment of a 20 percent rating for right lower extremity peripheral neuropathy of the femoral nerve is denied. An evaluation in excess of 10 percent prior to March 30, 2016, and in excess of 20 percent afterwards, for left lower extremity peripheral neuropathy of the femoral nerve is denied. An evaluation in excess of 10 percent prior to March 30, 2016, and in excess of 20 percent afterwards, for right lower extremity peripheral neuropathy of the femoral nerve is denied. FINDINGS OF FACT 1. On March 30, 2016, and no earlier, the Veteran’s service-connected bilateral peripheral neuropathy of the femoral nerve was found to most nearly approximate moderate incomplete paralysis; it is not factually ascertainable that the Veteran’s bilateral peripheral neuropathy of the femoral nerve warranted a 20 percent rating prior to March 30, 2016. 2. Prior to March 30, 2016, the Veteran’s bilateral peripheral neuropathy of the femoral nerve most nearly approximates mild incomplete paralysis; moderate incomplete paralysis was not shown. 3. From March 30, 2016, the Veteran’s bilateral peripheral neuropathy of the femoral nerve most nearly approximates moderate incomplete paralysis; severe incomplete paralysis was not shown. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 30, 2016, for a 30 percent rating for left lower extremity peripheral neuropathy of the femoral nerve have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400. 2. The criteria for an effective date prior to March 30, 2016, for a 30 percent rating for right lower extremity peripheral neuropathy of the femoral nerve have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400. 3. Prior to March 30, 2016, the criteria for a rating in excess of 10 percent for left lower extremity peripheral neuropathy of the femoral nerve are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 4. From March 30, 2016, the criteria for a rating in excess of 20 percent for left lower extremity peripheral neuropathy of the femoral nerve are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 5. Prior to March 30, 2016, the criteria for a rating in excess of 10 percent for right lower extremity peripheral neuropathy of the femoral nerve are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 6. From March 30, 2016, the criteria for a rating in excess of 20 percent for right lower extremity peripheral neuropathy of the femoral nerve are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from July 1972 to September 1980 and from April 1982 to January 1990. This issue was previously before the Board in June 2019, when it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. While on remand, in a June 2020 rating decision, service connection for bilateral lower extremity peripheral neuropathy of the sciatic nerve was granted, each with an evaluation of 40 percent effective November 18, 2019. The Veteran has not submitted a notice of disagreement with the June 2020 rating decision, and as such, these issues are not before the Board. Effective Dates The Veteran was granted increased ratings of 20 percent each for his bilateral peripheral neuropathy of the femoral nerve in a July 2016 rating decision, with an effective date of March 30, 2016. In July 2017, the Veteran asserted that he was entitled to earlier effective dates for the assignment of the 20 percent ratings. An effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). “[A]n increase in a veteran’s service-connected disability must have occurred during the one year period prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date.” Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). As noted above, it is the date VA received the application for an increase that primarily controls the effective date of any such increase. The Veteran did not file an application for an increased rating until January 20, 2012. Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that “[s]ection 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid.” Thus, before VA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it. See also Brannon v. West, 12 Vet. App. 32 (1998). Here, the Veteran was afforded VA examination for his bilateral peripheral neuropathy of the femoral nerve in March 2016. The Veteran was granted increased ratings of 20 percent each based on the findings of the March 2016 VA examination. The Veteran’s treatment records did not show findings consistent with higher ratings prior to March 2016. Reviewing the record, there is no document prior to March 30, 2016, that would make it factually ascertainable that the Veteran’s bilateral lower extremity peripheral neuropathy of the femoral nerve warranted 20 percent ratings. Accordingly, the claim for effective dates earlier than March 30, 2016, for 20 percent ratings for residuals from bilateral peripheral neuropathy of the femoral nerve is denied. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed an increase rating claim in January 2012 for his service-connected bilateral lower extremity peripheral neuropathy, evaluated at 10 percent each effective May 19, 2006, under Diagnostic Code 8526, for paralysis of the femoral nerve. A July 2016 rating decision granted increased rating of 20 percent each for the Veteran’s bilateral lower extremity peripheral neuropathy effective March 30, 2016. The Veteran asserts that he is entitled to higher ratings. The Veteran’s bilateral lower extremity peripheral neuropathy is rated under Diagnostic Code 8526, which evaluates paralysis of the femoral nerve. Mild incomplete paralysis of the affected nerve is rated 10 percent disabling, moderate incomplete paralysis of the affected nerve is rated 20 percent disabling, severe incomplete paralysis of the affected nerve is rated 30 percent disabling, and complete paralysis of the affected nerve is rated 40 percent disabling. The words “mild,” “moderate,” “moderately severe,” 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. After a thorough review of the record, the Board finds that an increased evaluation is not warranted for the Veteran’s bilateral lower extremity peripheral neuropathy. A March 2012 VA examination showed that the bilateral neuropathy of the femoral nerve was normal. A March 2016 VA examination showed that the bilateral neuropathy of the femoral nerve had incomplete paralysis of a moderate nature. A November 2019 VA examination showed that the bilateral neuropathy of the femoral nerve had incomplete paralysis of a moderate nature. The Board has considered all other potentially applicable Diagnostic Codes, but has found that no other Diagnostic Codes would result in more favorable findings. Accordingly, the criteria for evaluations in excess of 10 percent prior to March 30, 2016, and in excess of 20 percent afterwards, for the Veteran’s bilateral lower extremity peripheral neuropathy of the femoral nerve have not been met, and the claims are denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.