Citation Nr: 1102860 Decision Date: 01/24/11 Archive Date: 02/01/11 DOCKET NO. 09-39 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating higher than 10 percent for anesthesia of the right foot and calf. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from January 1951 to June 1957. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2008 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina, which assigned an initial 10 percent rating for the disorder at issue effective September 1999. In October 2010 the RO notified the appellant that he was scheduled for November 2, 2010 hearing. In October 2010 correspondence from his representative the Veteran cancelled the hearing. There is no indication or evidence that he desired that the hearing be rescheduled. The issues of entitlement to an increased rating for a left leg disability, and entitlement to a total disability evaluation on the basis of individual unamployability has been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's right leg disability has not been manifested by moderate incomplete paralysis of the sciatic nerve at any time during this initial rating period. CONCLUSION OF LAW The requirements for an initial evaluation higher than 10 percent for anesthesia of the right foot and calf are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.7, 4.20, 4.124a, Diagnostic Code 8720 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119, it was held that the Francisco rule does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the Veteran's right leg neurological disorder. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. Analysis As noted above, an October 2008 Board decision granted entitlement to service connection for a right leg disability secondary to a service-connected left leg disability. A November 2008 rating decision executed the Board's decision. The rating decision concluded that the diagnosed disorder is not specifically listed in the rating schedule. Thus, the RO rated the disorder as analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, were closely related. 38 C.F.R. § 4.20. As a result, the RO evaluated the Veteran's right leg disability as a neurological disorder under Diagnostic Code 8520, which evaluates peripheral nerve symptomatology. The peripheral nerve rating criteria rate paralysis and incomplete paralysis of the peripheral nerves. See 38 C.F.R. § 4.124a. Under these criteria, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured 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 should be for the mild, or at most, the moderate degree. See id., Diseases of The Peripheral Nerves. Diagnostic Code 8720 rates neuralgia associated with the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires evidence of complete paralysis. When there is complete paralysis, 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. 38 C.F.R. § 4.124a. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2010). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2010). The guiding standard, as set forth above, is how the symptoms compare to complete paralysis. As noted, the Board must set forth the reasons and bases for its decisions. On the other hand, the Board must also endeavor to make its decisions as concise as allowable by the evidence of record. The bottom line in this appeal is that the preponderance shows the Veteran's right leg neurological disorder has not been manifested by moderate incomplete paralysis of the sciatic nerve. Throughout the Veteran's pursuit of service connection for his right leg, he has reported his primary symptom as numbness, and the examinations of record have confirmed his complaints. The November 1999 epilepsy examination report notes the Veteran could walk on his heels and toes, and Romberg was normal. He could jog, bend, and squat easily. Strength of the quadriceps, anterior tibials, hamstrings, and toes was good. There was no atrophy. Superficial sensation response was slow in the right calf and foot, and traced figures interpretation was poor in the right foot and calf. Vibration was normal in the four extremities, and joint sense was normal in the toes. The examiner diagnosed mild anesthesia of the right foot and distal calf. The objective findings on clinical examination show that the primary right foot and calf symptomatology was a sensory deficit. No weakness or atrophy was noted. Further, when compared to complete paralysis of the sciatic nerve, the clinical findings show the Veteran's symptoms to be no more than mild. Thus, as of the November 1999 examination, those symptoms more nearly approximated a the assigned 10 percent rating. 38 C.F.R. § 4.7. The Veteran asserts in his various written submissions that, while he was able to perform the movements requested by the examiner, it took much effort to do so, and he was extremely uncomfortable afterwards. While that may be the case, the Board finds the assigned 10 percent rating addresses that facet of the Veteran's functional loss. At the March 2000 RO hearing, the Veteran noted his right leg was numb, it did not respond quickly, and it did not have the strength and positive control it once had due to compensating for the left leg disorder. A March 2003 neurological examination report notes the Veteran carried a cane to help maintain his balance. He reported his right ankle hurt from time to time. Physical examination findings were essentially the same as the November 1999 examination, except for the fact that ankle jerks were absent. Nonetheless, the examiner noted normal strength, and diagnosed mild peripheral neuropathy. Another examination was conducted in September 2003. The pertinent report notes that while motor examination revealed mild left ankle weakness, the right lower extremity had no motor difficulties. Sensation to vibration was absent to mid-shin, and pinprick was decreased in the distal to proximal gradient. Proprioception was mildly decreased, and deep tendon reflexes were 1 throughout with downgoing toes. The objective findings again showed the Veteran's primary deficit as sensory. Therefore, the clinical findings show the severity of his symptoms as mild, 38 C.F.R. § 4.7, which is compensated at the 10 percent rate. A higher rating was not met or approximated, as the objective findings noted normal strength. The May 2010 examination report notes the examiner conducted a review of the claims file as part of the examination. The Veteran reported numbness in both lower legs, left greater than right, and bilateral lower extremity weakness. The appellant walked with a cane. He denied taking any medications for his symptoms. He could walk and stand for 10 minutes with a cane, which he used for balance. Exertion in excess of 10 minutes reportedly made his symptoms worse but rest made them better. He denied flares stating that his symptoms were constant. His activities of daily living were not impacted. Physical examination revealed right lower extremity strength of grade 5- proximally with knee pain, and grade 5- distally with ankle pain. Sensation to light touch was present but diminished below the knee, but normal above the knee. Deep tendon reflexes were 1+ at the knees and ankles, and toes were downgoing. Toe proprioception was intact. Ankle range of motion was from 0 to 30 degrees on plantar flexion with stiffness at the end. The examiner noted dorsiflexion to 0 degrees, which apparently means dorsiflexion was absent, see 38 C.F.R. § 4.71a, Plate II. Nonetheless, the examiner did not note any strength deficits due to the Veteran's neurological symptoms. The diagnosis remained lower extremity paresthesias. When compared to complete paralysis of the sciatic nerve, the preponderance of the probative evidence shows the Veteran's right lower leg symptomatology to more nearly approximate mild severity and a 10 percent rating. Moderate incomplete paralysis has not been shown at any time during the appellate term. 38 C.F.R. § 4.1, 4.7, 4.124a, Diagnostic Code 8799-8720. There is no evidence to support a staged rating for any part of the current rating period. The appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an initial rating higher than 10 percent for anesthesia of the right foot and calf is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs