Citation Nr: 1610568 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 12-30 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for service-connected dorsal spine disorder, currently evaluated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1967 and from November 1971 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before a Decision Review Officer in April 2014 and before the undersigned Veterans Law Judge in October 2015. Transcripts of these hearings are associated with the claims file. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran testified that he was unemployable due to his service-connected disabilities. As such, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board. The issue of entitlement to TDIU prior to June 29, 2015 is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. During the October 2015 Board hearing, the Veteran testified that the disability rating of 20 percent based on range of motion for his dorsal spine disorder, along with a separate 20 percent disability rating for radiculopathy of left lower extremity, would satisfy his appeal. 2. For the entirety of the appeal period, the Veteran's left lower extremity radiculopathy has been productive of moderate severity. 3. After resolving reasonable doubt in favor of the Veteran, he has been unemployable as a result of his service-connected disabilities effective June 29, 2015. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent for radiculopathy of the left lower extremity associated with the Veteran's dorsal spine disorder have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Codes 8520 (2015). 2. The criteria for TDIU based on the Veteran's service-connected disabilities have been met effective June 29, 2015. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claim The Veteran is currently in receipt of a 20 percent rating for his service-connected dorsal spine disorder. He contends that he is entitled to a separate rating for radiculopathy of the left lower extremity. During the October 2015 Board hearing, the Veteran testified that the 20 percent rating currently assigned for his dorsal spine based on range of motion, along with the grant of a separate 20 percent rating for radiculopathy of the left lower extremity, would satisfy his appeal. He further testified that he was not seeking a separate rating for radiculopathy of the right lower extremity. See hearing transcript, p. 6-7, 9-10. In this decision, the Board grants a separate 20 percent rating for radiculopathy of the left lower extremity for the entirety of the appeal period. Thus, consideration of a higher rating than 20 percent for dorsal spine disorder based on range of motion or left lower extremity radiculopathy is not warranted and no discussion of VA's duty to notify and assist is necessary. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's dorsal spine disorder is rated under the general rating formula for diseases and injuries of the spine. Note (1) of the general rating formula for diseases and injuries of the spine states that any associated objective neurologic abnormalities are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Note (1). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, Diagnostic Code 8520 (2014). Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate, or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. The Board finds that the Veteran has moderate radiculopathy of the left lower extremity for the entirety of the appeal period. A December 2010 VA examination noted abnormal nerve tests of the lower extremity but the examiner did not render a diagnosis of radiculopathy. The Veteran was again afforded a VA examination in September 2014. The examiner diagnosed the Veteran with lumbar radiculopathy and stated that the date of diagnosis was 2001. The examiner noted that the Veteran had moderate intermittent pain and numbness of the left lower extremity and described the severity of the left sided radiculopathy as moderate. The right side was not affected by radiculopathy. The examiner further stated that the Veteran did not have peripheral neuropathy but rather lower extremity radiculopathy secondary to his spine disorder. The Board finds the September 2014 VA examination to be highly probative that the Veteran has left sided radiculopathy. In light of this examination report, the Board finds that the Veteran is entitled to a separate 20 percent rating for radiculopathy of the left lower extremity secondary to his dorsal spine disorder, effective April 9, 2010 (the date of the Veteran's increased rating claim for his service-connected dorsal spine disorder). The assignment of an effective date for the grant of a separate 20 percent rating prior to the date of the claim is not warranted as the medical evidence indicates that the Veteran had moderate radiculopathy of the left lower extremity for more than one year prior to the date of the claim. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). As the Veteran stated that he was satisfied with the currently assigned 20 percent rating for dorsal spine based on range of motion, along with a grant of a separate 20 percent rating for radiculopathy of the left lower extremity, further discussion is not warranted. AB v. Brown, 6 Vet. App. 35, 38 (1993). TDIU Claim When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the issue of entitlement to TDIU arose with the Veteran's increased rating claim for his dorsal spine disorder. Although an October 2015 rating decision denied entitlement to TDIU, the Board finds this claim to be within its jurisdiction pursuant to Rice, especially considering that the Board took testimony regarding this claim at the October 2015 Board hearing. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R §§ 3.340, 3.34l, 4.16(a). Here, the Veteran is currently in receipt of service connection for scar of the right upper lip (30 percent), dorsal spine disorder (20 percent), radiculopathy of the left lower extremity (20 percent), left forearm fracture (20 percent), left forearm scar (10 percent), and noncompensable ratings for fracture of the right toe and scars of the back. The Veteran's combined rating is 70 percent. Pursuant to 38 C.F.R § 4.16(a)(3), disabilities affecting a single body system or resulting from common etiology are considered as one disability. As such, the 20 percent rating for dorsal spine disorder and 20 percent rating for left lower extremity radiculopathy secondary to dorsal spine disorder combine to a single 40 percent rating. Thus, the Veteran meets the schedular requirement under 4.16(a) effective June 29, 2015. The Board further notes that the fact that a Veteran is unemployed or has difficulty obtaining employment is insufficient, in and of itself, to establish unemployability. The relevant question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). In reaching such a determination, the central inquiry is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The evidence of record reveals that the Veteran last worked in November 2008. He contends that he is currently unemployable due to his service-connected disabilities, specifically his left forearm disorder, dorsal spine disorder, and left lower extremity radiculopathy. The Veteran is currently assigned a 20 percent rating for left forearm with muscle injury, which is representative of a moderately severe injury. A November 2011 VA examination found that the Veteran had loss of strength of the left forearm and that his left forearm had "significant" occupational effects due to decreased manual dexterity, problems with lifting and carrying, and decreased strength. The Veteran was also afforded September 2014 VA examinations. The examiner found that the Veteran's back disability impacted his ability to work. The examiner stated that the Veteran's physical activity and walking is limited due to pain. He has difficulty standing and shaving and even sedentary activity is more painful after a few minutes. He has limited ability to twist and turn. An examiner also noted that the Veteran's forearm disability also impacts his ability to work as his ability to carry, lift, and squeeze is "very limited." During the April 2014 decision review officer hearing and the October 2015 Board hearing, the Veteran described how his service-connected disabilities prevent him from sustaining employment. He stated that he had to sit down after five to fifteen minutes of standing or bending forward due to his back disability. He also stated that his pain, stiffness, and limited range of motion impact his ability to work. At the Board hearing, he stated that he left his employment of approximately 24 years due to his service-connected disabilities. He stated that his left arm, left leg radiculopathy and back impacted his ability to work. He spent approximately 20 hours per week in the office. He stated that his back became weaker and that he had difficulty staying in one position for extended periods of time. He also stated that he had difficulty with his left arm due to weakness. Thus, in light of the Veteran's competent and credible statements regarding his limited ability to twist, bend, sit, carry, and lift, the Board finds that the Veteran's service-connected disabilities prevent him from performing physical and sedentary work. The competent medical evidence also indicated that the Veteran's service-connected disabilities impact his ability to work due to his "significant" and "very limited" ability to lift and carry. Thus, the Board finds that the evidence of record shows that he is entitled to an award of a TDIU, effective June 29, 2015, the date the Veteran met the schedular criteria. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). ORDER Entitlement to a rating in excess of 20 percent for service-connected dorsal spine disorder is denied. Effective April 9, 2010, entitlement to a separate 20 percent rating for radiculopathy of the left lower extremity is granted, subject to the rules and regulations governing the payment of VA monetary benefits. Effective June 29, 2015, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted, subject to the law and regulations governing payment of monetary benefits. REMAND In the instant case, the Veteran meets the schedular criteria for TDIU effective June 29, 2015. The Veteran is currently rated noncompensable for back scars but he submitted a claim for back scars in May 2015. During the Board hearing, the Veteran's representative stated that the increased rating claim for scar was not currently before the Board. The RO provided the Veteran a VA examination but has not yet issued a rating decision specific to this back scar claim. This claim is inextricably intertwined with the Veteran's TDIU claim as the RO's determination may impact the date the Veteran meets the schedular requirements for TDIU. 38 U.S.C.A. § 5103A(g). Therefore, the issue of entitlement to TDIU prior to June 29, 2015 is remanded in order for the RO to adjudicate the May 2015 claim. Also, upon remand, the RO shall consider whether the Veteran's TDIU claim should be referred to the Director of Compensation and Pension for extraschedular consideration for the period prior to June 29, 2015. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any outstanding pertinent treatment records regarding his employability. Such records should be sought. 2. Invite the Veteran to submit medical and hospitalization records, medical statements, and any other lay or medical evidence from himself and from other individuals who have first-hand knowledge of the impact of his service-connected disabilities on his ability to work prior to June 2015. 3. After adjudicating the pending May 2015 claim, consider whether to refer to the Director of Compensation Service the issue of entitlement to TDIU prior to June 29, 2015. Then after undertaking any development deemed necessary, readjudicate the appeal. If a benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs