Citation Nr: 18155992 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-55 975 DATE: December 6, 2018 ORDER Entitlement to service connection for sciatic pain, numbness, and tingling of the left leg is denied. Entitlement to an initial rating of 40 percent for right lower extremity sciatica is granted, subject to the laws and regulations controlling the award of monetary benefits. REMANDED Entitlement to an initial rating higher than 10 percent for chronic musculoligamentous strain (low back disability) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s sciatic pain, numbness, and tingling of the left leg is not related to service. 2. The evidence is at least evenly balanced as to whether the Veteran’s right lower extremity sciatica symptomatology more nearly approximates moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left leg sciatic pain, numbness and tingling have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for an initial rating of 40 percent for right lower extremity sciatica have been met. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.124a, diagnostic code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1986 to October 1987. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky which denied service connection for sciatic pain, numbness and tingling of the left leg, granted service connection for sciatica of the right side lower extremity, evaluating it as 20 percent disabling, granted service connection for chronic musculoligamentous strain, evaluating it as 10 percent disabling, and denied TDIU. The Veteran filed his notice of disagreement with the denial of service connection for right side lower extremity sciatica, the TDIU denial, and the assigned ratings for right side lower extremity sciatica and chronic musculoligamentous strain in September 2015, was issued a statement of the case in September 2016, and in November 2016 perfected his appeal to the Board. Entitlement to service connection for sciatic pain, numbness, and tingling of the left leg The Veteran contends that his left leg sciatic pain, numbness and tingling was caused by a fall while in service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including organic diseases of the nervous system such as peripheral neuropathy, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). June 1987 service treatment records note the Veteran complained of a bump on his left thigh that swelled up which resulted in erythema and tenderness upon palpation. Service treatment records from August 1987 note the Veteran experienced pain down his buttocks and thighs upon forward bending. Service treatment records from September 1987 note the Veteran suffered injuries from a fall in service. An April 1988 VA examination noted that a sensory examination of the left foot and leg was normal. A March 2016 disability benefits questionnaire (DBQ) noted that the Veteran reported left leg discomfort that started 2 years prior which comes and goes and radiates up to his calf. The examination report noted mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. The examiner stated that the Veteran has symptoms of left L5-S1 radiculopathy but no firm opinion can be offered whether it is at least as likely as not proximately due to or the result of chronic musculoligamentous strain without guessing. An April 2018 DBQ noted mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. No muscle atrophy was noted. The examination report noted decreased sensation for light touch of the left thigh/knee. The examiner noted the Veteran’s left sciatic nerve was normal. The examiner opined that the Veteran’s left anterior thigh numbness is due to compression of the lateral femoral cutaneous nerve as it exits the lower abdomen/groin, a condition known as Meralgia Paresthetica, and has no connection with the lower back or sciatic nerve condition. The examiner stated that the Veteran’s stocking distribution of decreased sensation in the entire leg below the knee is not consistent with the isolated sciatic nerve damaged prior to service and aggravated by a fall in service. The examiner added that the Veteran’s total absence of vibratory sensation in the entire lower leg is not consistent with isolated sciatica in the absence of more confirmatory evidence. For the following reasons, the preponderance of the evidence is against the Veteran’s claim for service connection for left leg sciatic pain, numbness and tingling. While service treatment records note a complaint for a bump on the Veteran’s left thigh, the records indicate he was treated for the injury and returned to full duty. There is no evidence in the Veteran’s service treatment records of treatment for left leg sciatic pain, numbness and tingling, and the April 2018 examiner opined that the Veteran’s left foot sciatic pain, numbness and tingling were not related to the fall in service. The examiner provided a thorough rationale to support his opinion, thus his opinion is afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Veteran has contended that his left leg sciatic pain, numbness and tingling are related to the in-service fall in service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Additionally, the Veteran stated in his March 2016 examination that his left leg discomfort started 2 years prior, more than 25 years after discharge from active duty service and thus the lay and medical evidence reflect that the Veteran’s left leg symptoms did not manifest in service or for many years thereafter. For the foregoing reasons, the weight of the evidence reflects that the Veteran’s left leg pain, numbness and tingling are not related to an in-service injury or disease, and are not otherwise etiologically related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. Rating 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. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to a higher initial rating for right side lower extremity sciatica The Veteran’s right lower extremity sciatica is rated 20 percent disabling under 38 C.F.R. § 4.124a, DC 8520. Under DC 8520, a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or (very rarely), lost. Id. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” Rather than applying a mechanical formula, the Board must instead evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2017). The term “incomplete paralysis,” with this and other peripheral nerve injuries, 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. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, note at “Diseases of the Peripheral Nerves.” A March 1988 VA examination noted the Veteran had pain that radiated to his right foot. The examiner noted the Veteran walked with a limp and used a cane, was unable to toe walk, but had no sciatic tenderness. The examination report indicated straight leg raising was negative, the Veteran is somewhat tender over the ischial bone, and has an absent right ankle jerk. The examination report also noted some numbness of the L5-S1 area on the dorsum of the foot while the L3 through S1 muscles were strong. The examiner noted the Veteran had 100 percent range of motion in flexion, extension, lateral bending and rotation. The examiner indicated he could not detect any weakness on manipulation in eversion and inversion of the foot and the range of motion of the foot and ankle were reported to be normal. An April 1988 VA examination noted weakness in essentially all the muscles of the right leg and right foot. The report noted the Veteran had an abnormal stepping gait and used a cane to assist with walking. The examiner noted the Veteran was unable to heel or toe walk, had difficulty stepping onto a 6-inch step with the right foot first, and had difficulty recovering from a squatting position. The report noted no evidence of atrophy or fasciculations in any of the muscle groups in the lower extremities. A sensory examination revealed diminished sensation along the outer aspect of the right leg and reflexes were diminished at the knee on the right side. The examiner estimated the strength in the right leg was 50 percent of that in the left leg. A July 2015 DBQ noted severe constant pain, moderate intermittent pain, and severe numbness of the right lower extremity. The examination report noted a normal sensory examination except for the right foot and toes which indicated no light touch sensation. The examiner noted moderate incomplete paralysis of the sciatic nerve, and stated the Veteran’s peripheral neuropathy condition impacted his ability to work as he cannot sit more than 15 to 20 minutes without increasing pain and numbness in his leg which forces him to get up and move. A March 2016 DBQ noted that the Veteran stated he suffers from pain in the right leg which is present all the time. The Veteran stated he could walk for one block and go up and down stairs. The examination report noted that after service the Veteran did construction work, but denied any injury after service. The examination report noted mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness of the right lower extremity. The Veteran’s reflex and sensory exams were normal, as were his lower extremity nerve severity evaluations. An April 2018 DBQ indicated that the Veteran’s right leg pain is nearly constant and worse with walking any distance with a burning pain in the buttock, posterior thigh, and calf. The Veteran reported that his right second toe would not straighten and that he has developed a callous on the tip of the toe. The Veteran reported an isolated area of numbness on the front of the right calf. The examination report noted moderate constant pain, mild paresthesias and/or dysesthesias, and mild numbness of the right lower extremity. The examination report noted no muscle atrophy and muscle strength testing was normal, but the sensory examination noted decreased sensation for light touch of the right thigh, right lower leg/ankle, and right foot/toes. The Veteran’s gait was antalgic, and the examiner noted mild incomplete paralysis of the sciatic nerve. The examination report indicated the Veteran implemented regular use of a cane due to pain in the low back and right leg. The examiner opined that the Veteran’s peripheral nerve condition impacted his ability to work as he is unable to sit longer than 30 minutes, stand longer than 30 minutes, or walk 200 yards. The Veteran has consistently reported moderate to severe constant pain in the right lower extremity, mild numbness and paresthesias/ or dysesthesias. While the examination notes normal muscle strength, sensory examinations note between decreased sensation and no sensation in the right lower extremity, and the Veteran reported a need for a cane because of his right leg pain. Additionally, the July 2015 examination report noted moderate incomplete paralysis of the sciatic nerve. While the description of the level of impairment by health care professionals is not dispositive, and the question of whether impairment is mild, moderate, or severe is ultimately an adjudicatory one, the assessment that the Veteran’s right lower extremity sciatica was moderate is consistent with the evidence of record. 38 C.F.R. § 3.100 (a) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present.”). The evidence is thus at least evenly balanced as to whether the Veteran’s right lower extremity sciatica symptoms more nearly approximate moderately severe incomplete paralysis of the sciatic nerve as contemplated by a 40 percent rating under DC 8520. Therefore, a rating of 40 percent under DC 8520 for the Veteran’s right lower extremity sciatica is warranted. As this was the rating specifically requested by the Veteran, discussion regarding whether an initial rating higher than 40 percent is warranted is unnecessary. The Board notes that the Court of Appeals for Veteran’s Claims (Court) has held, that on a claim for a higher initial or increased rating, a claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and thus, such claim remains in controversy where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In so holding, however, the Court cited the case of Hamilton v. Brown, 4 Vet. App. 528 (1993) for the proposition that a claimant may limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law. See AB, 6 Vet. App. at 39. To do so, the Court indicated that a claimant would have to clearly express an intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition. See id. Here, in his September 2015 notice of disagreement, the Veteran specifically and unequivocally requested a 40 percent rating for his service-connected right lower side sciatica. As the Board is granting the specific relief requested, it need not address whether an initial rating higher than 40 percent is warranted. REASONS FOR REMAND 1. Entitlement to an increased rating for a low back disability, currently rated as 10 percent disabling is remanded. The Veteran’s low back disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5237. The Veteran contends that his low back disability warrants higher than a 10 percent disability rating. A March 1988 VA examination noted the Veteran had very little back pain for a brief time every 2 weeks, lasting a few minutes, especially when bending or twisting. An April 1988 VA examination noted that an examination of the back revealed mild tenderness to percussion in the lumbar area, but range of motion in the lower part of the back was normal, and no paraspinous muscle spasms were present. A July 2015 DBQ notes that the Veteran does not suffer flare-ups of the thoracolumbar spine, and does not report functional loss or impairment of the thoracolumbar spine. Forward flexion was reported to 90 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right and left lateral rotation were both to 20 degrees. The Veteran reported pain in all ranges of motion and reported being unable to lift objects from the ground due to pain from bending and stooping. The examination report noted no pain with weight bearing, no evidence of localized tenderness or pain on palpation of the joints, and no additional loss of function or range of motion after three repetitions. The examiner noted pain significantly limited functional ability with repeated use over a period of time, limiting forward flexion to 75 degrees. The examiner noted no muscle atrophy, and the sensory examination was normal except for the right foot and toes which noted no sensation to light touch. The Veteran reported severe constant pain, moderate paresthesias and/or dysesthesias, and severe numbness in the right lower extremity. The examination report noted moderate radiculopathy on the right side. There was no ankylosis reported, no intervertebral disc syndrome, and the Veteran did not report use of any assistive device. The examiner opined that the Veteran’s thoracolumbar spine condition did impact his ability to work as he is unable to bend forward more than 75 degrees without severe pain, thus limiting his ability to lift objects from the floor. The examiner also noted the Veteran was unable to sit for more than 15 to 20 minutes without an increase in back pain, and that the Veteran had to quit his job as a driver as a result of his back pain. Unfortunately, the evidence of record is insufficient to decide the claim. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. While the July 2015 DBQ regarding the Veteran’s low back disability reported findings on weight bearing, the examination did not otherwise comply with the requirements in Correia. The examination does not contain passive and active range of motion measurements, or pain on non-weight bearing testing. Therefore, a remand for a new VA examination is required. 2. Entitlement to a TDIU is remanded. The Veteran contends that he is unable to work due to his service connected disabilities. The Veteran’s 21-8940 application indicates he completed 4 years of high school, became too disabled to work in January 2014, and last worked full time in February 2014 as a purchasing agent. A VA 21-4192 request for employment information form indicates the Veteran last worked in February 2014 because he had accepted another job. Multiple DBQ reports note that the Veteran cannot sit more than 15 to 20 minutes without increasing pain and numbness in his leg, stand longer than 30 minutes, or walk 200 yards due to his service connected disabilities. As a decision on the remanded issue of entitlement to an initial rating higher than 10 percent for a low back disability could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Therefore, a remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the severity of his low back disability. The examination should be conducted in accordance with the current disability benefits questionnaire, to include compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). (Continued on the next page)   2. After completing the above, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel