Citation Nr: 1305540 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 09-07 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a higher initial rating for right sciatica, currently rated 10 percent. 2. Entitlement to a higher initial rating for a right leg surgery scar, currently rated 10 percent. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from September 2004 to January 2008. This appeal arises to the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that in pertinent part granted service connection for right lower extremity sciatica and assigned a 10 percent rating and granted service connection for a right lower leg surgical scar and assigned a 10 percent rating. The Veteran requested a hearing before a Veteran's Law Judge. The RO notified the Veteran that a hearing was scheduled for December 2012. The Veteran failed to report for the hearing, although the notification letter has not been returned by the United States Postal Service as undeliverable. The Veteran has not explained his failure to report nor has he requested rescheduling of the hearing. Therefore, the Board deems the hearing request to be withdrawn. See 38 C.F.R. § 20.702(d) (2012). In August 2012, the RO granted service connection for injury of Muscle Group XII, secondary to service-connected right leg fasciotomy, and assigned a 10 percent rating effective from May 7, 2012. The Veteran has not expressed disagreement with either the initial rating or its effective date. Therefore, the Board does not have jurisdiction to review these issues. In June 2012, a VA compensation examiner offered a favorable nexus opinion concerning the right knee as follows: The pt's current patellofemoral syndrome, right knee, is secondary to the pt's service connected fascial injury, and peroneal neuropathy, right lower extremity. These service connected impairments have caused an alteration of gait, which manifests as patellofemoral syndrome, right knee. This is referred to the RO as a claim for secondary service connection for right patellofemoral syndrome. The Veteran was examined and found to have normal feet and arches at entry in September 2004. In January 2008, only four days after discharge from active service, VA examined his feet and noted calcaneal heal enthesophytes (spurs) and bilateral pes planus. These disorders are referred to the RO for appropriate action. The United States Court of Appeals for Veterans Claims (Court) determined that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability rating based on individual unemployability (hereinafter referred to as TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). The Veteran has claimed that he cannot work due to inability to sit or to stand because of sciatica and a right leg scar. In March 2011, the RO denied entitlement to TDIU and the Veteran did not appeal that decision. Nevertheless, where the increased rating issue has been appealed, an appeal for TDIU should be inferred in accordance with the Rice decision. The Board has therefore added a TDIU claim to page 1. Further development is needed to properly adjudicate the TDIU claim. Entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A sciatica rating under Diagnostic Code 8520 and a Muscle Group XII rating under Diagnostic Code 5312 address weakness of the same muscles. 2. Prior to May 7, 2012, right lower extremity sciatica has been manifested by mild sensory deficits and mild right lower extremity muscle weakness. 3. Beginning on May 7, 2012, right lower extremity sciatica has been manifested by mild sensory deficits only. 4. A 30-cm linear fasciotomy scar of the right lower extremity is manifested by scar pain. CONCLUSIONS OF LAW 1. Prior to May 7, 2012, the criteria for a 20 percent initial rating for right lower extremity sciatica are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.55, 4.123, 4.124a, Diagnostic Code 8520 (2012). 2. Beginning on May 7, 2012, the criteria for an initial schedular rating greater than 10 percent for right lower extremity sciatica are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.55, 4.123, 4.124a, Diagnostic Code 8520 (2012). 3. The criteria for an initial schedular rating greater than 10 percent for right lower extremity fasciotomy scar are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran received adequate notice in January 2008, as the notice was attached to his original claim for benefits. Regarding the claim for a higher initial rating for a fasciotomy and surgery scar, the notice of disagreement as to the initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a). See 38 C.F.R. § 3.159 (b) (3) (2012). Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in a November 2008 VA notice letter. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private medical reports. The claimant was afforded VA medical examinations. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. If a Veteran or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then a total rating based on individual unemployability (TDIU) as a result of that disability must be considered. Rice v. Shinseki, 22 Vet. App. 447 (2009). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Sciatica Right lower extremity sciatica has been rated 10 percent under Diagnostic Code 8520. The Veteran's Service Treatment Reports reflect that this disability arose during active service when he felt something snap followed by intense lower right leg pain. Surgery (a fasciotomy) was necessary during active service to relieve and correct sciatic nerve compression in the right lower leg. The Veteran has undergone physical therapy to regain full use of the right leg since then. Only four days after discharge from active military service in January 2008, the Veteran underwent a VA compensation examination to determine the nature and severity of the right leg disability. The January 2008 VA compensation examination report reflects that nagging right leg pains continued and that there was right leg swelling (edema) and cyanosis. The examination report (a disability benefits questionnaire) notes a normal gait, but later in the report the examiner found an antalgic gait. With respect to muscle strength, again, early in the disability benefits questionnaire, the examiner noted full strength, but later in the report the examiner found slight weakness in the right lower extremity and decreased sensation in the right 4th and 5th toes. There was also painful motion of the first tarsometatarsal joints, bilaterally, but this was later attributed to tarsometatarsal-joint degenerative changes. In March 2010, the Veteran reported that sciatica precluded employment. He reported private treatment by J. Dang, M.D. In September 2012, the RO obtained private medical reports that include a March 2010 electromyography study of the right lower extremity. That report notes that nerve conductions were within normal limits, thus ruling-out neuropathy, myopathy, entrapment syndrome, or radiculopathy. However, in contrast to that statement, Dr. Garcia, a neurologist, then stated, "Based on my interview and physical examination, it is very obvious that this patient has a peroneal nerve neuritis with normal conduction velocities. I concur with conservative treatment..." A June 2010 private examination report from J. Dang, M.D. reflects that the Veteran had completed all 20 of his physical therapy sessions. A June 2011 VA orthopedic compensation examination report reflects the right ankle had recently been injured but had resolved and was normal. A June 2011 VA peripheral neuropathy compensation examination report reflects that ever since the in-service fasciotomy there was weakness in the right leg and numbness in the toes. Weight-bearing activities increased his pain. Paresthesias and dysesthesias were consistent with the L-5 sensory nerve distribution. The examiner, a certified physician's assistant, elicited sensory deficits in the right foot, but no motor weakness (although muscle weakness had already been mentioned). The diagnosis was, "Etiology is a cutaneous sensory nerve at the right lower extremity entrapped in scar tissue causing some residual numbness." In June 2012, the Veteran underwent a series of VA compensation examinations. An orthopedic examination report reflects that the Veteran reported decreased sensation in the right 4th and 5th toes and in the right lower leg (between knee and ankle) and decreased strength in the right knee. There was pain from 4 inches below the right patella to 4 inches above the ankle (which coincides with location of the fasciotomy scar). The examiner noted full right knee range of motion, but functional loss of the right leg due to excess fatigability, painful motion, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Soft tissues of the right knee were tender to palpation. Right knee power was graded as slightly less than full, that is, 4/5 strength. The examiner noted an antalgic gait wherein the Veteran leaned over to the left side. The examiner provided a list of activities precluded by the right lower extremity disability and found that the disability would impact the Veteran's ability to work. A June 2012 VA peripheral nerves compensation examination report reflects moderate intermittent right lower extremity pain and moderate right lower extremity numbness. VA out-patient treatment reports note relevant complaints at various times. For instance, a September 2009 report mentions right lateral calf pain near the site of prior surgery. Right lower extremity sciatica has been rated 10 percent disabling for the entire appeal period under Diagnostic Code 8520. Under that diagnostic code, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation requires moderate incomplete paralysis. A 40 percent evaluation requires moderately severe incomplete paralysis. A 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy. An 80 percent evaluation requires complete paralysis. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less-than-total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. 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. § 4.124(a), Diagnostic Code 8520 (2012). Neuritis, cranial or peripheral, 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. Absent organic changes, the maximum rating will be moderate, unless sciatic nerve involvement is shown. 38 C.F.R. § 4.123 (2012). The examination reports discussed above reflect that right sciatica has been manifested throughout the appeal period by mild right foot sensory deficits and slight motor weakness. The January 2008 VA compensation examiner found slight weakness in the right lower extremity and decreased sensation in the right 4th and 5th toes. In March 2010, a private neurologist found peroneal nerve neuritis. In June 2011, a VA examiner found that pain increased with weight-bearing and found right leg muscle weakness and foot numbness. As noted in the Introduction, in August 2012, the RO granted secondary service connection for injury to Muscle Group XII and the Veteran has not disagreed with the initial rating or effective date (although the appeal period for the initial rating has not yet expired). Thus, a right lower extremity muscle injury has been separately rated and that rating is not before the Board. Nevertheless, where service connection for a right lower extremity muscle injury has been granted, there exists a special caveat on rating any peripheral nerve paralysis of the right lower extremity. 38 C.F.R. § 4.55(a) (2012) contains the caveat that a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. Because the sciatic nerve is a peripheral nerve affecting the same functions as Muscle Group XII, and because the RO has granted a muscle injury rating for the same body part for the latter portion of the appeal period, the Board must still consider any right lower extremity muscle weakness in the initial rating for sciatica for that portion of the appeal period prior to the effective date of the muscle injury rating, that is, prior to May 7, 2012. Therefore, the Board must create two rating periods for right lower extremity sciatica. For the earlier rating period, that is prior to May 7, 2012, right lower extremity sciatica has been manifested by mild sensory and motor deficits. Because both sensory and motor deficits are shown, and because there is no definitive criterion for distinguishing a mild incomplete paralysis from a moderate incomplete paralysis, this level of disability more nearly approximates a moderate incomplete paralysis. Any reasonable doubt on the matter is resolved in favor of the Veteran. Thus, for the portion of the appeal period prior to May 7, 2012, the criteria for a 20 percent rating for right lower extremity sciatica are more nearly approximated and a 20 percent schedular rating must therefore be granted. For the latter rating period, that is beginning on May 7, 2012, right lower extremity sciatica has been manifested by mild sensory deficits only (the motor deficits are now separately rated under Diagnostic Code 5312, Injury to Muscle Group XII). Because only sensory deficits are shown, this level of disability more nearly approximates a mild incomplete paralysis. Thus, for the portion of the appeal period beginning on May 7, 2012, the criteria for a 10 percent rating for right lower extremity sciatica are more nearly approximated. The appeal for an initial rating greater than 10 percent must therefore be denied. Initial Scar Rating The RO has rated a right lower extremity fasciotomy scar 10 percent disabling under Diagnostic Code 7804. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (1) for that code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) for that code provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under diagnostic code 7804, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). In January 2008, a VA examiner described two scars of the left lower extremity; however, these do not appear to be service-connected scars. The examiner noted that there is a surgical scar below the right patella that was extremely painful to touch. This is apparently the scar in question in this appeal. A September 2009 VA out-patient treatment report mentions pain in the right lateral calf near the scar site. A July 2011 VA compensation examiner opined that the fasciotomy scar had entrapped a small superficial sensory nerve, which would cause some mild anesthesia in a small area around the scar. The examiner felt that all else was the result of symptom exaggeration. A June 2012 VA peripheral nerves compensation examination report reflects that the physician measured the right lower extremity surgery scar and found it to be linear and 30-cm in length. It began 4-inches below the knee and ended 4-inches above the ankle. There was no other complication associated with the scar and it did not interfere with working. The examiner noted that the scar was not painful; however, elsewhere in the report the physician stated, "Right lateral leg pain from 4-inches below patella to 4-inches above ankle reported by pt." From these facts, the Board is persuaded that the fasciotomy scar of the right lower extremity is manifested by scar pain alone. Comparing this manifestation with the criteria of the rating schedule, the Board finds that the criteria for a schedular rating greater than 10 percent under Diagnostic Code7804 are not more nearly approximated. This is because there is only one scar and its only symptom is pain. The above-mentioned medical opinions are persuasive, as they are based on accurate facts and are supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The Veteran is competent to report scar pain and his reports of scar pain have been accorded some weight in the matter. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional. In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, 21 Vet. App. at 510. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim for an initial schedular disability rating greater than 10 percent for a fasciotomy scar of the right lower extremity is therefore denied. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for her service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (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. Id, at 1368. In this case the Thun test is not met because the established rating criteria are adequate to describe the service-connected disabilities. In the absence of such evidence, the Board is not required to request further development for the procedural actions outlined in 38 C.F.R. § 3.321(b); however, entitlement to TDIU under 4.16 (b) will be addressed in the REMAND portion of the decision. ORDER Prior to May 7, 2012, an initial 20 percent schedular rating for right lower extremity sciatica is granted, subject to the laws and regulations governing payment of monetary benefits. Beginning on May 7, 2012, in initial schedular rating greater than 10 percent for right lower extremity sciatica is denied. An initial schedular rating greater than 10 percent for a right lower extremity fasciotomy scar is denied. REMAND The TDIU claim has not been developed for Board review and is remanded in accordance with the Court's holding in Rice, 22 Vet. App. at 453-455. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In this case, these percentage standards are not met. Overall, the Veteran has a combined service-connected disability rating of 40 percent. Nevertheless, VA must still consider TDIU on an extra-schedular basis. Under 38 C.F.R. § 38 C.F.R. § 4.16 (b), where the Veteran's service-connected disabilities fail to meet the percentage standards set forth above, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The rating board will include a full statement as to the Veteran's service-connected disabilities, his employment history, educational and vocational attainment, and all other factors having a bearing on the issue. Accordingly, this case is remanded to the AMC for the following action: 1. The AMC should arrange for an appropriate examination of the Veteran to determine whether service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. The examiner is asked to addresses whether it is at least as likely as not (50 percent or greater possibility) that all service-connected disabilities would preclude securing and following a substantially gainful occupation. The physician should set forth a rationale for any conclusion in a legible report. 2. Following development and adjudication of the TDIU claim, if the benefit is not granted, the AMC should submit it to the Director, Compensation and Pension Service, for extra-schedular consideration in accordance with 38 C.F.R. § 4.16(b). 3. Following the above, if the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Failure to report for a scheduled examination, without good cause, may result in adverse consequences on the claim for benefits. 38 C.F.R. § 3.655(b) (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board, or by the Court, for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ G. A. Wasik Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs