Citation Nr: 1105275 Decision Date: 02/08/11 Archive Date: 02/18/11 DOCKET NO. 07-25 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial compensable evaluation for sciatica of the right lower extremity. 2. Entitlement to an initial compensable evaluation for sciatica of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to February 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. During the hearing, the Veteran waived initial RO consideration of the new evidence submitted in conjunction with the hearing. 38 C.F.R. § 20.1304(c) (2010). Additionally, the record was held open for 30 days, in which the Veteran submitted additional private medical evidence. In August 2009, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The competent and probative evidence of record shows neurological manifestations which approximate no more than mild incomplete paralysis of the right sciatic nerve; there is no evidence of complete sciatic nerve paralysis associated with the Veteran's service-connected sciatica of the right lower extremity. 3. The competent and probative evidence of record shows neurological manifestations which approximate no more than mild incomplete paralysis of the left sciatic nerve; there is no evidence of complete sciatic nerve paralysis associated with the Veteran's service-connected sciatica of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no more, for sciatica of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.114, Diagnostic Codes 8520, 8599 (2010). 2. The criteria for an initial 10 percent rating, but no more, for sciatica of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.114, Diagnostic Codes 8520, 8599 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. This claim arises from the Veteran's disagreement with the initial evaluations following the grants of service connection. In this case, the Veteran was provided a VCAA letter in September 2004 which informed him of the evidence necessary to substantiate a claim for service connection. Courts have held that once service connection is granted and the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA obtained the Veteran's service treatment records, private medical records from October 2001 to March 2009, and VA outpatient treatment records dated November 2001 to July 2009. The Veteran was also provided VA examinations in connection with his claims. The VA examiners reviewed the Veteran's claims file, noted his medical history, and recorded pertinent examination findings. All obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file. The Veteran has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Decision The Veteran contends that his service-connected sciatica of the right and left lower extremities warrant compensable ratings. During the March 2009 hearing, the Veteran testified that he has numbness, tingling, and weakness in his legs. Although a spinal cord stimulator was inserted in hopes of alleviating symptoms associated with his bilateral lower extremities, the Veteran admitted to continued sharp and shooting pain, instability, and overall weakness. He asserts that compensable ratings are warranted for his service-connected bilateral lower extremities. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran is contesting the disability evaluations that were assigned following the grants of service connection for his disabilities. This matter is therefore to be distinguished from one in which a claim for an increased rating of a disability has been filed after a grant of service connection. The Court has observed that in the latter instance, evidence of the present level of the disability is of primary concern, Fenderson v. West, 12 Vet. App. 119, 126 (1999) (citing Francisco v. Brown, 7 Vet. App. 55 (1994)), and that as to the original assignment of a disability evaluation, VA must address all evidence that was of record from the date the filing of the claim on which service connection was granted (or from other applicable effective date). See Fenderson, 12 Vet. App. at 126-27. Accordingly, the evidence pertaining to an original evaluation might require the issuance of separate, or "staged," evaluations of the disability based on the facts shown to exist during the separate periods of time. Id. Moreover, staged ratings are appropriate in any increased- rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Due to the similar medical history and evidence related to the claims, as well as the similar disposition of the issues, the Board will address them in a common discussion. Throughout the rating period on appeal, the Veteran has been assigned 0 percent disability evaluations for his service- connected sciatica of the right and left lower extremities pursuant to 38 C.F.R. § 4.124a, Diagnostic Codes 8599-8520 (2010). When a particular disability is not listed among the diagnostic codes, a code ending in "99" is used; the first two numbers are selected from the portion of the schedule most approximating a Veteran's symptoms. 38 C.F.R. § 4.27. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. In this case, Diagnostic Code 8599 refers to peripheral neuropathy of the lower extremities, while the more specific Diagnostic Code 8520 refers to paralysis of the sciatic nerve. Under Diagnostic Code 8520, complete paralysis of the sciatic nerve warrants an 80 percent rating. Incomplete paralysis is assigned ratings of 10 to 60 percent, depending on the severity of the claimant's symptoms. A 60 percent rating is assigned for severe paralysis with marked muscular muscle atrophy. A 40 percent rating is appropriate for moderately severe paralysis. Moderate paralysis warrants a 20 percent rating, and a 10 percent rating is assigned for mild paralysis. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In August 2004, the Veteran was afforded a VA examination. The Veteran reported numbness in his legs and feet, as well as weakness in his feet due to his service-connected back disability. Physical examination of the Veteran revealed no muscle spasms or localized tenderness. Sensory examination of the lower extremities was normal for light touch, pinprick, position, and temperature sense. However, a loss of vibratory sense in the right fourth toe and the left fifth toe was noted by the VA examiner. Motor examination of the lower extremities was 5/5 at all joints, with no atrophy of the lower extremities. The VA examiner noted good muscle tone and strength, and his deep tendon reflexes of the lower extremities were 1-2+ and equal. The VA examiner diagnosed the Veteran with bilateral lower extremity radiculopathy at the L4-L5 level, most likely from a disc herniation at that level. In January 2006, the Veteran visited a local private chiropractor for thoracic and lumbar spine treatment. The Veteran also complained of shooting pain radiating down the posterior and lateral aspect of both of his thighs with associated numbness, tingling, and occasional muscle weakness. Physical examination testing revealed positive orthopedic tests, including advancement, Kemps, Bechterew, Soto-Hall, bilateral leg raiser, Lasegue's, leg lowering, and Fabere Patrick. Digital palpation revealed tenders and fixation at T4, 5, 6, 7, 8, and 9, as well as L3, 4, 5, and bilateral sacroiliac (SI) joints. Neurological evaluation failed to reveal any focal neurological deficit. The private physician diagnosed the Veteran with sciatica complicated by the presence of lumbar disc degeneration as well as lumbar disc displacement and pain from his thoracic spine. VA outpatient treatment records dated January 2007 reflect complaints of bilateral hip pain, with the right hip being the worst. The Veteran described the pain as aching, burning, crushing, dull, numbing, pulling, sharp, stabbing, tender, and throbbing. Physical testing of the Veteran revealed a smooth gait with no limp or assistive aids. The right hip was noted as being slightly higher, and there was no tenderness with light palpation of the low back. Straight leg raising test was positive in both legs at around seventy degrees. Sensory and motor testing was intact for both legs. Deep tendon reflexes of the knees were 2+ bilaterally, 3+ for the right ankle, and 2+ for the left ankle. The Veteran was diagnosed with chronic low back pain, radiculopathy, and a history of a motor vehicle accident with multiple spinal fractures. The Veteran returned to his local VA outpatient treatment facility in November 2007 for right leg numbness and tingling in both feet. He reported his right leg giving out approximately four times per week and using a cane for ambulatory purposes. After physical examination of the Veteran, the VA physician diagnosed him with sciatica, new radiculopathy, loss of power in the right leg, fall episodes, and parasthesia in both legs. A nerve conduction study was performed in April 2008 at a private medical center due to the Veteran's reported history of pain, numbness, and tingling in both lower extremities. Findings showed decreased amplitudes with normal latencies in the left peroneal nerve. Other nerves tested were within normal limits. A needle exam of the left lower extremity including the lumbar paraspinous muscles did not reveal any abnormalities. The Veteran was assessed with chronic L5 radiculopathy in the left. The Veteran returned for follow-up treatment at the private medical center in August 2008. It was noted that he had neuropathic pain of the hips and bilateral lower extremities, much worse on the left than on the right. The physician determined him to be a reasonable candidate for a trial of spinal cord simulation, and as such, placement of 2 spinal cord stimulator electrode arrays, an implanted pulse generator (Medtronic Ultra), and intraoperative and postoperative complex programming were performed in October 2008. It was noted that there were no complications, the Veteran was given multiple programs to choose from, and excellent capture of his low back, bilateral hips, and bilateral lower extremities were obtained. In March 2009, the Veteran returned to his local private medical center with complaints of low back pain and bilateral leg pain. Weakness and decreased sensation in the legs, worse on the left side than the right side was noted by the private physician. During physical examination of the Veteran, the private physician reported that the Veteran moves all of his extremities with full range of motion and diagnosed him with chronic low back pain with radicular features. The private physician stated that the Veteran has moderate radiculopathy, which limits his function. The Veteran was afforded a second VA examination in April 2010 for his service-connected sciatica of the bilateral lower extremities. The Veteran informed the VA examiner that his lower back pain started to radiate to the right leg in early 2003 and one year later, started to radiate to his left leg. He admitted to taking 300 milligrams per day of Gabapentin for his bilateral lower extremities, but indicated that the response to treatment has been only fair. Motor exam findings showed hip flexors and extensors as 4/5 secondary to pains in his lower back. Otherwise, both extensors and flexors of the knees were 5/5 and dorsiflexors and plantar flexors of the ankles were 5/5. Sensory examination testing reflected normal findings for light touch, vibratory sense, and position sense. However, the pin prick response was reported as being erratic in the right leg with the rest of the left lower extremity being normal. Nerve conduction testing was normal for the bilateral lower extremities and concentric needle electromyography of all muscles tested was normal as well. After a thorough review of the Veteran's claims file, including results from the physical examination as well as the results from the electrodiagnositc consultation conducted in conjunction with the VA examination, the VA examiner diagnosed the Veteran with a history of pains radiating to the right lower extremity and occasionally to the left lower extremity. She noted that the clinical examination reflected normal results and that there was no evidence of radiculopathy in both the lower extremities either clinically or by electromyography (EMG). The VA examiner further added that there is no paralysis of sciatic nerves on either side, and the Veteran actually has radicular pains that are secondary to pressure on nerve roots after they leave the spinal cord. Applying the facts in this case to the criteria set forth above, the Board concludes that the criteria for 10 percent evaluations each for the Veteran's service-connected sciatica of the bilateral lower extremities have been met. While a private physician has classified the Veteran's radiculopathy to be "moderate" in nature, the Board finds that the involvement of the Veteran's sciatic nerves are wholly sensory, causing numbness and pain down the Veteran's bilateral lower extremities. This is most evident by the April 2010 VA examiner's conclusion that there is no paralysis of sciatic nerves on both sides, nor evidence of any muscle mass loss or paralysis of muscles. Furthermore, the April 2010 VA examiner considered the findings to be indicative of "minimal sensory pain alteration." Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. The decreased sensation and complaints of radiating pain are indicative of mild incomplete paralysis of both the left and right sciatic nerves. As the findings are present in both lower extremities, separate 10 percent ratings are warranted. The next higher rating would require moderate incomplete paralysis. The Board finds no evidence of organic changes, such as muscle atrophy, trophic changes, etc., that would warrant higher ratings or demonstrate more than a mild degree of incomplete paralysis of the sciatic nerves. The findings are entirely sensory, and the Veteran's impairment is not shown to be more than mild. As such, ratings in excess of 10 percent for the Veteran's service-connected sciatic of the right and left lower extremities are not warranted. The Board has considered staged ratings, pursuant to Fenderson and Hart, supra, but finds the 10 percent ratings assigned appropriate for the entire rating period. Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation in this case is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities at issue, but the medical evidence reflect that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected sciatica of the bilateral lower extremities. The Veteran is competent to report his symptoms. The Board does not doubt the sincerity in the Veteran's belief that his disabilities are worse than the current 0 percent evaluations contemplate; however, the objective medical evidence does not support more than the 10 percent ratings assigned. All reasonable doubt has been resolved in favor of the Veteran in making this decision. See Gilbert, 1 Vet. App. at 55. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial 10 percent evaluation for sciatica, right lower extremity, is granted, subject to the regulations governing the payment of monetary benefits. Entitlement to an initial 10 percent evaluation for sciatica, left lower extremity, is granted, subject to the regulations governing the payment of monetary benefits. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs