Citation Nr: 1318347 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-06 375 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a higher initial (compensable) rating for sciatica. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from June 1979 to June 1983 and from January 1991 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board previously remanded this appeal in September 2012. The development directed by the remand included obtaining outstanding VA treatment records and affording the Veteran a VA examination. The Board is satisfied that there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's sciatica is manifested by complaints of burning pain; the weight of the evidence does not demonstrate findings of decreased sensation, decreased motor function or neurological abnormalities. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no more, for sciatica have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by VCAA, 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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 accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A September 2008 letter advised the Veteran of the information and evidence required to substantiate the claim for service connection for sciatica. The September 2008 letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. This letter also informed the Veteran of how disability ratings and effective dates are determined. The Veteran's appeal for a higher initial rating for sciatica stems from his disagreement with the initial rating assigned in the March 2009 rating decision which granted service connection. Because the appeal stems from the Veteran's disagreement with the initial rating following the grant of service connection for sciatica, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of 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. In this case, the record indicates that the RO obtained all information relevant to the Veteran's claim. The record includes service treatment records and post-service private and VA treatment records. The Veteran has not identified any outstanding evidence that is pertinent to these claims. Moreover, the Veteran underwent adequate and probative VA medical examinations. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions and findings obtained in regard to the issue of a higher initial rating for sciatica are adequate. The examiners reviewed the Veteran's medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained relevant records, and has provided adequate examinations to the Veteran. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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, 16 Vet. App. 183 (2002). II. Analysis of Claim A. Disability Ratings - Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran has challenged the initial disability rating assigned to the service-connected sciatica by seeking appellate review. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as a "staged" rating. Id. at 126. The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. B. Initial Rating for Sciatica The Veteran asserts that a higher initial rating is warranted for service-connected sciatica. He asserts that he has a burning sensation from the buttocks down his left leg. He asserts that his sciatica is aggravated by sitting, standing and moving. A March 2009 rating decision rating decision granted service connection for sciatica and assigned a non-compensable (zero percent) evaluation. Sciatica is rated according to Diagnostic Code 8520, which pertains to paralysis of the sciatic nerve. A 10 percent rating is assignable for mild incomplete paralysis. A 20 percent rating is assignable for moderate incomplete paralysis. A 40 percent rating is assignable for moderately severe incomplete paralysis. A 60 percent rating is assignable for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is assignable for complete paralysis of the sciatic nerve, in which the foot dangles and drops and there is no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 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, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve 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 . A private treatment record dated in June 2003 reflects that the Veteran reported a complaint of burning in the left leg in an L5 distribution traveling laterally into the ankle. He reported that he had it for over a year and that he noticed the onset after a long car drive. He reported that he continued to have difficulty with prolonged sitting. He reported that he did not have sharp pain or numbness and tingling associated with his symptoms. Neurological examination showed that strength was 5/5 and equal. Deep tendon reflexes were 2+ at the knees and ankles. Sensation was intact. A private treatment record dated in October 2006 reflects that the Veteran had an abnormal electrodiagnostic study, which showed a subacute L4-5 radiculopathy. A private treatment record dated in December 2006 reflects that the Veteran reported burning sensation in the bilateral buttocks radiating to his ankles in an S1 distribution, with the left being more symptomatic than the right. Motor testing revealed normal bulk and tone. Strength was 5/5 in the lower extremities. Sensation was intact to light touch in the lower extremities. Deep tendon reflexes were 2+ at the Achilles and patellae. A physician diagnosed left S1 radiculopathy. A private treatment record dated in April 2007 reflects that the Veteran was seen for follow up of his left L5 nerve root block. The Veteran reported that the injection resolved medial left leg pain but not the lateral L5 distributed leg pain, which bothered him frequently. Motor testing revealed normal bulk and tone. Strength in the lower extremities was 5/5 and symmetric. Sensation was intact throughout. A private treatment record dated in July 2007 shows that the Veteran reported pain in the left low back and buttocks and left thigh. Examination showed normal deep tendon reflexes on the right and hyperreflexes on the left. Strength and sensory examination were normal bilaterally. A physician assessed L-5 radiculopathy. In October 2008, the Veteran had a VA general examination. The Veteran reported sciatic pain secondary to back pain with some burning sensation along the lower back and leg. The Veteran reported that he had had jobs in the past where he could walk up to one hour per day and use physical therapy and elliptical equipment. He stated that this was helpful in preventing low back pain. The Veteran reported that he had more flare-ups and was sitting more. He could sit for 10 to 15 minutes but then had to stand due to pain. On physical examination, the VA examiner noted that deep tendon reflexes were 2+ symmetrical brachial and patellar. The VA examiner referred to an orthopedic examination for further evaluation. A report of a VA orthopedic examination in November 2008 reflects that the Veteran reported pain in the left buttock in the form of sciatica going down the posterior leg, initially all the way down to the heel. The pain was described as a constant burning pain. The Veteran reported that the discomfort was lessened with Neurontin. The Veteran reported that he was prescribed bedrest for sciatica two or three times since 2002. On physical examination, the VA examiner indicated that the Veteran appeared normal with normal muscle mass. He stood on heels and toes and walked well on heels and toes. His reflexes were physiologic, and there were no pathologic reflexes. The VA examiner's impression was chronic right low back pain diagnosed as sciatica and irritability of the sciatic nerve at the lumbosacral spine. In a statement dated in February 2010, the Veteran reported that he has constant pain on the left side from the buttocks to the knee. The Veteran stated that his only relief is to stand and move around when possible. A VA treatment record dated in January 2010 noted that deep tendon reflexes were bilaterally symmetric. Upon VA examination in September 2011, the Veteran reported pain in the left buttock and the left posterior thigh. The Veteran reported that the pain did not go beyond the knee. There were no significant symptoms of the left lower extremity. There was no numbness, pain or parasthesias below the knee. There were no bowel or bladder symptoms. On examination, the VA examiner noted constant moderate pain of the left lower extremity. The VA examiner indicated that there no parasthesias or dysthesias and no numbness of the left lower extremity. The examiner indicated that the Veteran did not have muscle atrophy. Knee ankle reflexes were normal. Sensory examination of the left thigh and left leg was normal. The VA examiner indicated that the sciatic nerve was normal. The VA examiner noted that an EMG study of the left lower extremity in 2010 was abnormal. The VA examiner noted that the primary left thigh symptom was pain radiating from the back into the left thigh. The VA examiner noted a history of left sciatica but no motor or sensory loss of the left leg. The examiner noted that the Veteran did not have left leg symptoms below the knee- only pain in the left buttock and posterior thigh but no motor and neurological symptoms below the knee. A VA treatment record dated in October 2011 reflects a principal diagnosis of left L5 radiculopathy. The Veteran described a burning sensation from the left buttocks to the posterior leg down to the knee. The Veteran underwent a left L4-5 microforaminotomy. The report indicated that post-op, the Veteran's left leg pain was improved. A VA treatment report dated in February 2012 reflects that the Veteran reported experiencing no improvement from surgery, as he continued to have pain down the back of his leg. Upon examination, a VA physician noted full strength and normal sensation of the left leg. The Veteran had a VA examination in January 2013. The VA examiner reviewed the claims file and discussed the Veteran's treatment history. The Veteran reported that back surgery in October 2011 did not change the symptoms in his back or left thigh to a degree that he could notice. He reported that Gabepentin did not help, so he stopped it. The Veteran reported daily ongoing burning and tingling pain in his posterior lateral left thigh. The Veteran reported that his left thigh pain was worse with sitting over 30 minutes and was worse with standing and walking. The VA examiner noted that the Veteran walked slowly because of pain in his back, but there was no specific gait abnormality. Physical examination showed straight leg raising to 90 degrees without pain. Reflexes were equal in the bilateral knees and ankles. The Veteran had intact 10 gm monofilament sensation to toes, feet, ankles, legs, thighs and pelvis bilaterally. The Veteran had intact motor strength in both lower extremities. The VA examiner diagnosed degenerative disc disease of the lumbar spine with left L4-5 microforaminotomy in October 2011. The VA examiner noted that the Veteran had postoperative pain in his low back and posterior lateral left thigh. He had no abnormality of motor, sensory or reflexes. The VA examiner noted that the Veteran had no current EMG findings of motor or sensory compromise in his left lower thigh or extremities. The VA examiner noted that the Veteran had successful back surgery in October 2011, as the pressure on his nerves and neurological findings prior to surgery had resolved. The VA examiner noted that the Veteran continued to have postoperative discomfort, without evidence of motor or sensory neurological compromise. The VA examiner noted that the most recent EMG showed evidence of "left old lumbosacral radiculopathy affecting L5 v. S1 without evidence of acute or ongoing denervation. The VA examiner opined that the Veteran has no paralysis of the sciatic nerve, L5 or S1, at this time, no motor loss and no sensory loss. The VA examiner indicated that the Veteran continued to have discomfort and parasthesia in the left thigh, as likely as not a consequence of his prior lumbar disc problem with sciatica, which existed prior to his surgery. In this case, after a review of the evidence, lay and medical, the Board concludes that the criteria for a 10 percent rating, but no more, for sciatica have been met. The evidence establishes that sciatica is manifested by pain radiating from the left buttock to the left leg. The Board finds that the Veteran has credibly and consistently reported burning pain from the low back radiating to the buttocks and left leg during the entire appeal period. While the September 2011 VA examiner noted constant moderate pain of the left lower extremity, the examiner also indicated that the sciatic nerve was normal and also noted that there were no parathesias or dysthesias and no numbness of the left lower extremity. The Board concludes that the weight of the evidence supports a finding of mild incomplete paralysis of the sciatic nerve. The Board finds that a higher 20 percent evaluation is not warranted under Diagnostic Code 8620 for sciatica for any period because the neurological symptoms are not shown to be moderate in degree at any time. See 38 C.F.R. § 4.124a. While the Veteran reported the sensory symptom of burning pain in the left lower extremity during the VA examinations and treatment records, the weight of the lay and medical evidence demonstrates that he has had normal motor and reflex examinations. The VA and private medical records during the appeal period reflect normal strength, sensation and motor testing. The Board notes that, while the Veteran did have an abnormal electrodiagnostic study in October 2006, that EMG study did not show findings of strength, sensation or motor testing. The September 2011 VA examiner noted a history of left sciatica but no motor or sensory loss of the left leg. The January 2013 VA examiner noted that the Veteran had no current EMG findings of motor or sensory compromise in his left lower thigh or extremities. The VA examiner opined that the Veteran has no paralysis of the sciatic nerve, L5 or S1, at this time, no motor loss and no sensory loss. At the time of the September 2011 VA examination, the examiner indicated that the sciatic nerve was normal and while pain was characterized as moderate, it was further indicated that there were no parathesias or dysthesias and no numbness of the left lower extremity. The Board finds that a higher 20 percent evaluation is not warranted because weight of the evidence demonstrates that the Veteran's left lower extremity neurological symptoms are shown to be solely sensory and mild in degree. For these reasons, the Board finds that the weight of the evidence supports an initial 10 percent rating, but not more for sciatica. III. Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Board finds that the schedular criteria contemplate the Veteran's sciatica. The symptoms of sciatica are shown to be burning pain, normal strength, sensation and motor testing. The criteria contemplate whether there is incomplete paralysis and which is mild, moderate, moderately severe or severe, and the criteria consider whether complete paralysis of the sciatic nerve is present. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability at issue, but the lay and medical evidence reflects that those manifestations are not present in this case. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected sciatica. Because the schedular rating criteria are adequate to rate the Veteran's sciatica, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). ORDER An initial 10 percent rating for sciatica is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs