Citation Nr: 21022912 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-53 174 DATE: April 19, 2021 ORDERS 1. Entitlement to a rating in excess of 10 percent for meralgia paresthetica, right lower extremity, is denied. 2. Entitlement to a rating in excess of 50 percent for residuals of through and through gunshot wound, right buttock, is denied. FINDINGS OF FACT 1. The Veteran’s right lower meralgia paresthetica affecting the external cutaneous nerve of the thigh manifested with severe to complete paralysis; Diagnostic Code 8529 contemplates the nature and severity of the disability and no other diagnostic code is applicable. 2. The Veteran’s residuals of a through and through gunshot wound manifested with severe functional impairment; Diagnostic Code 5317 contemplates the nature and severity of the disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right lower meralgia paresthetica have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8529 (2020). 2. The criteria for entitlement to a rating in excess of 10 percent for right lower meralgia paresthetica have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 5315-5317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1969 to March 1971 including service in the Republic of Vietnam. The Veteran was awarded the Purple Heart Medal and Combat Infantryman’s Badge. These matters come before the Board of Veteran’s Appeals (Board) on appeal from January and February 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a January 2020 Board Hearing, and a transcript of this hearing is of record. In March 2020 the Board issued a remand order for further development. There has been substantial compliance with Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R., Part IV (2017). Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id. ; see 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). As is the case here, for increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 U.S.C. § 5110 (b)(2) ( 2012); 38 C.F.R. § 3.400 (o)(2) (2017). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2015). If the preponderance of the evidence weighs against the claim, it must be denied. See id. ; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Typically, the Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to VA regulations, an extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Board must therefore determine whether there is sufficient evidence to warrant referring this case to the Director of the VA Compensation and Pension Service or other appropriate authority for extra-schedular consideration. According to Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the Rating Schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. The Veteran was granted service connection for three disabilities, effective July 1, 1971: meralgia paresthetica (nerve system); through and through muscle injury; and fracture of the right ischium – all residuals of a gunshot wound. In May 2014 the Veteran submitted a claim for an increased rating for residuals of the gunshot wound that he suffered in service. See May 2014 VA 21-526EZ, Fully Developed Claim. He noted that the claim was for increased evaluations were for residuals of the gunshot wound to include nerve and muscle damage. He did not address the rating for residuals of a fracture of the right ischium. Entitlement to an increased rating for meralgia paresthetica of the right lower extremity The Veteran seeks entitlement to a rating in excess of 10 percent for meralgia paresthetica of his right lower extremity. He asserts his disability is more severe than what is represented by his 10 percent evaluation under DC 8529. See May 2014 VA 21-526EZ, Fully Developed Claim. Under Diagnostic Code 8529, a noncompensable (0) percent rating is warranted for mild to moderate incomplete paralysis of the external cutaneous nerve of the thigh. A maximum 10 percent schedular rating is warranted for severe to complete paralysis of the external cutaneous nerve of the thigh. 38 C.F.R. § 4.124a , Diagnostic Code (DC) 8529. 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. As the Veteran has already been in receipt of the maximum available benefits allowable, the Board must consider if an extra schedular award is justified, and whether there are any other diagnostic codes applicable that would not lead to pyramiding. In May 2014 the Veteran submitted his claim for an increased rating, and in January 2015 the Veteran was provided a VA examination of the hip and thighs. There, the VA examiner found the Veteran’s sciatic nerve to be normal. See January 2015 C&P Exam, p. 17. The claim was denied by the RO in January 2015, and the Veteran submitted a timely notice of disagreement (NOD) in May 2015. A VA examination for meralgia paresthetica was provided in December 2015. When asked, the Veteran did not complain of pain or paresthesias in the thigh areas, but he did complain of chronic pain in the right lateral area of his proximal lower extremity. The examiner found all of the Veteran’s nerves to be normal, but stated that “post op irritation of local cutaneous nerves compounded by guarding and disuse.” See December 2015 VA Examination. The Veteran was provided a statement of the case (SOC) in August 2016 and the Veteran perfected his appeal in October 2016, in which he requested a hearing. A hearing before the Board was provided in January 2020. There, the Veteran described his symptoms as having to sit at an angle, walking slowly and pain. See January 2020 Hearing Transcript, p. 7. At the hearing the Veteran requested that the Board consider “other residual damages now with the sciatic and possible nerve damage and muscle damage that has been caused throughout the years.” Id at 3. In March 2020, the Board issued a remand order, having found that the record did not clearly establish which nerves were affected by the Veteran’s service-connected disability. See March 2020 BVA Decision. As per Board remand instructions, a VA examination was provided in October 2020. The VA examiner found that the Veteran did not have a peripheral nerve condition or peripheral neuropathy, with the Veteran’s meralgia paresthetica being resolved at the time of the examination. See October 2020 C&P Exam, p. 2. Upon examination, no symptoms attributable to any peripheral nerve condition was found, muscle strength testing was found to be normal, reflexes were normal, sensation testing for light touch was normal, no trophic changes were found and gait was normal. No nerve groups were found to be abnormal. The VA examiner explained these findings by stating: “The veteran had a normal EMG of the right lower extremity in 2005. Furthermore, his current symptoms are not consistent with the service connected meralgia paresthetica. Furthermore, due to the path of the nerve, there is no explanation why the lateral femoral cutaneous nerve, which is neuropathic in meralgia paresthetica, would be involved in this type of injury. Therefore, the SC condition should be considered resolved.” Id at 13. The Board affords the VA examiner’s findings and medical opinion to be of significant probative value. The VA examiner conducted an in-person examination, considered the Veteran’s lay statements, reviewed the Veteran’s medical records and provided a rationale based upon the record. In reaching this conclusion, the Board has conducted a thorough review of the Veteran’s medical record, and has not uncovered any medical evidence that contradicts the findings of the October 2020 VA examiner. The Board acknowledges that the Veteran believes a higher rating is warranted, given his contention that another unspecified diagnostic code should apply. See January 2021 Appellate Brief, p. 3. And the Board has considered whether a separate rating could be assigned under the diagnostic codes applicable to muscle group injuries. See 38 C.F.R. § 4.73, DC 5316-5318. However, the most probative evidence does not support that the Veteran's disability manifested functional impairment to the extent that a separate rating is warranted for symptoms of muscle injury. Specifically, the Board cites the findings of the October 2020 VA examiner, who found that no current symptoms attributable to a muscle injury and notes that neither the Veteran, nor his representative, have challenged the findings of the VA examiner. Thus, a separate rating under such codes is not warranted. The Board has also considered the Veteran's lay statements. The Veteran is competent to report symptoms of pain and discomfort that are capable of ordinary observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the ability to attribute his pain to a particular cause, including distinguishing pain from muscle injury versus a nerve injury, requires complex medical knowledge of the musculoskeletal system that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board notes that disability ratings are determined by the application of the rating schedule, which does not support entitlement to higher or separate ratings, other than those already explained herein. 38 C.F.R. § 4.2. Finally, the Board has considered whether an extraschedular rating is warranted, as the Board finds that the issue has been raised by the Veteran, due to the Veteran appealing a maximumly rated disability on grounds of the severity of his symptomatology. However, in this situation the not warranted as the Thun step one is not satisfied, given that the Veteran’s symptoms are contemplated by his 10 percent evaluation under DC 8529. In sum, the most probative evidence does not reach the level of equipoise as to whether the Veteran's right lower meralgia paresthetica manifested functional impairment to that extent that any other higher staged or separate rating may be assigned during the period on appeal, nor does the record show that the Thun test has been met for an extraschedular rating. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard is not applicable based on pure speculation or remote possibility). Residuals of through and through gunshot wound right buttock. In May 2014 the Veteran submitted a claim for an increased rating for residuals of the gunshot wound that he sustained in service. See May 2014 VA 21-526EZ, Fully Developed Claim. He noted that the claim for increased evaluations were for residuals of the gunshot wound to include nerve and muscle damage. The Veteran’s claim was deferred by the RO in January 2015. Then, in February 2015, the Veteran was provided a VA examination. There, the Veteran stated that he has had right groin and buttock pain on a chronic basis with trouble sitting, from March 1971 when he was shot by a sniper in Vietnam. Upon examination, the examiner found that the Veteran had loss of power on the right side, and listed muscle groups XIII and XV. For the functional impact of the Veteran’s disability, the examiner wrote that “the Veteran’ is limited from prolonged alternating sitting/standing, climbing, squatting, running or walking due to pain, weakness and fatigue.” See February 2015 C&P Exam. The Veteran’s rating was subsequently raised to 50 percent. See February 2015 Rating Decision – Narrative. This grant constituted a receipt of the maximum rating available under this diagnostic code. The Veteran filed a timely notice of disagreement (NOD) in May 2015. In August 2016 the Veteran was provided an SOC. The Veteran perfected his appeal in October 2016, in which the Veteran requested a hearing before the Board. The Veteran was provided a hearing in January 2020, in which the Veteran described his current physical limitations due to his disability, to include difficulty in walking and sitting. See January 2020 Hearing Transcript. In March 2020 the Board issued a remand order, having found that the record was unclear as to which muscle groups were affected by the Veteran’s injury. In October 2020 an examination was provided. The VA examiner stated that the muscles associated with the Veteran’s injury were groups XV and XVII, the hip adductors and hip extensors. He explained this finding by stating “STRs indicate medial thigh entry and exit in the right buttock. He has matching scars and weakness of the hip extensors consistent with his injury.” The examiner further found that the effects were “moderate to the XVII given the weakness in the hip extensors” and “slight to the XV muscles given the mild signs and symptoms in this muscle group.” The Veteran’s symptoms were noted to include loss of power, weakness, fatigue and pain. See October 2020 C&P Exam. A review of the Veteran’s medical records do not show any contradictory medical evidence. The Board notes, that as of November 2020, the Veteran presented himself as being able to ambulate without assistive service and with a steady gait, though he reported having to hold his right thigh due to discomfort. See January 2021 CAPRI, p. 45. At issue is whether the Veteran is entitled to a rating in excess of 50 percent for residuals of a gunshot wound to the buttocks. Given that the Veteran is in receipt of the highest schedular rating, the Board has considered the applicability of other Diagnostic Codes. In this, the Veteran is already in receipt of benefits for scars to the right medial thigh and right gluteus under diagnostic code 7804 and for paresthetica under diagnosed code 8529. A review of the Veteran’s symptoms does not uncover any further diagnostic codes upon which the Veteran could be rated that would not result in pyramiding. In this, the Board notes that the Veteran’s symptoms include difficulty in ambulation, fatigue and pain, all of which are contemplated in his current rating. The Board has also considered whether an extraschedular rating is warranted, as the Board finds that the issue has been raised by the Veteran, due to the Veteran appealing a maximumly rated disability on grounds of the severity of his symptomatology. With respect to the first element of the criteria in Thun, the evidence in this case does not show such an exceptional disability picture that renders the available schedular evaluations for the service-connected disabilities inadequate. The Veteran’s residuals of a through and through gunshot wound have caused the Veteran pain, discomfort, difficulty walking and difficulty sitting. The Board finds that these symptoms are contemplated in the 50 percent rating under DC 5315-5317. And while the Board is cognizant of the Veteran’s contention that his current 50 percent rating is inadequate due to the severity of his symptoms, the Board finds that even if there was a finding that the schedular criteria were inadequate to evaluate the Veteran's current symptoms, extra-schedular referral is still not warranted in this case because Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc) (holding that an error in the Thun step one analysis is harmless when the Board makes an adequate finding that Thun step two is not satisfied). In the present case, the January 2015 VA examiner found the Veteran’s symptoms to be of severe symptomatology, while the October 2020 VA examiner found that the Veteran’s disability picture had improved, with the affected muscle groups being “moderate” and “mild” respectively. As such, the Board cannot conclude that his service-connected condition resulted in an "exceptional disability picture." In sum, the most probative evidence does demonstrate that the Veteran’s residuals of a through and through gunshot wound manifested functional impairment to that extent that any other higher staged or separate rating may be assigned during the period on appeal, nor does the record show that the Thun test has been met for an extraschedular rating. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard is not applicable based on pure speculation or remote possibility). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.