Citation Nr: 18151752 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 06-29 708 DATE: November 20, 2018 ORDER An initial rating of 20 percent, but no higher, for lumbar radiculopathy of the left lower extremity is granted. Entitlement to an effective date prior to December 2, 2013 for the award of a separate compensable rating for lumbar radiculopathy of the left lower extremity is denied. Entitlement to an effective date prior to December 2, 2013 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on a schedular basis pursuant to 38 C.F.R. § 4.16 (a) is denied. REMANDED Entitlement to special monthly compensation (SMC) due to the need for regular aid and attendance is remanded. Entitlement to an effective date prior to December 2, 2013 for the grant of a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b) is remanded. Entitlement to an effective date prior to December 2, 2013 for the award of Dependents' Educational Assistance (DEA) benefits is remanded. FINDINGS OF FACT 1. The symptoms associated with the Veteran’s radiculopathy of the left lower extremity result in severe constant pain, moderate paresthesias/dysesthesias, moderate numbness, and moderate incomplete paralysis of the sciatic nerve. 2. The date that entitlement arose for the assignment of a 20 percent disability rating for service-connected left upper extremity radiculopathy is not shown by the weight of evidence to be any earlier than May 5, 2011. 3. The schedular criteria for consideration of TDIU were not met prior to December 2, 2013. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbar radiculopathy of the left lower extremity have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8520. 2. An effective date earlier than December 2, 2013, for the assignment of a 10 percent rating for radiculopathy of the left upper extremity is not warranted. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400. 3. The criteria for entitlement to a total rating based on individual unemployability due to service connected disabilities prior to December 2, 2013 have not been met. 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1970 to April 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal from February 2015 and December 2015 rating decisions. The Board notes that the issue of entitlement to special monthly compensation (SMC) based on aid and attendance or housebound status was raised by the record. See 38 C.F.R. § 3.350; Akles v. Derwinski, 1 Vet. App. 118 (1991) (the issue of entitlement to SMC is part and parcel of a claim for increased compensation and does not require submission of a separate claim). Lumbar Radiculopathy of the Left Lower Extremity Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. The Veteran’s radiculopathy of the left lower extremity has been rated as 10 percent disabling pursuant to 38 C.F.R. § 4.124, DC 8520. Under DC 8520, mild incomplete paralysis of the sciatic nerve, warrants a 10 percent rating. Moderate incomplete paralysis of the sciatic nerve warrants a 20 percent rating. Moderately severe incomplete paralysis warrants a 40 percent rating. Severe paralysis, with marked muscular atrophy, warrants a 60 percent rating. Complete paralysis where the foot dangles and drops, there is no active movement possible below the knee, and flexion of knee is weakened or (very rarely) lost warrants an 80 percent rating. The words “slight,” “mild,” “moderate” and “severe” as used in the various DCs 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. On VA examination in December 2013, the examiner determined the Veteran had left leg mild intermittent pain and numbness. The examiner noted that the left sciatic nerve was involved, and he indicated that the disability was mild. The Veteran was afforded a VA peripheral nerves examination in April 2015. Relevantly the Veteran was diagnosed with left lumbar radiculopathy. There was severe constant pain, no intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in the left lower extremity. Muscle strength testing was normal throughout the lower extremities. There was no muscle atrophy. Sensory examination was decreased in the foot/toes, but the examiner noted this is more likely than not due to his diabetes mellitus. Reflex examination was hypoactive at the knee and absent at the ankle. The examiner found moderate incomplete paralysis of the left sciatic nerve. The Board finds that the evidence supports entitlement to a 20 percent rating for radiculopathy of the left lower extremity. The April 2015 examiner opined that the Veteran has moderate incomplete paralysis. There is no contradictory evidence or opinion dating on or after April 2015. The rating criteria provides a 20 percent rating for moderate incomplete paralysis, and the Board concludes the 20 percent evaluation is proper. 38 C.F.R. § 4.124a, Code 8520. A rating in excess of 20 percent requires at least a moderately severe disability. The medical records do not suggest incomplete paralysis that is moderately severe or severe incomplete paralysis, with marked muscular atrophy, as required to warrant the next higher ratings. Indeed, the April 2015 examiner specifically did not find incomplete paralysis that was moderately severe or severe paralysis with marked muscular atrophy. Accordingly, entitlement to a rating of 20 percent, but no higher, for lumbar radiculopathy of the left lower extremity is granted. Turning to the question of the proper effective date for the separate evaluation for the Veteran’s radiculopathy of the left lower extremity, the Veteran has claimed entitlement to an earlier effective date prior to December 2, 2013, for the grant of a separate 10 percent disability rating for radiculopathy of the left sciatic nerve. By way of history, the Veteran’s original increased rating claim was received on November 2004, and he claimed service connection for several disabilities, to include degenerative joint disease of the lumbar spine. However, he did not claim service connection for radiculopathy of either lower extremity. In a December 2014 Board decision, in the course of evaluating the Veteran’s lumbar spine disability, the Board granted separate ratings at 10 percent for associated neurological symptoms (radiculopathy in the left lower extremity). In a February 2015 rating decision, the RO implemented the Board’s decision and assigned an effective date of December 2, 2013. This date was chosen because it was the date a VA examination showed radiculopathy in the left lower extremity as a result of the Veteran’s lumbar spine disability. The decision assigned the Veteran a separate 10 percent disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520. This rating was allowed pursuant to 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1, which directs that any associated objective neurologic abnormalities for disabilities of the spine be rated separately under an appropriate diagnostic code. In the case at hand, the Veteran’s radiculopathy of the left lower extremity (radiculopathy of the left sciatic nerve) is considered an objective neurologic manifestation of his lumbar spine disability and, thus, it is part of his appeal for entitlement to a higher initial rating for his lumbar spine disability. In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. For increases, the effective date will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o). The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). 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); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). VA and private treatment records associated with the claims file show that the Veteran was not diagnosed with radiculopathy or sciatica of the left lower extremity caused by or related to the Veteran’s service-connected back disorder at any time prior to the December 2013 VA examination. In a September 2004 treatment record, the Veteran denied radiation of pain down his legs, or leg numbness or weakness, and no bladder dysfunction. A March 2005 VA examination report reflected no objective evidence of spasm, atrophy, guarding, pain with motion, tenderness, or weakness. Neurologically, a sensory examination of the bilateral lower extremities was normal. Muscle strength was also full bilaterally. An April 2005 EMG study indicated no electrical evidence of neuropathy or radiculopathy. On VA examination in December 2008, the examiner noted increased lumbar lordosis. There was no tenderness, spasm, weakness, or atrophy. Sensation was intact to pain, light touch, vibration, and temperature to all of his extremities. Muscle strength was 5/5 with normal tone, bulk dexterity, and coordination to all of his extremities. Deep tendon reflexes were 2+, bilaterally, and equal in all of his extremities. On VA examination in August 2010, the Veteran denied radiation of pain, urinary incontinence, numbness, paresthesias, or leg or foot weakness. There was no objective evidence of spasm, atrophy, guarding, tenderness, or weakness. A detailed reflex examination of both lower extremities was normal. A sensory examination was normal to vibration, pinprick, position sense, and light touch. A detailed motor examination also yielded normal findings. On VA examination in December 2013, the examiner noted involvement of the left sciatic nerve with mild intermittent pain and numbness. The objective medical evidence of record does not demonstrate radiculopathy in the left lower extremity until the December 2, 2013 VA examination, the date the RO has assigned as the effective date for the award of a separate 10 percent rating. Accordingly, the Board finds that December 2, 2013 is the date on which it was first factually ascertainable that the Veteran met the requirements for the benefit sought. An effective date earlier than December 2, 2013 for the award of the separate award for radiculopathy in the left lower extremity must be denied, because the record does not show that there was a diagnosis based on objective findings prior to December 2, 2013. See 38 C.F.R. § 3.400. The applicable law and regulations on the assignment of effective dates are binding in determining the outcome of this matter. See 38 U.S.C. § 7104 (c). Here, based on a review of the evidence the Board finds that the assigned effective date for the separate 10 percent rating for left lower extremity radiculopathy prior to December 2, 2013 is not warranted and the Veteran’s claim must be denied. See 38 C.F.R. §§ 3.114 (a), 3.400(p). Effective Date for TDIU The Veteran seeks an effective date prior to December 2, 2013 for the grant of a TDIU. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). If the total rating is based on a disability or combination of disabilities for which the Schedule of Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (a). In a December 2015 rating decision, the RO granted entitlement to a TDIU, effective from December 2, 2013, the first day on which the Veteran met the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16 (a). The Veteran expressed disagreement with the effective date assigned to his TDIU. In his February 2016 Notice of Disagreement and September 2016 VA Form 9, the Veteran provided argument in support of a finding of unemployability dating back as far as 2005. Generally, the effective date of an evaluation and award of compensation based on a claim for increase (which includes a TDIU claim) will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (o)(1) (2015). The effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). In essence, the Veteran maintains that his unemployability was factually ascertainable prior to the TDIU effective date of December 2, 2013. However, a TDIU may not be awarded under 38 C.F.R. § 4.16 (a) without first meeting the threshold percentage requirements as noted above. In other words, even if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, it must first be shown that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). December 2, 2013 is the first date on which this criterion is met. Prior to December 2, 2013, the Veteran had a combined rating of 60 percent; however, he did not have one disability rated at least 60 percent. Furthermore, while he had at least one disability rated at least 40 percent, he did not have a combined rating of 70 percent prior to December 2, 2013. Thus, prior to December 2, 2013, the Veteran did not meet the schedular requirements for a TDIU. Accordingly, the Veteran does not have a single disability (even when like disabilities are combined) rated at least 60 percent disabling, or at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. As such, the threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16 (a) are not met prior to December 2, 2013. Therefore, the criteria for assignment of a TDIU pursuant to 38 C.F.R. § 4.16 (a) prior to December 2, 2013 are not met and the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Nevertheless, the Veteran may still warrant entitlement to an effective date prior to December 2, 2013 for the award of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b) if the evidence shows that his service-connected disabilities preclude him from securing or following substantially gainful employment. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(b). This issue is discussed in the remand below. REASONS FOR REMAND Even where, as here, the Veteran does not meet the schedular criteria for entitlement to a TDIU prior to December 2, 2013, a TDIU on an extraschedular basis may still be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and with consideration of the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321 (b), 4.16(b). According to 38 C.F.R. § 4.16 (b), it is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director of the VA Compensation and Pension Service for such extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). Bowling v. Principi, 15 Vet. App. 1 (2001). Here, the evidence shows a February 2015 private vocational opinion indicated that the Veteran has been unemployable due to his service-connected disabilities since 2005. This evidence suggests that the Veteran may have been unable to obtain or maintain substantially gainful employment prior to December 2, 2013 due to his service-connected disabilities, with consideration of the Veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321 (b), 4.16(b). Entitlement to an earlier effective date than December 2, 2013 for the award of DEA benefits is intertwined with the Veteran’s TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). With regard to entitlement to SMC, in the April 2016 Notice of Disagreement, the Veteran’s attorney asserted that the Veteran required aid and attendance from another person on a regular basis. See also January 2018 Correspondence. Accordingly, the Board finds that the issue of entitlement to SMC based on the need for aid and attendance is reasonably raised by the record. See Akles v. Derwinski, 1 Vet. App. 118 (1991). To date, that issue has not been developed by the AOJ. Accordingly, on remand the AOJ should undertake all appropriate development and then adjudicate the Veteran’s SMC claim. The matters are REMANDED for the following action: 1. Undertake all appropriate development to adjudicate the Veteran’s claim for SMC based on the need for aid and attendance of another person, to include providing him with notice regarding how to substantiate his claim. 2. Refer the claim for an effective date prior to December 2, 2013 for entitlement to a TDIU to the Director of Compensation Service. 3. After completing all indicated development, the AOJ should readjudicate the claims on appeal, including the claim for an earlier effective date for DEA. If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive Supplemental   Statement of the Case and afforded a reasonable opportunity for response L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel