Citation Nr: 18124029
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 09-11 795
DATE:	August 3, 2018
ORDER
Entitlement to a rating in excess of 10 percent for disuse atrophy, muscle groups XIII and XIV, right lower extremity, is denied.
FINDING OF FACT
The service-connected disuse atrophy, muscle groups XIII and XIV of the right lower extremity is productive of no more than mild incomplete paralysis or impairment of the sciatic nerve.
CONCLUSION OF LAW
The criteria for the assignment of a rating in excess of 10 percent for the service-connected disuse atrophy, muscle groups XIII and XIV, right lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8799-8720 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1974 to August 1978. He died in December 2011. The appellant is the Veteran’s surviving spouse and has been accepted as the substitute in his appeal.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
1. Entitlement to a rating in excess of 10 percent for disuse atrophy, muscle groups XIII and XIV, right lower extremity.
The Veteran’s service-connected disuse atrophy, muscle groups XIII and XIV, right lower extremity, associated with right knee chondromalacia patella, residual of a gunshot wound, was established and rated under Diagnostic Code (DC) 8799-8720. A February 2005 rating decision established service connection for this disability and assigned a disability rating of 10 percent for the right lower extremity, effective October 18, 2004. In April 2008, the Veteran requested a higher rating for right lower extremity disuse atrophy disability. 
VA records also show that a 20 percent rating has been established for right knee chondromalacia patella, residual of a gunshot wound. The rating was assigned effective from October 18, 2004, under DC 5260. This issue is not on appeal.
The issue on appeal is properly and most advantageously to the Veteran rated under the criteria for DC 8720. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Although the injuries to muscle groups XIII and XIV were sustained as a result of a gunshot wound in September 1976, VA regulations provide that a muscle injury rating may not be combined with a peripheral nerve paralysis rating of the same body part unless the injuries affect entirely different functions.  38 C.F.R. § 4.55(a) (2017). In this case, the injuries to muscle groups XIII and XIV are in the same anatomical region (pelvic girdle and thigh) and affect the same functions in the right knee joint.  38 C.F.R. § 4.55(b). There is also no indication of more than slight muscle injury to either muscle group XIII or XIV. See 38 C.F.R. § 4.56. 
In fact, service treatment records show the Veteran’s September 1976 gunshot wounds involved a small (.25) caliber bullet from a pistol which fragmented when it struck the right patella. The bullet did not fracture the patella nor penetrate the joint. A surgical scar overlying the right patella is shown to have healed well without complications. A medial thigh area scar was not identified in the available service treatment reports. There is no evidence of a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. An examination in November 2009 noted a transverse scar over the right patella and a scar in the medial thigh area.  The examiner reported that the Veteran complained of sharp pain with manipulation of the medial thigh area scar, but that there was no retraction or grimacing. There is no indication, however, that the transverse surgical scar over the right patella was symptomatic. In light of the evidence of record, the Board finds that higher alternative or compensable separate ratings for muscle injuries or residual scarring is not warranted.
DC 8799 represents an unlisted disability requiring rating by analogy to one of the disorders rated under 38 C.F.R. § 4.71. See 38 C.F.R. § 4.27. By analogy, the disorder is rated under the general rating code for impairment of the sciatic nerve. DC 8520 provides ratings for paralysis of the sciatic nerve and DC 8720 provides ratings for neuralgia of the sciatic nerve. They both use the same diagnostic criteria; mild incomplete neuralgia is rated as 10 percent disabling; moderate incomplete neuralgia is rated as 20 percent disabling; moderately severe incomplete neuralgia is rated as 40 percent disabling; and severe incomplete neuralgia, with marked muscular atrophy, is rated as 60 percent disabling. Complete neuralgia of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling.
Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. 
Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124 (2017).  The words “mild,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2017).
The term “incomplete paralysis” with this and other 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 varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a.


On a June 2008, VA peripheral nerve examination, the Veteran reported having “pins and needles” feeling in his right lower extremity from the buttocks to the foot, occurring three to four times per week and lasting for a few hours. The examiner noted that the Veteran sustained injury to the neck and that his description of pain was of paresthesias, not dysesthesias. The nerves involved were nerve roots of the spine that innervate the right lower extremity. No discussion as to the gunshot wound injuries was provided. On physical examination, sensory and motor impairment was reported with no muscle atrophy. The examiner noted that the Veteran had decreased sensation in both L5 dermatomes to sharp/dull testing. There was decreased vibratory sensation in the right great toe and diminished Weinstein monofilament in the plantar aspect of his right foot. Proprioception was intact in the right great toe and that motor strength in the Veteran’s right EHL (extensor hallucis longus), hamstrings, and quadriceps were all 3+/5; reflexes 2 to 3+ in the right knee and ankle and straight leg raising was negative to 90 degrees in the sitting position. A diagnosis of right sciatic nerve neuralgia was provided. 
On a November 2009 VA General Medical Examination, the Veteran reported that he was having minimal problems with his knees and occasional swelling. The examiner noted that the neurological examination showed deep tendon reflexes 2+ patellae and 2+ Achilles, Babinski was negative bilaterally, and Hoffman’s test was positive, bilaterally. Range of motion was from 0 to 140 degrees without complaint of pain. Measurement of the right thigh was 45 cm. The examiner noted a .5 cm (5mm) difference between the Veteran’s right thigh and left thigh. Diagnoses including bilateral chondromalacia and C6 quadriplegia were provided. The examiner indicated that the Veteran’s gait abnormalities were residuals of the cervical myelopathy and ASIA-D quadriplegia and that his atrophy of the muscle groups XIII and XIV of the right leg did not make him unemployable. 


After review of the lay and medical evidence of record, the Board finds that the Veteran’s service-connected disuse atrophy, muscle groups XIII and XIV of the right lower extremity was productive of no more than mild incomplete paralysis or impairment of the sciatic nerve.  The Veteran’s reported symptoms at the June 2008 and November 2009 examinations were progressive loss of strength, tingling, numbness, and decreased sensation. The June 2008 VA examination report noted decreased sensation only in the bilateral L5 dermatomal distributions, decreased muscle strength (3+/5), and no muscle atrophy. The November 2009 examiner reported some muscle atrophy. The Veteran’s right thigh was 45 cm and there was a .5 cm (5mm) difference between the Veteran’s right thigh and left thigh. Although the Veteran is shown to have had nonservice-connected neurological symptoms involving the right lower extremity due to his post-service neck injury, in the absence of specific medical opinion distinguishing his symptoms due to that injury from his service-connected disuse atrophy all symptoms associated with the right sciatic nerve are assumed to be attributable to the service-connected disability for the purposes of this evaluation. The medical evidence in this case, however, demonstrates no more than a mild neurological disability. 
The Board finds that a rating in excess of 10 percent under DC 8520 is not warranted for the disuse atrophy, muscle group XIII and XIV, right lower extremity. The overall disability picture associated with disuse atrophy, muscle group XIII and XIV, right lower extremity, is not indicative of neuritis (i.e., characterized by loss of reflexes, muscle atrophy, sensory disturbance, and constant pain) that is more than mild in degree. See 38 C.F.R. § 38 C.F.R. § 4.123. The right lower extremity was manifested by some decreased muscle strength (3+/5) in the right lower extremity muscles and diminished muscle size in the right thigh muscle of only .5 cm (5mm) difference between the Veteran’s right thigh and left thigh. There was diminished Weinstein monofilament in the plantar aspect of his right foot. Such symptoms are more indicative of a mild rather than moderate sciatic nerve impairment. The November 2009 examiner also noted the Veteran had an abnormal gait, but specifically found it was a residual of his cervical myelopathy and ASIA-D quadriplegia which are non-service connected disabilities.
The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his disuse, atrophy, muscle group XIV and XIII, right lower extremity. The Board acknowledges that the Veteran, in advancing this appeal, believed that the disability on appeal had been more severe than the assigned disability rating reflects. Moreover, the Veteran was competent to report observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  He was not, however, competent to identify a specific level of disability.  Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by VA medical professionals who have examined him.  The medical findings directly address the criteria under which the disability is evaluated.  The Board accords these objective records greater weight than the Veteran’s subjective complaints of increased symptomatology.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).  
For these reasons, the Board finds that the overall disability picture associated with the disuse atrophy, muscle group XIV and XIII, right lower extremity more closely approximates neuritis, neuralgia, or incomplete paralysis of the sciatic nerve that is no more than mild in degree, which is consistent with a 10 percent rating.  When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the evidence in this case is against the claim for an increased rating.
The Board further finds that extraschedular rating consideration was not raised in this case and that the evidence does not present any exceptional or unusual circumstances.  Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances).  No further action as to this specific matter is required.
 
MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Douglas, Counsel 

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