Citation Nr: 21001771 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-28 587 DATE: January 11, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to January 23, 2020 for right lower extremity radiculopathy with diabetic neuropathy is denied. Entitlement to a rating in excess of 20 percent after January 23, 2020 for right lower extremity radiculopathy with diabetic neuropathy is denied. Entitlement to a rating in excess of 10 percent prior to August 1, 2017 for left lower extremity radiculopathy with diabetic neuropathy is denied. Entitlement to a rating in excess of 20 percent after August 1, 2017 for left lower extremity radiculopathy with diabetic neuropathy is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from July 24, 2014 to July 15, 2016 is granted. FINDINGS OF FACT 1. Prior to January 23, 2020, right lower extremity radiculopathy with diabetic neuropathy manifested by no more than mild incomplete paralysis of the sciatic nerve. 2. After January 23, 2020, right lower extremity radiculopathy was manifested by no more than moderate incomplete paralysis of the sciatic nerve. 3. Prior to August 1, 2017, left lower extremity radiculopathy with diabetic neuropathy manifested by no more than mild incomplete paralysis of the sciatic nerve. 4. After August 1, 2017, left lower extremity radiculopathy with diabetic neuropathy manifested by no more than moderate incomplete paralysis of the sciatic nerve. 5. Entitlement to TDIU was denied in an April 2012 rating decision and entitlement to an increased rating claims for two back disabilities (status post fusion L5-S1 with spondylolisthesis and spondylolysis and scarring of residual lumbar fusion), were denied in August 2012. 6. Application (intent to file) for TDIU was received on July 24, 2014 and the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities as of that date. CONCLUSIONS OF LAW 1. Prior to January 23, 2020, the criteria for a rating in excess of 10 percent for associated incomplete paralysis of the sciatic nerve of the right lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520. 2. After January 23, 2020, the criteria for a rating in excess of 20 percent for associated incomplete paralysis of the sciatic nerve of the right lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520. 3. Prior to August 1, 2017, the criteria for a disability rating in excess of 10 percent for associated incomplete paralysis of the sciatic nerve of the left lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520. 4. After August 1, 2017, the criteria for a rating in excess of 20 percent disability rating for associated incomplete paralysis of the sciatic nerve of the left lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520. 5. The August and April 2012 rating decisions denying TDIU and increased rating claims are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 6. The criteria for an effective date of July 24, 2014 for the grant of TDIU are met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to March 1968 and from July 1970 to March 1972. The Veteran appeared at a Board hearing in July 2016; a transcript is of record. With respect to the Board hearing, the undersigned clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the 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. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 1.-4. Bilateral lower extremity radiculopathy with diabetic neuropathy The Veteran is currently rated at 10 percent prior to August 1, 2017 and 20 percent thereafter for left lower extremity radiculopathy with diabetic neuropathy. For right lower extremity radiculopathy, the Veteran is rated at 10 percent disabling prior to January 23, 2020 and 20 percent disabling after for right lower extremity radiculopathy with diabetic neuropathy. The Veteran contends higher ratings are warranted. The RO evaluated the Veteran's disability of each lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520. A 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term incomplete paralysis indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Factual Background The Veteran filed an intent to file a claims form in July 2014, with a fully developed claim form received in September 2014. A VA examination in November 2014 did not demonstrate objective findings of left lower extremity radiculopathy. Results for the right lower extremity demonstrated a mild right lower extremity radiculopathy evidenced by mild symptoms, slightly reduced reflexes, mild paresthesias and/or dysesthesias, mild numbness, and it was noted that prior electro-diagnostic studies confirmed a mild right sided radiculopathy. The left side did not have reported symptoms or issues, besides left side ankle hypoactivity on deep tendon reflex testing (as was true on the right side as well). Remarks section notes mild acute S1 radiculopathy. Results from the June 2015 VA examination found slightly reduced reflexes at the ankle and diminished sensation in the foot/toes, with normal strength with no muscle atrophy on the left side. For the right side, the examination report did not confirm a radiculopathy, but it is noted that there were objective findings of slightly reduced reflexes at the ankle. Sensation and strength were shown to be normal. The Veteran had left lower extremity mild intermittent pain (usually dull), mild paresthesias and/or dysesthesias, and mild numbness. Finding was left side mild radiculopathy. A June 2015 EMG/NCV found mild, chronic left lumbosacral radiculopathy at the S1 level. Treatment records after the July 2015 examination showed that the Veteran continued to be seen for continued complaints of back pain with radicular symptoms and have undergone chiropractic treatment for lower back pain. A VA examination was undertaken on August 1, 2017 and the examiner found bilateral lower extremity diabetic peripheral neuropathy. The Veteran had mild bilateral intermittent pain, mild bilateral lower extremity diabetic peripheral neuropathy, and mild bilateral numbness. Neurological examination showed less than normal strength (4/5) bilaterally for knee extension, knee flexion, and ankle planter flexion and dorsiflexion. Deep tendon reflexes (DTRs) bilaterally were decreased. Light touch/monofilament testing results showed decreased bilaterally for knee/thigh and toe/foot. Cold sensation was decreased. This examination showed findings consistent with moderate incomplete paralysis of the sciatic nerve branch in the left lower extremity and mild incomplete paralysis on the right lower extremity. A VA examination was undertaken on January 23, 2020. The Veteran had moderate extremity constant pain bilaterally, mild intermittent pain bilaterally, and severe parasthesia bilaterally. For the right lower extremity, the examiner’s assessment was consistent with moderate incomplete paralysis of the sciatic nerve branch in the right lower extremity. The examiner’s assessment was consistent with moderate incomplete paralysis of the sciatic nerve branch in the right and left lower extremity. VA treatment records do not show worse findings then the VA examinations for any period, with the only addition reports not already mentioned above being pain and medication use. A June 2016 VA treatment indicate minimal peripheral neuropathy. A June 2018 VA treatment record did report neuropathy symptoms, namely tingling. Analysis - Right lower extremity For the first period on appeal, the Board finds that no more than the assigned 10 percent disability rating is warranted for associated neurological deficits of the right lower extremity under Diagnostic Code 8520. There is no showing of moderate neurological deficits affecting the left lower extremity. Here, the most probative evidence establishes that the Veteran does experience pain. However, to the extent that there is any argument that there are any other manifestations to include atrophy, reflex changes, or other sensory changes, such assertions are inconsistent with the examination and are not credible. For the foregoing reasons, the Board finds that the evidence is against a disability rating in excess of 10 percent for associated mild, incomplete paralysis of the sciatic nerve of the right lower extremity. For the second period, the Board finds that a rating higher than 20 percent for moderate incomplete paralysis of the sciatic nerve of the right lower extremity is not warranted. There is no showing of moderately severe or severe neurological deficits affecting the right lower extremity. While the Veteran is competent to describe radiating pain down both legs, the lack of probative evidence on neurological testing of more severe sensory deficit weighs against the Veteran's lay reports as to the severity of his symptoms. For all the foregoing reasons, the preponderance of the evidence is against a rating in excess of 10 percent during the first on appeal and 20 percent during the second for this disability. Analysis - Left lower extremity For the first period on appeal, the Board finds that no more than the assigned 10 percent disability rating is warranted for associated neurological deficits of the left lower extremity under Diagnostic Code 8520. Here, the most probative evidence establishes that the Veteran does experience pain. However, to the extent that there is any argument that there are any other manifestations to include atrophy, reflex changes or other sensory changes, such assertions are inconsistent with the examination and are not credible. There is no showing of moderate neurological deficits affecting the left lower extremity. For the foregoing reasons, the Board finds that the evidence is against a disability rating in excess of 10 percent for mild, incomplete paralysis of the sciatic nerve of the left lower extremity. For the second period, the Board finds that a rating higher than 20 percent disability rating for moderate incomplete paralysis of the sciatic nerve of the left lower extremity is not warranted. There is no showing of moderately severe or severe neurological deficits affecting the left lower extremity. While the Veteran is competent to describe radiating pain down both legs, the lack of objective evidence on neurological testing of more than a sensory deficit weighs against the Veteran's lay reports as to the severity of his symptoms. While the Veteran is competent to describe radiating pain, the lack of objective evidence on neurological testing of more than a sensory deficit weighs against the Veteran’s lay reports as to the severity of his symptoms. For all the foregoing reasons, the preponderance of the evidence is against a rating in excess of 10 percent during the first period on appeal and 20 percent during the second for this disability. 5. TDIU The RO assigned the current effective date of July 16, 2016. This was the date that the Veteran was granted service connection for additional disabilities. The combined effects of these disabilities rendered the Veteran unable to obtain/maintain gainful employment. Law – Effective date, claims, and TDIU Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant may be considered an informal claim. 38 C.F.R. § 3.155(a). Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id. Claim is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Further, under 38 C.F.R. § 3.157(b)(1), a report of examination or hospitalization may constitute an informal claim. Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). With regards to Notice of Disagreements (NOD), prior to March 24, 2015, a NOD was not required to be on a specific form. Under 38 C.F.R. § 20.20, a valid NOD must contain terms that can reasonably be construed as disagreement with that determination and a desire for appellate review. Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002); 38 C.F.R. § 20.201. VA amended its adjudication regulations effective March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The new regulation is the current 38 C.F.R. § 3.155. This states a claimant or his or her duly authorized representative may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Id. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form. Id. If VA receives a complete application form within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. Id. With regards to TDIU, TDIU can be awarded where the scheduler 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. 38 C.F.R. § 4.16 (a). Provided that if there is only one 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. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) Factual Background The Veteran previously had a claim for TDIU denied in April 2012, as the evidence does not show the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The claim was denied because the Veteran did not have one disability rated at 60 percent, or a combined rating of at least 70 percent with one disability rated at 40 percent, and the evidence does not demonstrate that the Veteran was unable to secure or follow substantially gainful occupation solely due to service-connected condition. The Veteran was a sent a notice letter that same month. The Veteran also had rating reduction proposed for two service-connected back-related disorders at the same time and additional evidence was submitted regarding that rating decision. An August 2012 rating decision decided a reduction was not warranted and also denied an increased rating for the back disorders. Notice was sent the same month. As TDIU may be considered part and parcel of an increased rating claim, a claim for an increase in any service-connected disability may also be relevant. See Rice v. Shinseki, 22 Vet. App. 447 (2009). There was no notice of disagreement with regards to TDIU or any increased rating claims within one year of either decision. Additional evidence regarding the proposed reduction for two back disorders was associated with the folder, which was addressed by the rating decision dated in August 2012. Within the next year of the August 2012 rating decision, additional evidence was obtained for a psychiatric claim, but none of this evidence is new and material for either the claim for TDIU or the two-back related disorders. Further, the Veteran has not contended, nor does the evidence show, he believes a date earlier then the date the current claim was filed is warranted. Further, the Veteran did not submit anything that could reasonably be considered as a request for appellate review within one year. The record contains no claims, either formal or informal, for either TDIU or back disorders between the 2012 rating decision and the 2014 claim currently on appeal. The Veteran filed an intent to file a claim form in July 24, 2014 and a form 21-8940 Veterans Application for Increased Compensation Based on Unemployability in September 2014. For the relevant timeframe (July 2014 to July 2016), the Veteran’s disabilities preventing employment were status post fusion L5-S1 with spondylolisthesis and spondylolysis at 20 percent disabling, right and left lower extremity radiculopathy due to the spondylolisthesis and spondylolysis each at 10 percent disabling, and scarring of residual lumbar fusion associated with status post fusion L5-S1 with spondylolisthesis and spondylolysis at 10 percent disabling. The Veteran is also service-connected for adjustment disorder with depressed mood associated with status post fusion L5-S1 with spondylolisthesis and spondylolysis, 10 percent disabling from October 10, 2012, 70 percent disabling from November 19, 2013, and 30 percent disabling from May 1, 2016. The Veteran had a disability rated at 70 percent from November 19, 2013 and (after the implementation of the 30 percent rating for an adjustment disorder) still had several disabilities resulting from common etiology (spondylolisthesis and spondylolysis), with a total rating of 60 percent. Therefore, he has met the criteria for one 60 percent disability since November 19, 2013, before the claim on appeal was filed. See 38 C.F.R. § 4.16(a). The Veteran last worked at VA and lost this job due to a finding by a VA doctor that he was unfit for duty due to his back. A November 2008 primary care outpatient treatment note for purposes of fitness for duty (the Veteran at the time was working in a kitchen at a VA facility). This record states that the Veteran had left his prior job due to his back. He had been employed at the current position for about 4 to 6 months but had recently developed severe back pain. The Veteran had tried working 20 hours a week, but this did not decrease back pain. Time off has not helped. The back pain was getting worse and the pain in the right leg is different and it lasts longer, continuous not intermittent. It was noted he used a cane to walk, had antalgic gait, and uses a cane to walk, keeping his right leg stiff. The VA doctor’s assessment was that the Veteran had chronic low back pain with sciatica, and, in the doctor’s opinion, the Veteran was not able to fulfill the functional requirements of his position. A VA treatment record dated in May 2009 reports that the Veteran is not currently able to work. He uses a cane to walk, even in his yard. The Veteran’s back disorder was listed as causing these problems, specifically chronic back pain with spondylolisthesis and radiculopathy. A Social Security Administration (SSA) document dated in July 2010 indicates that the Veteran was receiving SSA disability benefits. Records received from SSA found the Veteran disabled due to a back disability, coronary artery disease, and reactive airway disease with sleep apnea. However, SSA records show primary disabilities were disorders of the back, with disability starting in October 2008. The Veteran reported he had submitted numerous resumes prior to filing for SSA benefits, but was not able to be hired anywhere, which the Veteran believed was due to the finding of being unfit for work. The Veteran’s prior work history was largely in government as a consultant on human resource matters. The November 2008 VA records notes he left his prior job due to his back pain. A February 2009 VA examination of the lumbar spine confirmed this, as the Veteran reported leaving his job of 10 years due to his lumbar spine disability. The examiner also reported the Veteran had difficulty bathing and using the toilet, including just getting up and down off the toilet. In other words, prior to filing the current claim, the Veteran had previously lost work in both a sedentary occupation (consultant) and in a more physically strenuous job, due to his back disabilities. SSA also has found the Veteran disabled. The Board notes that the definitions and requirements of disability for VA and SSA differ, and a finding of disability by SSA does not bind VA. While SSA decisions are not controlling for VA determinations, they are pertinent to the Veteran's claim. The Board finds the grant of SSA disability benefits due to back disorders and the findings in VA records of inability to maintain employment due to the back disorders are highly probative evidence as to when entitlement to TDIU is warranted. Given the evidence, the effective date for TDIU is established in July 24, 2014, when the Veteran submitted an intent to file a claim form. The Veteran was already unable to work due to service-connected disabilities at that time. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.