Citation Nr: 20032012 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 18-52 137 DATE: May 6, 2020 ORDER The appeal seeking higher ratings for osteoarthritis of the lumbar spine with IVDS, currently evaluated as 20 percent disabling prior to September 13, 2019, and 40 percent disabling thereafter, is dismissed. An initial rating of 20 percent, but no higher, for left lower extremity radiculopathy is granted, subject to the regulations governing the award of monetary benefits. An initial rating greater than 20 percent for right lower extremity radiculopathy is denied. From September 13, 2019, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a TDIU prior to September 13, 2019 is remanded. FINDINGS OF FACT 1. In September 2019, prior to the promulgation of a decision on the matter, the Board received notification from the Veteran that a withdrawal of the appeal seeking higher ratings for his back disability was requested. 2. During the period on appeal, radiculopathy of the bilateral lower extremities manifested by subjective complaints of radiating pain and numbness; objective findings reflect moderate and incomplete paralysis bilaterally. 3. The Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal seeking higher ratings for osteoarthritis of the lumbar spine with IVDS, currently evaluated as 20 percent disabling prior to September 13, 2019, and 40 percent disabling thereafter, by the Veteran 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, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.124a, DC 8520. 3. The criteria for an initial rating greater than 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8520. 4. The criteria for a TDIU, effective September 13, 2019, have been met. 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1954 to June 1964. Historically, the Veteran appealed the assignment of a 20 percent initial rating for his back disability. In a January 2020 rating decision, the Veteran was awarded a 40 percent rating, effective September 13, 2019. Thus, the appeal has been recharacterized as set forth herein. Withdrawal 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. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew his appeal seeking higher ratings for his back disability in September 2019. See September 2019 written statement. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. Increased Ratings The Veteran is pursuing higher initial ratings for his bilateral lower extremity disabilities. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran is currently in receipt of an initial 10 percent rating for his left lower extremity radiculopathy, and 20 percent initial rating for his right lower extremity radiculopathy. Both disabilities have been rated in accordance with DC 8520 as paralysis of the sciatic nerve. As these appeals require similar analyses, they will be addressed simultaneously herein. Thus, these appeals may be granted upon evidence of the following: • Moderate and incomplete paralysis (20 percent); or • Moderately severe incomplete paralysis (40 percent). 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Here, the Veteran underwent two evaluations during the period on appeal. During March 2016 VA examination, the Veteran demonstrated moderate and incomplete paralysis of the bilateral sciatic nerves. He additionally reported severe intermittent pain, mild paresthesias/dysesthesias, and severe numbness bilaterally. As a result, he experienced some difficulty dressing himself. Trophic changes were denied at that time. The examiner reported additional functional limitations as attributable to the Veteran’s disabilities, including difficulty standing for extended periods of time or walking long distances. Although the Veteran also demonstrated an altered gait and the need for assistive ambulatory devices, the examiner attributed such to his separately service-connected back disability. In a January 2020 Disability Benefits Questionnaire (DBQ), moderate and incomplete paralysis of the bilateral sciatic nerves was reported. During evaluation, the Veteran reported additional symptoms including moderate intermittent pain, mild paresthesias/dysesthesias, and mild numbness of the bilateral lower extremities. Trophic changes were denied at that time. Due to his symptoms, the Veteran’s physician concluded that he would have difficulty with prolonged positions of any kind, as they would cause and increase pain, numbness, and tingling of the bilateral lower extremities. VA treatment records support this understanding of the Veteran’s disability pictures during the period on appeal and note his history of lumbar radiculopathy, evidenced by radiating pain to the bilateral lower extremities. Reports of non-sensory symptoms or complete paralysis are absent from these records. Upon the above, it is found that an initial rating of 20 percent is warranted for the Veteran’s left lower extremity radiculopathy. However, an initial rating greater than 20 percent is not warranted for his right lower extremity radiculopathy. Rather, multiple examiners have assessed the Veteran’s bilateral lower extremity disabilities as productive of moderate and incomplete paralysis, commensurate with the criteria for a 20 percent rating under DC 8520. The Veteran has offered competent testimony as to additional symptoms such as intermittent pain and numbness, but not to any degree of paralysis more severe than that assessed by the March 2016 and January 2020 examiners. As such, he presents with only moderately impaired functioning due to his disabilities, including limitations with prolonged standing or walking. Critically, the collective evidence establishes that the Veteran’s bilateral symptoms are wholly sensory in nature. Per VA regulations, a maximum 20 percent rating is warranted for such a disability picture. 38 C.F.R. § 4.124a; see also Miller v. Shulkin, 28 Vet. App. 376 (2017). Thus, the left lower extremity radiculopathy appeal is granted, and right lower extremity radiculopathy appeal denied, to the extent set forth above. With respect to both of these appeals, the Board has considered the Veteran’s testimony regarding the severity of his symptoms. While he is competent to report symptoms capable of lay observation, he is not competent to identify a specific level of disability according to the applicable DCs. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran’s disabilities, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran’s disabilities and had sufficient facts and data on which to base the conclusions. In this respect, the Board finds that the competent medical evidence supports the conclusions offered above. Further, the Board acknowledges the Veteran’s contention that 40 percent initial ratings are warranted for his disabilities. See September 2019 representative’s memorandum. In support thereof, the Veteran has offered a detailed accounting of his ongoing symptoms, which he classifies as “severe” and productive of significant ambulatory impairment. Although the Board does not disregard these arguments, it is bound by VA regulations. In this case, the application of these regulations to the facts of this case establishes that a 40 percent rating is not merited, as the Veteran’s current disability pictures involve wholly sensory involvement of the bilateral lower extremities. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU From September 13, 2019 The Veteran also contends that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. For the reasons that follow, that claim will be granted from September 13, 2019 and thereafter. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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 U.S.C.A. § 1155; 38 C.F.R. § 4.16. Beginning September 13, 2019, the Veteran is service-connected for four disabilities (his back disability, his radiculopathy of the bilateral lower extremities, and a scar associated with his back disability). His combined rating is 60 percent. Though this is below the threshold required for multiple disabilities, each of his disabilities has a common etiology (his in-service back injury). They may be considered one disability for the purposes of a TDIU analysis, and the Veteran therefore meets the schedular criteria from this period forward. The evidence also demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran, through his accredited attorney, has submitted competent evidence regarding the effect that his disabilities have on his ability to secure or follow a substantially gainful occupation. Most recently, the Veteran underwent VA examinations in 2020 for his back and bilateral lower extremity radiculopathy. Both examinations found that the Veteran is unable to complete even sedentary employment as a result of these disabilities. The Board acknowledges that sedentary employment is not defined as part of the examinations, and that such language – absent well-supported definitions and reasons and bases – is generally disfavored. Further, these examinations were completed after the case was certified to the Board and have not been reviewed by the RO. However, as to each point, the Board is taking an action positive to the Veteran. Regardless of how sedentary employment may be defined, the simple fact of the matter is that, at this point, both VA and private evidence reflects that the Veteran is unable to secure or follow a substantially gainful occupation. And the Board is using this information to make findings and conclusions that are wholly favorable. Thus, from September 13, 2019, a TDIU is warranted. REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining portion of the TDIU appeal. Even with the grant contained herein, the Veteran does not meet the schedular criteria for entitlement to a TDIU prior to September 13, 2019. As noted above, however, the evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation. As such, a remand is now warranted so the matter can be referred to VA’s Director, Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). The Board acknowledges that the Veteran’s representative has requested that this appeal not be remanded on the above basis, arguing that 38 C.F.R. § 4.16(b) does not require referral before granting a TDIU. The Board shares the Veteran’s desire for a quick resolution to his appeal, but is bound by applicable statutes, regulations, and case law. In this regard, precedent from the Court of Appeals for Veterans Claims has interpreted the section at issue as requiring referral before assigning an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, the Board remands for such consideration. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU prior to September 13, 2019 to the Director, Compensation Service for consideration on an extraschedular basis. Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.