Citation Nr: 1751527	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  12-00 318	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a rating in excess of 10 percent prior to April 13, 2017 and in excess of 20 percent thereafter, for sciatic nerve neuropathy of the left leg.   


REPRESENTATION

Veteran represented by:	Jan Dils, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran, the Veteran's spouse


ATTORNEY FOR THE BOARD

M. Thompson, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from January 1966 to November 1967.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in July 2016.  A transcript of that hearing has been associated with the claims file.  

This matter was remanded by the Board in September 2016 for further development and has since been returned to the Board for appellate review.  AT that time, the issues on appeal also included service connection for right ear hearing loss.  

In a May 2017 rating decision, the RO granted service connection for right ear hearing loss.  Accordingly, that issue is no longer before the Board.  Also in the May 2017 rating decision, the RO granted a separate evaluation for neuropathy of the femoral nerve left leg and left leg scar, as related to the service-connected left leg sciatic nerve neuropathy.  The Veteran has not appealed the evaluations assigned or the effective dates of these grants; accordingly, the issues are not before the Board and will not be addressed herein.

In June 2017, the RO assigned an increased evaluation of 20 percent for the issue on appeal, effective April 13, 2017.  In a July 2017 substantive appeal, the Veteran asserted that he is entitled to an earlier effective date of January 31, 2012 for the increased rating and requested a Board videoconference hearing on that issue.  The argument, however, that he is entitled to an earlier effective date is really an argument for an increased evaluation prior to that date; that issue remained in appellate status and a Board hearing had already been held on that issue.  The Veteran provided no compelling reason for another hearing to be held, and because he has had ample opportunity to submit evidence in regard to this claim, the Board finds that another hearing during this stage of his appeal is not warranted.  See 38 U.S.C. § 7107(b) (2012); 38 C.F.R. § 20.700(a) (2017); see also Cook v. Snyder, 28 Vet. App. 330 (2017).

The appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system and Legacy Content Manager (LCM) claims file.  LCM contains additional VA treatment records and documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. 


FINDINGS OF FACT

The Veteran's neuropathy of left sciatic nerve is most nearly approximated by moderate incomplete paralysis.  


CONCLUSION OF LAW

For the period on appeal, the criteria for a disability rating of 20 percent, but no higher, for neuropathy of the sciatic nerve of the left leg have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.12(a), Diagnostic Code (DC) 8520 (2016).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA's duty to notify was satisfied by letters dated October 2011.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file.  The Veteran has not identified any available, outstanding records that are relevant to the claim being decided herein.  

The Veteran was also afforded VA examinations in November 2011 and April 2017.  The Board finds that the VA examinations in this case are adequate, as they are predicated on an examination and fully address the rating criteria that are relevant to rating the disability in this case.  These examinations also included the Veteran's subjective complaints about his disability and the objective findings needed to rate the disability.  Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined.  38 C.F.R. § 3.327(a) (2016).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995).  Based on the foregoing, there is adequate medical evidence of record to make a determination in this case.  

The Board finds compliance with the Board's prior remand directives.  The September 2016 Board remand requested that the RO obtain outstanding VA medical treatment records, contact the Veteran and afford him the opportunity to identify private treatment providers, to provide the Veteran with a VA examination to determine the severity of the service-connected left sciatic nerve neuropathy.  VA treatment records were obtained in December 2016.  In December 2016 correspondence was sent to the Veteran regarding the identification of private treatment records.  The December 2016 correspondence was returned as undeliverable.  Correspondence was sent to the Veteran's new address in February 2017.  Private medical treatment records were associated with the file in March 2017.  The Veteran was afforded a VA examination for peripheral nerves in April 2017.  Accordingly, additional remand is not warranted.  See Stegall v. West, 11 Vet. App. 268 (1998).  The Board will proceed to address the merits of the claim.  

The Veteran was also provided with an opportunity to set forth his contentions during the hearing before a Veterans Law Judge (VLJ).  A Decision Review Officer or VLJ who chairs a hearing must fulfill two duties: (1) duty to fully explain the issues; and (2) the duty to suggest the submission of evidence that may have been overlooked.  38 C.F.R § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010).  At the Board hearing, the VLJ outlined the issue on appeal and the hearing focused on the elements necessary to substantiate the claim.  Additionally, additional subsequent development was conducted based on deficiencies in the record.  As such, the Board finds that the VLJ complied with the duties set for in 38 C.F.R. § 3.103(c)(2) (2017).  There has been no allegation to the contrary.  The Board will proceed to address the merits of the claim.  

For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.

II. Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3 (2017). 

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999). 

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

For paralysis of the sciatic nerve, disability ratings of 10, 20, 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.  Complete paralysis of the sciatic nerve, which is rated 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.  38 C.F.R. § 4.12a, DC 8520 (2017).  

When the involvement is only sensory, the rating should be for the mild or at most 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 sever, 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 (2017). 

As noted above, separate evaluations have been assigned for femoral nerve and scar residuals of the service-connected disability.  Thus, any findings regarding those disabilities are not addressed herein.

In the November 2011 VA examination report, the Veteran reported persistent left leg pain.  He reported constant mild left lower extremity pain, moderate intermittent pain (usually dull), moderate paresthesia and/or, and moderate numbness.  Upon testing, there was normal muscle strength without atrophy.  Knee reflex was normal, but there was an absent ankle reflex.  There was decreased sensation of the left lower leg, ankle, foot, and toes.  There were no trophic changes and a normal gait.  

In August 2012 private treatment records, the examiner concluded that the Veteran's radiculopathy in the left leg was moderate.  The diagnosis was left sciatic nerve neuropathy.  The Veteran reported feeling left leg numbness and pain.  There was loss of sensation in the foot and lower left leg.  

In August 2014 VA treatment records the Veteran reported left leg pain that is three out of ten, with ten being the worst pain, and a ten out of ten when standing.  In a September 2014 VA treatment record, the examiner found no weakness or numbness except for the left foot.  In other September 2014 VA records, the Veteran reported pain or discomfort in the lower back that radiates down the left leg.  The Veteran stated that the pain was 6/10 and was sharp and burning.  The Veteran stated that the pain is constant.  The pain affects the Veteran's ability to walk and sleep.     

At the July 2016 Board hearing the Veteran stated that a lot of times he could not lift his leg up and he will trip over like a curb or steps.  The Veteran reported constant pain and numbness and that his foot feels like he has sand in his shoe.  The Veteran explained that his whole leg feels weak which is why he has to use a cane sometimes.  The Veteran's spouse stated that with all the tripping, she thinks he has foot drop. 

In November 2016 private treatment records, the Veteran reported severe left leg pain that increased with walking.  The Veteran stated that he feels worse when standing still and that forward bending increases discomfort.  The pain radiates to the posterior calf.  In November 2016 private records, an EMG screen showed abnormalities of the left lower extremity.  The Veteran reported chronic left leg pain and weakness.  In February 2017 private treatment records, the Veteran reported significant left leg pain.  

In the April 2017 VA examination report, the Veteran reported severe constant pain that may be excruciating at times, severe intermittent pain, severe paresthesia, and/or dysesthesias, and severe numbness.  The Veteran also reported that he has weakness of the left foot and that his foot folds over sometimes.  On muscle strength testing, there was reduced 4/5 strength of left knee extension, left ankle plantar flexion, and left ankle dorsiflexion, without muscle atrophy.  There were normal reflexes.  There was decreased sensation of the left foot and toes, but normal sensation of the lower leg and ankle.  There were trophic changes of smooth, hairless calves.  There was a normal gait.  The examiner found moderate incomplete paralysis of the left sciatic nerve.  The examiner noted an abnormal December 2016 EMG.  

In an August 2017 private medical record, there were sciatic symptoms and left foot weakness.  Ankle reflexes were absent, patellar reflexes were reduced, and sensation was intact in the left lower extremity.  Strength was 5/5.

For the entire period on appeal, the Board finds that a 20 percent evaluation is warranted.  Prior to April 13, 2017, a 20 percent evaluation is warranted as the evidence shows moderate incomplete paralysis.  In August 2012, a private examiner found the Veteran's symptoms to be moderate.  Although the November 2011 VA examiner did not make such a finding, the Veteran reported moderate intermittent pain, paresthesia, and numbness.  There was also decreased sensation.  Resolving all doubt in favor of the Veteran, the Board finds that this more nearly approximates moderate incomplete paralysis.  

For the entire period on appeal, however, the evidence does not more nearly approximate moderately severe incomplete paralysis.  At the 2011 VA examination, there was normal muscle strength without atrophy.  There were absent ankle reflexes but normal knee reflexes.  There was decreased sensation.  At the 2017 VA examination, there was slightly reduced strength, but no atrophy.  The Veteran's reflexes were normal.  There was decreased sensation of the left foot and toes, but normal sensation of the lower leg and ankle.  There were trophic changes of smooth, hairless calves.  The examiner found moderate incomplete paralysis of the left sciatic nerve.  Despite the Veteran's increasing complaints of pain and numbness with difficulty walking, his gait was noted as normal at both VA examinations.  These findings do not warrant a finding of moderately severe incomplete paralysis.  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. Ap. 366,  369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

A 20 percent rating, but no higher, prior to April 13, 2017 for neuropathy of the left lower extremity is granted, subject to the applicable law governing the award of monetary benefits.

An evaluation in excess of 20 percent on and after April 13, 2017 for neuropathy of the left lower extremity is denied.  




____________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs