Citation Nr: 1328961	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  10-06 006	)	DATE
	)
	)

Received from the Department of Veterans Affairs Regional Office in 
Huntington, West Virginia



THE ISSUE

Entitlement to an increased rating for status post internal fixation of the left leg tibia and fibula with neuropathy, to include left ankle stiffness and numbness, currently rated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel



INTRODUCTION

The Veteran served on active duty for more than 26 years prior to his retirement in July 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  Jurisdiction rests with the RO in Huntington, West Virginia, from which the appeal was certified.

In his January 2010 VA Form 9, the Veteran requested a hearing before the Board in conjunction with his appeal.  However, in July 2011 he withdrew that request and asked that his appeal be forwarded to the Board.  

The Board's September 2011 remand of the Veteran's appeal directed that a VA examination be conducted and the claim readjudicated.  The VA examination was conducted in November 2011 and readjudication followed in a supplemental statement of the case.  Accordingly, there has been substantial compliance with the directives of the September 2011 remand in this case, such that an additional remand to comply with such directives is not required.  See Stegall v. West, 11 Vet. App. 268 (1998).


FINDING OF FACT

The Veteran's status post internal fixation of the left leg tibia and fibula with neuropathy is manifested by no more than moderate incomplete paralysis.


CONCLUSION OF LAW

The criteria for a 20 percent rating, but no greater, for status post internal fixation of the left leg tibia and fibula with neuropathy have been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.7, 4.124a, Diagnostic Code 8520 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has met all statutory and regulatory notice and duty to assist provisions.  See 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 (2012).  A March 2008 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran also indicated his receipt of Benefits Delivery at Discharge notice as to those regulations in March 2008.

The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  The April 2008 and November 2011 VA examinations were adequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

Review of the record does not indicate that additional evidence pertinent to the issue adjudicated in this decision is available, but not associated with the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012).  

Although the evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Service connection was granted for status post internal fixation of the left leg tibia and fibula with neuropathy was granted in a September 2008 rating decision, and a 10 percent rating assigned under the provisions of Diagnostic Code 8520.  38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012).  Diagnostic Code 8520 provides for 10, 20, 40, and 60 percent ratings for incomplete paralysis of the sciatic nerve that is mild, moderate, moderately severe, and severe, respectively.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis for a particular 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.

Review of the record most closely reflects a disability picture consistent with moderately severe incomplete paralysis, despite a specific finding at the November 2011 VA examination that the neuropathy of the left lower extremity constituted only mild incomplete paralysis.  The Veteran reported tingling, numbness, abnormal sensation, weakness, and constant, progressive pain in his left lower extremity at both the April 2008 and November 2011 VA examinations.  Sensory testing at the April 2008 VA examination also showed decreased vibratory sense.  The Board notes that these findings could be construed as either mild or moderate.  However, the Veteran has credibly reported that the nerve pain, specifically, feels like restless leg syndrome or shooting electric pains at night, and has resulted in difficulty walking.  The Board finds that these credible reports, coupled with the objective clinical findings obtained at the April 2008 and November 2011 VA examinations, most closely reflect a "moderate" rather than a "mild" degree of lost or impaired function.  Greater than a moderate degree of incomplete paralysis is not established by the record; while the Veteran's assertion in his January 2010 substantive appeal that he considers his condition to constitute severe nerve damage has been considered, severe nerve damage is simply not shown either in the specifics of his subjective assertions or in the objective clinical findings.  Accordingly, the record supports a 20 percent rating, but no greater, under Diagnostic Code 8520. 

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The 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 extraschedular 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 extraschedular 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).  The Board finds that the rating criteria contemplate the Veteran's status post internal fixation of the left leg tibia and fibula with neuropathy.  The record reflects that this disability is productive of numbness, stiffness, neuropathy, and pain; the rating criteria take each of these into effect when considering the level of lost or impaired function.  The rating criteria are therefore adequate to evaluate the Veteran's left leg tibia and fibula disability; referral for consideration of extraschedular rating is not warranted.

The preponderance of the evidence is against the assignment of a rating higher than the 20 percent assigned by this decision.  There is no doubt to be resolved, and greater than a 20 percent rating is not warranted.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A 20 percent rating, but no greater, for status post internal fixation of the left leg tibia and fibula with neuropathy is granted, subject to the applicable regulations concerning the payment of monetary benefits.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs