Citation Nr: 1508332	
Decision Date: 02/25/15    Archive Date: 03/11/15

DOCKET NO.  07-35 783	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an evaluation in excess of 40 percent from November 10, 2008 for bilateral hearing loss.

2.  Entitlement to an evaluation in excess of 20 percent from March 15, 2007 for degenerative disc disease of the lumbar spine.

3.  Entitlement to an evaluation in excess of 10 percent from June 6, 2009 to June 20, 2013 for right sciatic nerve impingement.

4.  Entitlement to an evaluation in excess of 10 percent from June 6, 2009 to June 20, 2013 for left sciatic nerve impingement.

5.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant and his wife, son, and daughter


ATTORNEY FOR THE BOARD

P. Olson, Counsel


INTRODUCTION

The Veteran had active military service from March 1985 to August 1990.

The issues of  entitlement to evaluations in excess of 10 percent from June 6, 2009 to June 20, 2013 for sciatic nerve impingement of the right and left legs return to the Board of Veterans' Appeals (Board) on Remand from the United States Court of Appeals for Veterans Claims (Court) regarding a February 2014 Board decision.  

The issues of entitlement to an evaluation in excess of 40 percent from November 10, 2008 for bilateral hearing loss and entitlement to an evaluation in excess of 20 percent from March 15, 2007 for degenerative disc disease of the lumbar return to the Board following remands by the Board in May 2013 and February 2014.  

This matter was originally on appeal from rating decisions dated in December 2005, May 2007, October 2007, and December 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, and Cleveland Ohio.

In September 2012, the Veteran testified at a Travel Board hearing.  A transcript of that hearing is of record.  

In light of contentions in the record, the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders has been added pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009.  In this case, in an April 2010 letter, the Veteran essentially stated that he was unemployable due to service-connected disabilities and that not a day went by without him being in pain but that he had to work due to obligations.  

The issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  From November 10, 2008 to June 26, 2013, the Veteran's bilateral hearing loss, at its worst, was manifested by Level VII loss in the right ear, and a Level VIII in the left ear. 

2.  Since June 27, 2013, the Veteran's bilateral hearing loss, at its worst, has been manifested by Level IX loss in the right ear and Level XI in the left ear.

3.  Since March 15, 2007, the Veteran's lumbar spine degenerative disc disease has not been manifested by forward thoracolumbar flexion to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes due to an intervertebral disc syndrome having a total duration of at least 4 weeks during a 12-month period.

4.  From June 6, 2009 to June 20, 2013, resolving reasonable doubt in his favor, the Veteran's right leg sciatic nerve impingement was manifested by moderate incomplete paralysis but not by moderately-severe incomplete paralysis.

5.  From June 6, 2009 to June 20, 2013 resolving reasonable doubt in his favor, the Veteran's left leg sciatic nerve impingement was manifested by moderate incomplete paralysis but not by moderately-severe incomplete paralysis.


CONCLUSIONS OF LAW

1.  From November 10, 2008 to June 26, 2013, the criteria for an evaluation in excess of 40 percent for the Veteran's bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.85, Diagnostic Code 6100 (2014).

2.  Since June 27, 2013, the criteria for an evaluation of 80 percent, but no higher, for the Veteran's bilateral hearing loss have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.85, Diagnostic Code 6100.

3.  Since March 15, 2007, the criteria for an evaluation in excess of 20 percent for the lumbar degenerative disc disease have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5242 (2014).

4.  From June 6, 2009 to June 20, 2013, the criteria for an evaluation of 20 percent, but no higher, for the Veteran's right leg sciatic nerve impingement were met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2014).

4.  From June 6, 2009 to June 20, 2013, the criteria for an evaluation of 20 percent, but no higher, for the Veteran's left leg sciatic nerve impingement were met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520.



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) redefined VA's duty to notify and assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014).   

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in March 2009, June 2013, and April 2014 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recently readjudicated in April 2014. 

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order. 

Moreover, during the September 2012 Board hearing, the undersigned explained the issues on appeal and asked question designed to elicit evidence that may have been overlooked with regard to the claims on appeal.  
 
Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, 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.
 
With respect to the claims for higher evaluations for the Veteran's bilateral hearing loss and lumbar degenerative disc disease, when the Veteran is requesting a higher rating for already established service-connected disabilities, the present disability level is the primary concern and past medical reports do not take precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

With respect to the claims for higher evaluations for the Veteran's right and left leg sciatic nerve impingement, he is appealing the originally assigned disability evaluation following awards of service connection.  As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

Bilateral Hearing Loss

The Veteran's bilateral hearing loss has been evaluated by the Board as 40 percent disabling since November 10, 2008, pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6100 for hearing impairment. 
 
The assignment of schedular disability ratings for hearing impairment is derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85, Diagnostic Code 6100. 
 
The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.87. 
 
Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  See 38 C.F.R. § 4.85. 

The Board has also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it applicable here.  When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a) (2014).  

A November 10, 2008 private medical evaluation was received by VA on May 29, 2009.  Assuming that the examination study used the required Maryland CNC word list, that study revealed average pure tone thresholds, in decibels, as follows:



HERTZ




1000
2000
3000
4000
AVG
RIGHT
75
80
80
90
81.25
LEFT
65
85
95
100
86.25

Speech audiometric study revealed speech recognition ability of 65 percent in the right ear and of 65 percent in the left ear.  These equate to a Level VII loss in the right ear, and a Level VIII in the left ear under both 38 C.F.R. § 4.85, Table VI and VIA.  These findings equate to a 40 percent rating under 38 C.F.R. § 4.85.

The Board notes that the record includes other private audiological evaluations in February 2009 and 2013.  Unfortunately, the findings of these evaluations do not provide enough information to determine average pure tone thresholds from 1000 to 4000 hertz.   

A May 29, 2009 VA audiological examination revealed pure tone thresholds, in decibels, as follows:



HERTZ




1000
2000
3000
4000
AVG
RIGHT
60
75
70
85
72.5
LEFT
65
80
85
85
78.75

Speech audiometric study revealed speech recognition ability of 88 percent in the right ear and of 88 percent in the left ear.  These equate to a Level III loss in the both ears under 38 C.F.R. § 4.85, Table VI, and under Table VII a noncompensable rating was in order.  Under 38 C.F.R. § 4.86, however, Table VIA may be considered and that Table provides for a Level VI loss in the right ear and Level VII loss in the left ear, which equate to a 30 percent rating under 38 C.F.R. § 4.85.

The examiner noted that subjectively the Veteran had significant difficulty hearing and understanding speech.  The examiner noted that the effect of the Veteran's bilateral hearing loss on his usual occupation was difficulty in hearing and understanding conversation when he was unable to see the speaker's face.  

A June 27, 2013 audiological examination revealed pure tone thresholds, in decibels, as follows:




HERTZ




1000
2000
3000
4000
AVG
RIGHT
80
85
80
85
82
LEFT
85
95
105
105+
98

Speech audiometric study revealed speech recognition ability of 46 percent in the right ear and of 24 percent in the left ear.  These equate to a Level IX loss in the right ear and Level XI in the left ear under 38 C.F.R. § 4.85, Table VI.  Under Table VIA they equate to a Level VII right ear hearing loss and a Level X left ear hearing loss.  Using Table VI these findings equate to an 80 percent rating under 38 C.F.R. § 4.85, and using Table VIA these findings equate to a 60 percent rating.

The findings on the June 27, 2013 VA examination reflect the functional equivalent of symptoms required for an 80 percent evaluation.  Significantly, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for an evaluation higher than 40 percent prior to June 27, 2013, or for an evaluation higher than 80 percent since June 27, 2013.  

Accordingly, entitlement to an evaluation in excess of 40 percent is not warranted from November 10, 2008 to June 26, 2013, for bilateral hearing loss.  An evaluation of 80 percent, but no higher, is warranted since June 27, 2013, for bilateral hearing loss.

Lumbar Spine 

The Veteran's lumbar degenerative disc disease has been rated as 20 percent disabling since March 15, 2007, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. The rating criteria for diseases and injuries of the spine are contained in 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (for, respectively, vertebral fracture or dislocation; sacroiliac injury and weakness; lumbosacral or cervical strain; spinal stenosis; spondylolisthesis or segmental instability; ankylosing spondylitis; spinal fusion; degenerative arthritis of the spine; and intervertebral disc syndrome). 
 
In pertinent part, the General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following apply: 

Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating.  

Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating.  38 C.F.R. § 4.71a.
 
Note (2):(See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  

Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted.  With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted.

Note(1):  An incapacitating episode is a defined 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. 
 
The Board notes that service connection has been established for the Veteran's sciatic nerve impairment of the right and left legs, and these disabilities have been evaluated separately.  Thus, the evaluation of the Veteran's lumbar spine disability will be limited to orthopedic manifestations and any additional manifestations other than those of the sciatic nerve impairment. 

In order for an increased evaluation to be warranted for lumbar degenerative disc disease, the evidence must show forward thoracolumbar flexion be limited to 30 degrees or less, evidence of favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes due to an intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period.
  
At a March 15, 2007, VA examination the Veteran demonstrated flexion to 75 degrees.  Extension, bilateral lateral flexion, and bilateral rotation were to 15 degrees in each plane of movement.  Pain was noted on all endpoints.  The Veteran's gait was within normal limits, muscle spasm was absent, but tenderness was noted.  There was no evidence of radiating pain on movement, no ankylosis of the lumbar spine, and straight leg testing was negative.  Inspection of the spine revealed normal head position with symmetry in appearance.  There was symmetry of spinal motion with normal curvatures of the spine.  Notably, thoracolumbar function was judged to be additionally limited by weakness, fatigue, and a lack of endurance, but not by incoordination.  The examiner opined that these factors caused an additional 15 degree loss of motion.  There were no signs of an intervertebral disc syndrome and permanent nerve root involvement.  
 
Private medical records dated in April 2007 show that physical examination of the lumbar/lumbosacral spine revealed tenderness to palpation, muscle spasms, pain, and abnormal spine motion.  The lumbosacral spine exhibited a normal appearance with no step deformity.  

Private medical records dated in February 2008, March 2008, July 2008, September 2008, January 2009, February 2009, August 2009 demonstrated lumbar flexion to 80 degrees and extension to 15 degrees.  The Veteran's gait was stable.  

At a June 5, 2009, VA examination, the Veteran reported stiffness, numbness and loss of bladder control.  The Veteran also reported crushing, burning, aching, sharp, and cramping pain at a level of 10 out of 10 elicited by physical activity and stress.  The appellant reported that his back pain was relieved by rest and Darvocet.  The Veteran reported that his condition had not resulted in any incapacitation and that he does not experience any overall functional impairment from his condition.  Physical examination revealed that the Veteran's posture was within normal limits, and his gait was antalgic.  The spine revealed normal head position with symmetry in appearance and there was symmetry of spinal motion with normal curves.  There was evidence of radiating pain on movement.  Straight leg raising tests were positive bilaterally.  There was evidence of a lumbar muscle spasm as well as lumbar tenderness.  There was no ankylosis.  Flexion was to 40 degrees, extension was to 10 degrees, and right and left lateral flexion as well as right and left rotation were all 30 degrees.  Pain occurred at the endpoints.  The examiner noted that the joint function of the spine was additionally limited by pain, fatigue, weakness, lack of endurance, that pain had the major functional impact.  Repetitive use did not cause incoordination or an additional limitation of motion.  The examiner noted intervertebral disc syndrome did not cause either bowel dysfunction, bladder dysfunction, or erectile dysfunction.  

At the June 21, 2013, VA examination, the Veteran reported pain radiating to both gluteal regions which had progressed to pains in his legs aggravated by prolonged sitting, prolonged standing, and minimal motion.  The Veteran reported that since 2007, he had used a cane and had been treated with multiple steroid injections in January 2013.  The Veteran reported his pain level varied from 8 to 10 out of 10 requiring a regimen of Percocet, Tramadol and relaxants.  The Veteran denied any difficulty with bowel or bladder function related to his back condition, and he reported no flare-ups impacting the function of his spine.  

The Veteran's gait was noted to be wide-based, stiff-legged, and propulsive with shortened stride.  He used a cane in his right hand, and there was very little motion at ankle or knee joints with gait.  The examiner noted that to sit or stand required significant support from the table due to back pain and minimal motion of back.  

On physical examination, flexion was to 35 degrees with pain at 25 degrees, extension was to zero degrees, right and left lateral flexion was to 10 degrees with pain at 5 degrees, right and left lateral rotation was to 15 degrees with pain at 15 degrees.  On repetitive testing, after a minimum of three repetitions, flexion was to 35 degrees, extension was to zero degrees, right and left lateral flexion was to 10 degrees, and right and left lateral rotation was to 15 degrees.  The examiner noted that the Veteran had no additional limitation of range of motion of the thoracolumbar spine following repetitive motion but did have functional loss and/or functional impairment including less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing and/or weight-bearing.  The examiner noted pain with midspine palpation L3-L5 with bilateral paraspinous pain with palpation and motion.  The examiner noted guarding and/or muscle spasm not resulting in abnormal gait or spinal contour.

The examiner noted that there was moderate pain with minimal motion in any direction and that light resistance to range of motion of hips and knees was not tolerated due to lumbar pain.  There was slight forward flexion with no extension.  The Veteran was unable to stand toes or heels with support and could not stand single foot supported by wall.

The examiner noted that the Veteran had incapacitating episodes of the prior twelve-month period with total duration of less than one week.

Since March 15, 2007, there is no evidence of record documenting that at any time during the appellate term addressed herein that the Veteran's lumbar spine degenerative disc disease was manifested by physician ordered bed rest for a term consistent with a higher rating.  Hence, an increased rating is not in order based on incapacitating episodes.
 
In addition, at no time since March 15, 2007, has the Veteran's thoracolumbar motion been manifested by a limitation of forward flexion to 30 degrees or less, and certainly not by favorable ankylosis involving the entire thoracolumbar spine.  

Consideration has been given as to whether a higher rating based on functional loss due to pain on use or due to flare-ups is warranted.  38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 

As noted above, the March 2007 VA examiner noted flexion to 75 degrees with  thoracolumbar function additionally limited by weakness, fatigue, and a lack of endurance and that these factors caused an additional 15 degree loss of motion.  The June 2009 VA noted flexion to 40 degrees, joint function additionally limited by pain, fatigue, weakness, lack of endurance; that pain had the major functional impact.  Notably, there was no additional limitation in degree.  The June 2013 VA examiner noted flexion was to 35 degrees with pain at 25 degrees and that the Veteran had no additional limitation of range of motion of the thoracolumbar spine following repetitive motion

Thus, the Board finds that the Veteran's complaints of pain have been contemplated in the current evaluation assigned as it is based on the objectively demonstrated reduced motion.  Thus, even considering functional loss and painful, stiff motion, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for an evaluation in excess of 20 percent since March 15, 2007.  It bears repeating that the General Rating Formula for Diseases and Injuries of the Spine specifically provide that the assigned ratings are controlling regardless whether  there are or are not symptoms such as pain.  

Accordingly, an evaluation in excess of 20 percent is not warranted since March 15, 2007, for lumbar spine degenerative disc disease.

Sciatic Nerve Impairment

In a February 2014 decision, the Board denied entitlement to evaluations in excess of 10 percent from June 6, 2009 to June 20, 2013 for right and left sciatic nerve impingement.  The Veteran appealed the Board's decision to the Court.  In October 2014, the Court granted a Joint Motion for Partial Remand on the issues and remanded the case to the Board for action consistent with the terms of the joint motion.

The parties to the joint motion agreed that the statement of reasons or bases was inadequate as the Board did not engage in any critical determination of what is necessary for a 20 percent rating.  In addition, the parties agreed that the Board did not discuss evidence relevant to the issue at hand, specifically that the 2009 QTC examiner noted decreased range of motion with pain, tenderness and spasms, that the appellant has an antalgic (guarded) gait, and that in his September 2012 hearing, that the appellant complained of pain and tingling from his buttocks to his feet that kept him from sleeping.   

The Veteran's sciatic nerve impingement has been evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve.  

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120 (2014). 
 
Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  38 C.F.R. § 4.123 (2014).  The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  Id.  Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis.  38 C.F.R. § 4.124 (2014). 
 
In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  38 C.F.R. § 4.124(a).  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id.  The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor.  Id.  

The use of terminology such as "mild," "moderate," and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  38 C.F.R. §§ 4.2, 4.6 (2013). 
 
Diagnostic Code 8520 assigns a 10 percent rating for mild, incomplete paralysis of the sciatic nerve.  A 20 percent rating is assigns for moderate, incomplete paralysis.  A 40 percent evaluation is in order for moderately severe incomplete paralysis.  Severe incomplete paralysis with marked muscle atrophy is assigned a 60 percent rating.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

At a June 5, 2009 VA examination, the Veteran reported constant lower back pain which travels down his hips to the bottoms of his feet.  Physical examiner revealed an L4 sensory deficit involving the thighs and front legs; an L5 sensory deficit involving the lateral legs, the dorsum of the feet, and the lateral feet areas; and an S1 sensory deficit involving the backs of the thighs, lateral leg areas, and lateral feet regions.  Knee and ankle jerks were 2+ bilaterally.  There was no evidence of bowel or bladder dysfunction.  
 
Private medical records from August 2010 to July 2013 indicate on neurological examination the Veteran consistently demonstrated a normal bulk and tone.  There were no tremors, rigidity, or bradykinesia.  Gait and station were grossly normal, there was grossly intact sensation, and deep tendon reflexes were 2+ bilaterally throughout. 

As noted above, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  In addition, the maximum rating which may be assigned for neuritis of the sciatic nerve not characterized by organic changes as noted above will be that for moderately severe, incomplete paralysis.

The Board finds that although only sensory symptoms were manifested, they involved both entire lower extremities and per the Veteran's report kept him from sleeping.  As such, the Board will resolve reasonable doubt in the Veteran's favor, and assign a 20 percent evaluation for moderate incomplete paralysis is warranted for each lower extremity.  Higher evaluations, however, are not warranted.  Although the maximum evaluation for neuritis of the sciatic nerve not characterized by organic changes is 40 percent, this was not warranted from June 6, 2009 to June 20, 2013.  As noted above, private medical records from October 2010 to July 2013 consistently indicate grossly intact sensation.  Such findings are inconsistent with an evaluation for moderately severe incomplete paralysis of the sciatic nerve.

Further, the June 2013 VA examination on June 21, 2013, is instructive in this case as the VA examiner specifically noted moderate incomplete paralysis of the right sciatic nerve and moderately severe incomplete paralysis of the left sciatic nerve.  At that time, the Veteran demonstrated muscle strength of 3/5 on hip flexion, knee extension, ankle dorsiflexion, and great toe extension, bilaterally.  Ankle plantar flexion was 4/5 bilaterally.  Deep tendon reflexes were absent bilaterally at the knee and ankle, sensory examination was decreased at the lower leg/ankle (L4/L5/S1), and straight leg raising was positive bilaterally with mild constant pain and numbness bilaterally and moderate intermittent pain and paresthesia and/or dysesthesias bilaterally.  

Thus, the Board finds that the neurologic symptoms demonstrated by the Veteran prior to the June 21, 2013 VA examination were much less severe and do not rise to the level of moderately-severe incomplete paralysis.  Accordingly, evaluations of 20 percent, but no higher, are warranted from June 6, 2009 to June 20, 2013 for right and left sciatic nerve impingement.  

Other Considerations

An extraschedular rating is a component of an increased rating claim.  Barringer v. Peake, 22 Vet. App. 242 (2008).  The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1).  If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable.  Thun, citing 38 C.F.R. § 3.321(b)(1) (2014).  In the present case, there is no evidence that the Veteran's service-connected sciatic nerve impingement of either leg presents such an unusual or exceptional disability picture at any time so as to require consideration of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1).  

Disability ratings for hearing impairment are determined by a mechanical application of the Veteran's hearing acuity and speech recognition scores determined by objective diagnostic testing.  Although the Veteran has indicated that his hearing loss interferes with communication, particularly when someone is not looking directly at him, there is nothing in the record suggesting the Veteran's disability picture is unusual or would otherwise render the usual rating criteria impractical.  The criteria pertaining to hearing impairment in the Rating Schedule focus on speech recognition loss and loss of hearing acuity.  Thus, the schedular criteria adequately compensate for any loss in earning capacity for his bilateral hearing loss.  

The criteria pertaining to nerve impairment in the Rating Schedule focus on severity of the neurological symptoms including motor function, trophic changes, and sensory disturbances.  The Veteran has described pain which travels down from his hips to his feet.  Thus, the schedular criteria adequately compensate for any loss in earning capacity for his and right and left sciatic nerve impingement.  

The criteria pertaining to spine disabilities in the Rating Schedule focus on the symptomatology which describes the Veteran's current disability picture.  The Veteran has described lumbar spine pain, stiffness, and loss of motion.  Thus, the schedular criteria adequately compensate for any loss in earning capacity for his lumbar spine degenerative disc disease. 

Thus, the Board finds that referral for extraschedular consideration is not warranted.  Id. 


ORDER

From November 10, 2008 to June 26, 2013, entitlement to an evaluation in excess of 40 percent for the Veteran's bilateral hearing loss is denied.

Since June 27, 2013, entitlement to an evaluation of 80 percent, but no higher, for the Veteran's bilateral hearing loss is granted subject to the law and regulations governing the payment of monetary benefits.

From March 15, 2007 to June 20, 2013, entitlement to an evaluation in excess of 20 percent for the Veteran's lumbar spine degenerative disc disease is denied.

From June 6, 2009 to June 20, 2013, entitlement to an evaluation of 20 percent, but no higher, for the Veteran's right leg sciatic nerve impingement is granted subject to the law and regulations governing the payment of monetary benefits.

From June 6, 2009 to June 20, 2013, entitlement to an evaluation of 20 percent, but no higher, for the Veteran's left leg sciatic nerve impingement is granted subject to the law and regulations governing the payment of monetary benefits.


REMAND

The Veteran argues that he is unemployable due to his service-connected hearing loss, lumbar spine disability, and sciatic nerve impingement.  A total disability evaluation based on individual unemployability due to service connected disorders may be assigned where the schedular rating is less than total and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2014).  In this case, the total disability evaluation based on individual unemployability due to service connected disorders claim has not been developed for Board review and is remanded in accordance with the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009).

Accordingly, the case is REMANDED for the following action:

A claim for a total disability evaluation based on individual unemployability due to service connected disorders should be developed and reviewed on the basis of any additional evidence as well as the Court's decision in Bradley v. Peake, 22 Vet. App. 280 (2008) (A grant of a 100 percent rating does not always render moot a claim for a total disability rating based on individual unemployability.)  If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court 

of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs