Citation Nr: 21008617 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-49 345 DATE: February 17, 2021 ORDER Entitlement to an increased rating of 20 percent, but no higher, for femoral nerve, anterior crural, right lower extremity (RLE) is granted. Entitlement to an increased rating of 20 percent, but no higher, for femoral nerve, anterior crural, left lower extremity (LLE) is granted. Entitlement to special monthly compensation (SMC) based on housebound status under U.S.C. § 1114(s) is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s bilateral femoral nerves have manifested in moderate, incomplete paralysis that is wholly sensory. 2. The Veteran does not satisfy the 100 percent plus 60 percent requirement for SMC housebound; further, the record does not show that the Veteran is permanently housebound by reason of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 20 percent, but no higher, for femoral nerve, anterior crural, RLE have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8526 (2018). 2. The criteria for entitlement to an increased rating of 20 percent, but no higher, for femoral nerve, anterior crural, LLE have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8526 (2018). 3. The criteria for entitlement to SMC based on housebound status have not been met. 38 U.S.C. § 1114 (2012); 38 C.F.R. § 3.350 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1968 to March 1970 in the U.S. Army; he also had additional, unverified service in the U.S. Army Reserves. In March 2020 and August 2020 Decisions, the Board, in pertinent part, remanded all issues herein for further development and adjudication. Increased Ratings In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. The Veteran’s bilateral femoral nerve disability has been rated under DC 8526 at 10 percent since September 29, 2014. 38 C.F.R. § 4.124a, DC 8526; August 2020 Codesheet. The Veteran generally contends that his bilateral femoral nerve disability is more severe than currently rated. Under DC 8526, a 10 percent rating is warranted for mild, incomplete paralysis of the femoral nerve. A 20 percent rating is warranted for moderate, incomplete paralysis of the femoral nerve. A 30 percent rating is warranted for severe, incomplete paralysis of the femoral nerve. A 40 percent (maximum schedular) rating is warranted for: complete paralysis of the femoral nerve; paralysis of quadriceps extensor muscles. For disease of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis, 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. 38 C.F.R. § 4.124a. Words such as “severe” and “moderate” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, the use of such terminology is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. 1. Entitlement to an increased rating above 10 percent for femoral nerve, anterior crural, RLE The June 2014 VA diabetes examiner found, in pertinent part, decreased sensation in the hands and feet. During the June 2014 VA peripheral nerves examination, the Veteran reported worsening since onset and current symptoms of numbness, loss of strength, poor circulation, and difficulty walking. The examiner found that the bilateral lower extremities, in pertinent part: had moderate, constant pain; had moderate, intermittent pain; had severe paresthesias and/or dysesthesias; had severe numbness; and impacted the Veteran’s ability to walk long distances. During the January 2015 VA peripheral nerves examination, the Veteran reported worsening since onset and current symptoms of continuous numbness and feeling like needles are sticking into his feet. The examiner found that the bilateral lower extremities, in pertinent part: had mild, constant pain; had mild paresthesias and/or dysesthesias; and had mild numbness. The examiner also found that the bilateral femoral nerve had moderate, incomplete paralysis. During the October 2015 VA peripheral nerves examination, the Veteran reported worsening since onset and current symptoms of tingling and pain. The examiner found that the bilateral lower extremities, in pertinent part: had moderate, constant pain; had moderate, intermittent pain; had moderate paresthesias and/or dysesthesias; and had moderate numbness. The examiner did not specify the severity of just the femoral nerve. In an April 2016 Notice of Disagreement, the Veteran contended that he had circulation problems in both legs and serious problems walking and standing (requiring use of a walker to avoid falling due to balance issues); he requested that his ratings be increased to 20 percent in each leg. In an October 2018 VA Form 9, the Veteran contended that his bilateral lower extremities had showed “deterioration.” In April 2020, VA attempted, but failed, to re-examine the severity of this disability due to the COVID-19 crisis; the examiner opined that an opinion regarding the current severity could not be provided without in-person examination. During the November 2020 VA peripheral nerves examination, the Veteran reported worsening since onset and current symptoms of pain, numbness, and tingling. The examiner found, in pertinent part, that the bilateral femoral nerve had moderate, incomplete paralysis. In a December 2020 VA Form 9, the Veteran contended that his disability should be rated as moderate, not mild. During the December 2020 VA peripheral nerves examination, the Veteran reported continued numbness and tingling. The examiner found, in pertinent part, that the bilateral femoral nerve had moderate, incomplete paralysis. The examiner also noted that the diabetic peripheral neuropathy as a whole (rather than just the effects of the femoral nerve) impacted the Veteran’s ability to stand and walk for prolonged periods. Given the above, the Board finds that, throughout the appeal period, the Veteran’s bilateral femoral nerves have manifested in moderate, incomplete paralysis that is wholly sensory. Specifically, the Board highlights that every VA examiner throughout the appeal period has indicated symptoms consistent with moderate, incomplete paralysis; further, the Veteran’s description of his wholly sensory deficits (pain, numbness, and tingling) being constant and affecting standing and ambulation is also consistent with moderate, incomplete paralysis of the femoral nerves. However, higher schedular ratings are precluded because, to date, this disability has not manifested in severe, incomplete paralysis on either side (when the involvement is more than just wholly sensory, pursuant to 38 C.F.R. § 4.124a) or complete paralysis of either femoral nerve. Thus, the Board finds that increased ratings to 20 percent, but no higher, for each femoral nerve is warranted. 2. Entitlement to an increased rating above 10 percent for femoral nerve, anterior crural, LLE This issue is granted for the same reasons and bases discussed immediately above. SMC Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100-percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350(i). Permanently housebound means that the Veteran is substantially confined, as a direct result of service-connected disabilities, to his dwelling or the immediate premises (or, if institutionalized, to the ward or clinical areas), and it is reasonably certain that the disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 3. Entitlement to SMC based on housebound status under U.S.C. § 1114(s) The Veteran does not satisfy the 100 percent plus 60 percent requirement for SMC housebound. See August 2020 Codesheet. As such, the Board finds that the basic criterion for entitlement to SMC pursuant to 38 U.S.C. § 1114(s) has not been met. Further, the record does not show that the Veteran is permanently housebound by reason of his service-connected disabilities. During a December 2015 VA SMC examination, the Veteran reported that, despite limitations, he leaves his house two to three times per week to shop or attend medical visits. In an October 2018 Notice of Disagreement and a July 2019 VA Form 9, the Veteran contended that he could not walk without a walker, had balance issues, could only walk short distances, and had been hospitalized in July 2019 for a bleeding ulcer. During a March 2019 VA psychiatric examination, the Veteran reported that, despite limitations, he attends church and drives a car. Additionally, VA medical records reflect that he has been able seek treatment at VA facilities throughout the appeal period. Although the Board has considered the Veteran’s assertions, the evidence of record, including his own statements, reflects that the Veteran is not permanently housebound; thus, SMC housebound is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.