Citation Nr: 21067128 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-23 363 DATE: November 3, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. Entitlement to a total disability rating based on individual unemployability prior to prior to July 17, 2018 is granted. FINDINGS OF FACT 1. The Veteran's radiculopathy of the bilateral lower extremities has only manifested to mild symptoms. 2. Prior to July 17, 2018, the probative evidence of record shows the Veteran's service-connected disabilities have rendered him unable to obtain or maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400, 4.124a, Diagnostic Code 8520. 2. The criteria for an increased rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400, 4.124a, Diagnostic Code 8520. 3. The criteria for a total disability rating based on individual unemployability prior to July 17, 2018 have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 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 January 1992 to August 2001. His period of active duty from January 1992 to May 24, 1998 was found to be honorable for VA purposes. In March 2020, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. In May 2020, the claims were brought before the Board and were remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an Increased Rating: Bilateral Radiculopathy of the Lower Extremities The Veteran radiculopathy of the left and right lower extremities are each rated as 10 percent disabling under Diagnostic Code (DC) 8520 for the Sciatic Nerve. Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires evidence of 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, DC 8520. The Board notes that the terms "mild," "moderate" and "severe" are not defined. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as "mild" or "severe" by VA examiners and others, although 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 C.F.R. §§ 4.2, 4.6. In June 2015, the Veteran attended a VA examination. The Veteran reported weakness and numbness in his left leg with pain at times. The Veteran's radiculopathy was noted as causing moderate intermittent pain, paresthesia, and numbness in the left lower extremity. The examiner noted the overall severity of the Veteran's radiculopathy was mild in both the right and left extremity. The Veteran did not have muscle atrophy and no bowel or bladder problems. In January 2016, the Veteran attended another VA examination. The Veteran's radiculopathy symptoms were noted as mild intermittent pain, paresthesias, and numbness in the bilateral lower extremities. The overall severity of the Veteran's condition was noted as mild bilaterally. There was no muscle atrophy and no bowel or bladder problems. The Veteran was provided another VA examination in June 2016. He reported chronic pain, numbness, and tingling in his left leg down to the ankle, and pain, numbness, and tingling in his right lower extremity that comes and goes to the mid-thigh. The Veteran had no muscle atrophy. The Veteran's symptoms were mild intermittent pain, paresthesias, and numbness in the bilateral lower extremities. The overall severity of the Veteran's condition was noted as mild. Most recently, the Veteran attended a VA examination in June 2020. The Veteran reported pain, tingling, and numbness on and off in on his left side and constant pain on his right that gets worse at times. The examiner noted there were no neurological deficits or sensory loss during the examination. Upon examination, the Veteran's sensory examination was all normal, to include for the lower bilateral thighs, knees, lower leg and ankle, and foot and toes. There were no trophic changes. The Veteran did have an antalgic gait; however, it was noted as being caused by his back condition. The Veteran's nerves were found to all be normal. The examiner noted that diagnostic testing conducted in 2017 revealed normal EMG studies of the bilateral lower extremities. The examiner lastly found that the Veteran had no objective peripheral/central neuropathy on examination. After review of the evidence of record, the Board finds that ratings in excess of 10 percent for the Veteran's radiculopathy of the left and right lower extremities is not warranted. The Veteran's radiculopathy is appropriately represented as "mild" under Diagnostic Code 8520. See 38 C.F.R. § 4.124a, DC 8520. The Veteran's intermittent pain, paresthesias, and numbness have been primarily described as mild and the Veteran did not suffer from constant pain or any buckling, muscle atrophy or difficulties with the bowel and bladder. While the June 2015 examination did note the Veteran's left lower extremity intermittent pain, paresthesias, and numbness as moderate, the examiner still noted the overall severity as mild. Further, the majority evidence of record has noted the Veteran's symptoms as mild, and the most recent examination did not find any current radiculopathy symptoms. The Board has considered whether any other diagnostic codes are applicable to the Veteran's service-connected radiculopathy conditions. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Here, however, the objective evidence shows that the Veteran's symptomatology most closely reflects the current diagnostic code DC 8520 for the sciatic nerve as the Veteran's condition has never been noted to affect any other nerve. Accordingly, the Board finds that ratings in excess of 10 percent for sciatic nerve radiculopathy of the right and left lower extremities are not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Entitlement to TDIU The Veteran contends that his service-connected disabilities, specifically his service-connected lumbar spine disability and his radiculopathy of the bilateral lower extremities, render him unemployable prior July 17, 2018. A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). The Veteran does not meet the necessary schedular criteria under 38 C.F.R. § 4.16(a) prior to July 17, 2018, as his service-connected lumbar strain is rated as 40 percent rating since October 28, 2013 and 10 percent since February 1, 2017, his left lower extremity radiculopathy has been rated at 10 percent disabling for the period under consideration, his right lower extremity radiculopathy as 10 percent for the period under consideration, and his pseudofolliculitis barbae has been rated as 10 percent disabling for the period under consideration, which provides the Veteran with a combined rating of 60 percent prior to February 1, 2017 and a combined rating of 40 percent thereafter. However, an extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). Further, as the case has already been referred to the Director of Compensation Service, the Board can proceed with reviewing the case with consideration of extraschedular total rating based on individual unemployability. Wages v. McDonald, 27 Vet. App. 233 (2015). The evidence of record shows the Veteran has a high school diploma and an occupational history that has primarily consisted of working as a fabrication specialist. In June 2015, the Veteran received a VA examination for his lumbar spine disability and radiculopathy. The examiner noted that the Veteran's back condition did impact his ability to work due to the Veteran's having functional limitation with activities of daily living. The examiner explained that the Veteran is unable to lift more than 5 pounds, is unable to walk more than 3 to 4 minutes, stand more than 1 to 2 minutes, and unable to sit more than 10 minutes. In January 2016, the Veteran received another VA examination for his lumbar spine disability. The examiner opined that the Veteran's lumbar spine disability renders him unable to seek and maintain a substantially gainful physical type of employment. However, the examiner did find the Veteran would be able to maintain gainful non-physical employment with proper pain management. The examiner noted his range of motion had reduction with pain; however, reduction was not severe to result in functional loss. In February 2016, the Veteran submitted a private opinion. The physician noted that the Veteran's lumbar disability and bilateral lower extremity radiculopathy affect the Veteran's ability to perform some activities of daily living, sitting, standing, or walking for any prolonged periods of time, difficulty lifting, pushing, pulling, bending, crawling, kneeling, or squatting, inability to go up and down stairs without extreme pain in his back, inability to drive for long periods, and an inability to be in one position for long periods of time due to pain. The physician then opined that the Veteran's lumbar spine disability and bilateral lower extremity radiculopathy prevent him from performing his own occupation consistent with the definition of total disability or any occupation. The physician noted the opinion was based on the cumulative effect of the Veteran's medical problems, subjective symptoms he suffers, and the knowledge of his work history as a fabrication specialist. The physician also noted that the Veteran is currently prescribed Vicodin for his conditions, which causes side effects to include drowsiness. The Veteran was seen for another VA examination in June 2016 for his lumbar spine disability with radiculopathy. The examiner noted the Veteran's condition did impact his ability to work as it would be difficult for him to preform manual labor. However, the examiner found the Veteran would be able to perform sedentary employment. Upon review of the evidence of record, the Board finds that the evidence is at least in relative equipoise that the Veteran's service-connected lumbar spine disability and radiculopathy of the bilateral lower extremities severely limit the occupational work the Veteran could perform prior to July 17, 2018. The Veteran's conditions would limit the Veteran's ability to perform physical labor due to not being able to stand, walk, or sit for long periods. Further, the Veteran cannot perform tasks that require lifting, bending or kneeling, which would severely limit him in his previous employment as a fabrication specialist, which entailed repairing parts of planes. Moreover, due to the Veteran being on constant medication for his lumbar spine pain, it would not only hinder his ability to focus and complete work but would also additionally risk his safety, as opioids and Vicodin can cause drowsiness and other cognitive impairment. His bilateral lower extremity radiculopathy would further be a safety risk as the Veteran would not be able to stand or sit for long periods due to pain, numbness, and paresthesias. The Board also notes that the evidence of record does not show the Veteran has any experience or familiarity with computers, office-like work settings, or clerical or data entry positions and therefore, he would likely not be able to transition into other such safer gainful employment. In addition, the medical evidence of record has consistently noted the Veteran's lumbar spine disability and radiculopathy prevent him from being able to sit for long periods, which would further limit his ability to perform sedentary employment. The Board acknowledges that the Director of Compensation Service has found that extraschedular entitlement to TDIU from prior to July 17, 2018 is not warranted. However, the Board is not bound by an adverse determination by the Director of Compensation Service regarding extraschedular entitlement to TDIU because the Court has determined that the Director of Compensation Service's decision is in essence a decision by the Agency of Jurisdiction (AOJ) and is no different than a Regional Office's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2016). Accordingly, the Board concludes that the Veteran has been rendered unable to obtain or maintain gainful employment due to his service-connected disabilities prior to July 17, 2018 and a grant of TDIU is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.