Citation Nr: 21039675 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-36 549 DATE: July 1, 2021 ORDER Entitlement to a 10 percent evaluation, at least, for service-connected left genitofemoral nerve neuropathy, from November 15, 2016, is granted, subject to the applicable regulations concerning payment of monetary benefits. REMANDED Entitlement to an increased rating in excess of 10 percent for a left genitofemoral nerve disability on an extraschedular basis is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities from November 15, 2016, is remanded. FINDING OF FACT From November 15, 2016, the Veteran's service-connected left genitofemoral nerve disability has been manifested by sensory deficits and functional impairment, equating to severe to complete paralysis of the affected nerve. CONCLUSION OF LAW The criteria for a disability rating of 10 percent for a left genitofemoral nerve disability are met from November 15, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8530. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from January 1969 to November 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. In a June 2019 Board decision, the Board denied the Veteran's claim for an increased rating for a left genitofemoral nerve disability. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in October 2020, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand (JMR). In a November 2020 Order, the Court endorsed the JMR, then vacated the Board's June 2019 decision and remanded the matter for readjudication in light of the JMR. As will be discussed below, the parties, in the Court-endorsed JMR, agreed that the Board erred in the June 2019 denial of the Veteran's appeal, by failing to consider evidence favorable to the Veteran's disability. The parties further agreed that the Board failed to provide an understanding of the undefined terms of the diagnostic code. In the JMR the parties also agreed that the Board erred in failing to provide adequate reasons and bases for finding that the Veteran did not raise the issue of extraschedular referral, and in failing to address a reasonably raised claim of entitlement to TDIU. The title page of the Board's decision has been amended to include both of these issues, which are being remanded. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 1. Entitlement to a compensable evaluation for service-connected left genitofemoral nerve disability Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). The Veteran's service-connected left genitofemoral nerve disability is currently evaluated under the criteria of 38 C.F.R. § 4.124a Diagnostic Code 8530, pertaining to paralysis (complete or incomplete) of the ilio-inguinal nerve. In such cases, VA's rating schedule includes Diagnostic Code 8530, which pertains to disabilities of the ilio-inguinal nerve and provides a 0 percent rating is warranted for mild or moderate paralysis. For severe to complete paralysis, a 10 percent rating is warranted. 38 C.F.R. § 4.124a, DC 8530. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture 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. 38 C.F.R. § 4.124a. The Court recently held in Miller v. Shulkin, 28 Vet. App. 376 (2017), that the language of 38 C.F.R. § 4.124a provides for a maximum 20 percent rating for peripheral neuropathy when the involvement is wholly sensory. Pursuant to 38 C.F.R. § 4.123, however, the maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis, i.e., no more than 40 percent. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the 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. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of 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. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." Analysis The Veteran's claim for an increased evaluation was received by the AOJ on November 15, 2016, and denied by an April 2017 rating decision. Thereafter, less than one year later, a claim to reopen was received in December 2017, and once again denied by a rating decision in April 2018, which was then followed by a timely notice of disagreement. 38 C.F.R. § 3.156(b). Accordingly, the appeal period for consideration by VA with regard to this appeal is from November 15, 2016, to the present. The Veteran was provided VA examinations in December 2016 and February 2018. The December 2016 examiner stated that the Veteran had moderate incomplete paralysis of the left ilio-inguinal (genitofemoral) nerve. The examiner also documented that the Veteran constantly has use of a wheelchair and documented that the Veteran's disability did not functionally impact the Veteran's ability to work. The February 2018 examiner noted that the Veteran experiences constant severe pain in his left lower extremity due to his disability, and paresthesias and/or dysesthesias and numbness, rated moderate, of the left lower extremity. The examiner also documented that the Veterans left lower extremity, the upper anterior thigh and thigh/knee, are rated "absent" for sensation testing, and the lower leg/ankle and foot/toes, are rated at "decreased" for sensation testing. As with the December 2016 examination, it is noted that the veteran is wheelchair bound. Unlike the December 2016 examiner, the February 2018 examiner documented that the Veteran's disability causes a functional impact on his ability to work. The examiner described the impact of the neuropathy on the Veteran's inability to bend and lift, inability to walk or stand for too long, the Veteran is unable to cook or do household chores. The examiner concluded by stating there is incomplete paralysis, mild, with numbness and occasional pain, of the left genitofemoral nerve. The Board acknowledges and appreciates the above findings and opinions; however, a closer reading of the December 2018 examination report reflects a more significant disability picture regarding the functional impact downstream from the Veteran's disability. Specifically, it was noted that the Veteran experiences constant severe pain, along with no sensation in part of his left lower extremity. Further the functional impact of the Veteran's disability has constantly been demonstrated to require the constant use of a wheelchair, as the Veteran cannot stand, lift, or walk without falling. Based on the Veteran's functional impairment stemming from this disability, the Board, as the ultimate finder of fact, finds the Veteran's symptoms are more than "wholly sensory" and most closely approximate severe impairment of the left genitofemoral nerve. Accordingly, the Board concludes that an allowance for service connected left genitofemoral nerve disability to 10 percent. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 10 percent for left genitofemoral nerve disability on an extraschedular basis To determine whether the Veteran's symptoms are such that should be rated on an extraschedular basis, the Board requires an adequate opinion that addresses the Veteran's functional loss and all genitofemoral nerve related symptoms which are not accounted for in the disability benefit questionnaire (DBQ). As discussed in the JMR, the Veteran is reliant upon his wife and unable to do most things on his own, as he is wheelchair bound. Although the Veteran was provided VA examinations in December 2016 and February 2018, the examinations do not adequately address the Veteran's symptoms which are not considered by the rating criteria. The Board finds it necessary that an updated medical examination be provided to take into account the Veteran's disability and the symptoms that are not considered in the rating criteria to better understand the extent of the Veteran's disability. The Board finds that another VA examination is needed to determine the extent of the Veteran's symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to TDIU In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court stated that a claim for a TDIU due to service-connected disability is part and parcel of a rating claim when TDIU is raised by the record. The Veteran's claims file is unclear as to when and why the Veteran's disability impacted his ability for gainful employment. The record indicates that the Veteran is currently wheelchair bound, and unable to work. The record also suggests that the Veteran has not been employed since he left active service. Further, there is documentation of an incident impacting the Veteran's eyesight, after service, which may have impacted his ability to work, and mentions the Veteran having worked as a taxi driver. As discussed in the JMR, it has been stated that the Veteran, at one time worked as a landscaper, and the record suggests that the Veteran may have owned his own business. Although the record is unclear as to the Veteran's work history, the record does raise the issue of TDIU, and whether the Veteran's disability contributed to his retirement. As the issue of TDIU has been raised by the record and has not been adjudicated by the RO, a remand is necessary for additional development. A remand of this issue is necessary to obtain a current VA Form 21-8940, Veteran's Application for Increased Compensation Based Unemployability. Additional development is also required regarding the Veteran's previous employment and education level. The action requested with respect to the Veteran's increased rating claims also requires that the Board defer any decision as to the TDIU claim pending the completion of that development. On remand, the RO must request that the Veteran complete this form and adjudicate the issue of entitlement to a TDIU under Rice. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. After obtaining updated pertinent VA and private treatment records (with the Veteran's assistance regarding the latter), the AOJ must provide the Veteran's claims file to an appropriate examiner for a medical examination and opinion. The Veteran should be provided a functional assessment of his left genitofemoral nerve disability. In this regard, the examiner is asked to consider all of the Veteran's lay statements regarding the impact of his service-connected disability. (a.) As propriety of an extraschedular evaluation of the Veteran's service-connected genitofemoral nerve disability will be considered by the AOJ, the examiner is encouraged to utilize the "free text" section of the provided DBQs to document all related symptoms reported by the Veteran and identified by the examiner, including the frequency and severity of such. . (b.) The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. The AOJ should send VCAA notice for a TDIU and any related development (such as a VA Form 21-8940). After all available evidence has been associated with the record, the AOJ should review the evidence and determine whether further development is warranted for a TDIU for the entire period on appeal. The AOJ should take any additional development as deemed necessary. 3. Upon completion of (1) and (2), refer the case to the Director of Compensation Service for a supplemental opinion regarding whether the Veteran is entitled to an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) and extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). 4. Then readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and he should be afforded the requisite opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.