Citation Nr: 21067200 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-11 395 DATE: November 3, 2021 ORDER Entitlement to an increased rating of 40 percent, but no higher, for left lower extremity (LLE) radiculopathy of the sciatic nerve is granted. Entitlement to an effective date of May 10, 2015, but no earlier, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's LLE radiculopathy of the sciatic nerve is manifested by moderately severe symptoms. 2. From May 10, 2015, the Veteran is unable to obtain or maintain substantially gainful employment due to her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 40 percent but no higher, for LLE radiculopathy of the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8520. 2. The criteria for an effective date of May 10, 2015, but no earlier, for the grant of entitlement to TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to October 1982. The Veteran appealed a January 2015 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans' Appeals (Board) hearing was held in August 2019 before a Veterans Law Judge (VLJ) who has since retired from the Board. A transcript is of record. In April 2021, Department of Veterans Affairs (VA) sent the Veteran a letter offering a new hearing. She has not since requested a new hearing. In August 2021, the Board remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and 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). 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. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Mild incomplete paralysis warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. An 80 percent disability rating is warranted for complete paralysis, 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. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Descriptive words such as "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. 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. The January 2015, September 2017, and January 2018 examination reports noted moderate LLE constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. The Veteran stated in January 2016 that her radiculopathy causes her to miss work. The February 2017 VA Form 9 noted several medical procedures that the Veteran undergoes and that her symptoms impact her sleep. The Veteran testified that she has severe leg cramps and other severe symptoms that impact the entire leg, that her LLE radiculopathy is moderately severe, that her numbness is so severe at times that she cannot move her ankle right away, and that she has gone to the emergency room for her radicular pain. See August 2019 Board Hearing Tr. at 5-6, 8-10, 12. The August 2021 examination report noted severe LLE constant pain, paresthesias and/or dysesthesias, and numbness, but moderate overall incomplete paralysis of the sciatic nerve. Based on the evidence, the Board finds that the Veteran is entitled to a rating of 40 percent throughout the period on appeal for her LLE radiculopathy sciatic nerve symptoms. The Veteran suffers from moderately severe symptoms with severe functional limitations with physical activities. The Veteran's condition also causes her to miss work and prevents her from sleeping. Throughout the period on appeal, the Veteran has consistently sought medical intervention for her radicular symptoms, to include visits to the emergency room. A higher rating would require there to be severe incomplete paralysis with marked muscular atrophy or complete paralysis. However, the Veteran has not been found to have either condition. As such, a rating of 40 percent, but no higher, for LLE radiculopathy of the sciatic nerve is warranted for the entire period on appeal. TDIU The issue of entitlement to TDIU arose during the course of the appeal regarding the Veteran's LLE radiculopathy sciatic nerve. The issue arose out of a routine examination scheduled for the Veteran's service-connection back condition. See October 2014 examination report. As such, the AOJ granted the Veteran's increase rating of 20 percent effective October 31, 2014. A February 2018 rating decision granted TDIU from December 4, 2017. The Veteran has claimed entitlement to TDIU in-part due to her service-connected radiculopathy. See December 2017 VA Form 21-8940. Therefore, TDIU has only been granted for part of the period on appeal and the Board will address whether the Veteran is entitled to TDIU prior to December 4, 2017. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular 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, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated 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; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for service connection or increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). However, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if an application for increase in compensation is received within one year from such date. 38 C.F.R. § 3.400(o)(2). With respect to an earlier effective date, TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). As a claim for TDIU is a claim for an increased rating, the Board will generally review evidence from that date and during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). For the entire period on appeal, the Veteran's combined rating is at least 80 percent and her service-connected back condition is rated at 40 percent disabling. The Veteran has a high school education and works as a stocking clerk. See December 2017 VA Form 21-8940. The Veteran was making $1,200 a month until May 9, 2015, at which time she changed to a different part-time stocking job, which she presently works, making $900 a month. Id. The Veteran was working full-time as a stocker until May 9, 2015. The evidence does not suggest that the Veteran's employment prior to May 10, 2015 was in a protected environment or that she was given special accommodations due to her service-connected disabilities. Therefore, the Board finds the Veteran was gainfully employed until May 9, 2015. From May 10, 2015, the day after her previous employment as a stocking clerk, the Veteran changed to a part-time stocking clerk position. The Veteran was making only $900 a month and noted several weeks of missing work due to her service-connected disabilities. The Board finds that this employment from May 10, 2015 amounts to only marginal employment. A February 2015 letter by the Veteran's medical provider noted that she should be transferred to another position given limitations in her physical capabilities. The January 2015 examination report noted daily pain and that if the Veteran stocks items on the bottom shelves that she is unable to get back up and needs to be helped to her feet. The Veteran stated that her back condition and radiculopathy causes her to miss work. See January and April 2016 Veteran statements. The September 2017 examination report noted the Veteran's back condition prevents prolonged lifting, standing, sitting, and walking, and that the Veteran constantly uses a brace and occasionally uses a cane. The January 2018 examination reports noted back pain makes daily activities very difficult and that her bilateral knee condition and right ankle condition impedes her ability for prolonged ambulation or standing. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts she personally observed or described; this includes recalling what she personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran's various service-connected musculoskeletal conditions cause significant pain that prevents her from being on her feet, walking, standing, lifting, and working as a stocking clerk full-time. Given physical limitations and pain with the Veteran's service-connected back condition, various radiculopathies, bilateral knee condition, and right ankle condition, she would not be able to work in a position that required physical activities as lifting or prolonged standing. This would include any retail, customer service, or warehouse/factory position. A medical professional recommended that the Veteran be transferred to a different position due to her physical limitations. The Veteran does not have experience, training, or education in another field that would allow her to be off of her feet. This would include computer and administrative positions. As such, the Board finds the Veteran credible as to her functional limitations attributable to her various service-connected musculoskeletal disabilities in concert. Overall, the Veteran was gainfully employed prior to May 10, 2015. However, she stopped working or had marginal employment from May 10, 2015. This is the day after the Veteran stopped working full-time. The record demonstrates that the Veteran was unable to work due to her various service-connected musculoskeletal disabilities. As TDIU is part and parcel of the increased rating claim, the Veteran is entitled to an effective date of May 10, 2015, but no earlier, for entitlement to TDIU. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.