PARALYSIS OF THE ANTERIOR CRURAL NERVE (FEMORAL)

SAUDIEE BROWN · 2022 · Case ID: A22004804

MIXED

Summary

The veteran, who served from January 1968 to January 1972, appeals the denial of higher disability ratings for peripheral neuropathies affecting his left and right lower extremities. Specifically, the veteran sought ratings in excess of 10 percent for the period prior to July 9, 2015, and in excess of 20 percent thereafter, for left and right femoral nerve peripheral neuropathies, and left and right sciatic nerve diabetic peripheral neuropathies. The Board reviewed the veteran's service treatment records, VA examinations from March and October 2018, a private NCV/EMG from July 2015, and lay testimony provided at a hearing. The Board found that prior to July 9, 2015, the veteran's conditions manifested as mild incomplete paralysis, not meeting the criteria for higher ratings. However, beginning July 9, 2015, the Board concluded the veteran's symptoms met the criteria for moderate incomplete paralysis, granting 20 percent ratings for each of the four claimed neuropathies. The Board acknowledged the veteran's reported worsening symptoms but found they did not meet the criteria for ratings higher than moderate incomplete paralysis. The Board also noted that TDIU was not at issue in this appeal.

Rationale

Prior to July 9, 2015, condition manifested as mild incomplete paralysis.; Criteria for higher rating not met during this period.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

190827-28297

Full Decision Text

Citation Nr: A22004804
Decision Date: 03/18/22 Archive Date: 03/18/22

DOCKET NO. 190827-28297
DATE: March 18, 2022

ORDER

Entitlement to an evaluation in excess of 10 percent, for the period prior to July 9, 2015, for left lower extremity peripheral neuropathy of the femoral nerve is denied.

Entitlement to an evaluation of 20 percent, and no higher, for the period beginning July 9, 2015, and no earlier, for left lower extremity peripheral neuropathy of the femoral nerve is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to an evaluation in excess of 10 percent, for the period prior to July 9, 2015, for right lower extremity peripheral neuropathy of the femoral nerve is denied.

Entitlement to an evaluation of 20 percent, and no higher, for the period beginning July 9, 2015, and no earlier, for right lower extremity peripheral neuropathy of the femoral nerve is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to an evaluation in excess of 10 percent, for the period prior to July 9, 2015, for left lower extremity diabetic peripheral neuropathy of the sciatic nerve is denied.

Entitlement to an evaluation of 20 percent, and no higher, for the period beginning July 9, 2015, and no earlier, for left lower extremity diabetic peripheral neuropathy of the sciatic nerve is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to an evaluation in excess of 10 percent, for the period prior to July 9, 2015, for right lower extremity diabetic peripheral neuropathy of the sciatic nerve is denied.

Entitlement to an evaluation of 20 percent, and no higher, for the period beginning July 9, 2015, and no earlier, for right lower extremity diabetic peripheral neuropathy of the sciatic nerve is granted, subject to the laws and regulations governing the payment of monetary benefits.

FINDINGS OF FACT

1. Prior to July 9, 2015, the Veteran's left lower extremity peripheral neuropathy of the femoral nerve is manifest by no more than mild incomplete paralysis of the extremity.

2. Beginning July 9, 2015, the Veteran's left lower extremity peripheral neuropathy of the femoral nerve is manifest by no more than moderate incomplete paralysis of the extremity.

3. Prior to July 9, 2015, the Veteran's right lower extremity peripheral neuropathy of the femoral nerve is manifest by no more than mild incomplete paralysis of the extremity.

4. Beginning July 9, 2015, the Veteran's right lower extremity peripheral neuropathy of the femoral nerve is manifest by no more than moderate incomplete paralysis of the extremity.

5. Prior to July 9, 2015, the Veteran's left lower extremity diabetic peripheral neuropathy of the sciatic nerve is manifest by no more than mild incomplete paralysis of the extremity.

6. Beginning July 9, 2015, the Veteran's left lower extremity diabetic peripheral neuropathy of the sciatic nerve is manifest by no more than moderate incomplete paralysis of the extremity.

7. Prior to July 9, 2015, the Veteran's right lower extremity diabetic peripheral neuropathy of the sciatic nerve is manifest by no more than mild incomplete paralysis of the extremity.

8. Beginning July 9, 2015, the Veteran's right lower extremity diabetic peripheral neuropathy of the sciatic nerve is manifest by no more than moderate incomplete paralysis of the extremity.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 10, for the period prior to July 9, 2015, for left lower extremity peripheral neuropathy of the femoral nerve, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

2. The criteria for a disability rating of 20, and no higher, for the period beginning July 9, 2015, for left lower extremity peripheral neuropathy of the femoral nerve, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

3. The criteria for a disability rating in excess of 10, for the period prior to July 9,
1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

3. The criteria for a disability rating in excess of 10, for the period prior to July 9, 2015, for right lower extremity peripheral neuropathy of the femoral nerve, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

4. The criteria for a disability rating of 20, and no higher, for the period beginning July 9, 2015, for right lower extremity peripheral neuropathy of the femoral nerve, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

5. The criteria for a disability rating in excess of 10 percent, for the period prior to July 9, 2015, for left lower extremity diabetic peripheral neuropathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

6. The criteria for a disability rating of 20 percent, and no higher, for the period beginning July 9, 2015, for left lower extremity diabetic peripheral neuropathy of the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

7. The criteria for a disability rating in excess of 10 percent, for the period prior to July 9, 2015, for right lower extremity diabetic peripheral neuropathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

8. The criteria for a disability rating of 20 percent, and no higher, for the period beginning July 9, 2015, for right lower extremity diabetic peripheral neuropathy of the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1968 to January 1972.

The rating decision on appeal was issued in November 2018, which granted claims of entitlement to service connection for neuropathies and assigned initial ratings and effective dates.

In the August 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).

The Veteran testified at a hearing before a Veterans Law Judge in April 2021. A transcript of the hearing has been associated with the claims file.

Higher Evaluation

1. Entitlement to an evaluation in excess of 10 percent, for the period prior to October 27, 2018, and in excess of 20 percent thereafter, for left lower extremity peripheral neuropathy of the femoral nerve.

2. Entitlement to an evaluation in excess of 10 percent, for the period prior to October 27, 2018, and in excess of 20 percent thereafter, for right lower extremity diabetic neuropathy of the femoral nerve.

3. Entitlement to an evaluation in excess of 10 percent, for the period prior to October 27, 2018, and in excess of 20 percent thereafter, for left
has been associated with the claims file.

Higher Evaluation

3. Entitlement to an evaluation in excess of 10 percent, for the period prior to October 27, 2018, and in excess of 20 percent thereafter, for left lower extremity diabetic peripheral neuropathy of the sciatic nerve.

4. Entitlement to an evaluation in excess of 10 percent, for the period prior to October 27, 2018, and in excess of 20 percent thereafter, for right lower extremity diabetic neuropathy of the sciatic nerve.

The Veteran contends that he is entitled to a higher rating for lower extremity neurological disabilities.

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 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 (2007).

Paralysis of the anterior crural nerve (femoral) is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8626 and 8726.) Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a.

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124
atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The issues before the Board are whether the Veteran's neurological symptoms caused levels of impairment required for higher disability ratings. The Board concludes that the Veteran's symptoms did cause the level of impairment required for higher disability evaluations beginning July 9, 2015, and no earlier.

In June 2013 the Veteran was noted to have symptoms of diabetic neuropathy in the feet with numbness and soreness. Examination was normal.

Upon VA examination in March 2014, the Veteran had mild paresthesias and/or dysesthesias in the right and left lower extremities. Strength was normal in flexion and extension of the knees, and plantar flexion and dorsiflexion of the ankles. Deep tendon reflexes and light touch/monofilament testing were normal in the knees and ankles. Position sense was normal in the lower extremities. Vibration sensation and cold sensation were not tested. The Veteran did not have muscle atrophy or trophic changes. The examiner reported that the Veteran did not have lower extremity diabetic peripheral neuropathy.

The Veteran was evaluated for neuropathy in April 2014. The impression of testing was generalized sensory greater than motor axonal peripheral polyneuropathy predominantly affecting legs and chronic lower lumbar radiculopathy on the right.

The Veteran underwent a nerve conduction velocity (NCV) / electromyography (EMG) in July 2015. The Veteran was diagnosed with unspecified hereditary and idiopathic peripheral neuropathy. The assessment was moderate sensorimotor polyneuropathy in the lower extremities with both axonal and demyelinative features, with superimposed moderate left carpal tunnel syndrome. There was no evidence of significant active lumbar radiculopathy.

A private provider in December 2015 noted that the Veteran had diabetic neuropathy of the lower extremities.

In July 2016 the Veteran had neuropathy involving both feet. He had normal muscle power in the extremities and no sensory abnormalities. In August 2016 the Veteran was reported to have sensory deficits. In May 2017 had deep tendon reflexes of 2 out of 4 in the lower extremities and 5 out of 5 strength in the lower extremities.

Upon VA examination in October 2018, the Veteran was diagnosed with right and left lower extremity diabetic peripheral neuropathy. The Veteran had severe constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in the lower extremities. Muscle strength was normal. Deep tendon reflexes were decreased in the knees and ankle. Light touch was decreased in the right knee/thigh and absent in the left knee/thigh and bilateral ankles, feet and toes. Position sense was decreased bilaterally. Vibration and cold sensation were absent in the lower extremities. There was not muscle atrophy or trophic changes. The Veteran had diabetic peripheral neuropathy of the sciatic and femoral nerves of the lower extremities identified as mild incomplete paralysis.

The Veteran presented testimony before a Veterans Law Judge in April 2021 and reported that his symptoms worsened since the rating decision in 2018. The Veteran experienced swelling, pain, tingling, numbness, burning and coldness in the feet. On a scale of one to ten, the Veteran reported five to six. The Veteran denied that his legs collapsed. Did not affect range of motion or ability to move legs. He had pain when moving pedals for a car.

The Board concludes that the Veteran's symptoms did cause the level of impairment required for higher, moderate, disability evaluations, and no higher, beginning July 9, 2015, and no earlier.

Prior to July 9, 2015, the Veteran's left and right lower extremity femoral and sciatic nerve peripheral neuropathies have manifested no more than mild incomplete paralysis. During this time period the Veteran had mild
experienced swelling, pain, tingling, numbness, burning and coldness in the feet. On a scale of one to ten, the Veteran reported five to six. The Veteran denied that his legs collapsed. Did not affect range of motion or ability to move legs. He had pain when moving pedals for a car.

The Board concludes that the Veteran's symptoms did cause the level of impairment required for higher, moderate, disability evaluations, and no higher, beginning July 9, 2015, and no earlier.

Prior to July 9, 2015, the Veteran's left and right lower extremity femoral and sciatic nerve peripheral neuropathies have manifested no more than mild incomplete paralysis. During this time period the Veteran had mild paresthesias and/or dysesthesias. However, the Veteran did not manifest loss of muscle strength, deep tendon reflexes, or position sense. The Veteran's nerve disabilities did not manifest muscle atrophy or trophic changes. Therefore, entitlement to a higher evaluation prior to July 9, 2015, is denied.

Beginning July 9, 2015, the Veteran's left and right lower extremity femoral and sciatic nerve peripheral neuropathies have manifested moderate incomplete paralysis, and no higher. A private NCV/EMG in July 2015 indicated moderate sensorineural polyneuropathy in the lower extremities with both axonal and demyelinative features. However, the assessment does not identify each implicated nerve or respective severity. Thereafter, the VA examination identified the nerves implicated as the sciatic and femoral nerves. Therefore, affording the Veteran the benefit of the doubt, his increase in neurological symptoms were identifiable July 9, 2015. However, the records do not show that the Veteran's disabilities were characterized as moderately severe or severe at any time during the period on appeal. The examiner identified severe constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in the lower extremities. The examiner further noted decreased deep tendon reflexes and position sensation. Sensations were decreased to absent. However, the examiner did not identify loss of muscle strength, muscle atrophy, or trophic changes. The examiner who made these findings characterized the disability as mild incomplete paralysis of the sciatic and femoral nerves. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis and no higher.

The Board acknowledges that the Veteran reported worsening symptoms at his hearing in April 2021; however, the Veteran was not consistent in reporting symptoms greater than moderate from 2018.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for higher evaluations for bilateral lower extremity femoral and sciatic nerve peripheral neuropathies prior to July 9, 2015. In addition, the Board finds that the evidence of record weighs in favor of a 20 percent evaluation, and no higher, for bilateral lower extremity femoral and sciatic nerve peripheral neuropathies beginning July 9, 2015, and no earlier.

The matter of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is not raised by the record in the context of the instant claims for increase. An examiner has opined that the Veteran's disabilities would limit activities; however, no examiner has opined that the disabilities render him unemployable. Notably, prior to retirement, he indicated that his diabetes mellitus did not impair his employment.

Saudiee Brown

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Robert J. Burriesci, 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.

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