Citation Nr: 21006656 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-37 050 DATE: February 4, 2021 ORDER Effective March 7, 2011, but no earlier, an increased rating of 20 percent, but no higher, for right sciatica associated with sacroiliitis is granted, subject to the laws and regulations governing monetary awards. FINDING OF FACT From March 7, 2011, the date of her filed increased rating claim, the Veteran’s right sciatica associated with sacroiliitis manifested by no more than moderate paralysis; there is no factually ascertainable increase in severity of her right sciatica in the year preceding her increased rating claim. CONCLUSION OF LAW From March 7, 2011, the criteria for entitlement to an increased rating of 20 percent, but no higher, for right sciatica associated with sacroiliitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2000 through June 2002. This matter returns to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Waco, Texas. By way of background, the RO granted service connection for right sciatica and assigned a 10 percent disability rating in a December 2007 rating decision. The Veteran did not appeal this rating decision or submit additional evidence within one year. As such, it became a final decision. She then filed an increased rating claim which the VA received on March 7, 2011. Thus, the Board will consider the period on appeal as early as one year prior to her increased rating claim or March 7, 2010. See 38 C.F.R. § 3.400(o)(2). The Board previously remanded this matter for additional development in April 2018 and July 2019. As will be discussed in more detail below, the Board finds substantial compliance with the July 2019 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Effective March 7, 2011, but no earlier, an increased rating of 20 percent, but no higher, for right sciatica associated with sacroiliitis is granted, subject to the laws and regulations governing monetary awards. The Veteran contends that the severity of her sciatic nerve symptoms entitles her to an increased disability rating. The Board finds an increased rating of 20 percent, but no higher, is warranted beginning March 7, 2011, but no earlier. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning resulting for a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civilian occupations, resulting from such diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Notably, “staged” ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran is currently in receipt of a 10 percent disability rating for right peroneal nerve associated with sacroiliitis under DC 8251, incomplete paralysis of the external popliteal nerve (common peroneal). The Board notes, the Veteran’s service connection claim was first granted as service connection for right sciatica but rated under DC 8251 for peroneal nerve. Since then, the rating has continued under DC 8251 despite conflicting medical evidence referencing incomplete paralysis of the sciatic nerve. Based upon review of the medical evidence of record, the Board finds that the Veteran’s nerve manifestations associated with sacroiliitis previously rated under 38 C.F.R. § 4.124a, DC 8521, are more appropriately captured under DC 8520 for sciatic nerve paralysis. The selection of the proper Diagnostic Code depends on the identity and medical nature of the claimed condition. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (en banc). As will be explained below, the medical evidence was indeed in conflict as to the nerve-root involvement causing the Veteran’s service-connected condition associated with sacroiliitis. In fact, throughout the Veteran’s claims file, there has been conflict as to the nerve-root source of her condition. The preponderance of the evidence, however, indicates her nerve condition is caused by sciatic nerve root involvement and not peroneal nerve root involvement. See December 2019 VA examination. Accordingly, DC 8520 is the proper diagnostic code for application. Id. (the Board’s selection of the proper diagnostic code is entitled to high deference because the agency possesses the necessary specialized expertise in identifying the medical nature of the condition). Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured 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 disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Turning to the relevant evidence of record, in April 2011, the Veteran reported a history of low back pain that was sharp with muscle tension in the right lumbar region that radiates through the right lower extremity with shooting, sharp, throbbing pain in the thigh and foot. See April 2011 non-government treatment records. The provider indicated that her symptoms followed the course of the sciatic nerve. Id. She complained of symptoms impacting sleep and physical activity. Id. In September 2011, the Veteran complained of sciatic nerve pain on the lower right side. See September 2011 VA treatment records. She stated that her pain is chronic and has been present for over a decade. See September 2011 non-government treatment records. Upon examination, a provider stated that he believed her symptoms are coming from the L5-S1 level as the disc wear is causing inflammation and irritation with L5 nerve root distribution. Id. Subsequent appointments in 2011 revealed continued complaints of pain with mention of changes in severity described as burning, throbbing, sharp, dull, pricking, and constant. See October 2011 non-government treatment records. Treatment records in 2014 indicate the Veteran continued to experience sciatic nerve pain that is pressure-like and stabbing. See January 2014 VA treatment records. July 2014 treatment records note an onset of 2001 for the Veteran’s right lower back pain down the sciatic nerve. See July 2014 VA treatment records. The Veteran described her sciatic nerve pain as severe explaining that it does not stem from below her knee, but rather radiates from the right side of her lower back down through her leg. See October 2014 VA Form 9. In 2015, the Veteran sought breast reduction surgery due to the endurance of extreme pain in her “right peroneal nerve (sciatic nerve).” See September 2015 VA treatment records. In June 2016, the Veteran attempted to complete an MRI but was unable to lie flat for the testing due to her pain. See June 2016 VA treatment records. In 2017, the Veteran continued to report sciatic nerve pain. See February and May 2017 VA treatment records. The Veteran was afforded multiple VA examinations during the period on appeal in relation to her back condition but also to specifically determine the severity of her sciatic nerve disability during the period on appeal. During a May 2011 VA examination, the examiner noted the Veteran had right sciatica associated with sacroiliitis that has worsened with more pain radiating down the right leg, behind the knee, and into the foot. See May 2011 VA examination. She described the pain as constant with worsening throughout the day. Id. The examiner classified the Veteran’s pain as moderate. Id. Weakness was found to be moderate. Id. Mild stiffness was indicated. Id. Flare-ups lasting 24 hours were indicated during weather changes and with positioning. Id. Other symptoms included numbness, weakness, and general feeling of illness. Id. A pinprick test produced abnormal results in the right lower extremity with weakness associated with the right foot. Id. The Board remanded in April 2018 for additional development to include a more recent VA examination to determine the severity of the Veteran’s nerve condition. During a VA examination in June 2018, the Veteran complained of numbness and tingling in her legs with worsening of her back pain. See June 2018 VA examination. Radiculopathy was not found. Id. An October 2018 VA examination indicated the Veteran had diminished sensation to touch and vibration in the right leg, foot, and toes. See October 2018 VA examination. Another remand was issued in July 2019 for additional development including another VA examination addressing specifically the Veteran’s right peroneal nerve and the severity of any symptoms associated therewith. In December 2019, the Veteran reported continued pain and limited motion. See December 2019 VA examination. The examiner indicated she had right lower extremity radiculopathy diagnosed in 2000. Id. Symptoms in the right lower extremity were noted to be mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Id. Muscle atrophy was not found. Id. Reflex testing indicated hypoactive right knee and ankle. Id. The Veteran was noted to have decreased sensation in the right upper anterior thigh, right thigh/knee, right lower leg/ankle, and right foot/toes. Id. The examiner indicated the Veteran has incomplete paralysis of the right sciatic nerve that is moderate in severity. Id. External popliteal (common peroneal) nerve paralysis, including incomplete and complete, was not indicated. Id. The Board finds the May 2011 and December 2019 VA examinations include consideration of the Veteran’s medical history and set forth all pertinent findings, such that the Board is able to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). When considered together and with the entire evidence of record, the Board finds the examination reports are sufficient to determine the Veteran’s disability severity for the purposes of assigning a rating during the period on appeal. Based on the above, the Board finds that the Veteran’s right sciatica disability is primarily manifest by pain, numbness, tingling, and weakness amounting to moderate incomplete paralysis beginning March 7, 2011. While the May 2011 VA examiner did not specifically assign an overall severity level to the Veteran’s right sciatica condition, he did assess the Veteran’s symptoms individually noting moderate and constant pain, moderate weakness, and mild stiffness. In fact, the first notation of moderate symptomatology associated with the Veteran’s right sciatica disability was indicated in the May 2011 VA examination, which the Board finds highly probative. Also noted was right lower extremity numbness with abnormal pinprick results. The Board finds the Veteran’s reports of weakness and constant pain when considered with the competent and credible May 2011 VA examination report reflect a disability picture that more nearly approximates a 20 percent disability rating for moderate incomplete paralysis of the right sciatic nerve. These symptoms are further corroborated by subsequent treatment records indicating continued pain and numbness. Additionally, the December 2019 VA examiner indicated the Veteran’s right sciatica symptoms continued to be moderate with incomplete paralysis. As noted in the introduction, the Board considered whether there was a factually ascertainable increase in severity of the Veteran’s disability in the one year period prior to the Veteran filing her increased rating claim, but found no medical evidence to support any factually ascertainable worsening. VA outpatient treatment records dated in September 2010 note complaints of back pain, but no complaints, treatment or findings specifically related to her right lower extremity. In November 2010, the Veteran reported 7/10 pain of the lower back radiating down to the right lower extremity. She indicated she was not under treatment for this problem. Other outpatient treatment records dated in 2010 are unrelated to the issue on appeal. She was given an MRI of the lumbar spine on February 3, 2011, where at that time there was an L5-S1 disc protrusion, but no specific findings related to her right lower extremity. At that time, an orthopedic consult was recommended. The orthopedic consultation was completed on March 29, 2011, as outlined above. Thus, prior to the filing of her March 2011, although there is some indication she complained of lower back pain radiating down her right lower extremity, there is insufficient evidence to show a factually ascertainable increase in severity of her condition had occurred. The Board also concludes that the most probative evidence of record is against a finding that the disability is manifest by moderately severe incomplete paralysis at any time during the period on appeal. While the Veteran contends her symptoms worsened in severity, the competent and credible medical evidence of record indicates that her symptoms did not amount to moderately severe incomplete paralysis of the sciatic nerve. She consistently noted numbness, tingling, and pain, but the Board finds these symptoms and the medical evidence of record more nearly approximates the criteria of moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. The Board has also considered whether an increased rating is factually ascertainable from the record in the year prior to the Veteran’s increased rating claim but finds the record lacks evidence of an increase in severity more closely approximating moderate incomplete paralysis under DC 8520 during said period. (Continued on the next page)   In conclusion, the Board finds an increased rating of 20 percent, but no higher, is granted beginning March 7, 2011, for right sciatica associated with sacroiliitis. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.