Citation Nr: 0110525 Decision Date: 04/10/01 Archive Date: 04/17/01 DOCKET NO. 91-38 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a separate disability evaluation for left leg neurological disability. REPRESENTATION Appellant represented by: Michael Wildhaber, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from July 1986 to May 1990. This appeal to the Board of Veterans' Appeals (Board) initially arose from a rating decision in July 1990 by the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to an evaluation in excess of 10 percent for degenerative disc disease of multiple joints of the lumbosacral spine. A decision of the Board dated November 25, 1997, granted an evaluation of 60 percent for degenerative disc disease of the lumbosacral spine for the period May 11, 1990, to November 27, 1994. A convalescent rating of 100 percent under the provisions of 38 C.F.R. § 4.30, was in effect from November 29, 1994, to March 1, 1995. A decision of the Board dated March 16, 1999, granted an evaluation of 60 percent for degenerative disc disease of the lumbosacral spine for the period commencing March 1, 1995; the Board did not grant a separate evaluation for left leg sciatica. The veteran appealed the Board's March 16, 1999, decision to the United States Court of Appeals for Veterans Claims (Court), which, upon a joint motion by the Secretary of Veterans Affairs and the veteran-appellant, vacated that part of the Board's decision which denied a separate rating for left leg neurological disability. REMAND Service connection is in effect for degenerative disc disease of the lumbosacral spine, with sciatica. As noted by the parties to the joint motion, "sciatica" is defined as "a syndrome characterized by pain radiating from the back into the buttock and into the lower extremity along its posterior or lateral aspect, and most commonly caused by protrusion of a low lumbar intervertebral disc; the term is also used to refer to pain anywhere along the course of the sciatic nerve." Dorland's Illustrated Medical Dictionary 1493 (28th ed., 1994). Degenerative disc disease of the lumbosacral spine, with sciatica, is currently evaluated as 60 percent disabling, under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2000), which provides that a 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (that is, with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. With reference to any sciatic neuropathy which the veteran may have, the Board notes that "neuropathy" is defined as "a functional disturbance or pathological change in the peripheral nervous system, sometimes limited to noninflammatory lesions as opposed to those of neuritis; the etiology may be known or unknown...neuropathies affecting a specific nerve may be named for the nerve, for example, femoral neuropathy". Dorland's at 1132. The veteran's representative contends that the veteran now suffers from left footdrop and loss of use of the left foot as a result of a neurological deficit of the left lower extremity. The representative has submitted a report of a private CT scan of the lumbar spine in August 2000, which, according to the attending radiologist, showed, inter alia, that a left lateral recess focal herniated nucleus pulposus at L 5 -S 1 was compressing the left S-1 nerve root. In addition, a lumbar myelogram in August 2000 was reported by the radiologist to show, inter alia, partial amputation of the left S-1 nerve root sheath due to left lateral recess disc herniation at L 5 -S 1, which was not seen on a previous myelogram in June 1994. The representative has also submitted a report by Craig N. Bash, M.D., a board-certified diagnostic radiologist, who indicated that he had reviewed the veteran's service medical records and postservice medical records, including images of the veteran's spine, and taken a history from the veteran by telephone in October 2000. Dr. Bash stated that the veteran told him that: He was unable to walk normally; he tripped on carpet; and he had trouble driving a car. Dr. Bash, who did not examine the veteran, and who is not a specialist in neurology, reported his opinion that the effect of degenerative disc disease compressing the veteran's left L 5 -S 1 nerve roots was to cause loss of use of the left foot. The joint motion stated that the Board should address the issues of whether the evidence supports a separate rating for paralysis of the sciatic nerve or the external popliteal nerve and whether the evidence supports a separate rating for neuritis or neuralgia of either the sciatic or external popliteal nerves. No physician who has examined the veteran has diagnosed left footdrop or found loss of use of the left foot. Similarly, the record does not contain a diagnosis of paralysis or neuritis or neuralgia of the sciatic nerve or the external popliteal nerve. Nevertheless, a new statute requires VA to assist the claimant unless there is no reasonable possibility that assistance would aid in substantiating the claimant's claim. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, Sec. 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A.) Under the facts of this case, the Board finds that the duty to assist requires VA to afford the veteran the opportunity to be evaluated by a specialist in neurology to determine whether he has left footdrop or loss of use of the left foot or any other neurological disability of the left lower extremity separate and distinct from sciatic neuropathy associated with degenerative disc disease of the lumbosacral spine. Accordingly, this case is REMANDED to the RO for the following: 1. The RO should request that the veteran identify each physician and medical facility, if any, which has treated him for left footdrop or loss of use of the left foot. After securing any necessary releases for the veteran, the RO should attempt to obtain copies of all such clinical records. The RO should comply with the notice provisions of the Veterans Claims Assistance Act of 2000, in the event that identified records are not obtained. 2. The RO should then arrange for the veteran to be examined by a specialist in neurology. It is imperative that the examiner review a copy of this REMAND and the veteran's medical records in the claims file, including: A report of private disc surgery in December 1994; reports of VA examinations in February 1996, March 1996, October 1996, and March 1998; and reports by the veteran's private physicians from 1994 to 1996. The examiner should determine whether the veteran has a neurological disability of the left lower extremity which is separate and distinct from sciatica/sciatic neuropathy associated with degenerative disc disease of the lumbosacral spine. Specifically, the examiner should determine whether the veteran has paralysis or partial paralysis of the sciatic nerve or the external popliteal nerve, affecting the left lower extremity, and whether he has neuritis or neuralgia of the sciatic nerve and/or external popliteal nerve, affecting the left lower extremity. In addition, the examiner should determine whether the veteran has left footdrop and/or loss of use of the left foot as a result of neurological disability. Following completion of these actions, the RO should review the evidence and determine whether the veteran's claim may be granted. If the decision is adverse to the veteran, he and his representative should be provided with an appropriate supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this REMAND are to assist the veteran and to obtain clarifying information. The Board points out to the veteran that, when a claimant, without good cause, fails to report for a necessary examination, a claim for an increased evaluation shall be denied. 38 C.F.R. § 3.655 (2000). By this REMAND the Board intimates no opinion as to the ultimate disposition of the appeal. No action is required of the veteran until he receives further notice. The appellant has the right to submit additional evidence and argument on the matter which the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). BRUCE KANNEE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2000).