Citation Nr: 9910252 Decision Date: 04/13/99 Archive Date: 04/29/99 DOCKET NO. 98-03 079A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for "neuralgia" paresthetica of the left thigh, currently rated as 10 percent disabling, pursuant to a grant of benefits under 38 U.S.C.A. § 1151 (West 1991). 2. Entitlement to a compensable evaluation for "neuralgia" paresthetica of the left thigh prior to October 25, 1995. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran served on active duty from August 1957 to October 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the July 1998 presentation to the Board, the representative asserted that the veteran was claiming weakness and radiculopathy in his left lower extremity. These more extensive deficits are not part of the neuralgia for which benefits under 38 U.S.C.A. § 1151 were granted. In February 1994, the veteran claimed that he had a back disability due to a fall from a tank during service. In June 1994, the RO informed the veteran that his claim was denied because it was not well grounded. A timely notice of disagreement was not received. In October 1995, the RO received the veteran's claim for benefits under 38 U.S.C.A. § 1151. The January 1997 rating decision granted compensation under 38 U.S.C.A. § 1151 for neuralgia paresthetica due to surgery. The rating decision explained, "A higher evaluation is not warranted due to weakness noted on examination because the examiner attributed this to the veteran's lumbar radiculopathy and not the neuralgia paresthetica." The determination that the veteran did not have a service connected back condition due to a fall from a tank was continued. The January 1998 NOD disagreed with the rating for the neuralgia paresthetica (then rated as noncompensable). The NOD did not disagree with the diagnosis for which benefits were granted or with the denial of benefits for weakness and radiculopathy. These additional disabilities are not inextricably intertwined with the neuralgia paresthetica. As distinguished from the situation in Manlincon v. West, No. 97-1467 (U.S. Vet. App. Mar. 12, 1999), there is no notice of disagreement (NOD) on these additional disabilities. The Board notes that a decision by the RO is final in the absence of a timely appeal and VA does not have jurisdiction to consider the claim unless the veteran submits new and material evidence. 38 U.S.C.A. § 5108 (West 1991). The representative has asked that the informal presentation to the Board be accepted as an NOD on the issue of entitlement to an earlier effective date for a compensable rating. An NOD must be filed with the RO. 38 C.F.R. § 20.300 (1998). The Board brings this aspect of the representative's informal presentation to the attention of the RO. The RO must review the July 1998 statement of Dr. Bash. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. Neuralgia paresthetica of the left thigh is manifested by some sensory loss, which does not exceed a mild incomplete paralysis. 3. Neuralgia paresthetica of the left thigh was the result of VA surgery on July 13, 1995 and the veteran filed a claim for benefits under 38 U.S.C.A. § 1151 within a year of the injury. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for neuralgia paresthetica of the left thigh have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.7, 4.124 and Codes 8629, 8726 (1998). 2 The criteria for an effective date of July 13, 1995 for the 10 percent for neuralgia paresthetica of the left thigh have been met. 38 U.S.C.A. §§ 1155, 5107, 5110(c) (West 1991); 38 C.F.R. § 3.400(i)(1), Part 4, including §§ 4.7, 4.124a and Code 8726 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The January 1997 rating decision granted compensation under 38 U.S.C.A. § 1151 for neuralgia paresthetica due to surgery. The February 1997 notice letter informed the veteran that he was entitled to benefits for neuralgia paresthetica under 38 U.S.C.A. § 1151. The February 1998 rating decision noted that the neuralgia paresthetica was being evaluated under 38 U.S.C.A. § 1151. Nevertheless, the February 1998 notice letter erroneously referred to the disability as service- connected. The Board points out that 38 U.S.C.A. § 1151 provides for payment of compensation as though the disability was service-connected. As an initial matter, the Board points out that the neuralgia paresthetica is not a service- connected disability. The veteran has presented a well grounded claim for increased disability evaluation for his § 1151 disability within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a claimant is awarded compensation benefits and subsequently appeals the RO's initial assignment of a rating for the disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. See Shipwash v. Brown, 8 Vet. App. 218 (1995). The Board has considered the issues raised by the United States Court of Appeals for Veterans Claims (Court) in Fenderson v. West, No. 96-947 (U.S. Vet. App. Jan. 20, 1999). The Board has continued the issue as entitlement to an increased rating. The appellant is not prejudiced by this naming of the issue. The Board has not dismissed any of the issues and the law and regulations governing the evaluation of disabilities is the same regardless of how the issue has been phrased. It also appears that the Court has not provided a substitute name for the issue. In reaching the determinations, the Board has considered whether staged ratings should be assigned. We conclude that the condition addressed has not significantly changed and uniform rating is appropriate in this case. This benefits the veteran in this case. All relevant facts have been properly developed. VA has completed its duty to assist the veteran in the development of his increased rating claim. See 38 U.S.C.A. § 5107(a). The veteran has not reported that any other pertinent evidence might be available. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). Historical Review The current claim stems from a July 1995 VA hospitalization. On July 13, 1995, the veteran had frozen section biopsies of bilateral mole lesions and lower lip lesion as well as right infra-auricular lesion; bilateral cheek advancement flaps, cervical fascial; brow elevation; and bilateral blepharoplasty. Progress notes show that on July 15, 1995, the veteran complained that he had no feeling in his thigh or the shin area of his left leg. He was sent for a neurologic examination. The consultation report shows the veteran complained of decreased sensation in the left lateral femoral cutaneous nerve distribution. Findings led to the impression that there was femoral neuropathy, motor and sensory. A distribution on the left lateral thigh was diagrammed. The etiology was unclear. A VA neurology clinic note dated July 25, 1995, reported the veteran's lower extremity complaints and findings. The physician expressed the opinion that there was a likely sacral plexus injury or prolonged compression during surgery, given a distribution involving mild back symptoms without neurologic deficits in the femoral nerve distribution or a clear dermatomal distribution. A VA neurology clinic note of September 1995, reported that electrodiagnostic studies had suggested a lumbosacral plexus partial injury as demonstrated by leg lower extremity findings. The iliopsoas nerve was principally affected. Further studies were recommended. On admission to a VA medical center, in October 1995, the veteran complained of bilateral leg pain and numbness without back pain. He admitted lumbar surgery with instrumentation, 30 years earlier. Ankle jerk and patellar responses were absent. There was left quadriceps weakness. Both legs had numbness and pain. Computerized tomography scan (CT) revealed lumbar changes. The impression was a nerve root compression or stenosis at multiple levels. During the hospitalization, a lumbar CT/myelogram showed no gross compressive pathology. Hardware was in place. It was concluded that there was no canal stenosis or nerve root compression responsible for his symptoms. A VA pain clinic assessment of November 1995 shows the veteran complained that following left facial surgery four months earlier, he awoke with pain in the left groin, knee and ankle. He also had low back pain since the surgery. Additionally, there was numbness of the left anterior thigh and leg. Symptoms reportedly remained unchanged with constant dull pain, increased by certain movements. There was claimed to be a burning sensation in the left knee and ankle and left leg weakness. The low back pain was described by the veteran as dull, 4/10, and constant. The examiner found sensory responses intact to proprioception, vibration and touch. The left leg had decreased response to pin prick in the L2-L3 distribution and all L4 dermatomes. The assessment was L2, L3, L4 plexopathy and nerve irritation. On the August 1996 VA joints examination, it was reported that there was mild atrophy and some mild weakness of the left thigh. There was pain on straight leg raising. The left patellar deep tendon reflex was absent. There was decreased sensation in the L4, L5 and S1 nerve roots of the left leg. There was no weakness in the extensors of the ankles or toes. The diagnosis was radiculitis of the left lower extremity, of unknown etiology. A VA peripheral nerve examination was done in August 1996. The veteran reported that he did well following private back surgery in 1965. He said that when he awoke from the July 1995 VA surgery, he had increased pain and weakness in his left leg and numbness in the lateral aspect of his left thigh. The physician found some mild weakness of the left quadriceps and hamstring muscle groups. There was no atrophy. There was a "rachety, nonphysiologic" weakness of the more distal muscles of the anterior tibialis, peroneus longus and posterior tibialis. No objective weakness was demonstrated. Reflexes were absent in both lower extremities. There was a loss of sensation in the L3 distribution, perhaps consistent with the left lateral femoral cutaneous nerve. Gait was very abnormal. It was the physician's impression that the veteran had findings consistent with a chronic lumbar radiculopathy of L3-L4 with motor weakness and sensory loss although the sensory loss could be consistent with meralgia paresthetica. "[T]hat would not, of course, explain his motor weakness which may be chronic from his previous surgery performed in 1965. In any event, he has residual motor weakness, sensory loss and gait disturbance with findings consistent with a chronic lumbar radiculopathy." Another VA neurologic examination was done in October 1996, by the doctor who examined the veteran in August 1996. The veteran reported numbness in the lateral aspect of the left leg after awakening from VA surgery in 1995. He reported progressive difficulty with his gait and a worsening of symptoms since the August 1996 examination. The veteran's back had a well healed surgical scar with some tenderness and positive straight leg raising, bilaterally. There was weakness on the right at the extensor hallucis longus tendon. On the left, there was some minimal weakness of the quadriceps femoris and other muscle groups were intact. Gait was impaired with a short stepped ataxic gait, worse on the right leg. Sensory examination revealed some right L5 sensory loss, particularly over the lateral aspect of the right foot and over the right toes, there was some left sensory loss in the region of the left neuralgia paresthetica controlling nerve. It was the doctor's impression that the veteran had two problems. One problem was a chronic lumbar radiculopathy, most prominent at L5-S1 on the right and the second problem was neuralgia paresthetica, which was a compressive neuropathy which may have occurred during surgery. The doctor could not relate the weakness to the surgery and was of the opinion that it was most likely secondary to the veteran's longstanding lumbar radiculopathy which was definitely present on the right as well. In January 1997, the RO granted benefits under 38 U.S.C.A. § 1151 for neuralgia paresthetica due to surgery. The RO noted that the weakness did not warrant a higher rating because it was associated with the lumbar radiculopathy and not the neuralgia paresthetica. The previous denial of service connection for the back disorder was continued. The neuralgia paresthetica was rated as noncompensable under Code 8699-8629. Rating for Neuralgia Paresthetica Disabilities are compensated in accordance with a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1998). Mild or moderate incomplete paralysis of the external cutaneous nerve of thigh will be rated as 0 percent (or noncompensably) disabling. Severe incomplete paralysis to complete paralysis will be rated as 10 percent disabling. 38 C.F.R. Part 4, Code 8529 (1998). Neuritis (Code 8629) and neuralgia (Code 8729) will be rated under the above criteria. Neuralgia, cranial or peripheral, 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. 38 C.F.R. § 4.124 (1998). Without further medical evidence, a February 1998 rating decision rated the disability under Code 8726 and assigned a 10 percent rating. Based on the decision signature, it appears that the determination was a "difference of opinion" decision. Complete paralysis of the anterior crural (femoral) nerve with paralysis of the quadriceps extensor muscles will be rated as 40 percent disabling. Incomplete paralysis will be rated as 30 percent disabling where severe, 20 percent disabling where moderate, and 10 percent disabling where mild. 38 C.F.R. Part 4, Code 8526 (1998). Neuritis (Code 8626) and neuralgia (Code 8726) will be rated under the above criteria. The veteran has asserted that his neuralgia paresthetica is manifested by extensive symptomatology. While the veteran is competent to report increased symptoms, he does not have the medical training and experience to distinguish the manifestations of his neuralgia paresthetica from the manifestations of his back and other disorders. Here, no competent medical witness has associated more than sensory deficits with the neuralgia paresthetica. The veteran was examined by the same physician in August and again in October 1996. The detailed reports show that the doctor was well acquainted with the veteran's disabilities. The doctor expressed the opinion that the weakness (which the veteran's asserts warrants a higher rating) is actually part of the lumbar radiculopathy and that lumbar radiculopathy is of long standing (which would contraindicate a relation to the 1995 VA surgery). The physician related only the neuralgia paresthetica to the VA surgery and stated that it was manifested only by "some left sensory loss." These very limited left thigh sensory deficits would not exceed a mild incomplete paralysis (if rated as a femoral nerve or severe to compete neuropathy when rated by analogy to a cutaneous nerve) and would not approximate any applicable rating criteria for a rating in excess of 10 percent. 38 C.F.R. §§ 4.7, 4.124a (1998). The medical findings and doctor's opinions on this issue are more probative and outweigh the veteran's assertions of greater disability. The preponderance of the evidence is against the claim for a higher rating. 38 U.S.C.A. § 5107(b) (West 1991). The Board notes that a neurologic disorder is to be rated in proportion to the motor or sensory function with attention given to the site and character of the injury. 38 C.F.R. § 4.120 (1998). In this case, the 1151 disorder is not characterized by trophic changes, motor changes, muscle atrophy, organic changes or excruciating pain 38 C.F.R. §§ 4.123. 4.124 (1998). In this regard, although the rating is for neuralgia paresthetica, the doctor also identified the condition as "meralgia" paresthetica. As such, the Board concludes that the initial rating decision that rated the condition as analogous to the lateral cutaneous nerve is the better analogy. That disorder provides for a 10 percent evaluation and no more. However, when rated based on "site and character" of a femoral nerve neuropathy, the impairment is consistent with no more than a 10 percent evaluation. In regard to the radiculopathy, the issue was addressed by the RO and denied. The manifestations of that condition may not be considered in evaluating rating claim. 38 C.F.R. § 4.14 (1998). In addition, as noted in the introduction, there is no viable notice of disagreement as to the radiculopathy. Lastly there is a statement from Dr. Bash. The document was received without a waiver. The document is determined to be not pertinent to the issue on appeal since Dr. Bash agreed with the VA examiner. 38 C.F.R. § 20.1304(c) (1998) His request for a review of records concerns another issue not the rating issue on appeal. Effective Date of 10 percent Rating for Neuralgia Paresthetica The veteran appealed from the initial decision granting benefits under 38 U.S.C.A. § 1151. Therefore, the Board has considered the case in accordance with the guidance of the Court in Shipwash and Fenderson. The February 1998 rating decision assigned a 10 percent rating stating (at 3) that the proper effective date was October 25, 1995 under the provisions of 38 C.F.R. § 3.400(b)(2). That regulation deals with service-connected benefits. "(i) Direct service connection (§ 3.4(b))." "(ii) Presumptive service connection (§§ 3.307, 3.308, 3.309)." As discussed at the outset, the grant of compensation benefits under 38 U.S.C.A. § 1151 is not service connection. The effective date for benefits under 38 U.S.C.A. § 1151 is governed by subsection (i)(1) of 38 C.F.R. § 3.400. See also 38 U.S.C.A. § 5110(c) (West 1991). This law and regulation provide that the effective date of benefits under 38 U.S.C.A. § 1151 will be the date of injury if the claim was made within one year. Here, the neuralgia paresthetica was linked to surgery on July 13, 1995 and the claim was received within a year, on October 25, 1995. The February 1998 rating decision indicated that it was assigning the earliest possible effective date for the 10 percent rating. That would make the effective date of the 10 percent rating July 13, 1995, rather than October 25, 1995. Extraschedular Evaluation The February 1998 rating decision reveals that the RO expressly considered referral of the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). ORDER An effective date of July 13, 1995 is granted for the 10 percent rating for neuralgia paresthetica, subject to the law and regulations governing the payment of monetary awards. An increased rating for neuralgia paresthetica is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals