Citation NR: 9714927 Decision Date: 04/29/97 Archive Date: 05/06/97 DOCKET NO. 95-28 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased rating for injury to the right sciatic nerve, currently evaluated as 80 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Daniel R. McGarry, Associate Counsel INTRODUCTION The veteran had active service from October 1980 to July 1994. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a rating decision in which the regional office (RO) granted service connection and assigned a 40 percent disability evaluation to injury of the right sciatic nerve. In March 1996, a hearing officer awarded an 80 percent rating for the nerve injury, effective from the date of service connection. The current rating is the highest schedular disability evaluation assignable for the veteran’s disability from sciatic nerve injury. The veteran has also been awarded a total disability rating based on individual unemployability due to service connected disability, which is also effective from July 1994. Although the veteran is currently receiving the highest rating available under the rating schedule, veterans may be given an extraschedular rating. In Floyd v. Brown, 9 Vet.App. 88 (1996), the Court of Veterans Appeals (Court) held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Nonetheless, the Board is still obligated to seek out all issues that are reasonably raised and to identify all potential theories of entitlement to a benefit under the laws and regulations. In Bagwell v. Brown, 9 Vet.App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission under 38 C.F.R. § 3.321(b)(1), or from reaching such a conclusion on its own. Moreover, the Court did not find the Board’s denial of an extraschedular rating in the first instance prejudicial to the veteran, as the question of an extraschedular rating is a component of the claim and the appellant had full opportunity to present the increased- rating claim before the RO. Bagwell at 339. Consequently, the Board will consider whether this case warrants the assignment of an extraschedular rating. CONTENTIONS OF APPELLANT ON APPEAL The veteran has contended that her disability from injury to the sciatic nerve is more debilitating than as originally evaluated by the regional office. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that preponderance of the evidence is against the grant of an increased rating for injury to the right sciatic nerve. FINDINGS OF FACT 1. The veteran has been awarded the highest schedular rating, 80 percent, for injury to the right sciatic nerve, effective from the date of her separation from service. 2. The rating schedule is not inadequate to rate the veteran’s disability from injury to the right sciatic nerve, which is not so exceptional or unusual as to require extraschedular consideration. CONCLUSION OF LAW The criteria for referral for the assignment of an extraschedular rating for injury to the right sciatic nerve have not been met. 38 C.F.R. § 3.321 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has presented a well-grounded claim for increased disability evaluation for his service-connected disability from injury to the right sciatic nerve within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a claimant is awarded service connection for a disability and subsequently appeals the RO’s initial assignment of a rating for that disability, the claim continues to be well grounded if the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet.App. 218 (1995). Disability evaluations are based upon the average impairment of earning capacity under a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1996). Although Department of Veterans Affairs (VA) must consider the entire record, the most pertinent evidence, because of effective date law and regulations, is created in proximity to the claim. 38 U.S.C.A. § 5110 (West 1991). The VA rating schedule is used primarily as a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1996). In the examination and evaluation of disability, it is essential to view the disability in relation to its history. 38 C.F.R. § 4.1 (1996). Service medical records show that the veteran underwent pelvic surgery in August 1993. Several days later she received an intramuscular injection of Toradol into the right hip and gluteal region. She immediately noted pain radiating from the buttock area to the foot. Thereafter she continued to have pain down the right anterior thigh, and in the right buttock and hip region. She also had numbness and weakness in the right leg. Treatment with analgesics and muscle relaxants provided no relief. Because of the persistence of her symptoms she was referred to a neurologist in October 1993. On examination, she was ambulating with two crutches, and had significant limitation of motion of the right leg and significant pain. When seen by the neurologist in December 1993, some improvement was noted, but pain was still 85 to 90 percent of its worst level. She was working up to six hours per day and using one crutch to ambulate. In January 1994, the veteran continued to have pain, which was worse from prolonged periods of sitting. In late January, she was examined by a neurologist for a medical evaluation board. Vibratory sense was then slightly diminished over the right foot. Motor examination revealed normal bulk and tone bilaterally. Strength was 5/5 in both arms and in the left leg, and 4+/5 in most muscle groups of the proximal and distal right lower extremity, with 5/5 strength in the anterior tibial on the right. Muscle movement in the right leg was limited somewhat by pain. She was able to walk with one crutch, but had a very antalgic gait, favoring the right leg. Examination of her back revealed moderate to marked tenderness to percussion and palpation in the right sacroiliac and iliac crest regions posteriorly. Minimal mid lumbar percussion tenderness was identified. Muscle stretch reflexes were symmetric and 2/4 diffusely. Plantar responses were flexor bilaterally. Electromyography and nerve conduction studies showed evidence of an accessory deep peroneal nerve and lack of peroneal F- wave response, which was consistent with a proximal lesion. A needle exam was consistent with sciatic nerve dysfunction, showing evidence of denervation in multiple muscles groups. Magnetic resonance imaging scans of the pelvis and sciatic nerve were within normal limits. The diagnosis was injection injury to the right sciatic nerve. The examiner recommended further conservative treatment but suggested that the injury may have permanent sequelae, as the veteran had significant impairments six months after the injury. When seen again in February 1994, her pain had worsened. Trigger point injections had given only temporary relief. Records of later treatment indicate that she did not improve significantly. An April 1994 report of the findings of a physical evaluation board indicates that the veteran had chronic, severe, unrelenting pain involving the right lower extremity. The Board determined that she was unemployable and recommend retirement with a rating of 100 percent. During a VA examination in September 1994, the veteran walked with a pair of crutches, favoring her right leg. She stated that she was tender over the right gluteal area and that pain radiated down the back of her right leg to the back of her right foot. She reported numbness over the lateral part of her right thigh and right leg. The examiner recorded a diagnosis of history of right sciatic nerve injury with residual pain and numbness, right buttock and right lower extremity. In a December 1994 rating decision, the RO granted service connection for injury to the right sciatic nerve and assigned a disability rating of 40 percent, effective from July 9, 1994, which was the day after the veteran’s separation from service. After hearing the veteran’s testimony and reviewing the record, a hearing officer awarded an 80 percent disability rating, effective from the same date, using Diagnostic Code 8560 by analogy. Under that diagnostic code, the highest schedular rating of 80 percent is assigned for complete paralysis of the sciatic nerve, with symptoms such as the foot dangles and drops, or no active movement of the muscles below the knee, or weakened or lost flexion of the knee. As the Board cannot award a higher schedular evaluation for this disability, the only issue for appellate consideration is whether an extraschedular rating is appropriate. In exceptional cases where schedular evaluations are found to be inadequate, consideration of “an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities” is made. 38 C.F.R. § 3.321(b)(1) (1996). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The Board first notes that the schedular evaluation in this case is not inadequate. The rating schedule provides for an 80 percent rating for complete paralysis of the sciatic nerve, with associated symptoms as noted above. Although no higher rating is assignable under this diagnostic code, the medical evidence in the record indicates that the veteran does not have complete paralysis of the right sciatic nerve. Second, the Board finds no evidence of an exceptional disability picture in this case. The veteran has not required hospitalization for her sciatic nerve disorder. Although her symptoms are a significant impairment to her employability, this is recognized by the current rating of 80 percent. In addition, she is receiving a 100 rating for all her service-connected disabilities on the basis that they prevent her employment. The Board notes that there is no evidence that the impairment resulting solely from the injury to the right sciatic nerve, by itself, warrants extra- schedular consideration. Rather, for the reasons noted above, the Board concludes that the impairment resulting from the sciatic nerve injury, including the effect of pain on function and movement, is adequately compensated by the 80 percent schedular evaluation. Therefore, extraschedular consideration under 38 C.F.R. § 3.321(b) is not warranted in this case. ORDER An increased rating for injury to the right sciatic nerve is denied. MARY GALLAGHER Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -