Citation Nr: 1308720 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 05-32 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUES 1. Entitlement to higher initial disability ratings for neurological impairment of the left lower extremity, rated as 10 percent disabling prior to May 24, 2012, and as 20 percent disabling from May 24, 2012. 2. Entitlement to higher initial disability ratings for neurological impairment of the right lower extremity, rated as 10 percent disabling prior to May 24, 2012, and as 20 percent disabling from May 24, 2012. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to October 1982. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision issued by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. The Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge in April 2007. A transcript of the proceeding is of record. The claims were most recently before the Board in April 2012, at which time they were remanded for additional development and adjudicative action. In a November 2012 rating decision, the ratings assigned for the neurological impairments of the left and right lower extremities were increased to 20 percent, effective from May 24, 2012. This did not satisfy the Veteran's appeal. FINDINGS OF FACT 1. Throughout the initial rating period, the Veteran's service-connected left lower extremity neurological impairment has more nearly approximated moderate incomplete paralysis of the sciatic nerve than moderately severe incomplete paralysis of the nerve. 2. Throughout the initial rating period, the Veteran's service-connected right lower extremity neurological impairment has more nearly approximated moderate incomplete paralysis of the sciatic nerve than moderately severe incomplete paralysis of the nerve. CONCLUSIONS OF LAW 1. The neurological impairment of the left lower extremity warrants a 20 percent rating, but not higher, throughout the initial rating period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8520 (2012). 2. The neurological impairment of the right lower extremity warrants a 20 percent rating, but not higher, throughout the initial rating period. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in June 2004 and July 2007. Although the July 2007 letter was provided to the Veteran following the initial adjudication of his claims in August 2004, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claims. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). In addition, the record reflects that post service VA and private treatment records have been obtained. Further, the Veteran was afforded appropriate VA examinations. The Board finds that the examination reports are adequate to allow proper adjudication of the issues on appeal. Collectively, the examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic codes, and considered the full history of the disabilities. There is no indication that the disabilities have increased in severity since the Veteran was last examined in September 2009. Indeed, according to the May 2012 VA addendum report, the Veteran was contacted by phone and stated that his self-reported symptomatology documented in the September 2009 VA examination report represents an accurate description of the current condition of his disabilities. Here, the Board notes that the Veteran's claims were remanded in February 2010 so that he could be provided with a VA examination to assess the neurological impairments of his left and right lower extremities. The claims file indicates that the Veteran was scheduled for an examination in June, September, and December of 2011; however he failed to appear for these examinations or provide an explanation as to why he did not attend. While VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. Ap. 449, 452 (2000) (veteran cannot passively wait for help from VA). As the Veteran has not cooperated with VA's attempt to provide him with another examination, no further assistance is warranted in this regard. As indicated previously, the Board mostly recently remanded this case in April 2012 in order for an VA examiner to review a November 2009 VA electromyography (EMG) studies report and provide a medical opinion regarding the severity of the Veteran's neurologic impairments that took into account all of the medical evidence of record. Following a review of the claims files, a VA opinion was provided in May 2012. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the April 2012 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. Accordingly, the Board will address the merits of the claims. Legal Principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Diagnostic Code 8520 pertains to paralysis of the sciatic nerve, and provides that a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. Moderately severe incomplete paralysis merits a 40 percent rating. A rating of 60 percent requires severe incomplete paralysis with marked muscle atrophy. The maximum rating of 80 percent is reserved for complete paralysis shown by manifestations such as: the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis for a particular 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. When the involvement is bilateral, the ratings should be combined with application of the bilateral factor. 38 C.F.R. § 4.124a. The rating schedule does not define the terms "mild," "moderate," or "severe." Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. See 38 C.F.R. § 4.6. If two disability evaluations are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. The Veteran asserts that the neurological impairments of his left and right lower extremities warrant higher ratings than those that are currently assigned. The Veteran was granted service connection for radiculopathy of the left and right lower extremities in the August 2004 rating decision, with initial 10 percent ratings assigned for each respective disability. In the November 2012 rating decision, the RO increased the disability ratings for these disabilities to 20 percent, effective from May 24, 2012. Throughout the pendency of the appeal, his disabilities have been evaluated under Diagnostic Code 8520 During a November 2003 VA examination, the Veteran reported having back pain ever since an injury during service with associated left leg numbness consistent with sciatica since 1999. He described his symptoms as tingling in his legs, but he was unable to provide more specific details. The Veteran stated that he used prescription medication to treat his neurologic symptoms and musculoskeletal pain. The examiner noted that the claims file was reviewed, and highlighted that no neurologic symptoms were noted during an October 2003 assessment. On the physical examination, sensory functioning was grossly normal. Muscle strength of the lower extremities was 5/5 and deep tendon reflexes were normal. Hoover sign was negative. The Veteran underwent an additional VA examination in July 2004. He reported having left leg pain when returning upright from a flexed back position and intermittent pain in his right leg. He described his symptoms as shooting pain from the midline lumbar spine down to the buttock, lateral thigh, popliteal region, and proximal one-third of the calf of both legs. The Veteran characterized the sensation as a shooting, tingling pain. He denied having weakness, stiffness, swelling, heat, redness, instability, giving way, locking, fatiguability, or lack of endurance for either leg. The Veteran stated that his low back pain and left leg radiculopathy prevented him from sleeping until he got into a position that did not provoke pain. He also experienced numbness at night in his left leg more so than his right leg, along with a tingling sensation in the left lateral thigh and popliteal and proximal one-third of the calf. The physical examination revealed that the skin on the Veteran's legs, feet, and toes was normal in color, warmth, and texture. The sensory examination of the feet revealed intact sensation. Strength testing with bilateral dorsiflexion and plantar flexion was 5+/5+, intact, sustained, and equal. The Veteran demonstrated moderate, equal, and nonsustained strength in the quadriceps and lower legs with extension and flexion. The examiner noted that the greatest limitation occurred with bilateral flexion inasmuch as each of the strength testing maneuvers provoked midline low back pain. Deep tendon reflexes were equal, intact, and reported as 2+/2+ for the patellar, Achilles, biceps, and triceps. Repetitive testing of the Veteran's lumbar spine range of motion provoked midline low back pain and left radiculopathy from the left buttock down to the calf when the Veteran rose to an upright position from a position of flexion. The pain began to radiate with the first upright movement from flexion and progressed to higher level pain with the second and third extension from flexion. The examiner noted that following the clinical examination and repetitive motion testing, the Veteran demonstrated a prominent left leg limp that was not present at the beginning of the examination. The examination revealed more likely than not radiculopathy in both lower extremities, more so in the left leg than right leg, related to the Veteran's lumbar spine disability. The examiner identified the affects of the Veteran's condition on his usual occupation as low back pain and radiculopathy while standing in one place for five hours during his job as a pizza maker. According to the examiner, the neurological findings were normal. The examiner concluded that the radiculopathy provoked mild to moderate functional impairment depending on the presence or absence of five hours of standing at work. An October 2005 VA chiropractic note documents the Veteran's report of low back pain and burning sensations that ran down the lateral aspect of each leg but were greater on the left side than the right. The chiropractic examination revealed that the Veteran walked with a normal gait. Tightness was noted in the both hamstrings with straight leg raises. Lower extremity deep tendon reflexes for the patellar and Achilles were +2 bilaterally. Motor strength of the lower extremities was 5/5 bilaterally. The Veteran could squat and raise, and perform toe and heel walking. It was unclear to the Veteran if sensation in his lower extremities was symmetrical. While seated, the Veteran reported having tingling sensations during the neurologic examination. The Veteran was assessed as having a flare up of chronic low back pain. The clinician determined at that time that the Veteran was unable to tolerate any manual examination or therapy procedures. A November 2005 VA chiropractic note shows the Veteran's additional report of tingling sensations into the side of his left thigh and leg. The physical examination revealed the same findings as those reported during the October 2005 VA chiropractic examination. The diagnosis of flare up of chronic low back pain was continued. A December 2005 VA spine examination report includes the Veteran's reported history of low back pain and the subsequent development of radiculitis symptoms in both legs, with his left leg being more severe than his right leg. He reported that his left leg symptoms improved after he underwent back surgery. However, he still described having a "tickle" in his leg that bothered him whenever he tried to sleep. He denied having any weakness. Additionally, the Veteran experienced burning sensations that ran down the lateral aspect of both legs that began without warning, with his left leg symptomatology more severe than the right leg. He described having difficulty with driving because of his need to move several times while seated due to pressure and pain in his left buttock and leg, and numbness and tingling in his left foot. Although the claims file was not available for review, the examiner reviewed that the Veteran's VA records, to include records of his chiropractic assessments. On the physical examination, the Veteran walked with a limp on his left leg. While seated in a chair, he used his hands to prop up his weight in an attempt to limit the pressure on his buttocks. Muscle strength was reported as 5/5 bilaterally. Neurosensory functioning was intact, but a mild decrease was noted at the L4 dermatome on the left. Deep tendon reflexes were 2+/2+ for the plantar flexors. Following an examination of the spine, the examiner provided a diagnosis of chronic low back pain with magnetic resonance imaging study (MRI) documented multi level disc disease. The examiner characterized the Veteran's functional impairment level as moderate in severity. The examiner did not, however, provide a diagnosis relevant to the Veteran's bilateral lower extremity neurological symptoms or address the severity of his neurologic impairments. Private treatment records show that the Veteran sought emergency treatment in June 2006 due to pain in his lumbar spine that radiated down to his left leg and that he was given a diagnosis of acute sciatica. A July 6, 2006, private treatment record reflects the Veteran's report of acute low back pain radiating to the left leg that had gotten worse over the past month. The physical examination revealed reflexes of 2+, with the exception of 1+ for the left knee, and intact sensation for sharp and light touch for both extremities. Motor strength testing revealed limitations secondary to pain with an antalgic movement pattern. The Veteran under an additional private assessment on July 20, 2006, following his continued report of acute low back pain and numbness in his left leg. The evaluation revealed motor strength testing within functional limits. Reflexes were 2+, but were 1+ for the left knee. Sensation was intact for sharp versus light touch for both lower extremities. The examination resulted in a diagnosis of acute left sciatica associated with left L4-5 disc herniation. His private physician noted that the Veteran had a reduced reflex and a sense of numbness, but no gross deficits on the motor and sensory examinations. The physician recommended further evaluation with EMG studies to assess the extent of any acute or chronic neuropathic changes associated with the Veteran's lumbar disc disorders. However, there is no indication from the medical evidence of record of whether a private EMG evaluation was completed. A July 26, 2006, private treatment record shows a diagnosis of lumbosacral neuritis and includes the Veteran's report of low back pain. He reported that that two months prior he began to experience a slowly progressive, constant, aching, knife-like, burning, shooting, and stabbing pain in the left lower lumbar region that radiated down the lateral aspect of his left lower extremity down to the shin region. He denied increased sweating, swelling, or temperature changes in the lower extremity. On the physical examination, reflexes were 1/4 for the left knee and 2/4 for the right knee and both ankles. The Veteran displayed hypesthesia in the left anterior shin region. The sensory examination was otherwise normal. The motor examination for the lower extremities was normal, and there were no significant atrophic or dystrophic changes noted. The examination was negative for cyanosis or edema for either extremity. The temperature for both feet was equal. Treatment records dated in August and September of 2006 show a diagnosis of lumbosacral neuritis and indicate that the Veteran received transforaminal epidural steroid injections. During a December 2006 private medical consultation, the Veteran reported increased left leg pain that radiated from his back down to his calf. He did not complain of weakness, but reported having difficulty ambulating due to the left leg pain. His physician noted that the Veteran did not have substantial benefit with physical therapy. On the physical examination, the Veteran walked with an antalgic gait favoring the left lower extremity. The examination revealed decreased sensation along the L5 dermatome down to the mid thigh, and intact sensation along the L4 dermatome. Motor strength was 5/5 for lower extremities with some slight weakness in dorsiflexion, reported as 4+/5. Reflexes were 1+ for the patella and Achilles. The examiner was unable to elicit a Babinski response. The examiner noted that the Veteran had significant compression of the left L4 nerve root, but that the Veteran's symptoms seemed to be more L5 in nature. The assessment included a diagnosis of left leg radiculopathy in the L5 distribution. A May 2007 private assessment revealed strength of 5/5 for the lower extremities, with the exception of dorsiflexion weakness of 4+/5 on the left, and inability to elicit any Babinski responses. The Veteran underwent a VA neurological disorders examination in September 2009, at which time he reported having burning, numbness, and tingling that was greater in the left leg than the right leg for approximately ten years. He also reported experiencing left leg medial muscle spasms for approximately two years. The burning, numbness, and tingling sensation occurred in the outer left leg and started as mild in the morning and progressed to a significant uncomfortable sensation. The Veteran reported having milder pain in his right leg that developed approximately three times a month. He reported having uncomfortable pain on most days, without identifying the exact location of his pain, and stated that he limped at the end of the day and favored one leg to limit the weight he placed on his leg. He reportedly worked primarily as a printer and stated that he missed approximately four weeks of work over the past year due to severe pain. The Veteran demonstrated obvious left lower extremity discomfort on the physical examination. He got up slowly from a seated position, shifted intermittently in the chair during the interview, and often got up due to discomfort in the left leg. There was no apparent foot drop or dragging, and there was no evidence of sciatic paralysis bilaterally. The Veteran demonstrated free active movement of the leg below the knees with good strength. The examiner noted a mild left-sided limp with ambulation. For the right leg, patellar and Achilles deep tendon reflexes were 3+ and 1+, respectively. Patellar and Achilles deep tendon reflexes were both 1+ for the left leg. Motor strength was 4-5/5 for the right leg and 5/5 for the left leg at the hip, knee, and ankle with flexion and extension. There was evidence of guarding due to pain and concerns for muscle spasms for the left leg. Good muscle tone was noted for the thighs, with the exception of questionable reduced muscle mass for the left leg. Reduced sensation to sharp and/or light touch in the distribution of L 4/5 was noted bilaterally. Vibration sense was intact bilaterally. The Veteran was able to rise on his heels and toes. The examiner diagnosed severe lumbar degenerative disc disease with nerve impingement/lumbar neuritis with residual left greater than right leg radicular pain in the distribution of the sciatic nerve. The examiner identified pain as the Veteran's most significant limitation and stated that this was likely predominately sensory in nature based on the examination results. The Veteran had a significantly decreased ability to lift/bend, or stand/sit for prolonged periods due to pain, which impacted his ability to perform his job as a printer. The examiner determined the Veteran to have overall moderate to moderately severe functional impairment. In November 2009, the Veteran underwent EMG studies for his left leg. Left tibial and peroneal motor studies revealed normal distal latencies and normal conduction velocities. The left sural sensory study showed normal distal latency and normal SNAP amplitude. The EMG needle study showed no spontaneous discharges and normal recruitment in the muscles of the left leg. The examiner concluded that there was no electrodiagnostic evidence of peripheral neuropathy or lumbar radiculopathy in the left leg. As directed by the April 2012 Remand, the September 2009 VA examiner reviewed the Veteran's claims files in May 2012 in order to provide an opinion regarding the severity of the Veteran's neurologic disabilities that takes into account the findings of the November 2009 EMG studies. Based on a review of the September 2009 examination results, the November 2009 EMG testing, and prior imaging reports, the examiner characterized the severity of the Veteran's radiculopathy as moderate to moderately severe. The examiner stated that she contacted the Veteran by telephone in May 2012 and reviewed with him his description of his lower extremity impairment as reflected in the September 2009 examination report. According to the examiner, the Veteran confirmed that the description represented the current status of his impairment. The examiner provided a diagnosis of moderate to moderately severe bilateral left greater than right neuropathy. In light of the foregoing, the Board finds that 20 percent ratings, but no higher, are warranted for the Veteran's left leg and right leg neurological impairments throughout the initial rating period. Since the effective date of service connection for these disabilities, the Veteran has consistently reported experiencing bilateral lower extremity symptomatology, primarily described as burning sensations, tingling, pain, and numbness in his left and right legs. He has reported that his bilateral lower extremity symptoms affect his sleep, driving, ambulation, and his ability to sit and stand for prolonged periods. Additionally, the objective medical evidence during the appeal collectively shows findings of decreased strength, sensation, and reflexes for the lower extremities and/or the left lower extremity. Moreover, the July 2004 examiner opined that the Veteran's lower extremities radiculopathy resulted in mild to moderate functional impairments. As reflected the September 2009 and April 2012 VA examination reports, an additional VA examiner similarly characterized the Veteran's lower extremities neurological impairments as moderate to moderately severe based on examination findings. Given the findings of the VA and private examinations and the Veteran's credible lay statements, the Board finds that an increased, 20 percent rating is warranted for the left and right leg neurological impairments from the effective date of service connection (November 12, 2003). The evidence, however, does not show that disability ratings in excess of 20 percent are warranted in this case. There is no evidence that the Veteran's left leg and right leg neurological symptomatology causes any impairment of the lower extremities characterized by any actual paralysis. His symptoms have primarily been sensory as evidenced by the pain, numbness, tingling, etc. Motor involvement has rarely been identified. On the isolated occasions when weakness has been identified, it has been generally described as 4 or 4+/5. As noted above, 38 C.F.R. § 4.124a provides that when the nerve involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Therefore, the Board must conclude that the neurological impairment in both lower extremities has more nearly approximated moderate than moderately severe throughout the initial rating period. In reaching the above decision, the Board has considered the Veteran's statements that higher disability ratings are warranted for his service-connected left lower extremity and right lower extremity disabilities. However, the Veteran has not identified any legal or factual basis justifying the assignment of ratings higher than what have been assigned and upheld herein. Consideration has been given to assigning a staged rating; however, at no time during the period in question has either disability warranted more than a 20 percent rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered the doctrine of reasonable doubt in reaching this determination; however, as the preponderance of the evidence is against the assignment of ratings higher than what has been upheld and assigned herein, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether the Veteran's claims should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the Veteran's left lower extremity and right lower extremity disabilities are contemplated by the schedular criteria. Therefore, the Board has determined that referral of the claims for extra-schedular consideration is not in order. Finally, although the Veteran has submitted evidence of his medical disability, and made claims for the highest ratings possible, he has not submitted evidence of unemployability, or claimed to be unemployable due to the disabilities. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to his service-connected disabilities has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER The Board having determined that a 20 percent rating, but no higher, is warranted for neurological impairment of the left lower extremity from the effective date of service connection, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. The Board having determined that a 20 percent rating, but no higher, is warranted for neurological impairment of the right lower extremity from the effective date of service connection, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs