Citation Nr: 19123717 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 13-25 415A DATE: March 29, 2019 ORDER The appeal for the entitlement to service connection for bilateral hearing loss, a vision disability, migraine headaches, hypertension, multiple sclerosis; and for higher ratings for service-connected right toe fracture; left knee arthritis; right knee arthritis, and lumbosacral spine arthritis is dismissed. An initial rating 20 percent, and no higher, for left lower extremity radiculopathy is granted. An initial rating 20 percent, and no higher, for right lower extremity radiculopathy is granted. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to May 21, 2012. Entitlement to a rating in excess of 70 percent from May 21, 2012, is granted. Entitlement to a TDIU is granted. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran withdrew his claims for service connection for bilateral hearing loss, a vision disability, migraine headaches, hypertension, and multiple sclerosis; and for the claims for a higher rating for the right toe fracture, bilateral knee arthritis, and lumbosacral spine arthritis disabilities at the November 2018 Board hearing. 2. Since the grant of service connection, the Veteran’s bilateral lower extremity radiculopathy resulted in no more than moderate incomplete paralysis. 3. Prior to May 21, 2012 PTSD manifested with deficiencies in most areas; total occupational and social impairment has not been shown at any time. 4. Resolving doubt in the Veteran’s favor, his service-connected disabilities reasonably precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for service connection for bilateral hearing loss, a vision disability, migraine headaches, hypertension, and multiple sclerosis; and for entitlement to higher ratings for service-connected right toe fracture, left knee arthritis, right knee arthritis, and lumbosacral spine arthritis have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for an initial rating of 20 percent, and no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code (DC) 8520. 3. The criteria for an initial rating of 20 percent, and no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, DC 8520. 4. Prior to May 21, 2012 the criteria for an initial rating of 70 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, DC 9411. 5. From May 21, 2012 the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, DC 9411. 6. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to June 1992. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A copy of the transcript is of record. Following certification of the appeal to the Board in May 2018, records from the Social Security Administration were received in December 2018, along with a waiver of initial review by the agency of original jurisdiction (AOJ). Accordingly, the Board may consider this evidence in the first instance .38 C.F.R. § 20.1304(c). 1. Entitlement to service connection for bilateral hearing loss, a vision disability, migraine headaches, hypertension, and multiple sclerosis; and higher ratings for service-connected right toe fracture, left and right knee arthritis, and lumbosacral spine arthritis disabilities. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. During the November 2018 Board hearing, the Veteran, in the presence of his representative, withdrew the appeal of the claims for service connection for bilateral hearing loss, a vision disability, migraine headaches, hypertension, and multiple sclerosis, as well as the claims for a higher rating for the right toe fracture, bilateral knee arthritis, and lumbosacral spine arthritis disabilities. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed on the record that he fully understood the consequences of withdrawal. See Hearing Transcript, 2. A written transcript of the Veteran’s testimony is of record. Thus, the Board finds the Veteran has explicitly, unambiguously, and with a full understanding of the consequences withdrawn the identified issues on appeal, and there remains no allegations of error of fact or law for appellate consideration. 38 U.S.C. § 7105; 38 C.F.R. § 20.204; see Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. Higher Ratings Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of the two disability evaluations is applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 2. Entitlement for a rating in excess of 10 percent for left and right lower extremity radiculopathy. Service connection for left and right lower extremity radiculopathy secondary to service-connected lumbosacral spine arthritis was granted in an October 2012 rating decision. The RO assigned 10 percent ratings for each lower extremity, effective November 8, 2011, under 38 C.F.R. § 4.124a, DC 8520. A July 2013 rating decision awarded an earlier effective date of May 1, 2009 for each initial rating. The Veteran seeks higher rating. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R § 4.123. At a September 2010 VA contract examination, the examiner did not find sensory deficits after performing the pinprick test. There was no lumbosacral motor weakness, and the bilateral lower extremities showed 2+, normal reflexes. There was no edema, heat, redness or disturbed circulation in either foot. There were no signs of muscle wasting, atrophy or abnormal tone. They were well developed without signs of misuse. The examiner noted that non-organic physical signs included inconsistencies with pain response and strength testing. With focus, the Veteran resisted to exams due to pain; however, there was no physical finding to explain the amount of pain that was expressed. At a VA examination in November 2011, the Veteran reported weakness in the leg and foot, and pain. On physical examination, there was L5 sensory deficit on the bilateral dorsal feet, lateral and bottom feet. There was S1 sensory deficit of the bilateral lateral and bottom of the feet. Knee and ankle jerks were 2+, which is normal. The most likely peripheral neuropathy involved was the sciatic nerve. Other objective symptoms were a positive bilateral straight leg raise test, and paresthesia of both feet to light palpation and touch. At a July 2012 general VA contract examination, his motor examination resulted in muscle strength at 3/5 (active movement against gravity) for knee flexion and extension, hip flexion, ankle plantar flexion, and ankle dorsiflexion, bilaterally. The reflex examination was at 1+ (hypoactive) for bilateral ankles and 3+ (hyperactive) for bilateral knees. He had decreased sensation bilaterally in his feet/toes. The examiner found that he exhibited mild constant and intermittent pain, bilaterally, with mild numbness and paresthesias and/or dysesthesias. Overall, the examiner indicated he had mild severity of radiculopathy of the bilateral lower extremities. The examiner noted the Veteran used a cane constantly as an assistive device for his back, knee, and foot problems. VA and private treatment records and Social Security Administration (SSA) records from 2008 to 2012 showed the Veteran complained of mild to moderate radiating pain and numbness in the legs or numbness and tingling in the legs. His deep tendon reflexes (DTRs), motor strength, coordination, gait, and sensation were found to be normal, but at other times, the clinicians found that his reflexes were 2+ (normal), except at the knees, which were at 3+ (hyperactive); or that he exhibited 4/5 weakness in the bilateral lower extremities. He had intermittent signs of minimal weakness of the right dorsal interossei or tibia anterior, decreased sensation with intact pulses and loss of vibration sense distally in the legs. The record reflected reflexes of 1+ (hypoactive) in both ankles. There was no loss of muscle tone noted. At the hearing, the Veteran testified that he experienced daily pain, tingling, muscle loss, limping, and weakness in his bilateral lower extremities. When asked by the undersigned whether “muscle loss” meant muscle atrophy, the Veteran answered in the negative, explaining that he used the term ‘muscle loss’ to indicate he had difficulty walking. See Hearing Transcript, 9, 20. Based on the above, the Board finds that the level of impairment demonstrated in the Veteran’s bilateral lower extremities is most analogous to moderate incomplete paralysis throughout the appeal period. Moderate incomplete paralysis warrants a 20 percent rating. This level of impairment is based on review of the Veteran’s testimony of daily tingling and pain, the VA examination reports and the medical records. The radiculopathy in each lower extremity has manifested with objective clinical symptoms such as mild sensory disturbance, diminished reflexes, and paresthesias. The Veteran has also credibly reported numbness and pain and use of an assistive device for ambulation. The probative evidence of record is against a higher rating. The evidence does not support a finding of moderately severe or severe impairment. The 2010 examination did not result in any objective finding on examination. The 2011 VA examiner described the symptoms of pain numbness, paresthesias and/or dysesthesias as only mild in severity. The objective findings overall reflect mild to moderate impairment overall. The Board notes that the cumulative evidence does not reflect the presence of symptoms that would demonstrate more severe impairment such as trophic changes, muscle atrophy, absent reflexes or foot drop. Therefore, a higher 40 percent rating is not warranted. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, resolving doubt in favor of the Veteran, a 20 percent, and no higher, is warranted for left and right lower extremity radiculopathy since the grant of service connection. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; see Hart, 21 Vet. App. at 505. There are no additional expressly or reasonably raised issues presented on the record. 3. Entitlement to an initial rating for PTSD in excess of 50 percent prior to May 21, 2012 is granted. 4. Entitlement to a rating in excess of 70 percent thereafter is denied. Service connection for PTSD was granted in an October 2010 rating decision. An initial 30 percent rating was assigned effective June 15, 2010, pursuant to 38 C.F.R. § 4.130, DC 130. The appeal stems from this rating action. While the appeal was pending, in an October 2012 rating decision, the RO awarded a 50 percent rating effective May 21, 2012. In a November 2015 rating decision, the RO granted an earlier effective date of June 15, 2010 for the 50 percent rating. The Veteran seeks higher initial ratings. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). After reviewing the cumulative lay and medical evidence, the Board finds that the Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating, for the entire appeal period under review. The Board further finds that the Veteran’s associated symptoms have not caused the level of impairment required for a disability rating of 100 percent. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. VA records show the Veteran’s PTSD has manifested with symptoms of social isolation, impaired impulse control, depression, and anxiety, which has caused disturbances in motivation and mood. The Veteran has testified before the undersigned that he had serious employment difficulties at the postal service and received several written reprimands. Records from the Social Security Administration show symptoms of depression and anxiety, with a history of difficulty getting along with others at work. His affect was noted to be flat. Clinical assessments show that he was able maintain effective superficial working relationships with supervisors and co-workers, but he was not able to effectively interact with customers due to symptoms of depression and anxiety. At his VA examinations in October 2010 and May 2012, the VA examiners determined there was occupational and social impairment with deficiencies in most areas. These overall findings reflect the presence of symptoms of such severity, frequency, and duration that more closely approximate the symptoms contemplated by a 70 percent rating. A total rating is not warranted because the Veteran’s PTSD symptoms are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. VA examiners have not described the Veteran as being totally disabled during clinical assessments and following record review. At the VA examination in October 2010, he was noted to maintain a good relationship with his wife, son, and daughter. He was oriented to person, time, and place. Speech was within normal limits. Medical information contained in the SSA records and VA treatment record also does not support a total social and occupational impairment. More recently, the Veteran’s treating VA psychiatrist submitted an assessment in November 2018. It is also noted, however, that this psychiatrist indicated her most recent assessment was in April 2012. She indicated that the Veteran’s anxiety, poor concentration and inability to function in an environment around other individuals limits his ability to perform basic work-related activities. While this psychiatrist noted that the Veteran does experience symptoms contemplated by a 100 percent rating—namely memory loss of names of close relative, spatial disorientation, obsessional rituals, gross impairment of thought process or communication—the evidence overall does not support this. These severe symptoms are not noted in the VA and/or SSA treatment records, nor did the Veteran report similar symptoms during his hearing before the undersigned. At the VA examination in October 2010, he was noted to maintain a good relationship with his wife, son, and daughter. He was oriented to person, time, and place. Speech was within normal limits. At the VA examination in May 2012, he was able to get along with his children. His memory loss was noted to be mild. Speech was not described as being circumstantial, or stereotyped. Finally, there was not obsessional rituals noted and no spatial disorientation. Therefore, a total rating is not warranted based on the 2018 correspondence from his psychiatrist. Finally, to the extent that the Veteran expressed suicidal ideation during the appeal periods in question, the Board it is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Nonetheless, the severity, frequency, and duration of such has not risen to the level contemplated by the 100 percent disability rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. An initial rating of 70 percent is assigned from June 15, 2010 to May 21, 2012; a rating in excess of 70 percent thereafter, is denied. 5. Entitlement to a TDIU is granted. This appeal for TDIU was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), in the Veteran’s NOD to the October 2010 rating decision which granted service connection for PTSD and assigned an initial rating. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service connected disability provided that 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 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). The central inquiry is “whether the Veteran’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 when arriving at this conclusion; factors such as age or impairment caused by non-service connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. Considering the Board’s grant of higher ratings for PTSD and bilateral lower radiculopathy herein, the Veteran currently meets the schedular criteria for an award of a TDIU effective June 15, 2010. His combined rating is now 90 percent from June 15, 2010; and 100 percent from July 12, 2012. 38 C.F.R. § 4.16 (a). On VA Form 8940’s, the Veteran indicated his service-connected PTSD, back, bilateral knee, hearing loss disabilities (a well as nonservice-connected disabilities of multiple sclerosis, migraines, hypertension, vision) have rendered him unemployable. He indicated that he last worked in May 2008. His prior employment included working as a security guard and as a maintenance worker. He completed two years of college. A VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits received in June 2015 from the U.S. Office of Personnel Management (OPM) shows the Veteran was employed as a custodial laborer for the U.S. Postal Service until May 27, 2008. The reason for termination of employment was listed as “disability retirement.” SSA determined that the Veteran is disabled due to his nonservice-connected disability of multiple sclerosis. Nonetheless, the records show he had serious employment problems due ot his PTSD symptoms. The Veteran also indicates that his service-connected orthopedic disabilities, including but not limited to, his back and associated bilateral lower extremity radiculopathy, and his bilateral knees significantly impair his ability to obtain and sustaining gainful employment consistent with his education, work skills, and prior work history. VA examiners in October 2010 and May 2012 have indicated that determined there was occupational and social impairment with deficiencies in most areas. More recently, the Veteran’s treating VA psychiatrist submitted an assessment in 2018. She indicated that the Veteran’s anxiety, poor concentration and inability to function in an environment around other individuals limits his ability to perform basic work-related activities. Other VA examination reports show the Veteran has difficulties due to his service-connected bilateral knee, back and associated bilateral lower extremity radiculopathy. These conditions have been noted to have some degree of effect on his ability to function in an occupational environment. The Veteran has also testified that these conditions limit his ability to work, primarily because ambulation is limited. (Continued on the next page)   Given the entirety of the evidence of record, and resolving reasonable doubt in his favor, TDIU is warranted based on the overall impact from the Veteran’s service-connected disabilities. 38 U.S.C. § 5107; 38 C.F.R. §3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Tang, Associate Counsel