Citation Nr: 1312073 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 05-00 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a rating in excess of 10 percent for right lower extremity sciatica with L5 radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from October 1987 to November 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was last remanded by the Board in June 2012. A review of the record shows that the RO has complied with all remand instructions by associating an August 2010 VA electromyography (EMG) report with the Veteran's claims file and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's service-connected right lower extremity sciatica with L5 radiculopathy is productive of a disability picture which more nearly approximates moderate incomplete paralysis of the sciatic nerve. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation of 20 percent (but no higher) for the Veteran's service-connected right lower extremity sciatica with L5 radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.124a and Code 8520 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in March 2006 and December 2006. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained VA and private treatment records, reviewed the Veteran's Virtual VA file, obtained Social Security Administration (SSA) records, assisted the Veteran in obtaining evidence, and afforded the Veteran VA examinations (in January 2007 and November 2011). In a statement received in January 2013, the Veteran's representative noted that there was no additional evidence regarding the appeal, and requested the claim be forwarded to the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations The present appeal involves the Veteran's claim that the severity of his service-connected right lower extremity sciatica with L5 radiculopathy warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected right lower extremity sciatica with L5 radiculopathy has been rated by the RO under the provisions of Diagnostic Code 8520. Under this regulatory provision, a rating of 10 percent is warranted for mild imcomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. A maximum rating of 80 percent is warranted for complete paralysis of the sciatic nerve; foot dangles and drops, no active movement possible of muscle below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Factual Background A January 2006 physical therapy initial consult report shows that the Veteran lifted weights three to four times a week with stretching. He started jogging 2 to 3 weeks ago for approximately 1 to 2 miles in hills. He strapped his right knee before a run to prevent pain. Bilateral lower extremities showed strength of 5/5. Sensory was present with light touch. It was noted that the Veteran was highly mobile playing football and basketball, jogging, and weightlifting. It was further noted that he would benefit from adding more stretching to his program. An April 2006 VA treatment record shows that the Veteran complained of three to five episodes of bilateral lower extremity shooting pain which would awaken him from sleep and lasted for a short duration. Upon physical examination, strength was 5/5 in the lower extremities. There was negative straight leg raise and Patrick's test. There was hamstring tightness to - 20 degrees popliteal angle, normal hip range of motion and negative piriformis stretch testing. A September 2006 VA treatment record shows that he played basketball, did weight training, and ran. He denied any tenderness to palpation in the right ankle. He was able to dorsiflex his right ankle to 5 degrees. Plantar flexion was to 40 degree with knee bent. Light touch sensation was intact. He was able to flex his right knee to 120 degrees and fully extend it. On VA examination in January 2007, the Veteran complained of pain that traveled down to his lower extremities. He described the pain as aching, sticking, squeezing, cramping, burning and sharp. On a scale of 0 to 10 (with 10 being the worst pain) the Veteran rated his pain an 8. The pain was caused by physical activity or stress, and was relieved by Tylenol. He functioned without medication most of the time. Treatments consisted of physical therapy, transcutaneous electrical nerve stimulation (TENS) unit, magnetic patch and chiropractic treatment. He had difficulty with prolonged standing and walking. Neurological examination revealed good tone bilaterally with good active motion. There was no atrophy or fasciculation. Strength was 5/5 throughout without focal motor deficits in the lower extremities. Sensory was intact to light touch in the lower extremities. Reflexes were symmetric in the lower extremities. A September 2008 private treatment record from Daniel W. Prentice, D.C., C.S.C.S. shows that lumbar spine magnetic resonance imaging (MRI), plan view radiographs and electrodiagnostic studies appeared to be unremarkable as far as radiculopathies and/or acute fracture. The Veteran denied weakness in the lower extremities and stated that his balance was adequate. Upon physical examination, straight leg raise performed seated and supine was unremarkable for radiculopathy, but there was hypercontracture of the bilateral hamstrings to approximately 80 degrees. A November 2009 VA treatment record shows pain into the right lateral/posterior thigh, but not past the knee. Lower extremity/hips examination shows range of motion grossly intact. Muscle strength was 5/5. Straight-leg raise was negative bilaterally. There were no flexion contractures on examination bilaterally and no muscle atrophy. Sensation was symmetric and intact bilaterally. Reflexes were +2 in the patellar region and Achilles. In August 2010, the Veteran was evaluated for right lumbar radiculopathy. The Veteran experienced pain in the right buttock/hip/thigh area with occasional pain into his calf. It was better with his gym routine and stretching, and was aggravated with prolonged sitting and carrying a heavy backpack. Strength in hip flexion and abduction, knee extension and flexion, ankle dorsiflexion and plantar flexion, and great toe extension were 5. Light touch sensation was intact and there was symmetric L3-S1 dermatomes. Deep tendon reflexes showed 2+ patellar and 1+ Achilles bilaterally. There was negative straight leg raise, positive on the right with slump maneuver. It was noted that electrodiagnostic evidence is most consistent with moderate right subacute L5 radiculopathy. Now of record as a result of the June 2012 remand is a copy of an August 2010 VA treatment record setting forth the results of electromyography. The test results were interpreted as showing electrodiagnostic evidence most consistent with moderate right subacute L5 radiculopathy. A March 2011 VA examination report is to the effect that the Veteran volunteered one to two days per month for Habitat for Humanity doing work on housing projects such as painting, caulking, cutting wood, and climbing ladders while carrying wood. He indicated "sciatic pain" that traveled down his legs at times. The Veteran stated that he stopped playing basketball in 2007. He was able to walk three blocks, sit for about 30 minutes, stand for 15 minutes and drive for 15 minutes. The Veteran was able to walk more than 50 feet per the examiner's request. He was able to tiptoe stand and walk a few steps without difficulty. The same occurred with heel stand and walk. Neurologic examination of the lower extremities showed knee and ankle reflexes were 1- and equal bilaterally. Muscle strength was grade 5 bilaterally. There was no numbness to light touch over the thighs, legs or feet. In a seated position, straight leg rising was negative at 65 degrees with no sciatica at the time of the examination. In the end, the VA examiner noted that the Veteran had right subacute L5 sciatica documented by the August 2010 EMG study, but did not have sciatica on straight leg raising test the day of examination. He noted no weakness or numbness in the L5 or S1 distribution in his lower extremity that day. A March 2011 treatment record from John M. Raymond, D.C. shows complaints of pain that radiated into the right hip that occurred between three fourths and all of the time when awake. He tolerated it, but it did cause some diminution in his capacity to carry out daily activities. It was aggravated by any movement. On a scale of 0 to 10 (with 10 being the worst pain), the Veteran rated his pain an 8. Upon physical examination, there was no loss of sensibility, abnormal sensation or pain in any of the lower extremity dermatomes that were tested that day. There was also no evidence of muscle atrophy found in the lower extremities. A September 2011 treatment record from D. Rank Baty, D.C. shows complaints of right hip pain. Lesegue testing showed a positive minor sign. A November 2011 shows right leg pain. Objective findings showed palpatory tenderness in the right leg. Lasegue in the right showed a positive minor sign. October 2011, January 2012 and March 2012 VA treatment records show S1 radiculopathy with pain in the buttock that extends to the right ankle. Analysis As noted earlier, the Veteran's sciatica is rated under Code 8520, and the criteria under that regulation are set forth in terms of mild, moderate, moderately severe and severe. The evidence of record shows that the Veteran has had problems with the sciatica over the years. However, evaluation is made somewhat difficult because the level of severity has varied to some degree. Certain studies have been interpreted as unremarkable as far as radiculopathies, although the Veteran has regularly complained of pain into the right lower extremity. The Veteran is currently rated 10 percent based on a finding of a disability picture most consistent with mild incomplete paralysis of the sciatic nerve. A great deal of the evidence appears to support such a rating. However, the August 2010 EMG report shows that the examiner at that time found the special test results to be most consistent with moderate radiculopathy. Affording the benefit of the doubt to the Veteran, the Board finds that a 20 percent rating is warranted for mild sciatica under Code 8520. However, the preponderance of the evidence is against a rating in excess of 20 percent. The evidence does not persuasively show that the Veteran's sciatica is moderately severe or severe. The Board believes that the August 2010 report assessment which shows moderate sciatica should be afforded considerable weight since it was based on specialized medical testing. There is also no suggestion of symptoms such as foot dangling or dropping. There is no showing of any significant diminishment of strength, and sensory was always intact. There was no atrophy found. The Veteran appears to be able to walk, sit, stand and drive for limited periods and carry on daily activities. The Board is simply unable to view the disability picture as being more than moderate in severity. Extraschedular Consideration In general, the schedular 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. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to a 20 percent rating (but no higher) for right lower extremity sciatica with L5 radiculopathy is warranted. The appeal is granted to this extent, subject to laws and regulations governing payment of VA monetary benefits. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs