Citation Nr: 21010085 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 10-15 281 DATE: February 24, 2021 ORDER Entitlement to a rating in excess of 60 percent for left lower extremity sciatica to include left foot drop, to include on an extra-schedular basis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Sciatica of the left lower extremity to include left foot drop was primarily manifested by moderately severe incomplete paralysis and muscle atrophy, with no evidence of complete paralysis. 2. During the appeal period and at the time of the Veteran’s death, the Veteran met the schedular criteria for TDIU; but the evidence of record at the time of the Veteran’s death does not show that his service-connected disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 60 percent for left lower extremity sciatica to include left foot drop, to include on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.123, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.1000, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1960 to March 1964. The Veteran died in June 2011. The appellant is the Veteran’s surviving spouse and has been substituted into the Veteran’s appeal for the purposes of pursuing the appeal to completion. In a May 2018 Board of Veterans’ Appeals (Board) decision the Board increased the rating from 20 percent to 60 percent disabling effective June 2008. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court) which, in a July 2019, vacated and remanded the issue for action consistent with a Joint Motion for Remand (Joint Motion). A December 2019 Board decision remanded the issues for development consistent with the Joint Motion. The claims have been returned to the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. 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 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; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). 1. Entitlement to a rating in excess of 60 percent for left lower extremity sciatica to include left foot drop, to include on an extra-schedular basis The appellant contends that the Veteran’s left lower extremity sciatica to include left foot drop warrants a disability rating higher than 60 percent, to include on an extraschedular basis. The Veteran’s disability is currently evaluated at 60 percent according to Diagnostic Code 8720. The medical evidence at hand shows that the Veteran’s sciatic nerve is the nerve affected by the Veteran’s disability. Neuralgia under Diagnostic Code 8720 is rated as paralysis of the sciatic nerve under Diagnostic Code 8520. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. A maximum rating of 80 percent is warranted for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under 38 C.F.R.§ 4.123, 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 which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R.§ 4.123. Under 38 C.F.R.§ 4.124a,diseases of the peripheral nerves are rated based on the degree of paralysis, neuritis, or neuralgia. 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R.§ 4.124a. In rating peripheral nerve injuries and their residuals, attention must be given to the site and character of the injury, the relative impairment of motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120. 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 partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, VA should consider the applicability of the radicular group ratings. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. In the April 2010 VA Form 9, the Veteran stated that his foot drop had gotten worse during the course of the appeal. The Veteran also stated that he wore a brace and he required a cane on long walks. In addition, the Veteran stated that he had very bad pain from his foot that radiated to his lower back. Lastly, he stated that he had lingering pain all day long that required him to sit down to make it go away. The appellant, in a February 2008 statement reported her observations of the Veteran’s disability. She stated that the Veteran walked slower and slapped his foot a lot, required a cane to walk which helped him with the pain, occasionally required help to put on his left shoe, and lastly, that the Veteran’s back and leg pain “would keep him up most nights.” The Board notes that the Veteran and the appellant are competent to report on observable symptoms such as pain and difficulty walking as they are observable by a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). During a June 2008 VA lumbar spine examination, the Veteran reported back pain that was a 6 out of 10 on the pain scale. The Veteran stated that he also experiences flare-ups and he rated that pain to be 10 on a scale to 10. The Veteran stated that the pain was located in his lumbar and thoracic areas. The Veteran added that he had recently developed sciatic pain that radiates down to his left foot. The Veteran reported that his disability prevented him from standing or walking for a long period of time. Lastly, the Veteran stated that he would take ibuprofen and Vicodin to deal with the pain. Upon examination, the examiner stated that the Veteran had pain localized in the lumbar area and worsening back disease, both evidenced from the pain and weakness indicated on examination. The examiner also stated that the Veteran had a partial left foot drop. Lastly, the examiner diagnosed degenerative disc disease of the thoracic and lumbar spine with left peroneal palsy (foot drop, partial). In May 2009, during a VA peripheral nerve examination, the Veteran reported that his left foot slapped the ground and had continued to get worse. He reported flare-ups that resulted in functional loss, adding that he felt a burning sensation and pricking of the skin. On examination, the examiner did not find any signs of neuritis, neuralgia, paralysis, or muscle atrophy in the Veteran’s left lower extremity. The examiner opined that the Veteran’s foot slapping was most likely due to a fusion of the left MTP joint. An April 2010 private opinion in support of the Veteran’s claim from his podiatrist, Dr. M.W., reflects that “the foot drop resulting from the nerve palsy is likely a progressive deformity whereby later evaluations may find further and more notable weakness than was previously examined.” Likewise, an April 2010 statement from Dr. J.G., the Veteran’s private primary care physician, reflects that the course of the Veteran’s condition will be chronic, he will get weaker over time and may need decompression for a lateral recess stenosis or spinal stenosis. In December 2019, an addendum VA opinion was sought to determine the severity of the Veteran’s sciatica, to include left foot drop at the time of his death. After a review of the claims file and the lay and medical evidence of record, the examiner stated she agreed that the Veteran had moderately severe sciatica and resultant left foot drop. She went on to state that considering the age of the Veteran and the chronicity of the Veteran’s sciatica and foot drop, it is unlikely that there would have been significant improvement after the 2016 Board decision which assigned a 60 percent evaluation. The examiner went on to state that the records support a finding of sciatica with incomplete paralysis of the left foot extensor muscles as left foot strength was noted to be 4/5 in 2008 and 2009 which was consistent with a moderate to severe incomplete paralysis. The examiner stated that just before the Veteran’s death, in her opinion, the Veteran’s sciatica to include left foot drop was at a moderately severe level. As evidenced from the above, the Veteran’s service-connected lumbar spine disability worsened over time leading to the development of a partial left foot drop which the Veteran’s private physicians and the December 2018 VA examiner attributed to the lumbar spine disability. In addition, the Veteran and the appellant have provided competent lay reports of symptoms of foot slapping, back and leg pain, and the Veteran’s use of a cane to assist with walking. In light of the above, the Board finds that the Veteran’s sciatica with left foot drop disability warrants the currently assigned 60 percent rating, and not higher, for the entire period on appeal. In this regard, at the time of the June 2008 VA lumbar spine examination there was evidence of the development of a partial left foot drop due to the lumbar spine disability. Throughout the course of the appeal, up until his death, the Veteran reported increased back pain and difficulty standing or walking for long periods of time. Despite the increased symptoms, at no time during the appeal was there evidence of complete paralysis of the sciatic nerve. Accordingly, the Board finds that the requirements for a rating in excess of 60 percent are not met because the evidence does not show severe incomplete paralysis with marked muscle atrophy. Extra-schedular Considerations The present appeal includes the matter of whether an extra-schedular evaluation is warranted for the Veteran’s sciatica with left foot drop disability. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321 (b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. In Long v. Wilkie, the Court reiterated that to warrant extraschedular consideration, a disability must be so exceptional or unusual that it renders application of the regular schedular ratings impractical. The Court held that in determining whether a disability is exceptional, it is not enough merely to show that the Veteran has an associated symptom that is not in the pertinent rating criteria. Instead, VA must determine, based on the totality of the circumstances, whether the disability picture as a whole presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance. Id. In the December 2019 Board remand, the issue was referred to the Director of the Compensation and Pension Service for extra-schedular consideration per the Joint Motion. In October 2020, the Director denied the Veteran extra-schedular consideration stating that while the medical evidence shows ongoing treatment for left lower extremity sciatica, the objective evidence of record shows that the disability pattern most closely approximates the level of severe impairment the Veteran was assigned. Additionally, there is no evidence of incapacitating episodes creating marked interference with employment or frequent hospitalizations due specifically to the sciatica disability or for the treatment of said disability. Lastly, the opinion notes that there is no evidence or record that shows the currently assigned, or available, schedular evaluations for left lower extremity sciatica are inadequate due to exceptional or unusual circumstances. Considering that the Director of C&P has had an opportunity to evaluate the Veteran's claim for extra-schedular consideration in the first instance, and since that consideration was denied, extra-schedular consideration is now before the Board for the period on appeal. 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). Reviewing the available evidence, the Board finds that the Veteran’s left lower extremity sciatica with left foot drop disability does not warrant an increased rating on an extra-schedular basis. As evidenced by the medical treatment records and private physician’s statements, the Veteran’s left lower extremity disability is an outgrowth of his service-connected back disability. While the Veteran and the appellant reported the Veteran had difficulty sleeping due to back and leg pain the Board finds that the first element of Thun is not satisfied for the claimed disability as the Veteran’s left lower extremity symptoms and their severity are contemplated by the rating criteria. In this regard, a diagnostic code need not list every word or type of symptom to contemplate the functional loss associated with such disability. Doucette v. Shulkin, 28 Vet. App. 366 (2017); Long. Similar to the effects of hearing loss as discussed Doucette, the effects of the Veteran’s left lower extremity disability in terms of inability to stand or walk for long periods and instances of pain are contemplated by the rating code. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a. In addition, the natural consequences of near constant back and leg pain are likely to result in difficulty with sleeping. See Doucette, 28 Vet. App. at 366 (2017). Lastly, there is no evidence that the Veteran’s left lower extremity sciatica disability with left foot drop required frequent hospitalizations or incapacitating episodes creating marked interference with employment. In sum, the preponderance of the evidence shows that the Veteran's left lower extremity sciatica with left drop disability does not present an exceptional disability picture that renders the rating schedule inadequate. Therefore, there is no doubt to be resolved and an extraschedular rating for the lumbar spine disability is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to a total disability rating based on individual unemployability The appellant asserts that the Veteran’s left lower extremity sciatica with left foot drop disability rendered the Veteran unable to work. Specifically, the appellant contends that the Veteran sold his restaurant and retired in 2006 because he was no longer able to perform the work required to keep it operating. See August 2020 VA Form 21-4192. At the time of the Veteran’s death he was service connected for left lower extremity sciatica, to include left foot drop associated with degenerative disc disease lumbar spine at 60 percent disabling, degenerative disc disease lumbar spine at 20 percent disabling, bilateral hearing loss at 10 percent disabling, and tinnitus at 10 percent disabling. A review of the record shows the Veteran was self-employed as a restaurant owner and operator from 1974 to 2006 when he sold his business at the age of 65. He reportedly completed high school and one year of college. According to an April 2010 treatment record, Dr. S. reported the Veteran had intermittent back pain largely in the lower back with some radiating pain down his thigh and leg. The Veteran reported the pain was aggravated with activity and relieved with rest and time. Several times a year the pain was considered severe. The Veteran also had progressively worsening weakness in his left leg and foot. There was no bowel or bladder incontinence, and the pain did not wake him in the middle of the night. It was also noted that as long as the Veteran kept his weight down and his core muscles strong, he could function reasonably well. As for the Veteran’s service-connected hearing loss and tinnitus, no significant problems with communication were indicated. Furthermore, a December 2019 Director of Compensation Service opinion determined that the Veteran’s left leg sciatica with foot drop was moderately severe in severity and did not result in complete paralysis below the knee, marked interference with employment or frequent hospitalizations prior to the Veteran’s death. (Continued on the next page)   The Board acknowledges the appellant’s contentions that his service-connected disabilities precluded the Veteran from working. In a July 2005 statement, the Appellant reported that since the Veteran’s first pain injection in September 2001, the Veteran’s life had been made better and worth living without acute back pain. Despite the appellant’s contentions, there is no competent medical evidence that shows the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. As noted above, the Veteran sold the business he owned and operated for over 30 years and retired at the age of 65. In sum, the evidence is against a finding that the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation and the claim for TDIU must be denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.