BVA9507826 DOCKET NO. 93-13 550 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased evaluation for the residuals of injury to the left sciatic nerve, currently evaluated at 40 percent. 2. Entitlement to special monthly compensation based on the loss of use of one or both lower extremities, the need for aid and attendance, or for being housebound. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. W. Fabian, Associate Counsel INTRODUCTION The veteran had active service from June 1942 to October 1945. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to an increased evaluation because he is now confined to a wheelchair 90 percent of the time. The veteran's representative contends that the veteran is entitled to special monthly compensation because he cannot get in and out of the wheelchair without assistance. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for an increased evaluation for the residuals of injury to the left sciatic nerve, and that the preponderance of the evidence is against the veteran's claim for special monthly compensation. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the Department of Veterans Affairs (VA) Regional Office (RO). 2. The residuals of injury to the left sciatic nerve are currently manifested by the absence of the Achilles reflex on the left, with no muscular atrophy, no foot drop, no paralysis of the leg muscles, and no weakness of knee flexion, representing no more than moderately severe incomplete paralysis. 3. Any loss of use of one or both of the lower extremities and any need for aid and attendance is not the result of a service- connected disability. 4. The veteran does not have a single service-connected disability rated at 100 percent and the veteran is not housebound as the result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 40 percent for the residuals of injury to the left sciatic nerve have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.14, 4.120, 4.124a, Diagnostic Code 8520 (1994). 2. The criteria for special monthly compensation based on the loss of use of one or both lower extremities, or the permanent need for aid and attendance, or for being housebound have not been met. 38 U.S.C.A. §§ 1114(k), (l), and (s), 5107 (West 1991); 38 C.F.R. §§ 3.350(a), (b), and (h), 3.352(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon review of the record, the Board concludes that the veteran's claim is well grounded within the meaning of the statutes and judicial construction. See 38 U.S.C.A. § 5107(a) (West 1991). The VA, therefore, has a duty to assist the veteran in the development of facts pertinent to his claim. Id. The pertinent evidence pertaining to the issues on appeal consists of the reports of VA examinations conducted in June 1992 and February 1993 and a VA hospital discharge summary prepared in July 1992. The file indicates that the veteran has been receiving Social Security disability benefits since February 1977. Because these records are over 15 years old, the Board concludes that evidence in the Social Security file would not be probative of the veteran's current disability. The Board concludes that all relevant data has been obtained for determining the merits of the veteran's claim. The VA has, therefore, fulfilled its obligation to assist the veteran in the development of the facts of his case as required by 38 U.S.C.A. § 5107(a). Disability ratings are based on the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1994). The average impairment as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Id. The use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation is to be avoided. See 38 C.F.R. § 4.14. In determining if an increased evaluation should be granted, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Disability based on neurological disease or injury is to be rated in proportion to the impairment of motor or sensory function. Complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestation, and injury to the skull must be considered. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. See 38 C.F.R. § 4.120. The term "incomplete paralysis" in terms of peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a. Diagnostic Code 8520 provides an 80 percent evaluation for complete paralysis of the sciatic nerve, evidenced by dangling and dropping of the foot, no active movement of the muscles below the knee possible, or flexion of the knee weakened or lost. A 60 percent evaluation applies if paralysis is incomplete but severe, as evidenced by marked muscular atrophy. A 40 percent evaluation applies if the incomplete paralysis is moderately severe; a 20 percent evaluation if incomplete paralysis is moderate; and a 10 percent evaluation if incomplete paralysis is mild. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Special monthly compensation is payable if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or both feet, or is permanently bedridden, or is so helpless as to be in need of regular aid and attendance, or is permanently housebound. See 38 U.S.C.A. § 1114 (k), (l) and (s). Loss of use of a foot will be found to exist when no effective function remains, such as the properties of balance and propulsion, other than that which would be equally well-served by an amputation stump with use of a suitable prosthetic device. For example, complete paralysis of the external popliteal nerve and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances, will be taken as loss of use of the foot. See 38 C.F.R. § 3.350(a)(2). The veteran will be found to be bedridden if the condition actually requires that the veteran remain in bed, but not if the veteran voluntarily stays in bed or if a physician merely recommends bed rest. See 38 C.F.R. § 3.352(a). The veteran will be found to be in need of regular aid and attendance if he is unable to dress or bathe himself; if he frequently needs adjustment of a prosthetic or orthopedic appliance that by the nature of the disability the veteran is unable to perform without assistance; if he is unable to feed himself or to attend to the wants of nature; or if he requires protection from the hazards of his daily environment. See 38 C.F.R. § 3.352(a). The veteran will be found to be permanently housebound if he has a single service-connected disability rated at 100 percent without resort to individual unemployability and, due to his service-connected disabilities, he is confined to his home or the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that such confinement will continue throughout his lifetime. See 38 C.F.R. § 3.350(h). The veteran was granted service connection for the residuals of injury to the left sciatic nerve at the 10 percent level in a rating determination issued in October 1950 and effective in October 1950. This rating determination was based on the report of a VA examination that indicated the veteran suffered slight damage to the left sciatic nerve as the result of a gunshot wound to the upper left thigh. Manifestation of symptoms consisted of a slight variance in the temperature of the dorsal area of the left foot in comparison to the right and slight hypesthesia on the left foot. The 10 percent evaluation was increased to 40 percent in a rating determination issued in February 1975 and effective May 1974. The increased evaluation was based on the report of a VA examination that revealed the veteran had full range of motion in both hips without pain; mid-thigh measurements of 18 inches on the right and 17 1/2 inches on the left, mid-calf measurements of 15 1/2 inches on the right and 14 1/2 inches on the left; patellar reflexes of 1+ on the left and 2+ on the right; ankle reflex of 2+ on the right and absent on the left; no clonus; marked weakness of flexion and extension of the left knee and foot; moderate hypesthesia over the entire left foot; and the inability to walk on his heels and toes on the left foot. The report of a VA neurological examination conducted in February 1977 indicates that the veteran had been drinking excessively for years. Physical examination revealed that patellar reflexes were decreased, more so on the left than on the right. Straight leg raising was accomplished to 80 degrees bilaterally. Comparative measurements of both lower extremities were approximately equal. The veteran had great difficulty with balance. The examiner indicated that there were no signs of sciatic nerve involvement at that time. The veteran's disorder was diagnosed as residual injury sciatic nerve, by history; peripheral neuritis, alcoholic; and cerebellar degeneration, alcoholic. Private treatment records indicate that in September 1976 the veteran's complaint of pain in the right hip was diagnosed as severe degenerative disc disease, L5-S1, and severe degenerative changes of the lower thoracic and upper lumbar spine. In January 1978 and March 1981 the veteran was walking on crutches due to the pain in his back. The veteran declined treatment. In May 1982 the veteran reported still having pain in his right hip and was still walking on crutches. The treating physician attributed the veteran's inability to use his legs to spinal stenosis. He was treated with anti-inflammatory medication through March 1983 and declined any other treatment. The report of a VA examination conducted in August 1983 shows that the veteran started using a cane for walking about seven years previously and six years previously he started using crutches. He had increasing difficulty getting around since he started using the crutches. Physical examination revealed that the veteran had difficulty walking and could not do so without crutches. He had partial atrophy of the posterior muscle group below the knee on the left. There was partial weakness in hip, knee, and foot flexion and extension. The examiner found these symptoms consistent with damage to the sciatic nerve. The report does not indicate that the examining physician examined the right leg and no diagnostic tests were conducted. X-rays taken in November 1983 revealed significant degenerative changes throughout the lumbar spine and scoliosis with degenerative changes of the thoracic spine. The report of a VA neurological examination conducted in May 1984 shows that the veteran denied having any pain. He could not stand without the use of crutches. Physical examination revealed that the right leg was about 1/2 inch shorter than the left. There was one and 1/2 inch atrophy of the right thigh. Flexion of the right hip and the left were virtually the same, with the left hip having a little more flexion than the right. Muscle strength was 5/5 in all muscle groups in both legs. There was some loss of sensation from the left sciatic nerve and the left Achilles jerk was absent. X-ray revealed early degenerative changes in both hips. The examiner reported that the veteran had extensive degenerative changes in the upper lumbar as well as the dorsal area of the spine that were unrelated to the gunshot injury. The degenerative changes in the hips were also unrelated to the gunshot injury. The severe ataxia that the veteran had was due to cerebellar changes, probably related to his excessive drinking. The report provides a diagnosis of old left sciatic nerve injury with minimal residual; degenerative joint disease of the lumbo-dorsal spine; and early degenerative joint disease of both hips. The report of a VA neurological examination conducted in December 1986 shows that by physical examination the veteran had symmetrical tone in the lower extremities. The veteran walked with the assistance of crutches, leaning forward with his entire weight on the crutches and circumducting his lower extremities in a dragging fashion. The veteran could support his weight without difficulty. Heel-to-shin movement showed marked dysmetria, more so on the left than on the right. Sensory examination revealed a distal decay to the primary sensory modalities of vibration and temperature, but intact pin sensation in his feet and distally. Graphesthesia was interpreted correctly in all four extremities. Deep tendon reflexes were 2+ at the knees, 1+ at the right ankle, trace at the left ankle, with bilateral downgoing toes. The examining physician's stated impression was ataxia, with history of alcoholism; mild peripheral neuropathy of uncertain etiology but most likely due to cerebellar degeneration. Although the report indicates that a computerized axial tomography (CT) scan would be conducted, the report of that testing is not in file. A February 1987 treatment note, however, indicates that the veteran had ataxia as shown by CT scan as the result of mild cerebral atrophy, probably due to alcohol intake. The examination for regular aid and attendance prepared in June 1992 indicates that the veteran had poor balance as the result of cerebellar degeneration, sciatic nerve palsy on the left and degenerative joint disease of the right hip. A hospital discharge summary prepared in July 1992 shows that on admission the veteran's motor examination was symmetric. His left leg was quite ataxic and his right leg somewhat less so. The ataxia was found to probably be due to cerebellar degeneration and arthritis in the right hip. The report of a VA neurological examination conducted in February 1993 shows that on physical examination sensory and motor systems were normal, with no bowel or bladder difficulties. There was remarkable loss of bulk of the gastrocnemius and soleus muscles bilaterally. Maximal measurements were 36 centimeters bilaterally in the calves and the calves appeared to be symmetrical with no signs of vesiculation. Muscle strength was 5/5 throughout the lower extremities except for hip extension that was not measured. Reflexes were 2+ throughout the lower extremities, except the ankle jerk on the left that was absent. Toes were downgoing bilaterally. Sensory examination was intact to light touch, vibration, and proprioception, both proximally and distally throughout the lower extremities. The veteran had marked cerebellar ataxia, much more obvious in the lower extremities and greater on the left side than the right but almost symmetrical. On heel-to-shin movement he had severe ataxia bilaterally. The stated assessment consisted of an old sciatic nerve injury, evidenced by decreased ankle jerk on the left but with no other finding; alcoholic cerebellar degeneration, indicated as being the veteran's main problem in his inability to ambulate; and alcoholism. The examining physician stated that the sciatic nerve injury probably made getting around with the cerebellar degeneration more difficult, but the degree of involvement could not be determined with any certainty. The veteran had marked bilateral cerebellar symptoms that were consistent with alcohol cerebellar degeneration. Analysis of the evidence produces the conclusion that the criteria for an evaluation in excess of 40 percent are not met. Pursuant to 38 C.F.R. § 4.14, only those manifestations that are the result of service-connected injury can be considered in evaluating the veteran's disability. The veteran has been granted service connection for injury to the left sciatic nerve and for the residuals of a gunshot wound to the left posterior thigh, involving Muscle Group XIII. There is no evidence in file that indicates the veteran's current disability is attributable to an injury to Muscle Group XIII. According to the February 1993 neurological examination, the injury to the left sciatic nerve is currently manifested by the absence of the left ankle jerk. Although the ataxia was slightly greater on the left than on the right, it was considered to be nearly symmetrical. The examining physician was unable to specify with any certainty to what degree the sciatic nerve injury contributed to the inability to ambulate. Any impact on the ability to ambulate is compensated for in the 40 percent evaluation currently in effect. According to Diagnostic Code 8520, in order to warrant a 60 percent evaluation there must be evidence of severe incomplete paralysis with marked muscular atrophy. An 80 percent evaluation for complete paralysis requires dropping or dangling of the foot, no active movement of the muscles below the knee, or knee flexion weakened or lost. All manifestations must be attributed to the service-connected injury. Residuals of injury to the left sciatic nerve are currently manifested by decreased ankle jerk on the left, with no muscular atrophy, no foot drop, no paralysis of the leg muscles, and no weakness of knee flexion, representing no more than moderately severe incomplete paralysis. The muscular atrophy found in the February 1993 examination was symmetrical in both lower extremities, indicating that the atrophy was not the result of the sciatic nerve injury in the left leg. Both calves were symmetrical. Muscle strength was 5/5 throughout both lower extremities. Dropping or dangling of the left foot was not shown. Sensory perception was intact in both lower extremities. Because the evidence does not indicate that paralysis of the left sciatic nerve is more than moderately severe, an increased evaluation is not warranted. There is no question regarding which of two evaluations would more properly classify the severity of his service-connected disability. See 38 C.F.R. § 4.7. There is no indication that the case presents an exceptional or unusual disability picture, as evidenced by marked interference with employment or frequent hospitalizations due exclusively to the service-connected injury, to warrant an extra-schedular rating. See 38 C.F.R. § 3.321(b). The evidence does not show that the veteran has lost the use of one or both feet, that he is in need of regular aid and attendance, or that he is bedridden or housebound as the result of his service-connected disabilities. The residuals of the left sciatic nerve injury consist of the absence of the Achilles reflex in the left ankle. Paralysis is incomplete and only moderately severe and the remaining functions of the foot, such as balance and propulsion, have not been affected by either service-connected injury. The service-connected disabilities do not affect the right foot in any way. The disorders do not require that the veteran remain in bed, and they do not prevent the veteran from dressing, bathing, or feeding himself, or in attending to the needs of nature. He does not require assistance with a prosthesis or orthopedic device and he does not require protection from environmental hazards because of his service- connected disabilities. He cannot be considered housebound due to service-connected disability because he does not have a single service-connected disability that is evaluated at 100 percent and his service-connected disabilities do not require that he be confined to his home or immediate premises. We note that service-connection is in effect for sciatic nerve injury, evaluated as 40 percent disabling, and for residuals of a gunshot wound of the left thigh, evaluated as 10 percent disabling, for a combined evaluation of 50 percent. Although the veteran is currently in a wheelchair, the limitations are the result of disorders that are not service-connected. His service-connected disabilities, alone, do not present a degree of disability that meets the requirements for special monthly compensation. Therefore, he is not entitled to special monthly compensation pursuant to 38 U.S.C.A. § 1114. ORDER The veteran's claim for an increased evaluation for the residuals of injury to the left sciatic nerve is denied. The veteran's claim for entitlement to special monthly compensation is denied. WILLIAM J. REDDY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.