Banschbach v. McDonough — Separate ratings for neuritis and neuralgia are not barred as a matter of law by a paralysis rating

Jacob Banschbach appealed a Board decision addressing ratings for residuals of an in-service hernia repair, including nerve injury involving the ilio-inguinal and anterior crural nerves. The principal dispute was whether the rating schedule and anti-pyramiding principles barred separate evaluations for paralysis, neuritis, and neuralgia of the same peripheral nerve. The Secretary argued that neuritis and neuralgia are subsumed within a paralysis rating; the veteran argued that the regulations permit separate ratings when the manifestations are distinct.

The Court interpreted 38 C.F.R. §§ 4.123, 4.124, and 4.124a and concluded that those provisions do not prohibit separate consideration of neuritis and neuralgia merely because a paralysis rating already exists. The Court reasoned that the regulations use different diagnostic codes and different symptom descriptions for paralysis, neuritis, and neuralgia, and that reading them as a categorical bar would render the neuritis and neuralgia codes superfluous. The Court also emphasized that the anti-pyramiding inquiry is factual and depends on whether the symptomatology actually overlaps in a particular case.

The Court then held that the issue was reasonably raised by the record, citing treatment notes and examination findings referencing pain, neuritis, and neuralgia. Because the Board did not address whether separate ratings were warranted under DCs 8630 and 8730, the Court vacated the relevant portion of the Board decision and remanded for further adjudication. The opinion is useful for advocates seeking separate peripheral nerve ratings and for arguing that the Board must analyze reasonably raised rating theories rather than assume they are foreclosed by a current diagnostic code assignment.

A paralysis rating under 38 C.F.R. § 4.124a does not categorically bar separate ratings for neuritis or neuralgia of the same peripheral nerve; whether separate awards violate anti-pyramiding depends on whether the manifestations are duplicative or overlapping in the facts of the case.

VA must analyze separately raised neuritis and neuralgia theories on their merits and cannot reject them as legally unavailable simply because the veteran already has a paralysis rating for the same nerve.

It narrows an overbroad reading of the peripheral nerve schedule and reinforces that the anti-pyramiding question is fact-specific, not categorical. It also gives advocates a strong remand tool when the record mentions neuritis, neuralgia, or chronic nerve pain but the Board only rates paralysis.

Treating a paralysis diagnostic code as automatically subsuming neuritis and neuralgia without addressing whether separate ratings are legally and factually available.

A veteran is rated for incomplete paralysis of the sciatic or ilio-inguinal nerve, but treatment records also document neuritis and neuralgia with distinct pain symptoms. The Board rates only paralysis and says separate ratings are barred; under this case, the Board must consider whether separate ratings are warranted and whether the symptoms truly overlap.

Use to argue that the Board must address all reasonably raised peripheral nerve diagnostic codes and may not dismiss separate neuritis/neuralgia ratings as a matter of law. Pair it with Esteban and Morgan when seeking full schedular consideration and with the record evidence showing pain, neuritis, or neuralgia diagnoses.

38 C.F.R. §§ 4.14, 4.25(b), 4.123, 4.124, 4.124a; Esteban v. Brown; Morgan v. Wilkie; Garner v. Tran; Roper v. Nicholson; Southall-Norman v. McDonald