Citation Nr: 21010039 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-28 483 DATE: February 23, 2021 ORDER An initial compensable disability rating for meralgia paresthetica, left lower extremity is denied. An initial compensable disability rating for meralgia paresthetica, right lower extremity is denied. FINDINGS OF FACT 1. The Veteran's meralgia paresthetica of his left lower extremity has been manifested by numbness, paresthesia, and pain in his thigh equivalent to, at most, mild incomplete paralysis of the external cutaneous nerve of the thigh; muscle atrophy and trophic changes equivalent to severe or complete paralysis of the external cutaneous nerve of the thigh have not been demonstrated. 2. The Veteran's meralgia paresthetica of his right lower extremity has been manifested by numbness, paresthesia, and pain in his thigh equivalent to, at most, mild incomplete paralysis of the external cutaneous nerve of thigh; muscle atrophy and trophic changes equivalent to severe or complete paralysis of the external cutaneous nerve of thigh have not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for meralgia paresthetica of left lower extremity have not been met. 38 U.S.C. §1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.124a Diagnostic Code 8529. 2. The criteria for an initial compensable evaluation for meralgia paresthetica of right lower extremity have not been met. 38 U.S.C. §1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.124a Diagnostic Code 8529. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had service in the United States Army and Army National Guard. He served on active duty from June 1975 to June 1977 and from November 2004 to January 2006. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for meralgia paresthetica, right lower extremity and meralgia paresthetica, left lower extremity and assigned each an initial noncompensable disability rating, effective January 12, 2010. The Veteran’s notice of disagreement (NOD) was received in May 2015. The RO issued the statement of the case (SOC) in June 2016, and the Veteran’s VA Form 9, substantive appeal was received in June 2016. At his request, the Veteran was scheduled for a Board videoconference hearing in April 2020. However, the Veteran withdrew the hearing request in a March 2020 statement. Thus, the Board deems the request for a hearing withdrawn. 38 C.F.R. § 20.704(e) (providing that a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing). Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Pursuant to 38 C.F.R. § 3.655, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied absent a showing of good cause. A Compensation and Pension Inquiry that listed the Veteran’s last known address of record shows that the agency of original jurisdiction (AOJ) requested a VA examination related to the Veteran's peripheral nerve disabilities in July 2015. An undated letter associated with the claims file in July 2015 and addressed to the Veteran at his last known address of record states that the AOJ had asked the VA medical facility nearest to him to perform a disability evaluation in connection with his claim. If the Veteran was unable to keep the appointment or wanted it to be rescheduled, the letter instructed him to contact the medical facility on the appointment notice as soon as possible. The letter added that when a claimant, without good cause, failed to report for examination or reexamination, the claim shall be rated based on the evidence of record, or even denied. The letter explained that examples of good cause included, but were not limited to, illness or hospitalization, death of a family member, etc. A subsequent July 27, 2015 e-mail from the office of the Veteran's congressman stated that the Veteran cancelled the appointment he was supposed to have at VA the following day. The letter noted that the Veteran was hoping to have a Decision Review Officer (DRO) hearing scheduled as soon as possible and planned on requesting an appointment with a different doctor at that time. Another Compensation and Pension Examination Inquiry associated with the claims file in August 2015 shows that the previously requested VA examination was cancelled on July 28, 2015 due to the Veteran's refusal of the examination. Although the record reflects that the Veteran attended a DRO informal conference in September 2015, there is no indication from the record related to this informal conference that the Veteran requested for his VA examination to be rescheduled or provided good cause to explain why a VA examination with a different doctor was necessary. The record instead notes that the AOJ was awaiting a Disability Benefits Questionnaire (DBQ) from the Veteran. The Veteran later submitted a private DBQ in September 2015. The Board acknowledges that the record does not contain a notice letter for the July 2015 examination, and there is no published guidance establishing the presumption of regularity in such a situation. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). However, the Board finds that the facts of this case are distinguishable from the facts considered in Kyhn as the Veteran has not asserted that he did not receive notice of the examination. Indeed, both the July 2015 e-mail from the office of the Veteran’s congressman as well as the Compensation and Pension Inquiry received in August 2015 indicate that the Veteran did receive notice of the examination and chose to refuse to attend the appointment. In the June 2016 Statement of the Case, the AOJ noted that it had receive notice from the VA Medical Center (VAMC) Boston in August 2015 that the Veteran did not report to the scheduled examination, and the AOJ evaluated the Veteran's increased rating claims based on the evidence of record. Although the Veteran was given an opportunity to respond to the Statement of the Case, neither the Veteran nor his representative has provided an explanation for the Veteran's failure to appear at the July 2015 examination. While the Veteran’s representative indicated in a September 2020 statement that a remand was warranted pursuant to Caffrey v. Brown, 6 Vet. App. 377, 381 (1994), the representative did not address the Veteran’s refusal to report to the July 2015 VA examination. The Board also notes that "[t]he duty to assist is not always a one-way street," and claimants are expected to comply with reasonable requests. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As an initial rating claim is considered an original claim under 38 C.F.R. § 3.655(b), it is consequently appropriate to rate the Veteran's claims based on the evidence of record under these circumstances. See Turk v. Peake, 21 Vet. App. 565, 568 (2008); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial compensable disability rating for meralgia paresthetica, left lower extremity. 2. Entitlement to an initial compensable disability rating for meralgia paresthetica, right lower extremity. The Veteran seeks entitlement to compensable disability ratings for meralgia paresthetica of his right and left lower extremities. He asserts his meralgia paresthetica is more disabling than what is represented by his current noncompensable ratings. The Veteran's meralgia paresthetica disabilities are each rated noncompensable under 38 C.F.R. § 4.124a, Diagnostic Code 8529, based on paralysis of the external cutaneous nerve of the thigh. Diagnostic Code 8529 provides that a noncompensable rating is warranted when there is a mild or moderate paralysis of the external cutaneous nerve of the thigh. 38 C.F.R. § 4.124a. A rating of 10 percent is warranted when there is a severe to complete paralysis of the external cutaneous nerve of the thigh. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. The words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term "incomplete paralysis" with this and other peripheral nerve injuries 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. A March 2010 VA examination reveals that the Veteran was reporting numbness in his bilateral anterior thighs which he first noticed in 2005 or 2006. He reported that he would notice the numbness after standing or sitting for prolonged periods and stated that his legs would feel weak. He stated that since its onset, the numbness has continued in an intermittent fashion, although stable in severity. On physical examination, the Veteran was alert and oriented times three. The examiner noted that his strength was 5 out of 5 throughout, and his tone was normal. Sensation was normal to light touch throughout, except in the anterolateral thighs bilaterally. The Veteran's coordination was normal to finger-nose-finger testing. His reflexes were 2+ throughout bilaterally. The Veteran's gait was normo-based, his tandem gait was good, and his Romberg test was negative. The examiner summarized that the Veteran had chronic intermittent sensations of numbness in his lateral and anterior thighs bilaterally that did not extend into the lower leg. The VA examiner diagnosed the Veteran with meralgia paresthetica bilaterally. An April 2010 VA treatment note reveals that the Veteran reported experiencing numbness and pain in his bilateral thighs after he walks or hikes and that the symptoms worsen after prolonged standing. An August 2010 VA treatment note reveals that the Veteran’s numbness on both thighs was assessed as most likely to be meralgia paresthetica. The Veteran’s chronic low back pain was related to multilevel disc disease and the Veteran being overweight. His right knee pain was noted to be minimal and probably due to degenerative joint disease. In a November 2010 lay statement the Veteran reported that his quadriceps are numb almost every second of the day which causes him great pain while working. An August 2012 VA treatment record noted that the Veteran experienced pain and parasthesia in the bilateral anterior thighs after prolonged standing. The record noted that his sensation was intact. An October 2012 private medical opinion from Dr. S.H. indicates that the Veteran reported that he first experienced numbness, tingling, and discomfort in his thighs during service and that these symptoms have continued to the present day. The Veteran stated that he is comfortable when lying down, is comfortable sitting and standing for a few minutes but then the numbness and tingling begins. He reported that the symptoms resolve when going from sitting to standing or when lying down. Dr. S.H. noted that muscle strength was normal, and that the Veteran could walk well on his toes and heels and do several deep knee bends with ease. Deep tendon reflexes were normal, and the sensory examination was intact. However, after standing for 2 to 3 minutes, the Veteran reported an area of decreased sensation over the lateral and anterior aspects of both thighs in the distributions of the right and left lateral femoral cutaneous nerves. Dr. S.H. diagnosed the Veteran with bilateral meralgia paresthetica. The Veteran was afforded a VA examination in February 2015, and the examiner completed a DBQ specific to peripheral nerves conditions. The Veteran reported intermittent numbness and tingling in his anterolateral thighs, bilaterally, that is triggered by being in the same position for a long period. He stated that if he walks it does not bother him, but it occurs when he sits or stands for a prolonged period. It has not changed over time. The examiner noted that the Veteran had an electromyography (EMG) in 2008, but he refused most of the nerve conduction study (NCS) due to discomfort. The test was discontinued before the lateral femoral cutaneous nerves could be evaluated. The examiner also noted that the Veteran does not have diabetes mellitus and denies tingling or numbness elsewhere, including in the arms or face. The examiner confirmed the Veteran’s diagnosis of meralgia paresthetica. The examiner reported that the Veteran had symptoms of paresthesias and/or dysesthesias and numbness that were noted to be mild in the bilateral lower extremities. Muscle strength testing produced normal results bilaterally in the knee extension, ankle plantar flexion, and ankle dorsiflexion. The reflex examination also yielded normal findings in the bilateral knees and ankles. There were normal sensory examination findings bilaterally in the lower leg/ankle, and foot/toes. There was decreased sensation when testing for light touch in the bilateral thighs/knees. The Veteran's gait was noted to be normal. The right and left external cutaneous nerve of the thigh were marked as having "incomplete paralysis" that was “mild.” No muscle atrophy, trophic changes, or functional impairment of the bilateral lower extremities was found. In September 2015, a VA treatment related to an EMG noted that the reason for the study was that the Veteran was having right quadricep weakness after an allergic reaction in May 2015. He had a history of bilateral meralgia paresthesia since the Gulf War. He also had a long-term history of Reiter's syndrome since age 22. The Veteran reported having right knee arthritis and instability with resultant favoring of the right lower extremity. He denied any overt right lower extremity weakness, but he noticed that he was unable to perform squats as well on the right due to a sensation of the knee buckling. He had also noticed decreased muscle bulk in the right anterior thigh as compared to the left. He had occasional radicular-type discomfort endorsed from the low back down the lateral aspect of the right thigh, sometimes to the ankle. He also endorsed chronic sensory disturbances over the bilateral anterolateral thighs consistent with previous clinical diagnosis of meralgia paresthetica. The examining doctor, a neurology attending, noted that the present examination was notable for intact power in the bilateral lower extremities. Although the right quadriceps was somewhat smaller than the left, there was no overt atrophy or muscle weakness apparent. The deep tendon reflexes were 2+. The impression for the EMG stated that it was a normal study. Specifically, there was no electrophysiologic evidence for a focal myopathy affecting the right lower extremity on the study. In comparison to a prior study in May 2008, there was no ongoing compelling evidence of a right lumbosacral radiculopathy apparent. Later in September 2015, the Veteran submitted a Central Nervous System and Neuromuscular Disorders Disability Benefits Questionnaire (DBQ) that had been filled out by Dr. S.H. Dr. S.H. diagnosed the Veteran with bilateral meralgia paresthetica. Dr. S.H. noted bilateral sensory deficits in the lateral femoral nerve distribution. Dr. S.H. noted that the Veteran did not have any muscles weakness in the lower extremities, and the results of muscle strength testing were normal. His deep tendon reflexes as well as his gait were also normal. No muscle atrophy, trophic changes, or functional impairment of the bilateral lower extremities were found. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. Dr. S.H. noted the Veteran reported continuing pain in thighs and there was tenderness of both nerves at the inguinal ligaments. For a 10 percent evaluation, the paralysis of the external cutaneous nerve of the thighs must be severe to complete. The evidence indicates that both the February 2015 VA examination and the September 2015 private DBQ found no functional impairment of an extremity due to the Veteran’s service-connected meralgia paresthetica. The Veteran has asserted that his symptoms are more severe than what is represented by his currently assigned ratings. The Veteran is competent to give evidence about observable symptoms he experiences; for example, he is competent to discuss current pain and other observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the totality of the evidence indicates the current ratings appropriately corresponds with the Veteran's symptoms. Although the Veteran reported having intermittent sensations of numbness in his lateral and anterior thighs during the March 2010 VA examination, the examiner indicated that the results of testing of his muscle strength, sensory functioning, and reflexes were normal. On the VA examination conducted in February 2015, the paralysis of the external cutaneous nerve of the right thigh was found to be mild and not severe or complete. The September 2015 private DBQ and VA treatment records show similar symptoms and clinical findings as those reported and shown on the February 2015 VA examination. The Veteran is competent to report observable symptoms and credible in his belief that he is entitled to a higher rating. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the nerve impairment based on objective data coupled with the lay complaints. In this regard, the VA examiner has the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. The symptomatology noted in the medical and lay evidence has been adequately addressed by the ratings assigned and does not more nearly approximate the criteria for a higher rating at any time during the appeal period. In summary, the Veteran's currently assigned noncompensable disability ratings are commensurate with the symptoms manifested and thus compensable ratings are not warranted for the Veteran’s service-connected meralgia paresthetica of the bilateral lower extremities. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Modesto 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.