Citation Nr: 1636553 Decision Date: 09/19/16 Archive Date: 09/27/16 DOCKET NO. 10-29 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for left lower extremity sciatica. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity sciatica. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Nelson, Counsel INTRODUCTION The Veteran had active service from October 1983 to June 1988. This case comes before the Board of Veterans' Appeals (BVA or Board) from an August 2009 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in November 2014. In February 2014 the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned sitting in Washington, DC. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the hearing. Bryant v. Shinseki, 23 Vet. App. 488 (2010). A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). A May 2016 denied the Veteran entitlement to TDIU, and the Veteran has not expressed disagreement with the May 2016 RO decision and entitlement to a TDIU is not before the Board at this time. FINDINGS OF FACT 1. Left lower extremity sciatica has been manifested by moderately severe incomplete paralysis of the sciatic nerve. 2. Right lower extremity sciatica has been manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent for left lower extremity sciatica have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2015). 2. The criteria for an initial rating of 20 percent for right lower extremity sciatica have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Duty to Notify As the August 2009 and January 2012 RO decisions granted service connection for left and right lower extremity sciatica (radiculopathy), those claims are now substantiated. As such, the filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). The Board observes that as for rating the Veteran's sciatica, the relevant criteria have been provided to the Veteran, including in a March 2015 supplemental statement of the case. In a February 2009 letter the Veteran received notice regarding the assignment of a disability rating and effective date in the event of an award of VA benefits. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist Service treatment records are associated with the claims file, as are identified VA medical records. The Board finds that the rating examinations obtained in this case are adequate, as they considered the pertinent evidence of record, and included an examination of the Veteran and elicited subjective complaints and clinical measures. The examinations described the Veteran's sciatica in sufficient detail so that the Board is able to fully evaluate the claimed disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that there has been substantial compliance with its prior remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claims. Legal Criteria Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2015). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate, or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, 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. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Analysis A rating action in August 2009 granted service connection for left lower extremity sciatica and assigned a 20 percent rating, effective January 20, 2009. A January 2012 RO action granted service connection for right lower extremity sciatica and assigned a 10 percent rating, effective July 12, 2010. At the February 2014 Board hearing the Veteran reported that he has experienced increased pain radiating down the right leg and increased numbness in the legs. The Veteran indicated that his left leg had become so bad that it felt like he was paralyzed and he stated that the left leg was so numb that it had caused him to fall on many occasions. The Veteran testified that he had constant pain in his legs described as shooting pain. The Veteran also reported that he had involuntary movement in both legs, especially at night when he laid down. VA records and VA examinations conducted during the appeal period reveal that the Veteran has been diagnosed with bilateral lower extremity radiculopathy secondary to service-connected low back disability. Left lower extremity The January 2016 VA examiner has characterized the Veteran's left side radiculopathy as severe, and has also noted that the Veteran has severe left lower extremity intermittent pain. Left ankle reflex testing throughout the appeal has been consistently recorded as being absent, and the Veteran has attributed episodes of falling to his left lower extremity radiculopathy. In addition to the well-documented clinical findings of left lower extremity pain, at his February 2014 Board hearing the Veteran stated that he would sometimes have to take medications four times a day for left lower extremity pain relief. Putting these findings together, the Board finds that the Veteran's left lower extremity radiculopathy more closely approximates a moderately severe degree, and an initial rating of 40 percent is warranted. As there is no indication of muscle atrophy (let alone marked muscle atrophy), and as the Veteran's left lower extremity strength testing has been 4/5 in June 2011, 5/5 in December 2014, and 4/5 in January 2016, the criteria for a rating of 60 percent (severe incomplete paralysis with marked muscle atrophy) is not warranted. Right lower extremity As for the Veteran's right lower extremity, the evidence, including VA examinations conducted in June 2011, December 2014, and January 2016, does not reveal right lower extremity sciatica symptoms that are other than sensory. The December 2014 and January 2016 VA examiners indicated that the Veteran had right lower extremity strength testing of 5/5, with no muscle atrophy. The June 2011 VA examiner had no contrary findings. Further, straight leg raising test in January 2016 was negative. While the right lower extremity radiculopathy involvement is essentially sensory, the Veteran's complaints of pain have been more than mild, as indicated by both the Veteran and VA examiners, in particular the January 2016 VA examiner. As such, the Board finds that the Veteran's right lower extremity radiculopathy approximates moderate incomplete paralysis, and an initial rating of 20 percent is warranted. Conclusion to claims In sum, an initial rating of 40 percent for left lower extremity sciatica and an initial rating of 20 percent for right lower extremity sciatica is warranted. The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit even more favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In adjudicating a claim the Board must assess the competence and credibility of the Veteran. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his lower extremity radiculopathy. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability of radiculopathy according to the appropriate diagnostic code. Competent evidence concerning the nature and extent of the Veteran's lower extremity radiculopathy has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran's radiculopathy is evaluated. Therefore, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted. As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the service-connected disability. If so, then the assigned schedular rating is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the Board finds that the schedular rating does not reasonably describe or contemplate the severity and symptomatology of the service-connected disability, then the Board must determine whether the exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). The evidence of record does not show that the Veteran's lower extremity radiculopathy and additional service-connected disabilities are so unusual or exceptional in nature as to make the schedular rating inadequate. The radiculopathy has been rated under the applicable Diagnostic Code that has specifically contemplated the level of occupational and social impairment caused by the service-connected radiculopathy. In addition, the Veteran's symptoms such as muscle strength and sensory deficits are specifically enumerated under the applicable Diagnostic Code. The evidence does not show frequent hospitalization due to the service-connected disabilities, or marked interference with employment beyond that envisioned by the ratings assigned. Therefore, the Board finds that referral for consideration of the assignment of an extra-schedular rating is not warranted. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER An initial rating of 40 percent for left lower extremity sciatica is granted, subject to the applicable law governing the award of monetary benefits. An initial rating of 20 percent for right lower extremity sciatica is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs