Citation Nr: 22016863 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-03 354 DATE: March 23, 2022 ORDER Entitlement to a 20 percent rating, but no higher, for a left femoral nerve disability, is granted. FINDING OF FACT The Veteran's left femoral nerve disability was manifested by adverse symptomatology that equates to moderate incomplete paralysis, but not severe incomplete paralysis or complete paralysis of quadriceps extensor muscles of the femoral nerve. CONCLUSION OF LAW The criteria for disability rating of 20 percent, but no higher, for a femoral nerve disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.123, 4.124, 4.124a, Diagnostic Codes 8526. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 2000 to August 2004. The Veteran died in November 2021. The Appellant is the Veteran's surviving spouse and she has been properly substituted as the claimant in this appeal. See e.g., VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant, received December 09, 2021; December 2021 VA Correspondence Allowing Substitution. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record and has been reviewed. In November 2021, the Board granted service connection for back and bilateral knee disabilities and remanded this case to further evaluate the Veteran's service connected left femoral nerve disability. However, the Veteran passed away prior to an examination being scheduled. See December 2021 VA Examination Request. Nonetheless, the Board finds the RO substantially complied with the Board's remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b)(3)(B). Importantly, the Board must apologize to the Appellant for the delays in the full adjudication of this claim and provides its condolences for the loss of the Veteran. Increased Rating The Appellant contends the Veteran is entitled to a higher compensable disability rating for a femoral nerve disability during all periods on appeal. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. An increase in the evaluation assigned for a disability is warranted when the average impairment in earning capacity resulting from such diseases and injuries in civil occupations has increased and the disability picture meets the criteria required for a higher rating. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The Board notes that except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). 1. Entitlement to a rating in excess of 10 percent for a left femoral nerve disability, Turning to the evidence, the Veteran's left lower extremity femoral nerve disability is rated as 10 percent disabling under DC 8529 (external cutaneous nerve of the thigh) effective November 8, 2016. The Veteran's condition was initially rated as 10 percent disabling under DC 8526 (anterior crural nerve (femoral)) effective August 28, 2004. The November 2016 Statement of the Case (SOC) changed the assigned diagnostic code from DC 8526 to 8529. The Board notes that, while the disability rating remained at 10 percent following this change, a rating under DC 8526 is more beneficial to the Veteran as it can potentially provide higher diagnostic ratings. See Schafrath, supra; Butts, supra. Diagnostic Code 8526 provides a 10 percent rating for mild incomplete paralysis of the femoral nerve in either lower extremity. A 20 percent rating for moderate incomplete paralysis of the femoral nerve in either lower extremity. A 30 percent rating for severe incomplete paralysis of the femoral nerve. A 40 percent rating for complete paralysis of the femoral nerve with paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.123 provides that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124 provides that neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. The words "mild," "moderate" 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, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "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 finds it significant that based on the above criteria, the August 2016 VA examiner opined that the Veteran's left lower extremity femoral nerve disability had moderate incomplete paralysis and he had moderate pain in his left lower extremity peripheral nerve. The Veteran also had no reflex response in his left ankle. At his hearing in November 2021, the Veteran reported that when he sits down in certain positions for a couple minutes and then tries to stand up, his whole left side becomes nearly paralyzed. He also reported that he has trouble ambulating for brief periods of time during flare ups. The Board has reviewed the record in great detail and finds that the most probative evidence of record shows that the Veteran's left lower extremity femoral nerve disability equates to, at most, "moderate" (i.e., 20 percent) incomplete paralysis of the femoral nerve. Id. Moreover, the Board finds that granting the Veteran a rating in excess of 20 percent for his left lower extremity femoral nerve disability under Diagnostic Code 8526, for severe incomplete paralysis or complete paralysis of quadriceps extensor muscles of the femoral nerve, is not warranted. The Board has reached this conclusion, in part, because the Veteran is also service connected for virtually the same adverse symptomatology for his bilateral knee and lower back disabilities during the same period of time. See 38 C.F.R. § 4.14. Further, the Introduction to Diseases of the Peripheral Nerves under the rating schedule states that when the nerve involvement in evaluating the disability is wholly sensory, as is the case here, the rating should be for the mild, or at most, the moderate degree. See Introduction to Diseases of the Peripheral Nerves, Schedule of Rating, under 38 C.F.R. § 4.124a. Therefore, the Board finds he meets the criteria for a 20 percent rating, but not higher, at all times on appeal. In summary, the Board finds the Veteran's statement that he has trouble ambulating after sitting due to pain, as well as the VA examiner's finding that he had moderate incomplete paralysis and moderate pain in his left lower extremity peripheral nerve, to be competent, credible and the most probative evidence of record, providing a basis to warrant a 20 percent disability rating, but not higher, under Diagnostic Code 8526. Additionally, notwithstanding the Court holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board finds that the record does not raise a claim for a total rating based on individual unemployability (TDIU). The Board has reached this conclusion because the Veteran has not claimed, and the record does not show that his service-connected femoral nerve disability interfered with his substantial gainful employment at any time during the appeal. Finally, neither the Appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin,28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board must weigh the evidence of record as a whole and finds the evidence is in approximate balance as to whether the Veteran's left femoral nerve disability is "mild" or "moderate" in severity. Therefore, the benefit of the doubt doctrine applies and the Board will grant the claim. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.