Citation Nr: 1754324 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 03-12 508 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an effective date earlier than November 5, 2013 for the award of separate compensable ratings for the neurological manifestations of degenerative arthritis of the lumbar spine with mild scoliosis and grade 1 spondylothesis (lumbar spine disability), to include sciatica of the left and right lower extremities. 2. Entitlement to an evaluation in excess of 40 percent for left lower extremity sciatica effective November 5, 2013. 3. Entitlement to an evaluation in excess of 10 percent for right lower extremity sciatica effective November 5, 2013. 4. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to November 5, 2013. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney of Law ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2011, the Board found that the issue of entitlement to a disability rating in excess of 20 percent for the lumbar spine disability had been raised by the record, but it had not been adjudicated by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board referred the increase rating claim for the lumbar spine disability to the AOJ for appropriate action. Prior to the AOJ's evaluation of the orthopedic manifestations of the lumbar spine disability, the AOJ evaluated the neurological manifestations and assigned an 20 percent disability rating for left lower extremity sciatica and assigned right lower extremity sciatica a noncompensable rating. To reflect the procedural history, the Veteran's claims on appeal have been rephrased and the changes are reflected on the title page. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (2017). In a September 2015 rating decision, the RO increased the disability rating for the Veteran's service-connected right lower extremity sciatica to 10 percent disabling, effective November 5, 2013. In a May 2017 rating decision, the RO increased the disability rating for the Veteran's service-connected left lower extremity sciatica to 40 percent disabling. As the increase did not represent a total grant of the benefits sought on appeal, the claims remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board acknowledges that the RO granted entitlement to a TDIU due to the Veteran's service-connected disabilities in a May 2017 rating decision. However, the issue of entitlement to a TDIU is part of the Veteran's current appeal of the initial rating assigned for his sciatica of right and left lower extremities because he raised the issue of unemployability during the course of the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (holding that, in the context of an initial adjudication of a claim of entitlement to service connection or in the context of a claim for an increase "a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability"). As a result, a claim for a TDIU has been pending since the Veteran appealed the initial rating assigned for sciatica of the left and right lower extremities. Id. Thus, the issue of entitlement to a TDIU for the period prior to November 5, 2013-the effective date established by the RO in its May 2017 rating decision-remains pending before the Board, and has been added to the title page. In May 2017, the Board remanded the current issues for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). FINDINGS OF FACT 1. The Veteran's claim for an evaluation in excess of 20 percent for the service-connected lumbar spine disability was received by VA on July 14, 2009, which is later than the date entitlement arose for the neurological manifestations of the lumbar spine disability. 2. The Veteran's neurological manifestations of the lumbar spine disability affecting the left lower extremity have been no more than moderately severe throughout the claim period. 3. The Veteran's neurological manifestations of the lumbar spine disability affecting the right lower extremity have been no more than mild throughout the entire claim period. 4. Prior to June 27, 2013, the Veteran remained substantially and gainfully employed. 5. The competent and credible evidence of record demonstrates that the Veteran's service-connected disabilities as likely as not precluded him from securing or following a substantially gainful occupation beginning on June 27, 2013. CONCLUSIONS OF LAW 1. The criteria for an effective date of July 14, 2009, but no earlier, for the assignment of a 40 percent rating for left lower extremity sciatica have been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for an effective date of July 14, 2009, but no earlier, for the assignment of a 10 percent rating for right lower extremity sciatica have been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for the assignment of a disability rating in excess of 40 percent for the Veteran's left lower extremity sciatica are not met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.124a, Diagnostic Code 8520. 4. The criteria for the assignment of a disability rating in excess of 10 percent for the Veteran's right lower extremity sciatica are not met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.124a, Diagnostic Code 8520. 5. The criteria for a TDIU have been met from June 27, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Earlier Effective Date The Veteran is seeking an effective date earlier than November 5, 2013 for the grant of service connection for right lower extremity sciatica and left lower extremity sciatica. Following review of the record, the Board finds that an earlier effective date of July 14, 2009-the day the Veteran filed his claim for evaluation of his lumbar spine disability in excess of 20 percent disabling-is warranted for sciatica of the left and right lower extremity. The etiology of the Veteran's service-connected disabilities, to include left knee degenerative joint disease with tendonitis (left knee disability), lumbar spine, and sciatica of the left and right lower extremities, stem from an in-service accident, which involved him becoming pinned by a 2.5 ton trailer. During the Veteran's VA examination in September 2003, the Veteran reported that he was injured when attempting to unhook a trailer from a truck. He explained that, upon loosening the trailer hook, the truck turned toward him and hit him in the left thigh. The impact of the truck knocked him down and the trailer hook fell on top of him, pinning him to the ground. Since the accident, he has reported experiencing pain in his back as well as pain radiating down the posterior aspect of his left lower extremity. Following the examiner's interview with the Veteran, the examiner conducted a separate VA examination of the lumbar spine, "to rule out the possibility of back injury with this severe injury to his left lower extremity." Upon examination, the Veteran's lower back revealed tenderness at the L4-5 paravertebral muscle area. Further, the examiner observed "sciatic notch tenderness and the tenderness extend[ed] to the left leg below the calf of the leg." The examination report documented a diagnosis of "probable degenerate disc disease with left radiculopathy, secondary to the severe injury to the left lower extremity." In November 2003, the Veteran also reported feeling radicular pain in his right lower extremity. In a correspondence, the Veteran contended that he increasingly used and depended on his right leg because of the "weakened condition" of his left knee. He reported that in the last four to five years he experiences a grinding and popping noise in his knee cap as well as a "tingling" sensation. Following the Veteran's February 2004 claim, the RO granted service connection for the lumbar spine disability in May 2004. The Veteran did not appeal the rating decision and did not submit relevant evidence within one year of the rating decision. Therefore, the claim became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017). In a July 2009 correspondence, the Veteran indicated that his back disability had been "getting progressively worse." In July 2011, the Board considered the Veteran's appeal for an entitlement to an initial disability rating in excess of 10 percent for left knee disability and entitlement to a TDIU. In its decision, the Board acknowledged that the issue of entitlement to a disability rating in excess of 20 percent for lumbar spine disability had been raised by the record, but the AOJ had not adjudicated the issue. Accordingly, the Board referred the issue to the AOJ. Following the Board's July 2011 decision, the record reveals that the Veteran repeatedly complained of radiating pain down his left lower extremity. In November 2011 correspondence, the Veteran reported "tingling in my left foot" and a "burning sensation to the bottom of my foot." October 2012 and October 2013 VA treatment records further documented the Veteran's repeated complaints of radicular symptoms in his left lower extremity. Turning to the relevant legal standard, the provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(2). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim of entitlement to increased compensation. If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "application" or "claim" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (2017). The general rating formula for diseases and injuries of the spine provides that "any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, Note 1. Here, the Veteran filed his claim for evaluation for lumbar spine disability in excess of 20 percent on July 14, 2009. The Veteran's sciatica of the left and right lower extremities are the neurological manifestations of the Veteran's lumbar spine disability. Id. To clarify, the issue before the Board is whether there is competent evidence to support a higher rating for the neurological manifestations, to include sciatica of the left and right lower extremities, of the Veteran's lumbar spine disability as of the date of receipt of claim, July 14, 2009. The Board first turns to sciatica of the left lower extremity. The September 2003 VA examination documented objective findings of "sciatic notch tenderness and the tenderness extend[ed] to the left leg below the calf of the leg." Further, the Veteran's lay statements and VA treatment records documented the Veteran's continual reports of radicular symptoms. The Board finds that the evidence of record demonstrates that the Veteran experienced moderately severe, incomplete paralysis of his left lower extremity prior to November 2013. As such, an earlier effective date for left lower extremity sciatica, with a 40 percent disability rating, is warranted effective July 14, 2009. However, an effective date earlier than July 14, 2009 is not warranted because the record lacks evidence that the severity of the disability increased within the one-year period preceding the date of the claim. Next, the Board turns to sciatica of the right lower extremity. The only evidence of record, prior to November 5, 2013, referencing the right lower extremity is the Veteran's November 2003 correspondence. There, he stated "I experience a grinding and popping noise in the knee accompanied by a tingling in the knee cap." The Board finds, extending to the Veteran the benefit of the doubt, that the statement contained within this correspondence is evidence documenting subjective reports of radicular symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). As such, an earlier effective date for right lower extremity sciatica, with a 10 percent disability rating, is warranted, effective July 14, 2009. However, an effective date earlier than July 14, 2009 is not warranted because the record lacks evidence that the severity of the disability increased within the one-year period preceding the date of the claim. II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). While a Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14 ; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). VA examination reports show that neurological manifestation of the lumbar spine disability relate to the sciatic nerve. The disabilities are each rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve. Pursuant to Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. Id. As decided above, the left lower extremity sciatica is rated as 40 percent disabling and the right lower extremity sciatica is rated as 10 percent disabling, each effective July 14, 2009. In November 2013, the Veteran was afforded a VA examination for his service-connected lumbar spinal disability. The examiner noted muscle atrophy in the left lateral thigh present. The reflex examination showed normal results for both lower extremities. Following the sensory examination, the examiner document decreased sensation for left lower extremity at the upper anterior thigh, thigh/knee, and lower leg/ankle. Also, the examiner documented sensation to be absent at the Veteran's left foot/toes. In regards to the right lower extremity, the examiner documented the Veteran's sensation as normal. In addition, straight leg raising test revealed positive results for both lower extremities. Ultimately, the examiner concluded that the Veteran had radicular pain due to radiculopathy. Specifically, the examiner observed the Veteran experiencing moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in his left lower extremity. In regards to the Veteran's right lower extremity, the examiner observed the Veteran experiencing mild intermittent pain. December 2013 VA treatment records documented a "decreased sensation" in the left lower extremity. The treatment record did not address the right lower extremity. With regard to the left lower extremity sciatica, the Board finds that Veteran's symptoms are moderately severe, corresponding to a 40 percent rating pursuant to Diagnostic Code 8520. The November 2013 VA examination sensory test results revealed the Veteran experiencing a range between moderate pain and severe pain associated with radiculopathy. The Board acknowledges that the examination report documented muscular atrophy of the left thigh; however, the Veteran is currently service-connected for atrophy of portion of muscle group XIV left distal thigh with residual scar. As the Veteran's radicular symptoms were not documented as more severe and in an effort to avoid pyramiding, a disability rating in excess of 40 percent is not warranted. See 38 C.F.R. § 4.14. With regard to the right lower extremity sciatica, the Board finds that Veteran's symptoms are mild, corresponding to a 10 percent rating pursuant to Diagnostic Code 8520, effective July 14, 2009. Here, the November 2013 VA examination is the only competent medical evidence within the claim period related to sciatica of the right lower extremity. There, the straight leg raising test for the right lower extremity indicated positive results of pain. Further, the examiner documented mild intermittent pain for the right lower extremity. A rating in excess of 10 percent for sciatica of the right lower extremity is not warranted because the record lacks evidence more closely approximates moderate radicular pain. In short, the Board finds that the Veteran's sciatica of the left lower extremity should be rated as 40 percent pursuant to Diagnostic Code 8520, effective July 14, 2009. The Veteran's sciatica of the right lower extremity should be rated as 10 percent pursuant to Diagnostic Code 8520, effective July 14, 2009. III. TDIU VA has a duty to maximize benefits. See AB, 6 Vet. App. at 38 (1993) (presuming that a claimant is seeking the maximum benefits allowed by law and regulation); 38 C.F.R. § 3.103(a) (2017) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law"). In Rice v. Shinseki, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. 22 Vet. App. 447 (2009). A request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability which is part of a pending claim for increased compensation benefits. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C.S. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor may advancing age be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The Veteran is currently in receipt of a TDIU, effective November 5, 2013. As a TDIU claim is part of an increased rating claim, the issue before the Board is whether a TDIU is warranted prior to November 5, 2013. Here, the Veteran meets the schedular requirements for a TDIU prior to November 5, 2013. Prior to November 5, 2013, the Veteran's combined disability rating for lumbar spine, to include the neurological and orthopedic manifestations, is rated above 60 percent disabling. See 38 C.F.R. § 4.16. The next issue is whether the Veteran's service connected disabilities rendered it impossible to follow a substantially gainful occupation. The term "substantially gainful employment" means "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In other words, it is an occupation "that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . . ." Faust v. West, 13 Vet. App. 342, 356 (2000). In the March 2013 Request for Employment Information in Connection with Claim for Disability Benefits, the Veteran's employer, Reeds Cleaning Service, reported that the Veteran worked "reduced hours from average of 42 hours per week to 27 hours per week." Also, the employer reported that the Veteran would be retiring on June 30, 2013. The employer's Payroll Summary for the 2012 calendar year documented the Veteran earning a total gross pay in the amount of $23,090.16. The Payroll Summary between January 2013 and March 2013 documented the Veteran earning a total gross $4,821.16. In October 2013 correspondence, the Veteran reported that he retired on June 27, 2013. According to the United States Census Bureau, the poverty threshold for one person over the age of 65 was $11,173 in 2013. While the employer's Payroll Summary in 2013 documented a quarter of a calendar year, the Board infers from the Veteran's reports and the employer's reports that he continued to work reduced hours until his retirement on June 27, 2013. Therefore, in relying on the Payroll Summary in 2013, the Board finds that the Veteran's gross annual pay was above the poverty threshold in 2013. Hence, the Veteran remained substantially and gainfully employed until his retirement. After review of the evidence of record, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities effective June 27, 2013. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner). Accordingly, resolving all doubt in his favor, the criteria for a TDIU have been met, and an earlier effective date of June 27, 2013 for a TDIU is granted. ORDER Entitlement to an effective date of July 14, 2009 for the separate award of 40 percent disabling for left lower extremity sciatica is granted. Entitlement to an effective date of July 14, 2009 for the separate award of 10 percent disabling for right lower extremity sciatica is granted. A disability rating in excess of 40 percent for left lower extremity sciatica from November 5, 2013 is denied. A disability rating in excess of 10 percent for right lower extremity sciatica from November 5, 2013 is denied. A total disability rating based on individual unemployability due to service-connected disabilities is granted, effective June 27, 2013. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs