Citation Nr: 18156198 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 18-48 058 DATE: December 7, 2018 ORDER Entitlement to an initial disability rating greater than 10 percent for right lower extremity radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 27, 2016 is granted. REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDINGS OF FACT 1. The Veteran’s right lower extremity radiculopathy is not manifested by moderate, moderately severe, or severe incomplete paralysis. It is also not manifested by complete paralysis. 2. Prior to December 27, 2016, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for entitlement to TDIU prior to December 27, 2016 are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1947 to June 1949. The Veteran appeals a May 2018 rating decision by the Agency of Original Jurisdiction (AOJ) implementing an April 2018 Board decision granting service connection for right lower extremity radiculopathy and assigning a 10 percent disability rating effective May 4, 2010. The April 2018 Board decision also remanded entitlement to TDIU to the AOJ. In December 2018, the AOJ granted TDIU effective December 27, 2016. However, as the underlying increased rating claim was filed on May 4, 2010, the Board has jurisdiction to consider TDIU prior to December 27, 2016. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran’s service-connected right lower extremity radiculopathy is currently evaluated under Diagnostic Code 8520. Under Diagnostic Code 8520, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent rating, and severe incomplete paralysis with marked muscle atrophy warrants a 60 percent disability rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve is when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, and warrants an 80 percent rating. Id. Descriptive words such as “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Based on the evidence, the Board finds that the Veteran is entitled to an initial disability rating of 10 percent throughout the appellate period for his right lower extremity radiculopathy, as there is no indication of complete or at least moderate, incomplete paralysis. In September 2015, the Veteran’s expert opined that the Veteran’s radiculopathy is “mild in nature.” See September 2015 Dr. D.M. medical opinion. As a result, the Veteran’s representative argued that the Veteran should be granted service connection for right lower leg extremity “at a 10 percent rating.” See October 2015 Representative Statement. Upon VA examination in December 2016, the Veteran did not report constant pain, paresthesias and/or dysesthesias, or numbness of his right lower extremity radiculopathy. See December 2016 VA examination report. However, like Dr. D.M. found a year earlier, the Veteran exhibited “mild” intermittent, and dull pain. Id. Nevertheless, the Veteran has not experienced marked muscle atrophy or moderate right lower extremity symptoms throughout the appellate period. See, e.g., September 2015 Dr. D.M. medical opinion; see also December 2016 VA examination report. Thus, the Board finds that the criteria for an initial disability rating greater than 10 percent for right lower extremity radiculopathy are not met. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. TDIU prior to December 27, 2016 The issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is 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, VA will consider disabilities resulting from common etiology or a single accident as one disability. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. As a predicate matter, the Board finds that the Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis prior to December 27, 2016. Here, the Veteran’s service-connected disabilities derive from the same in-service injury which caused his left leg amputation. Specifically, chronic muscle back strain was found to be proximately caused by his service-connected left leg amputation, and both his peptic ulcer disease and right lower extremity radiculopathy were found to be proximately caused by his service-connected chronic muscle back strain. Thus, prior to December 27, 2016, all of the Veteran’s service-connected disabilities can be considered in combination, and they combine to 60 percent as a single disability. In approximately 1988, his symptoms from his amputation of the left leg, and his chronic muscular strain were worsening and he started developing significant problems ambulating distances greater than 150 feet and sitting for prolonged periods. See September 2015 R.B. vocational assessment. As a result, the Veteran contends that he cannot work because of all his service-connected disabilities. He earned a Bachelor’s degree in 1953 and a Master’s of science in education in 1955. He taught elementary school for approximately four years until accepting a job with the US Postal Service. Upon returning from service, the Veteran worked as a postal clerk from 1960 to 1970, and in 1970 to 1981 as a postal supervisor. He has not worked since. See September 2015 R.B. vocational assessment. Both VA and independent vocational assessments support the Veteran’s claim for TDIU prior to September 27, 2016. A VA clinician determined that low back pain impacts the Veteran’s ability to do a physically demanding job with prolonged standing, walking, and lifting. She also commented that his low back pain impacts his ability to do a sedentary job. See December 2016 VA examination report. As the Board is not denying the Veteran’s TDIU claim, the holding in Withers v. Wilkie does not apply, and the Board is not required to define sedentary work in this case. See 30 Vet. App. 139, 148-49 Nevertheless, a vocational counselor opined that it is more likely than not that the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation and this unemployability began in 1988. See September 2015 R.B. vocational assessment. There, the vocational counselor recognized and acknowledged that the Veteran also suffered from limitations as a result of non-service connected disabilities. However, her opinion regarding unemployability was based solely on service-connected disabilities in the absence of his other conditions. Ultimately, after thoroughly discussing the evidentiary record and applying the facts to the Veteran’s case, R.B. concluded that the Veteran would have no transferable skills to sedentary work based on his vocational history and given his limited ability to sit for prolonged periods, and inability to handle, finger, and reach frequently due to cane interference. Id. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran’s service-connected symptoms hinder his ability to effectively complete tasks, cause concentration lapses, make it difficult to walk or stand for prolonged periods, and would cause frequent absences and work disruptions. As such, the Board finds the Veteran, his medical treatment providers, and vocational counselor credible as to his functional limitations attributable to his service-connected disabilities prior to December 27, 2016. Therefore, the Board finds that the Veteran’s service-connected disabilities at least as likely as not prevented him from obtaining and maintaining gainful employment prior to December 27, 2016. Accordingly, resolving all doubt in the Veteran’s favor, the criteria for TDIU prior to December 27, 2016 have been met, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND The Veteran seeks SMC based on the need for regular aid and attendance of another person or at the housebound rate pursuant to 38 U.S.C. § 1114 and 38 C.F.R. § 3.350. However, the evidentiary record is in conflict, and the Board requires a VA examination to address permanent need for regular aid and attendance due to service-connected disabilities. 38 C.F.R. § 3.159(c). The Veteran is service-connected for left leg amputation, chronic muscular back strain, peptic ulcer disease, and right lower extremity radiculopathy. He also has, but is not service-connected for, coronary artery disease (CAD), diabetes mellitus, type II (DM), and hypertension. See August 2016 VA treatment record. Here, the Veteran’s representative submitted a VA Form 21-2680, or examination for housebound status or permanent need for regular aid and attendance. See July 2016 VA Form 21-2680. There, the clinician determined the Veteran was able to feed himself and prepare his own meals. He did not need assistance in bathing and tending to other hygiene needs, was not legally blind, and did not require home nursing care. Id. While the Veteran used a cane to ambulate and could manage his own financial affairs, he did need assistance remembering his medication and had mild memory loss. Id. In contrast, Dr. C.P., the Veteran’s long-time physician, recommended that the Veteran have family support and to live with them because of his “multiple medical problems.” See November 2010 Dr. C.P. statement. However, Dr. C.P. did not differentiate between service-connected and non-service-connected medical problems. Further, the Veteran’s daughter, a nurse, stated that the Veteran has been unable to care for himself since at least 2010 and has required regular, daily assistance from herself and other family members due to his service-connected conditions since that time. See October 2018 C.T. affidavit. Further, she said he is unable to perform basic activities of daily living, such as cooking, cleaning, or doing laundry on his own. The Veteran also voluntarily gave up his license because he felt he was slow due to his service-connected conditions. Further, he does not leave the house often, but when he does, he relies on his family to drive him to go grocery shopping, to doctor appointments, and other important tasks. While he can still walk, sometimes he gets out of breath or uses a scooter. Id. In addition, the Veteran’s family is worried that he will fall and hurt himself due to complications from his service-connected disabilities, though he has not yet fallen and uses a cane. He showers alone, but uses a handicap shower and his family checks on him often when he is in the shower. Id. Ultimately, the Veteran’s daughter does not believe that he would ever be able to live on his own because he “does not have the physical wherewithal to be able to function alone and be able to survive. If one of his family members was not able to take him in, [she] believe[s] he would require assisted living or constant nursing help to assist him on a daily basis.” See October 2018 C.T. affidavit. Thus, a VA examination is required to further assist the Board in determining whether the Veteran’s service-connected disabilities alone require him to need regular aid and attendance and reconcile opposing conclusions. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA aid and attendance examination to ascertain whether his service-connected disabilities cause him to be housebound or in need of regular aid and attendance of another person. The claims file must be reviewed and the review noted in the report. The clinician should indicate the underlying disability or disabilities causing each specific impairment of function noted. The clinician should also state an opinion as to whether any of these functional impairments, alone or in combination, render the Veteran housebound or in need or regular aid and attendance of another person, to include whether his service-connected disabilities renders him unable to protect himself from the hazards or dangers incident to his daily environment. A complete rationale for the opinion should be provided. 2. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel