Citation Nr: 0007524 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 96-49 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a rating in excess of 60 percent for sciatic neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William D. Teveri, Associate Counsel INTRODUCTION The veteran served on active duty from April 1941 to August 1945. This appeal arises from a March 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted compensation for left sciatic neuropathy under the provisions of 38 U.S.C.A. § 1151 (West 1996) and assigned a 20 percent rating, effective from December 28, 1990 (date of left hip surgery). Pursuant to the Board's January 1998 Remand, the veteran was afforded a VA neurological examination. A subsequent RO decision in November 1998 increased the rating for the veteran's left sciatic neuropathy disability to 60 percent disabling, effective from December 28, 1990. An RO decision in March 1999 granted the veteran a total (100 percent) compensation rating based on individual unemployability, effective from December 28, 1990. Inasmuch as the grant of a 60 percent rating is not the maximum benefit for this disability under the rating schedule, and as the veteran has not expressly indicated that he wishes to limit his appeal to that particular rating, the claim for an increased evaluation for that disability remains in controversy, and hence, is a viable issue for appellate consideration by the Board. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). FINDING OF FACT The veteran's sciatic neuropathy of the left lower extremity is manifested by pain in the left leg and foot, which increases with use, weakness in the left leg and foot, atrophy of the left leg musculature, limitation of motion of the left knee and ankle, decreased vibration sense in the left knee and ankle, an absent left ankle jerk, a negative Patrick's sign, a left foot drop, and incoordination walking, but not a lack of active movement in the muscles below the knee. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for sciatic neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.1-4.14, 4.40, 4.45, 4.124a, Diagnostic Code 8520 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes the veteran's claim was remanded by the Board in January 1998 to obtain current medical treatment reports and for a VA examination to determine the current severity of the veteran's left leg sciatic neuropathy. That development having been successfully completed, the veteran's claim has been returned to the Board. The Board finds the veteran's claim well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Court has held that when a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The same would be true for a grant of compensation pursuant to 38 U.S.C.A. § 1151. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Additionally, in accordance with 38 C.F.R. §§ 4.1-4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the veteran's disability. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence on file is inadequate for proper rating purposes. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities which is based on the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.1; Fenderson v. West, 12 Vet. App. 119, 125 (1999). The basis of disability evaluations is the ability of the body as a whole, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. The Court has held that at the time of an initial rating in an original claim separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. See Fenderson, at 126. The Board notes the 60 percent rating for the veteran's left leg sciatic neuropathy is effective December 28, 1990, the date of the VA left total hip replacement, and within one year of the date of receipt of the veteran's application for compensation. Thus, the Board will consider whether a higher rating is warranted subsequent to that date. VA medical records show that the veteran was hospitalized in December 1990 for a left total hip replacement. He underwent a closed reduction of a left total hip replacement dislocation in February 1991. There were no postoperative complications following the latter surgery. Additional VA medical records dated from 1991 to 1995 show follow-up for the veteran's left leg disability. Upon a VA examination in March 1996, the veteran complained of weakness, numbness, and decreased range of motion of the left lower extremity. Physical examination revealed slight decreased muscle mass of the left lower extremity. There was some coolness below the left knee on palpation, reasonably good range of motion of the left hip and knee, and decreased range of motion of the left ankle. Muscle strength was decreased in the left lower extremity with dorsiflexion of the foot and extension of the toes. Sensation was decreased below the knee, which was not consistent with the dermatome. During the veteran's December 1996 hearing he testified that his left leg hurt from his hip to his foot; that he wears a brace at night; that the pain increased with movement; that he uses orthopedic socks; that he cannot walk up a hill near his house without stopping 2-3 times; that he sometimes uses crutches or a cane; and that he will not climb stairs without a railing. An August 1997 VA treatment report indicates the veteran farms 18 acres of land. Physical examination revealed that the extremities were noted to have good pulses, no edema, and normal sensory testing. During the veteran's June 1998 VA neurologic examination he reported pain in the left hip, radiating along the left thigh, weakness in the left leg and foot, and difficulty walking. Upon physical examination decreased muscle bulk was found in the left anterior tibialis and the left thigh, as compared to the right. The left leg, above and below the knee, was noted to have less circumference than the right. Motor examination revealed 4+/5 strength in left plantar flexion, and left dorsiflexion was 0 to 1/5. Left knee and hip extension and flexion were noted to be 4+/5. Hip abduction and adduction were both about 4+ to 5/5 strength. Left foot eversion was noted to be 2 to 3/5, and inversion was 4/5. Left ankle plantar flexion was about 20 degrees, with left foot drop. Sensory examination revealed decreased vibration sense bilaterally in the ankles and knees. No significant pain at touch impairment was noted in the lower extremities. The veteran's position sense in both lower extremities was noted to be normal. Muscle strength reflex testing revealed knee jerks of about 1 to 2+. Left ankle jerk was noted to be absent, and plantar responses were down going bilaterally. The examiner indicated the veteran was able to stand with a "lurching" posture, walked with a "lurch" and with a foot gait of steppage type of gait. The examiner noted that the veteran was very uncoordinated because of the "lurching" and type of gait. Patrick's sign was noted to be negative bilaterally. No paraspinal muscle spasms were noted. The veteran had difficulty walking on his heels and toes, and needed help doing this. The assessment was left foot drop, limitation of motion of the left ankle secondary to the foot drop, and incoordination in walking. The examiner also indicated the veteran complained of pain in the left hip and leg, which might be multifactorial, related to (non-service connected) lumbosacral arthritis, (non- service connected) left hip joint problems, and (compensated) sciatic neuropathy. The RO has assigned a 60 percent rating for the veteran's left leg symptomatology under 38 C.F.R. § 124a, Diagnostic Code (DC) 8520, which rates disability of the sciatic nerve. Under that code a 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 knee is weakened or (very rarely) lost, an 80 percent rating is warranted. For a severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy, a 60 rating is warranted. The Board, in applying the criteria under 38 C.F.R., Part Four, Schedule for Rating Disabilities, to the veteran's symptomatology, must determine whether the criteria are to be applied conjunctively or disjunctively. See Drosky v. Brown, 10 Vet. App. 251, 255 (1997). That is, the Board must determine whether all the listed criteria have to be met or only that certain criteria have to be met. That involves whether the conjunctive, "and," is employed, or the disjunctive, "or." In the case of DC 8520, it is clear that all listed criteria have to be met for a determination that a complete paralysis is shown, warranting an 80 percent rating. That is not the case here. The March 1996 VA examination showed good motion of the left hip and knee. While a left foot drop has been found, and flexion of the left knee is weakened, there is no evidence of the total absence of active movement of the muscles below the left knee upon the 1996 or June 1998 VA compensation examinations. Accordingly, a rating in excess of 60 percent for the veteran's left leg sciatic neuropathy under DC 8520 is not warranted. The June 1998 VA examination report also reveals some limitation of motion of the left ankle, left knee, and left hip. As a rating under 38 C.F.R. § 4.71a, DC 5251, 5252, or 5253, which rate limitation of motion of the hip, however, would not result in a rating in excess of 60 percent, this would be of no benefit to the veteran. A rating under 38 C.F.R. § 4.71a, DC 5260 or 5261, which rates limitation of motion of the knee, would not result in a rating in excess of 60 percent, nor would a rating under 38 C.F.R. § 4.71a, DC 5271, which rates limitation of motion of the ankle. The United States Court of Appeals for Veteran's Claims (Court) has held that, in rating musculoskeletal disabilities, the Board is required to consider assigning a higher rating (in a case where the rating has been assigned in accordance with a diagnostic code based on limitation of motion) when there is greater limitation of motion from pain on use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). Additional impairment during exacerbations, or flare-ups, of his condition has not been demonstrated. There is no medical evidence of record to show that any other symptom, including weakness or incoordination, results in additional functional impairment to a degree that would support a higher rating under any of the above codes. There is, therefore, no basis for the assignment of a schedular rating in excess of 60 percent for the veteran's left leg disability. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.14, 4.40, 4.45, DeLuca, supra. In summary, the board finds that the veteran's sciatic neuropathy of the left lower extremity is manifested by pain in the left leg and foot, which increases with use, weakness in the left leg and foot, atrophy of the left leg musculature, limitation of motion of the left knee and ankle, decreased vibration sense in the left knee and ankle, an absent left ankle jerk, a negative Patrick's sign, a left foot drop, and incoordination walking, but not a lack of active movement in the muscles below the knee. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim for rating in excess of 60 percent for the veteran's sciatic neuropathy of the left lower extremity must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching this decision the Board considered the issue of whether the veteran's left leg disability, standing alone, presented an exceptional or unusual disability picture, as to render impractical the application of the regular schedular standards, such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1); Fleshman v. Brown, 9 Vet. App. 406, 412 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338- 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 94 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Significantly, however, no evidence has been presented showing factors such as a marked interference with employment or frequent periods of hospitalization, due solely to the left leg disability, as to render impractical the application of the regular schedular standards. In that regard, as noted above, the veteran was granted TDIU in March 1999. Accordingly, the Board concludes that referral to the appropriate officials for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 60 percent for sciatic neuropathy of the left lower extremity, effective from December 28, 1990, is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals