Citation Nr: 0127363	
Decision Date: 12/14/01    Archive Date: 12/19/01

DOCKET NO.  01-02 609A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Washington, 
DC


THE ISSUES

Entitlement to an effective date earlier than June 8, 1992, 
for service connection for right sciatic nerve disability.

Entitlement to an initial evaluation in excess of 40 percent 
for right sciatic nerve disability.

Entitlement to special monthly compensation based upon loss 
of use of both buttocks.

(The issues of whether the August 1969 decision of the Board 
of Veterans' Appeals should be revised or reversed on the 
grounds of clear and unmistakable error in failing to rate 
sciatic nerve disability and failing to grant special monthly 
compensation for loss of use of both buttocks are addressed 
in a separate decision of the Board.)  




REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. M. Daley, Counsel


INTRODUCTION

The veteran served on active duty from October 1964 to 
October 1968.  This matter is before the Board of Veterans' 
Appeals (Board) on appeal of decisions of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Washington, 
D.C.

The veteran was seeking an earlier effective date for an 
increased evaluation for muscle damage due to a gunshot wound 
of his right leg and buttocks on the basis of clear and 
unmistakable error in an August 1969 Board decision.  In a 
separate decision of the Board, dated July 12, 2001, the 
Board determined that the August 1969 Board decision was 
clearly and unmistakably erroneous in failing to grant a 50 
percent evaluation for the muscle damage resulting from the 
gunshot wound.  The RO has not had an opportunity to 
implement the Board's decision's decision yet, but will do so 
after the case is returned from the Board.  

The veteran's claim for an earlier effective date for service 
connection for right sciatic nerve disability is based in 
part upon an allegation of clear and unmistakable error in 
the August 1969 Board decision.  As noted on the title page, 
that aspect of the veteran's claim is the subject of a 
separate decision of the Board.




FINDINGS OF FACT

1.  All information and evidence necessary for an equitable 
disposition of the issues decided herein have been obtained.

2.  A claim for service connection for right sciatic nerve 
disability was not received prior to June 8, 1992.

3.  The veteran is currently in receipt of a 60 percent 
rating for intervertebral disc syndrome with right sciatic 
neuropathy, and a separate 40 percent rating for right 
sciatic nerve disability.

4.  The veteran has no more than severe incomplete paralysis 
of the right sciatic nerve. 

5.  The veteran has no currently service-connected disability 
of the left buttocks.


CONCLUSIONS OF LAW

1.  The requirements for an effective date earlier than June 
8, 1992, for service connection for disability of the right 
sciatic nerve have not been met.  38 U.S.C.A. § 5110 (West 
1991); 38 C.F.R. § 3.400 (2001).

2.  The requirements for special monthly compensation for 
loss of use of the buttocks have not been met.  38 U.S.C.A. 
§ 1114(k) (West 1991); 38 C.F.R. § 3.350(a) (2001).

3.  A rating in excess of 40 percent for right sciatic nerve 
disability is not warranted.  38 U.S.C.A. § 1155 (West 1991); 
38 C.F.R. §§ 4.14, 4.25, 4.71a, Diagnostic Code 5293, 
§ 4.124a, Diagnostic Code 8520 (2001).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act

Initially, the Board notes that during the pendency of the 
appellant's appeal, the Veterans Claims Assistance Act of 
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was 
signed into law.  Since the RO's most recent consideration of 
the issues decided herein, regulations implementing the VCAA 
(codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 
5107, 5126 (West Supp. 2001)), were published at 
66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be 
codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326).  
The VCAA and the implementing regulations pertinent to the 
issues decided herein are liberalizing and are therefore 
applicable to the issues on appeal.  See Karnas v. Derwinski, 
1 Vet. App. 308, 312-13 (1991).  

The Act and the implementing regulations essentially 
eliminate the requirement that a claimant submit evidence of 
a well-grounded claim, and provide that VA will assist a 
claimant in obtaining evidence necessary to substantiate a 
claim but is not required to provide assistance to a claimant 
if there is no reasonable possibility that such assistance 
would aid in substantiating the claim.  They also require VA 
to notify the claimant and the claimant's representative, if 
any, of any information, and any medical or lay evidence, not 
previously provided to the Secretary that is necessary to 
substantiate the claim.  As part of the notice, VA is to 
specifically inform the claimant and the claimant's 
representative, if any, of which portion, if any, of the 
evidence is to be provided by the claimant and which part, if 
any, VA will attempt to obtain on behalf of the claimant.

The record reflects that the RO did consider the VCAA in its 
development of this case.  It has informed the veteran of the 
requirements for the benefits sought on appeal, of the 
evidence it has considered in deciding his claims, and of the 
evidence necessary to substantiate his claims.  In addition 
it has obtained pertinent evidence and afforded the veteran 
VA examinations.  The Board is not aware of, and neither the 
veteran nor his representative has identified, any additional 
evidence or information which could be obtained to 
substantiate his claims.  

In sum the facts pertinent to these claims have been properly 
developed, and no further development is required to comply 
with the VCAA and the implementing regulations.  A remand to 
afford the RO an opportunity to consider the claims in light 
of the VCAA would only serve to further delay resolution of 
the veteran's appeal with no benefit flowing to the veteran.  
Accordingly, the Board will address the merits of the 
veteran's claims.

II.  Effective Date 

The effective date of an award of compensation will be the 
later of the date of receipt of claim or date entitlement 
arose, except that the effective date of direct service 
connection will be the day following separation from active 
service or the date entitlement arose if the claim is 
received within one year after separation from service.  
38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (2001).

The veteran contends that service connection for right 
sciatic nerve disability should be granted from immediately 
following his discharge from service because his original 
claim for service connection for gunshot wound residuals 
included disability of the right sciatic nerve and this claim 
remained pending at the time of the November 1998 hearing 
officer decision granting service connection for this 
disability.

The record reflects that the veteran's original claim for 
service connection was received on October 9, 1968, shortly 
after his discharge from service.  In this claim, he 
identified a gunshot wound of the right thigh and buttock, 
and infection of the kidneys as the disabilities for which 
service connection was sought.  He did not refer to 
disability of the right sciatic nerve in this original claim, 
nor was there any notation of right sciatic nerve disability 
in service medical records, or other evidence of record when 
this original claim was adjudicated in a March 1969 rating 
decision.    

The veteran has not contended and the record does not reflect 
that any other claim for service connection for right sciatic 
nerve disability was received prior to June 8, 1992.

Accordingly, an earlier effective date for service connection 
for disability of the right sciatic nerve is not in order.

III.  Rating in Excess of 40 Percent for Disability of the 
Right Sciatic Nerve

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities (Rating 
Schedule), found in 38 C.F.R. Part 4 (2001).  The Board 
attempts to determine the extent to which the veteran's 
service-connected disability adversely affects his ability to 
function under the ordinary conditions of daily life, and the 
assigned rating is based, as far as practicable, upon the 
average impairment of earning capacity in civil occupations.  
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 
(2001).

Paralysis of the sciatic nerve warrants an 80 percent 
evaluation if it is complete; with complete paralysis of the 
sciatic nerve, the foot dangles and drops, no active movement 
of the muscles below the knee is possible, and flexion of the 
knee is weakened or (very rarely) lost.  Incomplete paralysis 
of the sciatic nerve warrants a 60 percent evaluation if it 
is severe with marked muscular dystrophy, a 40 percent 
evaluation if it is moderately severe, a 20 percent 
evaluation if it is moderate or a 10 percent evaluation if it 
is mild.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

The veteran contends that the disability of his right sciatic 
nerve meets the criteria for a 60 percent evaluation under 
Diagnostic Code 8520.  For the purpose of this decision, the 
Board will assume that this is true.  However, the veteran is 
also in receipt of a separate 60 percent evaluation under 
38 C.F.R. § 4.71a, Diagnostic Code 5293, which provides a 60 
percent evaluation for pronounced intervertebral disc 
syndrome with persistent symptoms compatible with sciatic 
neuropathy with characteristic pain and demonstrable muscle 
spasm, absent ankle jerk or other neurological findings 
appropriate to the site of the diseased disc, with little 
intermittent relief.  

Since Diagnostic Codes 5293 and 8520 both involve the sciatic 
nerve, the RO should not have assigned separate evaluations 
under these Diagnostic Codes.  In this regard the Board notes 
that the evaluation of the same disability under various 
diagnoses and the evaluation of the same manifestation under 
different diagnoses are to be avoided.  38 C.F.R. § 4.14.  

The ratings of 60 percent under Diagnostic Code 5293 and 40 
percent under Diagnostic Code 8520 combine to 80 percent.  
38 C.F.R. § 4.25.  This is the maximum evaluation authorized 
for impairment of the right sciatic nerve and is in excess of 
the maximum evaluation of 60 percent authorized for 
intervertebral disc syndrome.  The veteran has not alleged 
that the impairment of his right sciatic nerve more nearly 
approximates the criteria for an 80 percent evaluation and it 
is clear from the evidence that it does not.  Accordingly, an 
evaluation in excess of 40 percent for right sciatic nerve 
disability clearly is not warranted.

IV.  Special Monthly Compensation

Special monthly compensation is authorized for loss of use of 
both buttocks.  38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a).

It is not clear from the contentions of the veteran and his 
representative why they believe that special monthly 
compensation is warranted for loss of use of both buttocks.  
The Board notes that there is no provision for special 
monthly compensation for loss of use of one buttock.  Service 
medical records and the post-service medical evidence of 
record show that the veteran's gunshot wound involved the 
right leg and right buttock, and did not involve the left 
buttock.  In fact the veteran has never specifically claimed 
entitlement to service connection for disability of the left 
buttock, and service connection is not in effect for 
disability of the left buttock.  Accordingly, special monthly 
compensation is not in order for loss of use of the buttocks.  
ORDER

Entitlement to an effective date earlier than June 8, 1992, 
for service connection for disability of the right sciatic 
nerve is denied.

Entitlement to an initial evaluation in excess of 40 percent 
for disability of the right sciatic nerve is denied.

Entitlement to special monthly compensation for loss of use 
of both buttocks is denied.



		
	Shane A. Durkin
	Member, Board of Veterans' Appeals