Citation Nr: 1327617 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-43 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for right sciatic neuropathy, evaluated as 10 percent disabling prior to September 21, 2012, and as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: J. J. Bunten, Attorney WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran had active duty for training from August 15, 1976 to February 2, 1977; August 10 to August 23, 1980; May 17 to May 30, 1981; June 5 to June 19, 1982; and March 5 to March 19, 1983. This case initially came before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This case was previously before the Board in July 2012, at which time it was remanded for additional development. Subsequent to that remand, the RO, in a rating decision of October 2012, awarded a 20 percent evaluation for the Veteran's service-connected right sciatic neuropathy, effective from September 21, 2012, the date of a VA examination. The case is now, once more, before the Board for appellate review. Upon review of this case, it would appear that, in addition to the issue currently before the Board, the Veteran seeks entitlement to service connection for left sciatic neuropathy. Inasmuch as that issue has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for appropriate development. FINDINGS OF FACT 1. Prior to September 21, 2012, the Veteran's service-connected right sciatic neuropathy was characterized by no more than mild incomplete paralysis of the sciatic nerve. 2. The Veteran's service-connected right sciatic neuropathy is currently productive of no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for service-connected right sciatic neuropathy prior to September 21, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 4.124a and Part 4, Diagnostic Code 8520 (2012). 2. The criteria for a current evaluation in excess of 20 percent for service-connected right sciatic neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 4.124a and Part 4, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of her application. VA notified the Veteran in September 2008 of the information and evidence needed to substantiate and complete her claim, to include notice of what part of that evidence was to be provided by her, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate her claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Moreover, during the April 2012 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments in compliance with 38 C.F.R. § 3.103(c)(2). Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes her multiple contentions, including those offered during the course of a videoconference hearing before the undersigned Veterans Law Judge in April 2012, as well as VA (including Virtual VA) and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Rating The Veteran in this case seeks an increased rating for service-connected right sciatic neuropathy. In pertinent part, it is contended that manifestations of that disability are more severe than currently evaluated, and productive of a greater degree of impairment than is reflected by the respective 10 percent and 20 percent evaluations now assigned. In that regard, disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). While the Board must consider the Veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including 38 C.F.R. § 4.2 [see Schafrath v. Derwinski, 1 Vet. App. 589 (1991)], the degree of impairment resulting from a service-connected disability is a factual determination, with the Board's primary focus in such cases being upon the current severity of the service- connected disability. See Francisco v. Brown, 7 Vet. App. 55, 57-588 (1994). The Board is also aware that a claimant may experience multiple degrees of disability during an appeal period, and that staged ratings may be in order. The case has been reviewed with that in mind. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings are to be based as far as practicable upon the average impairment of earning capacity, with the additional proviso that the Secretary shall, from time to time, readjust the schedular ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321 (2012), an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, with such related factors as a marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). In that regard, at the time of a VA outpatient neurosurgical consultation in February 2008, there was noted the presence of some slight spasm in the Veteran's back, though with motor, sensory, reflex, and sphincter functions described as good. Significantly, during the course of VA outpatient treatment in July 2008, motor function was described as 5/5 with normal tone. Sensation was intact to light touch and pinprick, and reflexes were 1/2+ for all areas evaluated. On VA peripheral nerve examination in September 2008, there was no evidence of any atrophy of the Veteran's muscles. Her gait was described as within normal limits, and "not antalgic," and palpation of the back muscles failed to reveal any tension or muscle spasm. Noted at the time of examination was that the Veteran was wearing her back brace. Neurological evaluation showed sensitivity to light touch and appropriate response in both legs. Further noted was that the Veteran was sensitive to the coolness of the instrument in her thighs, though her lower legs could not sense that coolness. According to the examiner, the Veteran was not sensitive to vibratory sensations in either ankle. Nor was she responsive to the 10 gram monofilament fiber in both of her lower legs. Measurement of both the left and right thighs and calves were within normal limits, though deep tendon reflexes were absent in the patellar and Achilles. Muscle strength was 4.5/5 in the thighs and lower legs, and while the Veteran was able to stand on her toes and heels, she was unable to walk on her toes or heels due to pain. The pertinent clinical impression was of polyneuritis affecting the bilateral lower extremities. On subsequent VA peripheral nerve examination in October 2009, it was noted that the Veteran's claims folder and medical records were available, and had been reviewed. When questioned, the Veteran complained of significant discomfort beginning in her low back area, and proceeding along the back of both legs which was slightly worse on the right than the left. On physical examination, the Veteran ambulated independently without the use of assistive devices. The Veteran's gait was within normal limits, and there was no significant pain with palpation of the lumbar spine. Nor was there any evidence of paraspinal muscle spasm. Both legs displayed good muscle strength, though there was decreased sensation to vibratory sensation in the great toe areas and in the ankles. Also noted was decreased sensation to light touch as measured by the 10 gram monofilament in both feet. At the time of examination, the Veteran displayed 1+ knee jerks and absent Achilles tendon reflexes. However, she was able to both stand and press down with her toes. While the Veteran had a bit more difficulty standing on her heels secondary to pain, at the time of examination, there was no evidence of any footdrop. At the time of a subsequent VA neurosurgical consultation in February 2010, sensation was intact to touch in both legs. Motor strength was described as 5/5, and reflexes at the knees and ankles were 2 bilaterally. As of the time of a recent VA peripheral nerve examination on September 21, 2012, there was noted the presence of right sciatic neuropathy. When questioned, the Veteran reported severe intermittent pain in her right lower extremity, in conjunction with moderate paresthesia and numbness. Muscle strength was normal for the right knee, but slightly decreased at the ankle. At the time of examination, the examiner described no muscle atrophy, though deep tendon reflexes were absent at the knee and ankle. Sensation was described as decreased in the right lower leg/ankle and at the foot/toes. The Veteran's gait was within normal limits, though according to the examiner, she exhibited smooth, shiny skin with absent hair growth in the right lower extremity, attributable to the Veteran's neuropathy. Significantly, in the opinion of the examiner, the Veteran suffered from moderate incomplete paralysis of her right sciatic nerve. While she was able to toe walk, she lost her balance when trying to heel walk. According to the examiner, in reaching his conclusions regarding the Veteran's right sciatic neuropathy, he had reviewed not only her VA claims folder, but also electronic VA records. Pursuant to applicable law and regulation, the 10 percent evaluation in effect for the Veteran's service-connected right sciatic neuropathy prior to September 21, 2012 contemplates the presence of mild incomplete paralysis of the sciatic nerve, with the term "incomplete paralysis" indicating a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion, or to partial regeneration. When the involvement is wholly sensory, the rating is to be for the mild, or at most, moderate degree. 38 C.F.R. § 4.124a and Part 4, Diagnostic Code 8520 (2012). In contrast, a 20 percent evaluation requires demonstrated of moderate incomplete paralysis of the sciatic nerve, with a 40 percent evaluation requiring moderately severe incomplete paralysis of that same nerve. 38 C.F.R. § 4.124a and Part 4, Diagnostic Code 8520 (2012). In that regard, and in the case at hand, it is clear that, prior to September 21, 2012, no more than a 10 percent evaluation was warranted for the Veteran's service-connected right sciatic neuropathy. More specifically, at no time during that period did the Veteran exhibit symptomatology consistent with a 20 percent evaluation, to wit, moderate incomplete paralysis of the sciatic nerve. Significantly, and as noted above, on VA peripheral nerve examination in September 2008, there was no evidence of any muscle atrophy, and the Veteran's gait was within normal limits. Palpation of her back muscles revealed no tension or muscle spasm, and she responded appropriately to light touch. On subsequent VA peripheral nerve examination in October 2009, the Veteran's gait was once again described as within normal limits, and there was no evidence of any significant pain with palpation of the lumbar spine. Nor was there any evidence of paraspinal muscle spasm. While there was some decreased sensation to vibration in the great toe areas and in both ankles, both legs displayed good muscle strength, characterized by 5/5 strength in both thighs, as well as in both calves. Not until the time of the aforementioned VA peripheral nerve examination on September 21, 2012 had the Veteran's right lower extremity symptomatology increased to the point where a 20 percent evaluation was in order. Significantly, and as noted above, at the time of that examination, muscle strength was slightly decreased in the right ankle. Though there was once again no evidence of any muscle atrophy, deep tendon reflexes were absent at the knee and ankle, and sensation was decreased in the right lower leg/ankle, and at the foot/toes. Significantly, according to the examiner, as of the time of that examination, the Veteran suffered from moderate incomplete paralysis of her right sciatic nerve. Such findings are commensurate with a 20 percent evaluation, but not more, for the Veteran's service-connected right sciatic neuropathy effective the day of the aforementioned VA peripheral nerve examination, which is to say, September 21, 2012. As regards the Veteran's potential entitlement to a greater than 20 percent evaluation for service-connected right sciatic neuropathy, the Board notes that, at no time during the course of the current appeal has the Veteran been found to suffer from moderately severe incomplete paralysis of the sciatic nerve. Rather, and as noted above, the Veteran has most recently been described as suffering only from moderate incomplete paralysis of that nerve. Under the circumstances, the 10 percent evaluation in effect for the Veteran's service-connected right sciatic neuropathy prior to September 21, 2012 is appropriate, and an increased rating is not warranted. Similarly appropriate is the current 20 percent evaluation in effect from September 21, 2012 for that same disability. Accordingly, the Veteran's claim for an increased evaluation must be denied. Moreover, based on a review of the entire evidence of record, the Board is of the opinion that the disability picture presented by the Veteran's service-connected right sciatic neuropathy is appropriately contemplated by the Rating Schedule, and that referral for consideration of an extraschedular evaluation is, therefore, not warranted. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). ORDER Entitlement to an evaluation in excess of 10 percent for right sciatic neuropathy prior to September 21, 2012 is denied. Entitlement to a current evaluation in excess of 20 percent for right sciatic neuropathy is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs