Citation Nr: 21040494 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 00-04 491A DATE: July 3, 2021 ORDER 1. Entitlement to an initial rating in excess of 10 percent for left lower extremity restless leg syndrome, to include extraschedular consideration, prior to January 26, 2021 is denied. 2. Entitlement to a 20 percent rating, and no higher, for left lower extremity restless leg syndrome, to include extraschedular consideration, from January 26, 2021 is granted. 3. Entitlement to an initial rating in excess of 10 percent for right lower extremity restless leg syndrome, to include extraschedular consideration, prior to January 26, 2021 is denied. 4. Entitlement to 20 percent evaluation, and no higher, for right lower extremity restless leg syndrome, to include extraschedular consideration, from January 26, 2021 is granted. 5. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to January 26, 2021, the Veteran's service-connected left and right lower extremity restless leg syndrome was productive of no more than mild incomplete paralysis of the sciatic nerve. 2. From January 26, 2021 forward, the Veteran's service-connected left and right lower extremity restless leg syndrome was productive of no more than moderate incomplete paralysis of the sciatic nerve. 3. For the entire appeal period, the Veteran's service-connected bilateral restless leg syndrome does not result in an exceptional or unusual disability picture so as to render impractical the application of the regular scheduler standards. 4. The Veteran failed to complete a VA Form 21-8940 and the evidence is insufficient to establish that she is unemployable as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent, prior to January 26, 2021, for service-connected left lower extremity restless leg syndrome, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.20, 4.124a, Diagnostic Code 8520. 2. The criteria for a rating in excess of 10 percent, prior to January 26, 2021, for service-connected right lower extremity restless leg syndrome, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.20, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating of 20 percent from January 26, 2021, but no greater, for service connected left lower extremity restless les syndrome, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.20, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating of 20 percent from January 26, 20201, but no greater, for service connected right lower extremity restless les syndrome, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.20, 4.124a, Diagnostic Code 8520. 5. For the entire period on appeal, the criteria for referral to the Director of Compensation Service for adjudication of an extraschedular rating for bilateral lower extremity restless leg syndrome have not been met. 38 C.F.R. § 3.321 (b); see Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). 6. The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1995 to May 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 1998 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided sworn testimony before the undersigned Veterans Law Judge at a November 2020 virtual Board hearing. A copy of the hearing transcript was associated with the Veteran's claims file. This matter was last before the Board in December 2020 when it was remanded for procedural and evidentiary development. Further development in substantial compliance with the Board's remand instructions has been completed, and the matter is now properly before the Board. 1. Entitlement to an initial rating in excess of 10 percent for left lower extremity restless leg syndrome, to include extraschedular consideration, prior to January 26, 2021 is denied. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity restless leg syndrome, to include extraschedular consideration, prior to January 26, 2021 is denied. The Veteran's service-connected left and right lower extremity restless leg syndrome were each awarded an initial 10 percent disability rating, for the entire period on appeal, under Diagnostic Code 8520, for paralysis of the sciatic nerve in December 2020 Board decision. Under Diagnostic Code 8520, complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of the muscles below the knee and flexion of the knee is weakened or even lost, warrants an 80 percent disability rating. For incomplete paralysis, a 60 percent rating is warranted for severe impairment with marked muscular atrophy; a 40 percent rating is warranted for moderately severe disability; a 20 percent rating is warranted for moderate disability; and a 10 percent rating is warranted for mild disability. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Veteran asserts she is entitled to initial ratings in excess of 10 percent for her service-connected left and right restless leg syndrome. After a complete review of the claims file in conjunction with the applicable law and regulations, the Board finds that prior to January 26, 2021, an initial rating in excess of 10 percent is not warranted. An August 1998 VA examination noted the Veteran's report of pain that is not excruciating, but more so uncomfortable, cramping, and some tingling in both legs after sitting for prolonged periods. Upon examination, sensory was intact to touch and vibration bilaterally. The diagnosis was compression neuropathy secondary to seating position. A February 2000 VA sensory examination revealed mild impairment of vibration in feet, but position and pinprick intact bilaterally. Likely diagnosis was noted as peripheral neuropathy. The examiner opined that an EMG/nerve conduction velocity test could help rule out peripheral neuropathy. The Veteran underwent a nerve conduction test in March 2000. The Veteran reported pain and numbness in both legs from her waist down if she sits too long. Results showed no evidence of peripheral neuropathy. The right and left superficial peroneal, sural nerves, and tibial nerves were all found to be normal. Ultimately, the examiner found that the sensory and motor conduction studies of both lower extremities were normal. In April 2004, the Veteran continued to complain of numbness to her leg after sitting or driving for long periods. She reported relief of symptoms upon repositioning herself or moving around. Upon examination, sensory was intact to touch and pinprick. July 2006 neurology report notes the Veteran's complaint of leg issues while sleeping. The Veteran attended a VA examination in February 2012 to assess her central nervous system. The VA examiner confirmed a diagnosis of restless leg syndrome. The Veteran reported that symptoms were worse in her right leg than her left leg. Neurological examination showed a normal gait; normal to slightly diminished muscle strength in the lower extremities; normal deep tendon reflexes in the lower extremities; and no muscle atrophy. The VA examiner stated that the Veteran had moderate lower extremity muscle weakness in the right leg and mild lower extremity muscle weakness in the left leg. The VA examiner explained that these classifications were based on subjective symptoms relayed by the Veteran. The VA examiner stated that poor effort during the strength testing could cause perceived lower extremity weakness by the examiner. The VA examiner noted that neurological testing conducted in August 2011 showed normal strength in the lower extremities. The VA examiner declined to opine on the etiology of the Veteran's symptoms. The Veteran did not require the use of any assistive devices for ambulation. The Veteran attended a private neurological consultation in May 2014 for assessment of her restless leg syndrome. Motor, cerebellar, gait, and sensory testing were within normal limits. At a VA treatment visit in February 2016, motor and sensory examinations were normal. Private chiropractic records from February 2017 show normal reflexes in the lower extremities, except for hypoactivity in the left achilles. Sensory testing showed hypoesthesia in the L3 vertebral distribution of the left leg. The Veteran attended a VA central nervous system examination in September 2017. Neurological examination revealed a normal gait; normal muscle strength in the lower extremities; normal deep tendon reflexes in the lower extremities; no muscle atrophy; and no muscle weakness in the lower extremities. The Veteran did not require the use of assistive devices for ambulation. In January 2021, the Veteran underwent a peripheral nerves condition examination. A diagnosis of bilateral restless leg syndrome was confirmed. The Veteran reported numbness, tingling, and weakness. Numbness and paresthesias of the right and left lower extremities were noted to be mild. The Veteran's reflexes and sensors were all normal. No trophic changes were observed, and the Veteran's gait was normal. Muscle strength resting revealed 5/5 for knee extension and 4/5 for ankle plantar flexion and ankle dorsiflexion. The examiner found that the Veteran had bilateral moderate incomplete paralysis of the sciatic and anterior crural femoral nerve. Based on the above, the Board finds that the currently assigned 10 percent disability ratings prior to January 26, 2021 are appropriate. Despite the Veteran's contentions that her bilateral lower extremity restless leg syndrome warrants higher ratings, the clinical disability picture, to include objective findings shown in the VA treatment records, examination reports, and private records, simply do not show more than mild symptomatology prior to January 26, 2021. Indeed, prior to January 26, 2021, there is no evidence of more than subjective complaints of pain, numbness, and tingling in the bilateral lower extremities. The Board acknowledges the Veteran's report of mild muscle weakness of the left lower extremity and moderate muscle weakness of the right lower extremity in February 2012; however, the Board highlights the fact that the examiner explained that these classifications were based on subjective symptoms relayed by the Veteran, and that poor effort during the strength testing could cause perceived lower extremity weakness. In light of this, even considering the reports of bilateral lower extremity muscle weakness, the Board does not find the impairment is more than mildly disabling when considering the frequency, severity, and muscle groups involved. Accordingly, the Board finds that ratings in excess of 10 percent, prior to January 26, 2021, for service-connected bilateral lower extremity restless leg syndrome, is denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran and her representative have also alleged that the Veteran's bilateral lower extremity restless leg syndrome warrants extraschedular consideration. See October 2009 VA 646 Statement of Accredited Representation. Pursuant to 38 C.F.R. § 3.321 (b)(1), the Director of Compensation and Pension, is authorized to approve an extra-scheduler evaluation 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 as to render impractical the application of the regular scheduler standards." 38 C.F.R. § 3.321 (b)(1). There is a three-step analysis for determining whether an extra-scheduler rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008); aff'd Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule for that disability to determine whether the disability picture is adequately contemplated by the rating schedule. Id. In the second step of the inquiry, if the scheduler 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 those provided by the regulation as "governing norms." Id.; see also 38 C.F.R. § 3.321 (b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the rating schedule is inadequate to evaluate the claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the third step is to refer the case to the Under Secretary for Benefits or the Director of C&P Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-scheduler rating. Id. In other words, the Board may not address the issue in the first instance. Here, the evidence shows that the Veteran's disability picture was adequately, and appropriately, contemplated by the applicable scheduler rating criteria. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first Thun element is not satisfied here. The Veteran's bilateral restless leg syndrome has been manifested by pain, numbness, and tingling in lower extremities. These symptoms and their resulting impairment are specifically contemplated by the rating schedule as part of the rating schedule for diseases of the peripheral nerves. See 38 C.F.R. § 4.97, Diagnostic Code 8520-8530. The Board has thoroughly considered the Veteran's and her representative's contentions herein. However, the Board concludes that the schedular rating criteria reasonably describes the Veteran's disability picture. While some of the Veteran's symptoms are not expressly mentioned in the rating criteria, such as tingling and pain, such is inherently contemplated by the criteria. Accordingly, an extraschedular rating is not warranted. Because the scheduler criteria adequately contemplated the Veteran's level of disability and symptomatology of her bilateral lower extremity restless leg syndrome; the threshold for an extra-scheduler rating were not met and the second step of the inquiry need not be addressed. See also, Urban v. Shulkin, No. 15-3744 (Vet. App. Sep. 18, 2017). 3. Entitlement to a 20 percent rating, and no higher, for right lower extremity restless leg syndrome, to include extraschedular consideration, from January 26, 2021 is granted. 4. Entitlement to a 20 percent rating, and no higher, for right lower extremity restless leg syndrome, to include extraschedular consideration, from January 26, 2021 is granted. Based on the findings outlined above, the Board finds the Veteran's bilateral lower extremity restless leg syndrome manifested as moderate symptoms from January 26, 2021, warranting disability ratings of 20 percent. The Board notes the January 2021 VA examiner diagnosed the Veteran with moderate incomplete paralysis of the sciatic and femoral (anterior crural) nerves bilaterally. Resolving all doubt in the Veteran's favor, the Board finds that, from January 26, 2021, the Veteran's left and right restless leg syndrome manifested as moderate symptoms. There is no evidence the Veteran's left and right restless leg syndrome manifested as severe symptoms to warrant a 30 percent disability rating. Factors such as muscle strength was normal. Further, the Veteran's reflexes were all normal and a sensory examination was normal. No trophic changes were observed, and the Veteran's gait was normal. The Board has considered whether the Veteran would be entitled to a higher rating under any other diagnostic code applying to the peripheral nerves of the lower extremities. The Veteran has been variously diagnosed with incomplete paralysis of the sciatic nerve (Diagnostic Code 8520), and femoral (anterior crural) nerve (Diagnostic Code 8526) bilaterally. However, Diagnostic Codes 8520 and 8526 all provide 20 percent disability ratings for moderate incomplete paralysis. Accordingly, no higher rating could be assigned under an alternative Diagnostic Code applying to the peripheral nerves of the lower extremities. In summary, the Board has considered all of the evidence of record, and finds that from January 26, 2021, the Veteran's left and right restless leg syndrome manifested as moderate symptoms to warrant a 20-percent disability rating, but no greater. 5. TDIU is denied In a March 2000 lay statement, the Veteran asserted that she could not be employed due to her service-connected restless leg syndrome (previously called compression neuropathy); thereby raising a claim of entitlement to a TDIU. When a request for a TDIU is made during the pendency of a claim for an increased rating, whether expressly raised by the veteran or reasonably raised by the record, it is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of the adjudication of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the period on appeal dates back to May 1998. During this long appeal period, the Veteran completed her college education and became employed as a nurse. Despite this fact, there are still periods where the Veteran may have experienced individual unemployability due to her service-connected disabilities. The December 2020 remand requested that the RO provide the Veteran with a VCAA notice letter informing her of the evidence required to substantiate a claim of entitlement to a TDIU, in addition to VA form 21-8940, Application for Increased Compensation Based on Unemployability. Pursuant to this Board remand, the Veteran was sent a letter in January 2021 that requested that she complete and return the enclosed VA Form 21-8940, and informed her that the Board may deny the claim for TDIU if a completed VA Form 21-8940 is not provided. The Veteran failed to return this form. A substantially complete VA Form 21-8940 is required to establish entitlement to TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. While failure to complete the form is not fatal to a TDIU claim in and of itself, the failure to do so deprives the Board of information as to the Veteran's employment history, educational history and training, and income information necessary to properly address a claim for TDIU. The Veteran's failure to complete the VA Form 21-8940 leaves the Board without the ability to request information from her prior employers as to her reason for leaving employment and without sufficient evidence to assess her employment status for the appeal period. Because of the lack of cooperation with VA's attempts to develop the claim for TDIU that was raised by the record, the Board cannot adequately adjudicate the claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the claim for TDIU must be denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.