Citation Nr: 21062863 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-35 216 DATE: October 12, 2021 ORDER Entitlement to an initial disability rating higher than 10 percent for right lower extremity femoral nerve associated with lumbosacral strain with thoracic spine degenerative changes is denied. Entitlement to an initial disability rating higher than 10 percent for left lower extremity femoral nerve associated with lumbosacral strain with thoracic spine degenerative changes is denied. Entitlement to an initial disability rating higher than 10 percent for left lower extremity sciatic nerve associated with lumbosacral strain with thoracic spine degenerative changes is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's bilateral lower extremity radiculopathy of the femoral nerve and left lower extremity of the sciatic nerve did not more nearly approximate symptoms of moderate incomplete paralysis. 2. The Veteran's service-connected disabilities do not preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for initial disability ratings higher than 10 percent for bilateral lower extremity radiculopathy of the femoral nerve and left lower extremity radiculopathy of the sciatic nerve are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.7, 4.10, 4.124a, Diagnostic Codes (DCs) 8520, 8526. 2. The criteria for a TDIU due to service-connected disabilities are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1998 to July 2000. In November 2016, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In March 2021, the Board found that the Veteran met the requirement of objective neurologic abnormalities of the bilateral lower extremities associated with his service-connected lumbosacral strain with thoracic spine degenerative changes, and noted the Veteran's contention that he was unemployable due to his service-connected disabilities. Thus, the Board remanded the matters currently on appeal for further development, to include a VA examination. For the reasons indicated in the discussion below, the June 2021 examination is adequate to decide the claims, and the Agency of Original Jurisdiction (AOJ) complied with the Board's most recent remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In an August 2021 rating decision, the AOJ granted service connection for bilateral lower extremity radiculopathy of the femoral nerve and left lower extremity radiculopathy of the sciatic nerve, each with 10 percent evaluations, effective June 1, 2021. As the Veteran has not indicated satisfaction with these disability ratings, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). Higher initial disability ratings for bilateral lower extremity radiculopathy Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran's left lower extremity radiculopathy of the sciatic nerve is rated 10 percent under DC 8520 from June 1, 2021, and his bilateral lower extremity radiculopathy of the femoral nerve is rated 10 percent from June 1, 2021 under DC 8526. 38 C.F.R. § 4.124a. Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. Under DC 8520, a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Under DC 8526, 10, 20, and 30 percent ratings are warranted for mild, moderate, or severe incomplete paralysis, and a 40 percent rating is warranted for complete paralysis of the quadriceps extensor muscles. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured 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 should be for the mild, or at most, the moderate degree. Id. The words "mild," "moderate," and "severe" are not defined in the VA Rating Schedule. 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. For the following reasons, higher initial disability ratings for bilateral lower extremity radiculopathy of the femoral nerve and left lower extremity radiculopathy of the sciatic nerve are not warranted. The Veteran's bilateral lower extremity radiculopathy of the femoral nerve and left lower extremity radiculopathy of the sciatic nerve symptoms correspond to the criteria for 10 percent initial disability ratings. Specifically, during a June 2021 VA examination, the Veteran reported intermittent radiation to the bilateral leg with tingling. His right thigh/knee (L3/4) and left foot/toes (L5) sensation to touch symptoms were decreased during the sensory examination. Bilateral straight leg testing was negative. There was mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the bilateral lower extremities with involvement of the bilateral femoral nerves and left sciatic nerve. Initial disability ratings higher than 10 percent for bilateral lower extremity radiculopathy of the femoral nerve and left lower extremity radiculopathy of the sciatic nerve are not warranted because the evidence of record does not reflect that there have been symptoms more nearly approximating moderate incomplete paralysis. The Veteran has not indicated that the symptoms of his bilateral lower extremity radiculopathy were so significant and widespread in their effect that a finding of moderate incomplete paralysis is warranted. Notably, the Veteran reported during the June 2021 VA examination that he experienced bilateral lower extremity radiculopathy intermittently with tingling. Moreover, the Veteran's symptoms have been predominantly sensory. The June 2021 VA examiner indicated normal motor function, no muscle atrophy, and no trophic changes. In this regard, the Board notes that when the involvement is wholly sensory, the rating should be for, at most, the moderate degree. 38 C.F.R. § 4.124a. For the foregoing reasons, initial disability ratings higher than 10 percent for bilateral lower extremity radiculopathy of the femoral nerve and left lower extremity radiculopathy of the sciatic nerve are not warranted. As the preponderance of the evidence is against higher initial disability ratings, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claims and decided entitlement based on the evidence. The Veteran and his representative have not raised any other issues, other than entitlement to a TDIU as discussed below, nor have any other issues been reasonably raised by the record, with respect to his claims. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Entitlement to a TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry in a claim for entitlement to a TDIU 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). The Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently in receipt of service connection for lumbosacral strain with thoracic spine degenerative changes, rated 10 percent disabling from July 30, 2010, and 40 percent from November 25, 2013; left shoulder degenerative changes, rated 10 percent disabling from July 30, 2010, and 30 percent from November 25, 2013; pseudofolliculitis barbae, rated 10 percent disabling from July 30, 2010; left lower extremity radiculopathy of the sciatic nerve, rated 10 percent disabling from June 1, 2021; left lower extremity radiculopathy of the femoral nerve, rated 10 percent disabling from June 1, 2021; and right lower extremity radiculopathy of the femoral nerve, rated 10 percent disabling from June 1, 2021. The Veteran's combined disability rating is 30 percent from July 30, 2010, 60 percent from November 25, 2013, and 70 percent from June 1, 2021. As the Veteran has two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined disability rating is 70 percent or higher, he meets the schedular criteria for a TDIU from June 1, 2021. With regard to this period, the remaining question is whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience may otherwise qualify him. The term "unable to secure and follow a substantially gainful occupation" is defined as having two components: one economic and one non-economic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). For the following reasons, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities, and entitlement to a TDIU is not warranted. In its March 2021 remand, the Board instructed the AOJ to, among other things, send the Veteran a formal application for a TDIU if one had not yet been received. In April 2021, the AOJ sent a letter to the Veteran and asked him to complete VA Form 21-8940, which would provide his educational background, employment history and earnings. A copy of VA Form 21-8940 and detailed instructions for the Veteran were included with the letter. The Veteran did not submit VA Form 21-8940 and has not otherwise provided any information pertaining to his educational background, employment history, or earnings. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street). However, the Board was able to glean from the evidence of record, specifically a July 2016 VA treatment record, that the Veteran graduated from high school. The Veteran additionally testified during his November 2016 Board hearing that he worked in a chemical plant driving a vacuum truck. Furthermore, in a November 2019 VA treatment record, the Veteran reported he worked at a chemical plant. In an August 2021 VA treatment record, the Veteran reported he was not ready for carpal tunnel syndrome surgery due to work. The above evidence of record does not indicate that the Veteran is unemployed and unable to secure or follow any substantially gainful occupation due solely to his service-connected disabilities. Rather, the evidence reflects that the Veteran is gainfully employed. Moreover, the evidence of record does not give any indication that his employment was not full-time and/or was marginal employment. 38 C.F.R. § 4.16(a). As discussed above, the Veteran did not return the requested VA Form 21-8940 or furnish additional work history information to provide clarification on this issue. It is the Veteran's responsibility under 38 U.S.C. § 5107(a) to present and support a claim for VA benefits. Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of 38 U.S.C. § 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). To the extent that TDIU was raised as part and parcel of the other service connected disabilities, the Veteran did not meet the schedular standards for the period prior to June 1, 2021. For such cases, the Board must determine under 38 C.F.R. § 4.16(b) whether the Veteran was "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities." The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The above evidence reflects there is no reasonable possibility that the Veteran is unemployable by reason of his service connected disabilities because the evidence reflects that the Veteran is gainfully employed and the evidence of record does not indicate that his employment was not full-time or was marginal. For the foregoing reasons, the preponderance of the evidence is against a TDIU on both a schedular and extraschedular basis. The benefit of the doubt doctrine is therefore not for application, and entitlement to a TDIU must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.