Citation Nr: 21004066 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-45 594 DATE: January 25, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for right lower extremity (RLE) radiculopathy associated with degenerative joint disease (DJD) for the period on appeal prior to October 20, 2020, is denied. Entitlement to a disability rating of 40 percent, and no higher, for RLE radiculopathy associated with DJD for the period on appeal beginning October 20, 2020 is granted. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The competent evidence of record shows that prior to October 20, 2020, the Veteran’s RLE radiculopathy was manifested by moderate incomplete paralysis; moderately severe incomplete paralysis or severe paralysis with marked muscular atrophy was not shown. 2. The competent evidence of record shows that beginning October 20, 2020, the Veteran’s RLE radiculopathy was manifested by moderately severe incomplete paralysis; severe paralysis with marked muscular atrophy was not shown. 3. Resolving reasonable in favor of the Veteran, his service-connected disabilities render him unable to secure and maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating excess of 20 percent for RLE radiculopathy for the period on appeal prior to October 20, 2020, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2019). 2. The criteria for a disability rating of 40 percent for RLE radiculopathy, and no higher, for the period on appeal beginning October 20, 2020, have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2019). 3. The criteria for entitlement to a TDIU due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.25 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1990 to January 1994. These matters come before the Board of Veterans Appeals (Board) on appeal from January 2013 and February 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the January 2013 rating decision, in relevant part, the RO denied an increased rating for radiculopathy to the right lower extremity. In the February 2017 rating decision, the RO denied entitlement to a TDIU. The Veteran timely perfected substantive appeals and requested a video conference before a Veterans Law Judge (VLJ). In July 2019, the Veteran testified at a videoconference hearing before the undersigned VLJ. A transcript of that proceeding is associated with the record. In April 2020, the Board remanded these issues for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998) 1. Entitlement to a disability rating in excess of 20 percent for RLE radiculopathy associated with DJD for the period on appeal prior to October 20, 2020, is denied. 2. Entitlement to a disability rating of 40 percent, and no higher, for RLE radiculopathy associated with DJD for the period on appeal beginning October 20, 2020 is granted. The Veteran is seeking a higher disability rating for his RLE radiculopathy. Specifically, he contends that his disability is more severe than reflected by his currently assigned rating because he experiences constant pain and weakness, walks with an antalgic gait, and it is a constant struggle for him to walk or drive. See June 2015 Third Party Correspondence; January 2012 Claim. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. 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. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. Here, the Veteran is currently assigned a 20 percent disability rating for his RLE radiculopathy. His disability is rated under Diagnostic Code 8520. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. A 20 percent rating requires moderate, incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe, incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe, incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, Disease of the Peripheral Nerves, Schedule of Ratings Explanation for Diagnostic Codes 8510-8540. Words such as “mild,” “moderate,” and “severe” are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as “severe” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definition for “mild” includes not very severe. Webster’s II New College Dictionary at 694 (1995). In addition, a synonym for “mild” is “slight” and definitions for “slight” include small in size, degree, or amount. Id. at 1038. The definitions for “moderate” include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for “severe” include extremely intense. Id. at 1012. It is also noted that the term “moderately severe” indicates impairment that is considered more than “moderate” but not to the extent as to be considered “severe.” Turning to the evidence of record, in a March 2010 VA spine examination, the Veteran was diagnosed with back pain with right radicular symptoms. The Veteran described his back pain with radiculopathy as moderately severe. On examination, the Veteran’s muscle strength was 3-4/5, his reflex examination was normal, and no clonus was noted. In a March 2012 VA spine examination, the Veteran was found to have moderate RLE radiculopathy and moderate constant pain, intermittent pain, paresthesias, and numbness. Muscle tone and strength were normal and there was no muscle atrophy. In addition, in a March 2012 peripheral neuropathy examination, the Veteran’s RLE peripheral neuropathy was found to be normal. In December 2012, the Veteran was afforded a peripheral nerves conditions examination. He was found to have moderate incomplete paralysis of the right sciatic nerve. Specifically, the Veteran was found to have moderate intermittent pain and mild paresthesias and numbness. His muscle strength and sensory examination was normal and there was no muscle atrophy. Likewise, in a December 2013 VA spine examination the Veteran was found to have moderate radiculopathy, mild numbness, and no intermittent pain or paresthesias in his RLE. Muscle strength testing revealed, at worst less than normal strength, a sensory examination revealed decreased sensation, and no atrophy was noted. In a January 2017 VA spine examination, the Veteran was found to have moderate incomplete paralysis of the RLE. Specifically, he was found to have moderate intermittent pain, paresthesias, and numbness, and no constant pain in his RLE. Muscle strength testing and sensory examination revealed normal results and no ankylosis or muscle atrophy was noted. In a subsequent February 2019 VA spine examination, the Veteran’s RLE radiculopathy was manifested by mild paresthesias and numbness. A sensory examination revealed decreased sensation, but his reflexes and muscle strength were normal and there was no noted muscle atrophy or ankylosis In October 2020, the Veteran was afforded a peripheral nerves condition examination. The Veteran was found to have moderate incomplete sciatic nerve paralysis. His current symptoms were extreme lower back pain, numbness and weakness. On examination, he was found to have moderate RLE constant pain, paresthesias, and numbness, and severe intermittent pain. His muscle strength, at worst, was less than normal and reflex examination was normal. VA treatment records also reveal treatment of the Veteran’s RLE pain. Records from July 2011 note chronic back pain s/p laminectomy with radiculopathy that is stable. In January 2012 the Veteran’s radiculopathy was described as intermittent and not new. In July 2018 although active range of motion was within normal limits, pain, numbness and weakness was noted in the RLE. An August 2019 pain consult notes reported of numbness in the thigh and shows some decreased range of motion with forward and backward flexion of left spine and 4/5 muscle strength in left quad muscles, with the rest of lower extremity strength intact. In October 2019 the Veteran reported low back pain that radiates to bilateral lower extremities and associated with numbness and tingling but not weakness in the legs. January 2020 treatment records also show no new numbness and/or weakness. See also March 2020 VA Treatment Record. Based on the foregoing, and on the entirety of the record of evidence, for the period on appeal prior to October 20, 2020, the Board finds that a rating in excess of 20 percent for RLE radiculopathy is not warranted. Here, the evidence shows that the Veteran’s disability manifested by, at worst, average or moderate incomplete paralysis. See, e.g., January 2017 VA spine examination. As such it is most closely approximated by criteria for a 20 percent disability rating under Diagnostic Code 8520, which contemplates moderate incomplete paralysis. The Veteran’s VA examinations, treatment records, and lay assertions, also did not show that the Veteran’s RLE radiculopathy was “more than average”, “serious,” “extremely intense,” or severe, and are negative for muscular atrophy or complete paralysis. Accordingly, the Veteran’s disability picture does not more closely approximate the criteria for higher disability rating under Diagnostic Code 8520, which contemplates incomplete moderately severe paralysis, incomplete severe paralysis with marked muscle atrophy, or complete paralysis and a higher disability is therefore not warranted. In reaching this determination, the Board reviewed the Veteran’s remaining VA treatment records, but they do not indicate any symptoms of worse severity than that noted during the VA examinations of record. The Board has also considered the Veteran’s statements of record that a higher disability rating is warranted, to include his report of moderately severe back pain with radiculopathy in his March 2010 VA spine examination. The Veteran is competent to report symptomatology relating to his disability because this requires only personal knowledge as it comes to him through his senses and his statements regarding his in this case are credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, to the extent that the Veteran alleges greater severity, the Board finds that the probative value of his allegations is outweighed by the aforementioned medical records during this period of the appeal, to include the March 2010 VA spine examination. The competent and credible evidence concerning the nature and extent of the Veteran’s disability has been provided by the Veteran and included in relevant medical findings in conjunction with the VA examinations and treatment records. In this regard, the medical findings (as provided in the examination reports and medical records) directly address the evaluation criteria for this disability and incorporate the Veteran’s reported symptoms. Accordingly, they are of greater probative value. The Board thus finds that the Veteran’s disability picture is most closely approximated by a 20 percent disability rating under Diagnostic Code 8520, which contemplates moderate incomplete paralysis. Concerning the period on appeal beginning October 20, 2020, based on the entirety of the record of evidence, the Board finds that a disability rating of 40 percent, and no higher, for RLE radiculopathy is warranted. Here, the evidence shows that the Veteran’s disability manifested by, at worst, severe intermittent pain and moderate incomplete paralysis. See October 2020 VA spine examination. As such, the Veteran’s disability can be described as more than average but not extreme and is therefore most closely approximated by criteria for a 40 percent disability rating under Diagnostic Code 8520, which contemplates moderately severe incomplete paralysis. The Veteran’s VA examinations, treatment records, and lay assertions, do not show that the Veteran’s RLE radiculopathy is “extremely intense,” and do no show muscular atrophy or complete paralysis. Accordingly, the Veteran’s disability picture does not more closely approximate the criteria for higher disability ratings under Diagnostic Code 8520, which contemplate incomplete severe paralysis with marked muscle atrophy or complete paralysis and a higher disability is therefore not warranted. In reaching this determination, the Board reviewed the Veteran’s remaining VA treatment records and lay assertions, but they do not indicate any symptoms of worse severity than that noted during the VA examination of record. In light of the above, the Board finds that a disability rating in excess of 20 percent prior to October 20, 2020, is not warranted for the Veteran’s RLE radiculopathy. As the preponderance of the evidence is against the claim, there is no doubt to be resolved, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The Board also finds that, beginning October 20, 2020, a disability rating of 40 percent, and no higher, is warranted for the Veteran’s RLE radiculopathy. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). 3. Entitlement to a TDIU due to service-connected disabilities is granted. The Veteran is seeking a TDIU. Specifically, he contends that he cannot work due to his service-connected disabilities. See August 2016 TDIU Claim. Additionally, the Veteran claims, through his representative, that even if he could obtain sedentary work, he does not have the ability to adjust to such work based on his past work experience, education, and previous employment which ended in February 2016. See August 2018 Third Party Correspondence. His limitations include an inability to repeatedly stand or sit and limited fine motor skills in his dominant hand. See July 2019 Third Party Correspondence. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Here, the Veteran is service connected for DJD of the lumbar spine (40 percent); RLE radiculopathy associated with DJD of the lumbar spine (20 percent prior to October 20, 2020; and 40 percent thereafter); DJD left acromioclavicular joint disability (10 percent prior to September 7, 2016; and 20 percent thereafter); left sciatica associated with DJD of the lumbar spine (10 percent); right small finger and ring finger deformity (noncompensable); and s/p laminectomy scar associated with DJD of the lumbar spine (noncompensable). Since the Veteran’s lumbar spine DJD, RLE radiculopathy, left acromioclavicular disorder, and left sciatica disorder have a common etiology as they are part of a single body system, those disabilities are considered as one disability under 38 C.F.R. § 4.16(a) and amount to a combined 60 percent disability rating. Because the Veteran has, at minimum, a combined 60 percent disability rating for a single body system during the period on appeal, the Veteran meets the schedular criteria for a TDIU. Turning to the evidence of record, in his March 2010 VA spine examination, the Veteran reported being able to walk only a few blocks. He was able to drive despite pain in his RLE. He reported being able to perform his operational duties as he was primarily management. In a March 2012 VA spine examination, the Veteran reported using a cane. The functional impact of the back disability was found to moderately affect chores, recreation, and travelling, and severely affect shopping, exercise, and sports. In a March 2012 VA hand examination, the functional impact of the Veteran’s right (dominant) hand disability was found to be reduced grip in right hand. In a June 2012 VA shoulder examination, the Veteran was found to be unable to do any overhead activities with the left arm and have trouble lifting, pushing, and pulling. In a December 2012 VA peripheral nerves conditions examination no functional limitation was noted. In a December 2012 VA hand and finger examination, however, weakened grip and incoordination were noted to limit his ability to perform fine motor tasks. In addition, in a December 2013 VA spine examination, the Veteran was found to have limited motion in his lumbar region which restricted any activity involving significant use of the lumbar spine. In a subsequent December 2016 VA shoulder examination, the Veteran was found to be unable to perform duties requiring repetitive lifting, pushing, pulling, or working above shoulder level for extensive periods. He was otherwise capable of light active and sedentary employment with the aforementioned limitations. In January 2017, the Veteran was afforded a VA general medical examination. The Veteran was found to be unable to perform duties requiring repetitive bending, stooping, or lifting, but otherwise capable of active sedentary employment with the aforementioned limitations. In February 2019, a VA spine examiner also found decreased flexion with interference with picking up objects. And, in an October 2020 VA peripheral nerves conditions examination, the Veteran was found unsuitable for any manual labor type employment. The examiner noted that he would be suitable for more sedentary employment such as administrative or clerical provided the employer provides for frequent positional changes due to discomfort. Review of VA treatment records from June 2016 also reveal that the Veteran asserted that he had been terminated from his employment in 2012. He had found the job to be extremely stressful and felt that he was harassed and overworked. In his August 2016 TDIU claim, however, the Veteran asserted that he left his last employment position due to his service-connected disabilities as it required driving and carrying items with excessive weight. The record also reveals a May 2015 VRE counseling record, in which the Veteran was noted to have completed a high school level education and no additional vocational or professional training. His last place of full-time employment was in February 2012. The Veteran reported he was terminated due to his behavior and alcohol use. The report notes that the Veteran has not worked since 2012 and indicated that he has not been able to work due to mental health issues. Based on the information provided, to include that the Veteran does not have a history of abstaining from substance abuse or receiving treatment that shows he would be stable in training for work, the Veteran was found not feasible for employment. The report May 2015 VRE report further notes the Veteran’s limitations due to his service-connected back disability, RLE radiculopathy, and left acromioclavicular disability. These limitations include no prolonged standing, walking, climbing, stooping, crouching, sitting, repetitive bending and lifting. They also include a limited ability to perform activities requiring squatting, carrying, balancing, and operating machinery requiring foot controls. The report also contains a finding that the Veteran meets the criteria for an employment handicap due to these disabilities that cannot be overcome by further education, transferable skills, or obtaining and maintaining suitable work. The record additionally reveals that in his July 2019 Board hearing, the Veteran reported that standing for prolonged periods of time was crippling and his ability to walking is very limited. Furthermore, driving was difficult, and he last worked in February 2016, in this capacity. The Board finds that, when reviewed together, the VA examinations, lay assertions, and medical opinions discussed above demonstrate that, at the very least, the evidence is in relative equipoise as to whether the Veteran is unable to obtain and maintain substantially gainful employment due to limitations in standing, walking, and due to his pain and limited fine motor skills in his dominant hand. For these reasons, and in resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities, to include lumbar spine DJD, RLE radiculopathy, DJD left acromioclavicular joint disability, left sciatica disability, and right hand disability left render him unable to secure or maintain a substantially gainful physical or sedentary occupation. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Accordingly, the claim for entitlement to a TDIU is granted. 38 C.F.R. § 4.16(a). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.