Citation Nr: 1302603 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 09-33 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial rating in excess of 10 percent for sciatica of the left leg. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1978, and from March 1982 to March 1998. This case comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a decision of November 2008 of the Appeals Management Center in Washington, D.C. that granted service connection for sciatica of the left leg with a 10 percent rating, effective, January 28, 2004. The Department of Veterans Affairs (VA) Regional Office (RO), in Nashville, Tennessee, has jurisdiction over the Veteran's claims. FINDINGS OF FACT The Veteran's left leg sciatica is manifested by moderate incomplete paralysis. CONCLUSION OF LAW The rating criteria for a disability rating of 20 percent for sciatica of the left leg have been met since the effective date of service connection. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 8720 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This appeal arises from disagreement with the initial rating following the grant of service connection for left leg sciatica secondary to a service-connected lower back disability. The Court has held that were the underlying claim for service connection has been granted and there is disagreement as to downstream questions (such as the effective date), the claim has been substantiated and there is no prejudice due to inadequate (or no) notice. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Federal Circuit has also held that once the underlying service connection claim is granted there is no duty to provide notice under 38 U.S.C.A. § 5103(a). Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has fulfilled its duty to assist the Veteran in obtaining evidence. VA obtained the Veteran's service treatment records and post-service medical treatment records. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal that have not been requested or obtained. Given the foregoing, the Board finds that VA has met its duty to assist in this regard. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. In this respect, the record reflects that the Veteran underwent an examination of left leg in 2011 and again in 2012. The results of those examinations have been included in the claims folder for review. The most recent report, that of May 2012 and the addendum, indicated that the examiner was able to review of the Veteran's available medical treatment records, interview and examine the Veteran, and provide the results of the examination. Therefore, this report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The appeal was twice remanded by the Board. The first remand was to insure that a statement of the case was issued in response to the Veteran's notice of disagreement with the initial rating. The Veteran was sent a statement of the case and perfected this appeal. In its second remand the Board sought to obtain records of treatment by two private providers. These were subsequently obtained and a supplemental statement of the case was issued. The agency of original jurisdiction thereby substantially complied with the remand directives D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); cf. Stegall v. West, 11 Vet. App. 268 (1998). Thus, the Board finds that there is no additional evidence that would be reasonably likely to substantiate the claim. B. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. . 38 C.F.R. § 4.1 (2012) Medical reports are interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2012). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Because this appeal stems from the Veteran's disagreement with an evaluation assigned in connection with the original grant of service connection, the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, is for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the service member's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). The Veteran's left leg sciatica has been rated in accordance with the rating criteria found at 38 C.F.R. Part 4, Diagnostic Code 8720 (2012). This Code provides an 80 percent evaluation for complete paralysis of the sciatic nerve, resulting in the foot dangling and dropping, with no active movement possible of the muscles below the knee, and flexion of the knee weakened or lost. For incomplete paralysis, severe impairment, with marked muscular atrophy, a 60 percent rating is warranted, and 40, 20, and 10 percent evaluations are warranted for moderately-severe, moderate, and mild impairment respectively. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Disabilities involving sciatic nerve impairment that are wholly sensory may be rated, at maximum, as moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2012) The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (2012). 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. 38 C.F.R. § 4.124a (2012). III. Facts and Discussion The Veteran contends that his service-connected left leg sciatica causes pain and discomfort along with numbness and is moderate in severity. In connection with his claim for an increased rating for a back disability, the Veteran underwent a VA Compensation and Pension Examination in June 2008. Prior to the examination, the examiner reviewed the Veteran's complete claims folder and his medical records. When questioned by the examiner, the Veteran complained of pain radiating to the left leg. The pain was described as sharp-almost like an electrical shock to the leg. Nevertheless, the Veteran admitted that he was capable of walking on the leg for a distance of up to three miles. The medical care provider examined the left leg but did not find muscle spasms atrophy or guarding. Left hip flexion and extension was 4/5, as was left knee extension and left ankle dorsiflexion. The left knee jerk was absent. Nevertheless, pain was complained thereof and demonstrated. Paralysis of the sciatic nerve was not diagnosed although the examiner did indicate that there was some decreased pinprick and light touch sensation of the leg; but elsewhere in the examination pinprick and light touché were reported as 2/2. On evaluation by R. Pillai, M.D., in November 2010, there was "good" strength in the upper and lower extremities. Deep tendon reflexes were 2+. There was decreased pin prick sensation in the left big and little toes. Nerve conduction and EMG studies were interpreted as suggestive of lumbar radiculopathy. The Veteran expressed the belief that he did not need medication. Another examination was performed in April 2011. The examiner again did not review the Veteran's records. The Veteran repeated his previous complaint concerning pain radiating into the leg. He further stated that he was experiencing muscle spasms in the left leg. Reflexes, strength and sensation were normal in the left lower extremity. Upon completion of the examination, the medical care provider confirmed the diagnosis of left leg sciatica but did not quantify the level of paralysis produced by the condition. A third examination was accomplished in May 2012. Per the examination report, the Veteran complained of pain, numbness, and the feeling of "electricity" running up and down his left leg. He indicated that sometimes the symptoms extending from the upper leg to the left foot. The Veteran's pain, paresthesias, and numbness were classified as moderate. Muscle atrophy was not found but sensation testing for light touch for the left leg, ankle, foot, and toes was classified as decreased. The examiner reported normal strength and knee reflexes in the left lower extremity. Left ankle reflexes were 1+ or hypoactive. Sensation was decreased in the left leg, foot and toes. The Veteran's gait was not found to be affected by the sciatica and when asked about any paralysis or incomplete paralysis in the sciatic nerve, the examiner wrote that there was no paralysis of any kind. The examiner further concluded that there was no functional limitation produced by the nerve disability and he found that the Veteran's ability to work at a sedentary job was not affected by the nerve disorder extending into the left leg. The Board would note that when the examiner originally conducted the May 2012 examination, he had not been given an opportunity to review the Veteran's claim file. Said file was forwarded to the medical doctor and the doctor completed an addendum, also in May 2012, which stated that a review of the files did not change any of his findings. Both the VA and private medical records show that over the years, the Veteran has sought treatment for low back pain and more recently, pain extending into the left (and right) leg. It appears that he has obtained his treatment medications through the VA and has irregularly complained of pain and discomfort caused by the disability. Nevertheless, the private examiners have never classified the severity of the Veteran's left leg paralysis as complete or incomplete. These records show that while the Veteran's symptoms have consisted largely of pain and intermittently diminished sensation; they have also included occasional reports of diminished or absent reflexes and a mild loss of muscle strength. His paresthesia has been characterized as moderate. This record indicates that the disability has intermittently approximated the moderate incomplete paralysis. Resolving reasonable doubt in his favor, the Board finds that the evidence supports a finding of moderate incomplete paralysis of the sciatic nerve with a 20 percent rating since the effective date of service connection. However, the Veteran's symptoms do not approximate a moderately severe incomplete paralysis. Reflexes have generally been present (with one reported exception) and muscle strength has either been intact or mildly diminished. Sensation has also been intact or diminished, but not absent and functionally, the Veteran's gait has remained intact. Accordingly, the evidence is against a rating based on more than moderate incomplete paralysis. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. As noted, the Veteran's disability has been described, at worst, as moderate on examination. This is supported by the objective findings, which reveal normal muscle tone and no muscle atrophy. Thus, a rating in excess of 20 percent is not warranted. Accordingly, the Board finds that a rating of 20 percent for the left lower extremity, but no higher, is warranted pursuant to the rating criteria. IV. Extraschedular Evaluation The Board has also considered whether the Veteran is entitled to an extraschedular evaluation for the disability discussed above. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. 38 C.F.R. § 3.321(a); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case includes such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. Id., See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The United States Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). With respect to the first prong of Thun, the evidence in this case does not show that the schedular evaluation for the service-connected sciatica of the left leg is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule show that the rating criteria reasonably describe the Veteran's disability level and symptomatology. His symptoms include occasional sensory deficits, diminished reflexes and strength and tingling and numbness. These manifestations are contemplated in the rating schedule. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2012) is not warranted. The Court has held that TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2008). In this case the Veteran is reportedly employed by VA. There is no evidence that this employment is marginal. Hence, referral for consideration of TDIU is not warranted. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (holding that entitlement to TDIU is not raised in the appeal of a rating unless there is evidence of unemployability). ORDER An initial 20 percent rating for sciatica of the left leg is granted, effective January 28, 2004. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs