Citation Nr: 20030004 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 17-09 217 DATE: April 29, 2020 ORDER From December 20, 2005, an initial rating of 40 percent, but no higher, for left lower extremity radiculopathy is granted. From December 20, 2005, a schedular total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran filed an informal claim for VA compensation benefits on December 20, 2005. This claim raised the issue of entitlement to service connection for a back disability and a neurological disability of the lower extremities. 2. A March 2007 rating decision granted service connection for thoracolumbar strain with degenerative joint disease and assigned an initial 10 percent rating effective December 20, 2005. In June 2007, the Veteran filed a timely Notice of Disagreement (NOD) with the March 2007 rating decision and he subsequently perfected a timely appeal. 3. The issue of entitlement to compensation for a neurological disorder of the left lower extremity, as secondary to a back disability, is raised by the record and is part and parcel of the appeal seeking an increased initial rating for a back disability. 4. From December 20, 2005, the Veteran’s left lower extremity radiculopathy more closely approximated moderately severe incomplete paralysis of the sciatic nerve. 5. From December 20, 2005, the Veteran met the schedular criteria for a TDIU and his service-connected disabilities precluded him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. From December 20, 2005, the criteria for an initial 40 percent rating for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155 (as in effect prior to March 24, 2015), §§ 3.102, 3.400, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5235-5243 (Note 1), 4.124a, DC 8520 (2020). 2. From December 20, 2005, the criteria for a schedular TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1983 to July 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2007 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In July 2012, the Veteran testified at a videoconference hearing before an Acting Veterans Law Judge who is no longer employed by the Board. The Veteran has declined another hearing and has waived AOJ consideration of additional evidence received since the most recent AOJ adjudication. See March 2020 Brief at 5. In September 2012 and October 2016, the Board remanded certain issues for additional development. Also in October 2016, the Board remanded the issue of entitlement to an earlier effective date and increased rating for left lower extremity radiculopathy and directed the AOJ to issue a Statement of the Case (SOC). This SOC was issued in December 2016 and the Veteran perfected this appeal. In February 2019, the Board denied an initial compensable rating for a lumbar spine scar; granted an initial rating of 40 percent, but no higher, for left lower extremity radiculopathy; denied an effective date prior to June 26, 2015 for the award of service connection for left lower extremity radiculopathy and a lumbar spine scar; and granted entitlement to a TDIU effective June 26, 2015, the first day that the Veteran met the schedular criteria. The Board also remanded the issue of entitlement to a TDIU prior to June 26, 2015, explaining that “any TDIU before that date would be on an extra-schedular basis.” The Board’s only remand directive was to refer the question of entitlement to an extraschedular TDIU prior to June 26, 2015 to the Director of Compensation Service. See February 2019 Board Decision and Remand at 12. The Veteran appealed the February 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA (Parties), vacated the February 2019 Board decision insofar as it denied an effective date prior to June 26, 2015 for left lower extremity radiculopathy, and remanded the matter to the Board for compliance with the JMPR instructions. The Parties agreed the Board erred in failing to provide an adequate statement of reasons and bases. Specifically, the Parties agreed that the Board’s finding that the appellant’s claim for left lower extremity radiculopathy did not arise prior to June 2015 was “erroneous” and that the Board should have evaluated the Veteran’s radiculopathy symptoms as part of the increased rating claim for his thoracolumbar disability pursuant to 38 C.F.R. § 4.71a, Note 1. See id. at 2. This note directs VA adjudicators to separately evaluate objective neurologic abnormalities when rating disabilities of the spine. 1. From December 20, 2005, an initial rating of 40 percent, but no higher, for left lower extremity radiculopathy is granted. The Veteran’s attorney argues that an initial 20 percent rating is warranted from December 20, 2005 to February 2, 2006 and a 40 percent rating is warranted thereafter. See March 2020 Attorney Brief at 5. Initially, the Board observes that while the JMPR states in passing that the Veteran’s thoracolumbar spine claim “has been in appellate status since 2009,” the Board observes that the claim arises out of the Veteran’s disagreement with his initial rating. Specifically, on December 20, 2005, the Veteran filed a claim for compensation for a back disability and a neurological disability of the lower extremities. See December 2005 VA Form 21-4138. A March 2007 rating decision granted service connection for a back disability and assigned an initial 10 percent rating effective December 20, 2005. In June 2007, the Veteran filed a timely NOD. See June 2007 Third Party Correspondence. The AOJ issued an SOC in November 2007, and the Veteran filed a timely substantive appeal in lieu of a VA Form 9. See December 2007 Third Party Correspondence; see also March 2008 VA Form 9. Accordingly, the Veteran’s claim for a separate rating radiculopathy arose from his claim received on December 20, 2005. The Veteran’s left lower extremity radiculopathy is rated under DC 8520 (paralysis of the sciatic nerve). Under DC 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 muscle atrophy. A maximum schedular 80 percent rating is warranted for complete paralysis, with foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension of proximal phalanges of toes lost, abduction of foot lost, adduction weakened, anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, DC 8520. In November 2005, the Veteran testified at a hearing regarding the issue of, among other things, service connection for his back disability. The Veteran reported symptoms including sharpness, tingling, stinging, and numbness in the pain or legs and that he required a cane. See November 2005 Hearing Transcript at 3. He reported that he lost his job in 2003 due to an inability to keep up and he recently suspended vocational rehabilitation because his physician indicated that he could not work at the time. In February 2006, the Veteran’s orthopedist submitted a note in which he explained that the Veteran had numerous injuries related to his accident in service, including left leg sciatica that precluded him from walking on his toes or heels without severe pain and discomfort. The clinician noted decreased deep tendon reflexes in his knees and ankles, decreased strength in his quadriceps and hamstrings with loss of musculature. See February 2006 Dr. R.W.G. Report. A December 2006 VA examiner noted that the Veteran underwent microdissection surgery on August 22, 2006. He noted the Veteran’s report of chronic pain and weakness in his lower extremities and gave his impression of “degenerative disc narrowing at L4-L5.” See December 2006 VA Examination Report. An April 2009 VA examiner was explicitly asked to address whether the Veteran was entitled to a rating for sciatica. See April 2009 VA Examination Report. The examiner diagnosed the Veteran with thoracolumbar strain with degenerative joint disease and degenerative disc disease with radiculopathy of left lower extremity, status post L5 microdiscectomy” but stated that the Veteran “[did] not have [a] diagnosis of sciatica.” See id; see also JMPR at 2 (noting that the Veteran has a 2009 diagnosis of left leg radiculopathy). The Veteran submitted an October 2015 opinion of Dr. D.B.M., who discussed the history of the Veteran’s disabilities. His report demonstrates a thorough familiarity with the probative evidence of record. Dr. B.D.M. noted that the Veteran’s left lower extremity neurological symptoms first improved following his 2006 surgery, but that it subsequently worsened. He explained that while the Veteran did not postoperatively evidence radiculopathy on EMG testing, this is not uncommon, and that in his thirty-three years of experience as an orthopedic surgeon he did not believe that a positive EMG test was necessary to make a diagnosis of radiculopathy. Dr. B.D.M. stated that based on his review of the claims file and his interview with the veteran, it is at least as likely as not that the Veteran had moderately severe left lower extremity radiculopathy since his surgery in 2006. See October 2015 Dr. D.B.M. Opinion. Here, the evidence shows that the Veteran has had moderately severe left lower extremity radiculopathy throughout the appeal. Dr. B.D.M.’s assessed this level of severity and his competent and credible opinion is based on the entirety of the evidence of record and is highly probative. Moreover, this is consistent with the other evidence of record, as the December 2006 VA examiner noted neurological symptoms but did not address the specific diagnosis, and as the April 2009 examiner noted left lower extremity radiculopathy and noted symptoms productive of “severe” limitations in some areas of daily living. Although the Veteran underwent his surgery in August 2006, an initial 40 percent rating is most appropriate. In this regard, Dr. B.D.M. did not opine that a lower rating was warranted prior to surgery. Instead, the record shows that he fixed his opinion to the date of the surgery, as this was an objective marker of the onset of a severity of symptoms. Yet the Veteran competently and credibly reported symptoms prior to surgery as well, as shown by his testimony at the November 2005 hearing and as shown in the February 2006 Dr. R.W.G. Report. As there is an absence of evidence of the severity of the Veteran’s radiculopathy prior to the Veteran’s surgery, the Board resolves this reasonable doubt in the Veteran’s favor and finds that the 40 percent rating requested by the Veteran’s attorney is warranted from December 20, 2005, the date of claim. 2. From December 20, 2005, a TDIU is granted. The issue of entitlement to a TDIU is raised by the record and is an aspect of the claim on appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (schedular rating concepts, including entitlement to a TDIU, are critical components of VA’s duty to maximize benefits). Thus, the Board must address this issue. The February 2019 Board Decision and Remand granted a TDIU from June 26, 2015, the earliest date of schedular eligibility. The Board remanded the issue of entitlement to a TDIU prior to that date, explaining that the Veteran did not meet the schedular criteria before June 26, 2015 and that “any award prior to that date would be on an extra-schedular basis.” See February 2019 Board Decision and Remand at 12. The Board directed that the AOJ refer the matter to the Director of Compensation Service for consideration of an extraschedular TDIU prior to June 26, 2015. No other remand directives were issued. Here, the February 2019 Board Decision and Remand fully adjudicated the issue of entitlement to a schedular TDIU and limited the remand to the issue of entitlement to an extraschedular TDIU. As the instant decision has expanded the period of schedular eligibility, the Board must address the issue of an earlier entitlement to a schedular TDIU. To qualify for a total rating for compensation purposes where the combined disability evaluation is less than 100 percent, the evidence must show that a veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. For the purpose of determining if there is one 60 percent disability or one 40 percent disability in combination, multiple disabilities arising from the same etiology are counted as one disability. 38 C.F.R. § 4.16(a). As of December 20, 2005, the Veteran is in receipt of service connection for left lower extremity radiculopathy, rated 40 percent disabling; a thoracolumbar spine disability, rating 20 percent disabling; a right knee disability, rated 10 percent disabling; a left knee disability, rated 10 percent disabling; a right thigh scar rated 10 percent disabling; and a left thigh scar rated 10 percent disabling. All these disabilities arise from the same accident and he has a combined 70 percent disability evaluation from December 20, 2005. Thus, he meets the schedular criteria for a TDIU, and the key question in this matter is whether his service-connected asthma preclude him from securing or following a substantially gainful occupation. Dr. D.B.M. noted that the Veteran last worked in 2003 and was forced to resign due to keeping up the pace of work, but that at that time it was “possible” that the Veteran could have still found employment at a company that would have allowed him to work at a slower speed. However, Dr. D.B.M. noted the Veteran’s symptoms continued to significantly worsen to the point where he elected to undergo surgery in 2006 and further worsened postoperatively, “likely due to the extensive scarring of the neural elements at the L4/L5 region.” He noted that the Veteran’s verbal reasoning fell into the 10th percentile and the Veteran had an aptitude for agriculture, building trades, and bench work. He opined that the Veteran was “truly physically incapable” of securing and following any type of substantial employment as of January 1, 2007. A schedular TDIU is warranted from December 20, 2005. While Dr. B.D.M. opined that the Veteran was “truly” unable to secure and maintain “any type” of substantial employment from January 1, 2007, this reflects his opinion that the Veteran’s post-surgical worsening had manifested by this date. However, the evidence indicates that prior to his surgery, the Veteran had not worked since 2003 and had been terminated due to his service-connected disabilities. This supports an even earlier award of a TDIU, as the evidence shows that the Veteran could not sustain nonphysical work. See also September 2009 VA Form 21-8940 (history of work as a painter, laborer, and welder with one year of college). Indeed, Dr. B.D.M.’s opinion that it was “possible” that the Veteran could have secured another job with a company that allowed work at a slower speed supports an earlier award of a TDIU, as this would be noncompetitive protected employment, and in any event this speculative opinion does not weigh against the Veteran’s claim. Accordingly, a schedular TDIU is warranted from December 20, 2005. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.