Citation Nr: 0000292 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 93-21 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial rating in excess of 20 percent for service-connected herniated nucleus pulposus (HNP), L4-5. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gallagher, Counsel INTRODUCTION The veteran served on active duty from January 1968 to December 1970 and from May 1977 to May 1991 as verified by DD Forms 214. There also appears to be an unverified period of service from May 1974 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) from a January 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, among other actions, granted service connection for herniated nucleus pulposus (HNP), L4-L5, effective June 1, 1991, and assigned an initial noncompensable disability rating for that disorder. The RO granted an increased disability rating to 20 percent for the service-connected HNP in June 1996, effective June 1, 1991. The Board remanded the claim in May 1997 for further development of the evidence. In May 1997, the Board took jurisdiction of a claim for an increased (compensable) disability rating for service-connected post traumatic stress disorder (PTSD) pursuant to the holding of the United States Court of Appeals for Veterans Claims (Court) in Holland v. Brown, 9 Vet App 324, 326 (1996) (Ivers, J., concurring in result), reconsideration denied, 10 Vet. App. 42 (1997) (per curiam) (Ivers, J., dissenting). The RO had initially denied service connection for PTSD in the January 1992 rating decision, and the veteran appealed that decision to the Board. Before the appeal of the claim reached the Board, a VA hearing officer granted service connection for PTSD. The RO assigned a noncompensable rating for the service-connected PTSD and withdrew this claim from the appeal, noting in a March 1993 supplemental statement of the case in language similar to that used by the RO in Holland that the decision granting service connection for PTSD "represents a complete grant of benefits sought on appeal . . . ." See Holland, 9 Vet. App. at 326. Since a noncompensable rating was assigned for the service-connected PTSD, the Board concluded that the veteran was not granted the full benefit sought on appeal, according to the holding of the Court in Holland, and that the Board therefore had jurisdiction of the claim for an increased disability rating. Holland, 9 Vet. App. at 330 (holding that a May 1991 notice of disagreement filed with a decision denying service connection for a back disability also gave the Board jurisdiction over the rating and effective date elements of the back claim after service connection was granted). The Board remanded the claim for further development. However, since the Board's May 1997 remand order, the United States Court of Appeals for the Federal Circuit reversed the Court's decision in Holland, holding that an appeal of a decision of an agency of original jurisdiction denying service connection did not involve "the down-stream question concerning compensation level." See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030, 1032 (Fed. Cir. 1997); Holland v. Gober, 10 Vet. App. 433, 436 (1997) (per curiam order). On remand, the RO wrote to the veteran in December 1998 informing him that, since the Board had taken jurisdiction of a claim for an increased rating for service-connected PTSD under Holland and remanded the claim, the Federal Circuit had reversed the holding in Holland. Therefore, the RO informed the veteran that, if he wished to appeal the rating assigned for the service-connected PTSD to the Board, he must file a notice of disagreement within one year from the date of the RO's letter. The Board finds that the RO handled the situation regarding the change in the law correctly, and, since the veteran did not file a notice of disagreement with the assignment of the rating for service-connected PTSD or in response to the RO's December 1998 letter, the Board does not have jurisdiction of a claim involving the rating assigned for service-connected PTSD and such a claim is not presently on appeal. See Brewer v. West, 11 Vet. App. 228, 233 (1998) (holding that judicial decisions are to be given full retroactive effect and that the rule articulated in Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), -- that, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should and will apply unless Congress provided otherwise, -- applies only to changes made in statutes and regulations and not to changes made by judicial decisions). Accordingly, the only claim remaining on appeal is the one involving the rating assigned for the service-connected HNP. As noted in the Reasons and Bases section of this decision below, the Board has rephrased this issue as an appeal of an "initial" rating rather than of an "increased" rating in accordance with the holding of the Court in Fenderson v. West, 12 Vet. App. 119 (1999). FINDINGS OF FACT 1. The service-connected HNP, L4-5, has been manifested by one severe attack requiring hospitalization in 1993 in 12 years since the onset in service 1985, at which time symptoms compatible with sciatic neuropathy such as left paraspinal muscle spasm and positive straight leg raising test were shown to be present, and other more minor attacks about 12 times a year for which the veteran has not needed to seek medical attention. 2. Such clinical features of sciatic neuropathy as lower leg and hamstring weakness, flail foot, loss of ability to flex and extend the foot at the ankle, loss of flexion and extension of the toes, and loss of inversion and eversion of the foot have never been shown to be present; the veteran has never been shown on examination to have difficulty walking on his heels, and the sciatica which the veteran experiences has not resulted in motor deficits. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for service-connected HNP, L4-5, have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has rephrased the HNP issue as one involving an "initial" -- rather than "increased" -- rating in excess of 20 percent for service-connected HNP, L4-5, in accordance with a recent decision of the Court in Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court noted, in pertinent part, that there is a "distinction between an original rating and a claim for an increased rating" and that this distinction "may be important . . . in terms of determining the evidence that can be used to decide whether the original rating on appeal was erroneous . . . ." Fenderson, 12 Vet. App. at 126 (emphasis in original). In Fenderson, the Court held that the rule articulated in Francisco v. Brown did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson, 12 Vet. App. at 126; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court held in Francisco that, although VA regulations require review of the entire recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over current medical findings and that, where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Instead, in Fenderson, the Court held that, where a veteran appealed the initial rating assigned for a disability, "staged" ratings could be assigned for separate periods of time based on facts found. Fenderson, 12 Vet. App. at 126. Concerning this difference, the Court stated that the distinction "may be important . . . in terms of determining the evidence that can be used to decide whether an original rating on appeal was erroneous . . . ." Id. In addition, the Court concluded in Fenderson that the RO did not provide the appellant with a correct statement of the case (SOC) concerning an issue because in addressing that issue the RO "mistakenly treated the right-testicle claim as one for an '[i]ncreased evaluation for service[-]connected ... residuals of surgery to right testicle' . . . rather than as a disagreement with the original rating award, which is what it was." Fenderson, 12 Vet. App. at 132. (emphasis in the original). The Court then indicated that "this distinction is not without importance in terms of VA adjudicative actions," and remanded the matter for the issuance of a SOC. Id. The Board concludes that this case may be distinguished from Fenderson with regard to the SOC because the RO identified the issue on appeal in the April 1992 SOC not as a claim for an "increased" disability rating for the service-connected HNP, L4-5, but rather as "Evaluation of" service-connected HNP, L4-5. More importantly, the RO's April 1992 SOC and May 1998 supplemental SOC provided the appellant with the appropriate applicable regulations and an adequate discussion of the basis for the RO's assignment of the initial disability evaluation for the service-connected condition. Consequently, the Board sees no prejudice to the appellant in recharacterizing the issue on appeal to properly reflect the appellant's disagreement with the initial disability evaluation assigned for his service-connected condition and therefore concludes that remand for another statement of the case is not necessary in this case. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); cf. Brady v. Brown, 4 Vet. App. 203, 207 (1993) (a remand is unnecessary even where there is error on the part of VA, where such error was not ultimately prejudicial to the veteran's claim). With regard to the matter of the evidence that can be used to decide whether the original rating on appeal was erroneous, the Board notes that the veteran was discharged from active duty in May 1991 and claimed service connection for a back disability in August 1991. However, the veteran had a lengthy period of active duty prior to separation in 1991. Therefore, the Board concludes that, where an award of service connection is made upon separation after a lengthy period of active duty the degree of disability that is contemporaneous with the claim from which the award of service connection arose -- and not a degree of disability that may have been manifested many years earlier -- is what must be assessed in assigning the initial disability rating because ratings are assigned based on current levels of disability. Cf. Degmetich, 104 F. 3d at 1328. In other words, while the Board will consider all the medical evidence pertaining to the service-connected HNP, more recent medical evidence -- including more recent service medical records -- will have much more probative value in determining the degree of disability for the original or initial rating in this case than will the service medical records or other medical records dated years ago. In this case, service medical records show that that veteran was seen in September 1981 with the complaint of his back having given way while turning an artillery piece during field exercises. The assessment was myofascial pain/strain. The next day on a follow-up visit, the veteran reported that his back was still tender. He was seen on one more occasion a few days later with complaints of continuing back pain. In January 1985, the veteran was seen with complaints of back pain. The assessment was myalgia paresthetica. In March 1985, the veteran reported for a refill of prescription medicine that he was taking for his back pain. He stated that when he did not take the medication he had pain in his back which radiated down his left leg to below the knee. The assessment was sciatica. In April 1985, the veteran reported that he was still experiencing pain radiating down his left leg from hip to ankle which was getting worse despite the medication. The assessment was sciatica. He was referred to the physical therapy department where the assessment was possible discogenic low back pain with left radiculopathy. A computed tomography (CT) scan showed a herniated nucleus pulposus (HNP), L4-5. A June 1985 notation showed that the veteran had been treated for one month with traction and exercises. The veteran reported about 30 percent relief from this treatment but still complained of radiating pain down his left leg to his ankle. A follow-up CT scan was still positive for L4-L5 disc. The assessment was HNP, L4-L5. Possible L5 radiculopathy. The veteran was referred to an orthopedic clinic where it was decided that he be admitted for a trial of bedrest. A medical statement shows that the prognosis was that the veteran might require an operation and might not be returned to full duty for several months. He was to be hospitalized for a trial of conservative treatment and further tests. The severity of the condition was described as moderate. In December 1985, the veteran was given a temporary profile for one month; in January 1986, he was given a permanent profile. His limitations included no running; he was allowed to walk for the physical training test; no stooping, jumping, or lifting greater than 35 pounds. In January 1987, the veteran was given a temporary profile for the herniated disc L4 & L5. It was noted that he might run at his own pace, lift up to 50 pounds and use weight machines for three months. The profile was to expire in April 1987. In June 1987, the veteran complained of back pain for two days. He stated that he had twisted his back the day before when cutting grass and he thought he might have a slipped disc. No objective findings or assessments were made. On an April 1990 examination report, HNP L4-5 with recurrent episodic L5 radiculopathy was noted to be stable at present and treated with medication. In September 1990, the veteran was seen in an orthopedic clinic. The doctor noted the history of HNP and that the veteran was "[p]resently doing well." It was noted that he had "localized pain" and "occasional pain l[eft] thigh, leg." The veteran was still taking medication. Objectively, there was full range of motion of the back with pain. Strength was 5/5. Sensory was intact and straight leg raising test was negative. The assessment was status post HNP. The doctor recommended that the medication be discontinued. On a CT scan, no HNP was noted. L4 disc showed mild narrowing. On a follow-up examination in November 1990, there was full range of motion of the back. Knee and ankle jerks were "2+" or normal or average. Medical Abbreviations: 10,000 Conveniences at the Expense of Communications and Safety 237 (7th ed. 1995)). Heel-toe walk was normal. Straight leg raising test was negative. On an October 1991 VA examination, the veteran provided a history of having sustained a lifting injury to his low back in 1982-83 and of having reinjured his back in 1985, at which time a CT scan showed a HNP, L4-5. It was noted that the veteran had not had surgery. He reported having recurrences of severe pain 8-9 times per month and with these episodes he had difficulty getting out of bed. He reported left lower extremity paresthesia intermittently. On physical examination of the back, there was no tenderness of the costovertebral angle. There was tenderness to palpation over the lumbar area. There was no edema of the extremities. The reflexes were 2+ and equal throughout. The motor and sensory examination was entirely normal. Straight leg raising, hip flexion, hip abduction, and forward bending at the waist were all within normal limits. The veteran was able to walk on his heels and toes without difficulty. The examiner diagnosed a history of a well-documented HNP, L4-5, with no evidence of radiculopathy on examination and with intermittent pain. On the May 1992 VA Form 9 substantive appeal, the veteran stated that he felt that his service-connected back disorder should be rated higher than the noncompensable rating that was assigned at that time. He stated that he had a continuous problem with his back and that he must lie on the floor to alleviate back pain to get some sleep. He stated that he could not bend over, sit in a chair more than 5 minutes, or stand still in one position more than 10 minutes. At an August 1992 personal hearing before a VA hearing officer, the veteran testified that he would experience excruciating pain in his back down to his feet if he pulled weeds from the garden or bent over for too long a period of time. He would have a hard time standing up. He would have to lean against a wall and try to push his hip back into place so that he would be back in a straight position and that this generally took two or three days to accomplish. He stated that he could not stand or sit in one position for long periods of time. The veteran stated that since the injury in service the pain usually went down his left leg but recently it also started to go down his right leg. He stated that he was not under a doctor's care for this. He stated that the episodes of excruciating pain happened if he overexerted himself and that the last episode happened about a month earlier but that he did not seek medical care at that time. He stated that such episodes happened about 12-15 times over the course of the previous year. He testified that he had not been hospitalized for his back since he had been hospitalized in service. He testified that he had never received any injections for back pain and had never worn a back brace. On a February 1993 VA examination report, the examiner noted that the veteran complained of lower back pain radiating to his left leg which began 10 years earlier. The examiner noted the history of the HNP in service. The veteran reported that over the last 10 years he experienced three or four episodes of exacerbation per year of back pain, on top of his constant lower back pain. The episodes of exacerbation were brought on by any sudden movement of the lower back that occurred accidentally. During the episodes, the veteran reported having the same pains radiating down the posterolateral aspect of the left leg and the lateral aspect of the lower leg, reaching his ankle. The veteran also reported tingling sensations over the same area with prolonged sitting. He had not noticed any muscular weakness of the lower back. He told the examiner that a month before he had been admitted to a hospital for the first time in 10 years because of an exacerbation of his lower back pain that occurred while he was lifting. He stated that a CT scan showed an L4-5 herniated disc. He reported that he underwent bedrest and was not recommended to have surgical management. He was treated with Motrin and Tylox and stated that these provided good relief of his symptoms. The veteran reported that he used Motrin on an as needed basis and Tylox at the end of the days work. He stated that he worked as a seafood manager and that the job required a good deal of shoveling and lifting. He reported that he had learned to do both these activities without exacerbating the back pain but that one wrong move might lay him up for two days. At the end of the day, he reported having severe back pain which caused him to lie down and rest. He had not undergone any physical therapy at the present time and was considering surgical management in the future. On physical examination, the examiner noted that the veteran did not appear to be in any acute distress while sitting during the examination. There was some left-sided paraspinal muscle spasm that was asymmetrical, worse in the paraspinal muscles on the left compared with the right and lower back. There was some tenderness to palpation in the area of the L4- 5 disc, which was evident on the left. Similarly, there was tenderness in the paraspinal muscles on that side. Lasègue's sign was present with left-sided straight leg raising at only 15 degrees. (Lasègue's sign: "when the patient is supine with hip flexed, dorsiflexion of the ankle causing pain or muscle spasm in the posterior thigh indicates lumbar root or sciatic nerve irritation." Stedman's Medical Dictionary 1617 (26th ed. 1995)). This was reproducible. Similarly, the veteran had a reverse Lasègue's sign with right straight leg raising causing an exacerbation of the left sided lower back pain at 15-20 degrees. The pain was localized to his lower back and radiated to his hip and buttocks area with raising of either leg. Gait was essentially unremarkable. Reflexes in the lower extremities were 2+ and symmetrical bilaterally. Motor strength was 5/5 in all groups. Sensory examination in the lower extremities was notable for decreased vibratory sense to the midcalf on the left side only. Pinprick, light touch and proprioception were all intact, however. There was no Babinski's sign. Coordination was unremarkable. Tone was unremarkable throughout the upper and lower extremities with no rigidity or spasticity. The examiner's assessment was that the veteran's dermatomal distribution of pain did approximate L5 and orthopedic examination was positive for bilateral straight leg raising. The veteran did guard against pain when asked to sit up with his legs extended. There was no evidence of reflex losses expected in an L5 radiculopathy and sensory loss was only evident on vibration throughout the left lower extremity. The examiner did not feel that the veteran had any neurological loss in the lower extremity but the dermatomal distribution of his pain was notable. The examiner reported that the symptoms were constant and brought on by movements such as bending or lifting that were sudden. He had learned to bend and lift somewhat without pain if he is careful. He also had episodes of exacerbation of pain that were brought on by twists on top of chronic lower back pain. On a March 1996 VA examination that pertained to the knees and ankles the examiner noted that the veteran was in no acute distress, had a normal gait, and did not limp. He was able to walk on his toes and heels. Muscle bulk and tone about the lower extremities was good and motor strength was excellent in all muscle groups. Sensory examination about the lower extremities was normal. In June 1997, the RO wrote to the veteran and asked him to state whether he had been treated for his back condition and, if so, where, so that the RO could obtain the treatment records. The veteran did not reply to the letter. On a July 1997 VA examination, the examiner noted that the veteran's chief complaint was low back pain with occasional left leg pins and needles. The examiner recorded the history of the injury to the back in service in the 1980s and the diagnosis of HNP, L4-5. The veteran reported that he was currently working five days a week cutting fish and as a customer service person. The veteran complained of continuous pain in his low back. He stated that if he exceeded his ability working he would get a lateral shift periodically of his low back. He reported that the pain went down his leg to the foot and that the leg and back pain was aggravated by the cold. It was worse in the autumn and was relieved by summer, Aleve, and Tylenol. There were no bladder or bowel control problems and the pain was not aggravated by coughing or sneezing. He stated that he felt that his back was getting a little worse, and he reported having fallen twice, in October 1996 and March 1997, when his left leg gave way. He stated that his pain was essentially the same for the past ten years. He stated that he was not able to pick up sandbags over four or five times or his back would go out and he could not continue. He was not able to do yard work because of back pain. He had to have help at work picking up meat luggers, which are large plastic containers that hold meat. On physical examination, his gait was normal without a limp. He could walk on his heels and toes, stand on one leg, and could do a full squat with rapid uniphasic recovery. He could do a tandem gait with ease and facility. With regard to deep tendon reflexes, the examiner noted that knee and ankle jerks were 2+ or normal bilaterally. Straight leg raising in the sitting position was to 90 degrees. Plantar reflexes were normal. Manual muscle testing proximally and distally was 5/5 including dorsiflexion of his feet bilaterally, extension of the big toe bilaterally, inversion and eversion. Quadriceps were powerful bilaterally. "Adduction of his knees, abduction, and flexion of his hips all groups of muscles are 5/5 on manual muscle testing." Sensory examination to pinwheel, to light touch, to cold temperature, and vibration was all present and intact. On examination in the supine position, leg lengths were clinically equal. Log roll caused some discomfort on the left, none on the right. Patrick's test was negative bilaterally. (Patrick's test is a test to determine the presence or absence of sacroiliac disease. Stedman's at 1782.). Flexion of the hips was to 120 degrees bilaterally. In the prone position, the veteran had full relaxation of his lumbar muscles. He had a negative stretch test. The stretch test caused some discomfort at the L4-5 midline level. On examination of the back with the veteran standing, his pelvis was level, his shoulders were level, his head was held erect. His stance and station were normal. Vertex pressure, shoulder pressure caused no discomfort. Waddell's truncal rotation caused some mild pain in the mid low back. There was no discomfort to feather touch. There was no discomfort to light palpation of the muscles except in the lower back. There was no sacroiliac tenderness. There was no sciatic notch tenderness. There was no greater trochanter or iliac crest tenderness. There was no buttock tenderness. The veteran's alignment was normal. He left leg was questionably thinner than the right but not on measurement. Forward bending: the veteran could get his hands to the level of his ankles with 90 degrees forward bending which was normal. Extension was 30 degrees which was normal. Lateral tilt was 30 degrees bilaterally which was normal. In the sitting position with the pelvis fixed, the veteran could rotate 30 degrees bilaterally, which was normal. Muscle girth measurements: maximum thigh circumference was 40 cm bilaterally 10 cm above the upper pole of the patella. The thigh circumference was 45 degrees bilaterally. The doctor's impression was status post L4-5 left HNP with no radiculopathy found at the present time of the examination. The doctor noted that the history of the CT scan was the basis for the diagnosis of the left HNP, L4-5, and that the straight leg raising to 90 degrees, normal muscle testing, and normal sensory examination was the rationale for the conclusion that there was no radiculopathy at the present time. The veteran moved with extremes of motion being limited by low back pain with full range of motion as noted. The examiner noted that there was no muscle spasm, ankylosis, crepitus, neuropathy, radiculopathy, or loss of reflexes. The examiner noted that the defects of the veteran's pain in terms of limitation of function and movement were noted in the examination report and described by the veteran as his being unable to carry sandbags more than four or five, unable to lift the meat-luggers at work on his own, and unable to do yard work. Disability ratings are intended to compensate reduction in earning capacity as a result of the specific disorder. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1998). 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 (1998). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1998); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the initial rating assigned for a disability, "staged" ratings may be assigned for separate periods of time based on facts found. Fenderson, 12 Vet. App. at 126. The service-connected HNP is evaluated under the criteria in the VA Schedule for Rating Disabilities for intervertebral disc syndrome which provides as follows: 5293 Intervertebral disc syndrome: Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. . . . . . . . . . . . . . . . . . . . . 60 Severe; recurring attacks, with intermittent relief. . . . . . . . . . . . . . . . . . . 40 Moderate; recurring attacks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Mild. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Postoperative, cured. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1997). As the rating criteria demonstrate, intervertebral disc syndrome is a disorder characterized by certain neurological symptoms and that attacks of these symptoms recur with greater or lesser frequency and are punctuated by periods of intermittent relief of varying duration. See VAOPGCPREC 36- 97 at 2 (Dec. 12, 1997) ("[Diagnostic Code] 5293, codified at 38 C.F.R. § 4.71a, describes disability due to [Intervertebral Disc Syndrome] in terms of 'symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of diseased disc.'"). The greater the frequency of the attacks and the lesser the duration of the intermittent periods of relief, the higher the rating. Exactly "how many" attacks and "how many" periods of relief for "how long" measured over "how long" a period of time in order to constitute a 60 percent rating, a 40 percent rating, a 20 percent rating, etc., is not specified in the rating schedule. Nevertheless, such determinations must be made or no ratings would ever be assigned. Therefore, making such determinations about factors not precisely defined in the rating criteria but nevertheless necessary to assigning a rating is not the same as considering factors "wholly outside" the rating criteria which the Court has held constitutes legal error. Massey v. Brown, 7 Vet. App. 204, 208 (1994), citing Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). To the contrary, making such determinations is to consider factors "inherent" in the rating criteria which are not quantified and require judgment to be exercised on the part of the adjudicator reviewing the relevant evidence. Intervertebral disc syndrome "is a group of signs and symptoms due to nerve root irritation that commonly includes back pain and sciatica (pain along the course of the sciatic nerve) in the case of lumbar disc disease, and neck and arm or hand pain in the case of cervical disc disease. It may also include scoliosis, paravertebral muscle spasm, limitation of motion of the spine, tenderness over the spine, limitation of straight leg raising, and neurologic findings corresponding to the level of the disc." VAOPGCPREC 36-97 at Note 2. Dorland's Illustrated Medical Dictionary 1493, 1132 (28th ed. 1994), defines "sciatic" as "pertaining to or located near the sciatic nerve or vein," and "neuropathy" as a "functional disturbance or pathological change in the peripheral nervous system." The clinical features of sciatic neuropathy include lower leg and hamstring weakness, flail foot, loss of ability to flex and extend the foot at the ankle, loss of flexion and extension of the toes, and loss of inversion and eversion of the foot. John Gilroy, M.D., Basic Neurology 370 (2d ed. 1990); Arthur K. Asbury, Diseases of the Peripheral Nervous System, in 2 Harrison's Principles of Internal Medicine 2377 (Kurt J. Isselbacher, M.D. et al. eds., 13th ed. 1994). As a result, a patient may have difficulty walking on his or her heels and the patient's feet may slap when walking. Arthur K. Asbury, Diseases of the Peripheral Nervous System at 2376. In addition, sciatica, which refers to pain radiating along the course of the sciatic nerve, most often down the buttock and posterior aspect of the leg to below the knee, may result in motor deficits. See The Merck Manual 1363, 1515-16 (16th ed. 1992). VAOPGCPREC 36-97 at para. 2. In this case, the veteran was diagnosed with HNP, L4-5, in the mid-1980s and was treated conservatively for it. Near the end of service, in 1990, the condition caused by the HNP was described as "stable", and prescription medication was discontinued. According to the history provided to examiners and according to his hearing testimony, the veteran did not suffer an exacerbation serious enough to require a doctor's care until early 1993, although he has stated that he experiences episodes of pain about once a month that are not serious enough to require medical treatment. On the February 1993 VA examination at the time of the severe attack requiring hospitalization, some of the characteristic symptoms were present including left-sided paraspinal muscle spasm and sciatica as demonstrated by a positive Lasegue's sign on straight leg raising. However, on VA examinations conducted in October 1991, March 1996, and July 1997, symptoms compatible with sciatic neuropathy were not present, although the veteran complained of constant low back pain. The Board concludes, when the evidence in this case is viewed from the service medical records and the October 1991 VA examination that are contemporaneous with the original claim, then the 1993 evidence showing the exacerbation or attack requiring hospitalization, and the decrease in demonstrated symptomatology on examinations thereafter, a "staged" rating perhaps could have been assigned with a noncompensable rating from the date of claim in 1991 until the time of the attack in 1993 and a 20 percent rating for a moderate degree of symptomatology thereafter. However, the Board notes that the RO awarded the 20 percent rating back to the date of the original claim thereby giving the veteran a higher initial rating than shown by the evidence. Any error in this regard, however, favored the veteran. See Williams v. Gober, 10 Vet. App. 447, 452 (1997). Thus, the Board concludes that the 20 percent rating for a moderate degree of disability with recurring attacks is appropriate to compensate the degree of impairment in this case which has been manifested by one severe attack requiring hospitalization in 12 years since the onset in service 1985 and other more minor attacks about 12 times a year for which the veteran has not needed to seek medical attention. In so concluding, the Board notes that the clinical features of sciatic neuropathy, including lower leg and hamstring weakness, flail foot, loss of ability to flex and extend the foot at the ankle, loss of flexion and extension of the toes, and loss of inversion and eversion of the foot have never been shown to be present, the veteran has never been shown on examination to have difficulty walking on his heels, and the sciatica which the veteran experiences has not resulted in motor deficits. Accordingly, the Board concludes that a higher initial rating for a severe or pronounced degree of impairment with intermittent or little intermittent relief is not warranted in this case. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). ORDER An initial rating in excess of 20 percent for service-connected HNP, L4-5, is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals