Citation Nr: 1340125	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  11-18 521A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to increased disability ratings for discospondylosis of the lumbar spine with osteoarthritis of lumbosacral and sacroiliac joints-currently evaluated as 40 percent disabling for limited motion of the lumbar spine, and as 10 percent disabling for associated neurological deficits of the right leg. 

2.  Entitlement to a disability rating in excess of 10 percent for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel 


INTRODUCTION

The Veteran served on active duty from September 1988 to September 1991, plus had 21 years, 1 month, and 15 days of prior active service.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision of the RO that, in pertinent part, denied disability ratings in excess of 40 percent for service-connected discospondylosis of the lumbar spine with osteoarthritis of lumbosacral and sacroiliac joints; and in excess of 10 percent for service-connected tinnitus.  The Veteran timely appealed. 

The Court has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The Board notes that the Veteran already has been awarded a TDIU.  Hence, it is unnecessary to remand the matter for further action.

In addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file.

The issue of entitlement to service connection for vertigo has been raised by the record (September 2011 correspondence), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  Throughout the rating period, the Veteran's discospondylosis of the lumbar spine with osteoarthritis of lumbosacral and sacroiliac joints has been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees; ankylosis, incapacitating episodes, and doctor-prescribed bed rest are not demonstrated.

2.  Throughout the rating period, the Veteran has exhibited mild incomplete paralysis of the sciatic nerve of the right lower extremity; moderate or severe incomplete paralysis, or complete paralysis has not been demonstrated.

3.  For the period from July 1, 2010, to February 27, 2012, the Veteran has exhibited mild incomplete paralysis of the sciatic nerve of the left lower extremity; moderate or severe incomplete paralysis, or complete paralysis has not been demonstrated.

4.  For the period from February 28, 2012, the Veteran has exhibited moderate incomplete paralysis of the sciatic nerve of the left lower extremity; severe incomplete paralysis, or complete paralysis has not been demonstrated.

5.  The current 10 percent rating for tinnitus is the maximum schedular rating, whether the sound is perceived in one ear or both ears.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 40 percent for discospondylosis of the lumbar spine with osteoarthritis of lumbosacral and sacroiliac joints are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242 (2013).

2.  The criteria for a separate disability evaluation in excess of 10 percent for associated incomplete paralysis of the sciatic nerve of the right lower extremity have not been met or nearly approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2013).

3.  Resolving all doubt in the Veteran's favor, for the period from July 1, 2010, to February 27, 2012, the criteria for a separate 10 percent disability evaluation for associated incomplete paralysis of the sciatic nerve of the left lower extremity are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2013).

4.  Resolving all doubt in the Veteran's favor, for the period from February 28, 2012, the criteria for a separate 20 percent disability evaluation for associated incomplete paralysis of the sciatic nerve of the left lower extremity are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2013).

5.  The claim for a separate schedular 10 percent rating for tinnitus in each ear is without legal merit.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

VA should notify the Veteran of:  (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3).

A decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Through February 2009 and August 2011 letters, the RO notified the Veteran of elements of an increased rating claim, and the evidence needed to establish each element.  These documents served to provide notice of the information and evidence needed to substantiate the claims.  

In each letter, the RO specifically notified the Veteran of the process by which disability ratings and effective dates are established.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the Veteran's claims on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

There is no indication that any additional action is needed to comply with the duty to assist the Veteran.  The RO has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims on appeal, reports of which are of record and are adequate for rating purposes.  The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained.

Given these facts, it appears that all available records have been obtained.  There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims.  38 U.S.C.A. § 5103A(a)(2).

II.  Analysis

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2013).

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013).

The Veteran's entire history is reviewed when making disability evaluations.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1.  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2013), pertaining to functional impairment.  If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2013).

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  He is also competent to report symptoms of back pain and numbness of the lower extremities, and ringing in both ears.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  The Veteran is competent to describe his symptoms and their effects on employment or daily activities.

A.  Discospondylosis of the Lumbar Spine with Osteoarthritis of
Lumbosacral and Sacroiliac Joints

Service connection has been established for discospondylosis of the lumbar spine with osteoarthritis of lumbosacral and sacroiliac joints.  The RO has evaluated the Veteran's disability under Diagnostic Code 5003-5242, pertaining to degenerative arthritis of the lumbar spine, as 40 percent disabling based on painful and limited motion; and under Diagnostic Code 8520, pertaining to sciatic nerve involvement, as 10 percent disabling based on peripheral neuropathy of the right lower extremity.  A hyphenated diagnostic code generally reflects a rating by analogy (see 38 C.F.R. §§ 4.20 and 4.27).  The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes.

Spinal disabilities are primarily evaluated under a general rating formula.  Under the formula, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Higher evaluations are assigned for unfavorable ankylosis of the entire spine, or the entire thoracolumbar spine, which are not relevant to the Veteran's claim.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013).  

Alternatively, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the basis of incapacitating episodes over the past 12 months, or under the general rating formula (which provides the criteria for rating orthopedic disability, and authorizes separate evaluations of its chronic orthopedic and neurologic manifestations), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months.  A maximum, 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  

The notes following Diagnostic Code 5243 define an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

"Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.

The notes following Diagnostic Code 5243 further provide that, when evaluating on the basis of chronic manifestations, VA should evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes; and evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes.

Where intervertebral disc syndrome is present in more than one spinal segment, and provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurological manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment.

In general, the rating criteria take into account pain and other symptoms.  In the case of spine disabilities, pain is often the primary factor limiting motion and is almost always present when there is muscle spasm.  Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule.  Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454 (Aug. 27, 2003) (See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). 

Historically, the Veteran was involved in an accident in active service in 1982, when a fuel tank fell over him.  Reportedly, the following day, the Veteran could not get off his chair at work; and he was carried to the Emergency Room.  A physician at the Emergency Room did some maneuvers with the Veteran's back, and the Veteran was able to get up.  Since then, the Veteran no longer was allowed to carry cargo.  He reportedly twisted his low back in active service in 1983, and underwent physical therapy.  X-rays taken of the lumbosacral spine in 2000 revealed degenerative disc disease with slight listhesis at L1-L2, possibly discogenetic; and minimal degenerative arthritis of lumbosacral spine and sacroiliac joints.

During a March 2006 VA examination, the Veteran reported having intermittent back pain with remissions since active service; and that through the years, the pain had become more progressive.  He took medication for pain with fair relief.  He reported flare-ups of back pain of one day's duration every five-to-six months, of moderate severity; and that he preferred to rest during flare-ups.  Aggravating factors included weather change; over exertion; sitting; walking, especially uphill; bending; twisting; stress; and fatigue.

Examination in March 2006 revealed that the Veteran had a normal gait and posture, with no abnormal spinal curvatures.  Mild paraspinal tenderness was noted.  Range of motion of the lumbar spine was to 45 degrees on flexion, with pain from 40 degrees; to 30 degrees on extension; to 25 degrees on bending to the right and to the left, with pain from 20 degrees; and to 25 degrees on rotation to the right and to the left, with pain from 20 degrees.  The examiner also noted muscle spasm and pain with movement.  Flexion was limited to 30 degrees following repetitive exercises due to pain.  Motor examination showed full motor strength in his bilateral lower extremities, and sensory examination was intact.  Reflexes were 2+ throughout, and there was a positive Lasegue's sign.  X-rays revealed spondylolisthesis of L5-S1, grade I with spondylosis, L5, unchanged from previous study; and spondylosis deformans.  The diagnosis was degenerative disc disease of the lumbar spine with osteoarthritis of the lumbosacral spine and sacroiliac joints, moderately disabling.

During a February 2009 VA examination, the Veteran reported progressively worsened back pain and that he took muscle relaxants without relief.  He reportedly also had increased back pain after a slip and fall in 2007, and after changing a tire in 2008.  The Veteran reported radiating pain to his left leg, as well as weekly flare-ups of pain with moderate-to-severe functional impairment.  He reported an incapacitating episode of severe back pain in October 2008, and reported going to the hospital for treatment and being unable to walk more than a few yards.  

Examination in February 2009 revealed that the Veteran's gait was normal, and that there was an abnormal list of the spine.  There was no ankylosis.  Mild paraspinal tenderness was noted.  Range of motion of the lumbar spine was to 60 degrees on flexion, to 15 degrees on extension, to 15 degrees on bending to the right and to the left, and to 15 degrees on rotation to the right and to the left.  There was objective evidence of pain on ranges of motion.  The examiner also noted muscle spasm and guarding.  There was additional limitation of motion after repetitive exercises, due to pain:  flexion was limited to 50 degrees, extension was limited to 10 degrees, and lateral bending and rotation to the right and to the left were each limited to 10 degrees.

MRI scans of the lumbosacral spine conducted in January 2010 revealed that the compression fracture at the superior endplate of L1 was of chronic imaging characteristics and without evidence of underlying abnormality to suggest pathologic fracture.  There were no demonstrable abnormalities intrinsic to the visualized conus and caudal roots.  Findings included degenerative disc and endplate disease particularly at L5-S1, where there was tendency towards lateral spinal canal stenosis secondary to neural foraminal encroachment by endplate osteophytes.

Private records, dated in February 2010, show that the Veteran was advised to refrain from bending over and from lifting weights.  A spinal surgeon referral was also suggested.

VA examination of the Veteran's thoracolumbar spine in July 2010 revealed no ankylosis.  Range of motion was to 56 degrees on flexion, to 18 degrees on extension, to 26 degrees on lateral bending to the left, to 25 degrees on lateral bending to the right; to 22 degrees on rotation to the left, and to 20 degrees on rotation to the right.  There was objective evidence of pain on motion, and the examiner noted additional limitation of motion after repetitive exercises, due to pain:  Flexion was limited to 50 degrees, extension was limited to 10 degrees, lateral bending was limited to 20 degrees, and rotation was limited to 22 degrees to the left and to 20 degrees to the right.

VA examination of the Veteran's thoracolumbar spine in October 2010 revealed that the Veteran's gait was antalgic, and that he was unable to walk more than a few yards.  There was no ankylosis.  Range of motion was to 46 degrees on flexion, to 16 degrees on extension, to 26 degrees on lateral bending to the left and to the right, to 28 degrees on rotation to the left, and to 27 degrees on rotation to the right.  There was objective evidence of pain on motion, and the examiner noted additional limitation of motion after repetitive exercises, due to pain:  Flexion was limited to 40 degrees, extension was limited to 10 degrees, lateral bending was limited to 25 degrees, and rotation was limited to 25 degrees.

The Veteran underwent another VA examination in February 2012, and reported flare-ups that impacted the functioning of his thoracolumbar spine.  Range of motion of the thoracolumbar spine was to 30 degrees on flexion, to 10 degrees on extension, to 15 degrees on lateral bending to the left and to the right, and to 30 degrees on rotation to the left and to the right.  Pain was noted at the extremes of motion.  No additional limitation of motion was found following repetitive exercises.  The examiner also noted less movement than normal, weakened movement, excess fatigability, and pain on movement.  The examiner noted paravertebral lumbar spine tenderness, guarding, and muscle spasm severe enough to result in abnormal spinal contour.

In this case, throughout the rating period, the evidence shows that the Veteran can flex his thoracolumbar spine to 30 degrees.  Higher evaluations may be assigned for ankylosis, but the Veteran retains lower back motion, and thus does not have ankylosis.  He, therefore, does not meet the criteria for a disability rating in excess of 40 percent under the general rating formula.  38 C.F.R. §§ 4.7, 4.21.

Nor is there evidence of doctor-prescribed bed rest or incapacitating episodes having a total duration of at least six weeks during the past 12 months to warrant an increased disability rating.

In this case, under the general rating formula, the orthopedic component of the Veteran's discospondylosis of the lumbar spine with osteoarthritis of lumbosacral and sacroiliac joints warrants no more than a 40 percent evaluation, effective February 6, 2006.  While the Veteran indicated that the symptomatology associated with his service-connected disability is severe, the objective findings consistently fail to show that his disability meets the criteria for an increased evaluation; and the Board concludes that those findings outweigh his lay assertions regarding severity.

In this regard, the Board has considered the Court's holding in Deluca.  As noted, several examiners have acknowledged that ranges of motion were additionally limited following repetitive exercises, and that pain was the primary factor limiting motion.  However, such limited motion still does not satisfy the criteria for an increased disability rating for a disability of the spine.  Thus, even with consideration of increased pain during flare-ups, the rating criteria applied take into account pain and other symptoms.  The Veteran's reported symptoms have been considered, and they support the currently assigned evaluation.  Even with the objective findings of less movement than normal, weakened movement, and excess fatigability, the evidence as a whole does not show that the criteria for an increased rating are approximated.  For these reasons, the Board concludes that an increased rating is not warranted based on functional loss due to pain and other symptoms as contemplated by Deluca.

Thus, the weight of the evidence is against the grant of a disability rating in excess of 40 percent, based on orthopedic findings.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2013).

In addition, the Veteran has described some sensory deficits.  The Board finds the Veteran's statements to be credible.

A 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity.  A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity.  A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity.  A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity.  An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

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 the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.

Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

Electromyograph findings in March 2006 revealed diffuse asymmetric polyneuropathy, sensorimotor, affecting the myelin sheaths and axons of lower extremities, more than the upper extremities.   A VA examiner in March 2006 also diagnosed peripheral neuropathy; and the report of a July 2010 VA examination includes sensory findings of decreased vibration, pinprick, and light touch affecting the left lower extremity, and involving the L5 nerve root.

In October 2010, a VA examiner opined that the March 2006 electromyograph findings of diffuse asymmetric polyneuropathy in both upper and lower extremities was not caused by or a result of the service-connected discospondylosis of the lumbar spine with osteoarthritis of lumbosacral and sacroiliac joints.  In support of the opinion, the examiner explained that diffuse is the opposite of localized, and is in direct contrast to cases of compressed or pinched radicular nerves of the spine which manifest as localized affectation to a particular area.

In February 2012, a VA examiner found that the Veteran had radiculopathy; and that his symptoms included mild numbness of the right lower extremity and moderate numbness of the left lower extremity, and involvement of the sciatic nerve on the left.  No other neurological abnormalities were reported.

Accordingly, in a September 2012 rating decision, the RO granted service connection and assigned a separate 10 percent disability rating for peripheral neuropathy of the right leg associated with the lumbar spine disability, effective July 6, 2011.  The Board finds that no more than the currently assigned 10 percent disability rating is warranted for associated neurological deficits of the right lower extremity under Diagnostic Code 8520.  There is no showing of moderate neurological deficits affecting the right lower extremity.
  
With regard to each lower extremity, prior to the July 2010 VA examination, there were no reports of loss of reflexes or muscle atrophy.  No examiner found significant neurological deficits associated with the service-connected lumbar disability.  The Board finds the overall evidence is insufficient to warrant a compensable disability rating for neurological deficits prior to July 1, 2010.

As of the July 1, 2010 VA examination, the examiner made findings of left lower extremity sensory deficits.  Given the Veteran's credible statements of radiating pain from his back and numbness of the left lower extremity, and resolving doubt in favor of the Veteran, a separate 10 percent, but no higher, disability rating is warranted for mild incomplete paralysis of the sciatic nerve of the left lower extremity.  38 C.F.R. §§ 4.123, 4.124 (2013).  There is no showing of moderate neurological deficits affecting the left lower extremity until the February 28, 2012 VA examination.  Indeed, the February 2012 VA examiner found moderate numbness of the left lower extremity, with involvement of the sciatic nerve on the left, which nearly approximates the criteria for a separate 20 percent disability rating under Diagnostic Code 8520.

Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings is permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Accordingly, there is no indication that incomplete paralysis of the sciatic nerve of the left lower extremity is more than mild during the period from July 1, 2010, to February 27, 2012; or more than moderate from February 28, 2012, to warrant higher disability ratings.  While the Veteran is competent to describe radiating pain down both legs, the lack of objective evidence on neurological testing of more than a sensory deficit weighs against the Veteran's lay reports as to the severity of his symptoms.

For the foregoing reasons, the Board finds that the evidence is against a disability rating in excess of 40 percent for orthopedic findings; is against a separate disability rating in excess of 10 percent for associated mild, incomplete paralysis of the sciatic nerve of the right lower extremity; and, for the period from July 1, 2010, to February 27, 2012, is in favor of a separate 10 percent disability rating for associated mild, incomplete paralysis of the sciatic nerve of the left lower extremity; and, for the period from February 28, 2012, is in favor of a separate 20 percent disability rating for associated moderate incomplete paralysis of the sciatic nerve of the left lower extremity. 

B.  Tinnitus

The Veteran contends that his tinnitus has worsened over the years, and that he is entitled to a disability rating in excess of 10 percent.  He complains of constant ringing in each ear.

In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the United States Court of Appeals for Veterans Claims (Court) held that the version of Diagnostic Code 6260 that was in effect prior to June 2003 required the assignment of separate ratings for bilateral tinnitus.

VA appealed the Court's decision in Smith to the United States Court of Appeals for the Federal Circuit (Federal Circuit), and stayed the adjudication of claims affected by the Smith decision.  The Federal Circuit reversed the decision in Smith, and affirmed VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

Based on the Federal Circuit's decision, the Secretary has lifted the stay of adjudication of tinnitus claims.  

During a June 2010 VA examination, the Veteran complained of constant ringing in both ears.  The examiner noted that the Veteran's tinnitus is as likely as not a symptom associated with his hearing loss, and that the Veteran's hearing disability limits his ability to obtain and retain employment.  The examiner also noted that the Veteran is not employed, and that the disability's impact on occupational activities is poor social interactions and hearing difficulties.

In March 2012, the Veteran reported that the constant ringing made it difficult for him to hear things, and it also bothered him and irritated him at night.  A VA examiner then noted that tinnitus in both ears were matched at 55 decibels at 2000 hertz.  

Here, the Veteran's service-connected tinnitus has been assigned a 10 percent rating, which is the maximum schedular rating available for tinnitus.  38 C.F.R. § 4.87, Diagnostic Code 6260 (2013).  The Board certainly is sympathetic to the social difficulties and irritation experienced by the Veteran as a result of his tinnitus; however, no other rating criteria are applicable.  Lastly, because there is no legal basis for awarding separate ratings for tinnitus perceived in each ear, the Veteran's appeal is denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

C. 
 Extraschedular Consideration

An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. 

The Board finds that the schedular evaluations assigned for the Veteran's service-connected discospondylosis of the lumbar spine with osteoarthritis of lumbosacral and sacroiliac joints, and tinnitus are adequate in this case.  The Veteran's lumbar disability, and the severity thereof, which is manifested by symptoms of limited and painful motion and associated numbness of extremities, are contemplated by the schedular criteria.  His tinnitus, and the severity thereof, which is manifested by symptoms of recurrent ringing in the ears, are also contemplated by the schedular criteria.  Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).



ORDER

A disability evaluation in excess of 40 percent for discospondylosis of the lumbar spine with osteoarthritis of lumbosacral and sacroiliac joints is denied.

A separate disability rating in excess of 10 percent for associated mild, incomplete paralysis of the sciatic nerve of the right lower extremity is denied.

For the period from July 1, 2010, to February 27, 2012, a separate disability rating of no more than 10 percent for associated mild, incomplete paralysis of the sciatic nerve of the left lower extremity is allowed, subject to the regulations governing the award of monetary benefits.

For the period from February 28, 2012, a separate disability rating of no more than 20 percent for associated moderate, incomplete paralysis of the sciatic nerve of the left lower extremity is allowed, subject to the regulations governing the award of monetary benefits.

Entitlement to a separate schedular 10 percent rating for tinnitus in each ear is denied.




____________________________________________
N. RIPPEL
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs