Citation Nr: 21071079 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-56 180 DATE: November 29, 2021 ORDER A rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. A rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right lower extremity radiculopathy has been shown to be manifested by no more than mild, incomplete paralysis of the sciatic nerve. 2. The Veteran's left lower extremity radiculopathy has been shown to be manifested by no more than mild, incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy are not met. 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520. 2. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy are not met. 38 U.S.C.§ 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to January 1981. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in March 2021, at which time the Board remanded the matter for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity. 2. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity. The Veteran seeks higher ratings for his bilateral lower extremity radiculopathy, which are rated under Diagnostic Code 8520. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520 (neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. After a review of the record, the Board finds that the weight of the evidence is against a finding that the Veteran's radiculopathy of the left and right lower extremities warrants an increased rating in excess of the currently assigned An April 2015 VA examination for the Veteran's service-connected lower back condition noted bilateral lower extremity radiculopathy. The Veteran had normal (5/5) muscle strength for his right and left sides. He did not have muscle atrophy. He had normal reflexes (2+) for his left and right knees and bilateral ankles. The Veteran had normal sensation in the sensory exam. He had negative straight leg rating tests for both right and left legs. The Veteran had mild intermittent pain, paresthesias and/or dysesthesias, and numbness for both his left and right sides. The sciatic nerves were involved, and the examiner reported mild right and left side radiculopathy. 08/03/2018, C&P Exam. During the December 2020 Board hearing, the Veteran testified that that his radiculopathy had worsened to a moderate-severe level. The Veteran also described tingling and numbness in the legs when standing or walking. He also testified that he is unable to stand for more than five minutes, and that he cannot walk further than a city block. 12/15/2020, Hearing Transcript. A May 2020 Board decision remanded the claim and directed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for an additional VA examination is warranted to assess the current severity of the Veteran's radiculopathy of the right and left lower extremities. 03/22/2021, C&P Exam. A May 2021 VA examination noted diagnoses of bilateral lower extremity radiculopathy. The examiner confirmed radicular symptoms in the sciatic nerve of mild intermittent pain and mild numbness bilaterally. Muscle strength was found to be normal, and the Veteran did not have muscle atrophy. Deep tendon reflexes were normal in both knees, normal in the left ankle and hyperactive in the right ankle. There was normal sensation in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The Veteran had an antalgic gait using a single point for ambulation. Additionally, the Veteran was found to have mild incomplete paralysis bilaterally. 05/28/2021, C&P Exam. After review of the competent and probative evidence, the Board finds that the evidence of record does not support granting a rating higher than 10 percent for left and right lower extremity radiculopathy. To the extent that words such as "moderate," and "severe" are not defined in the Rating Schedule, VA must evaluate all evidence, to the end that decisions will be equitable and just rather than applying a mechanical formula. 38 C.F.R. § 4.6. The regulation does not define these terms so the Board will turn to a dictionary. In this regard, moderate is generally defined as "tending toward the mean or average amount." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 798 (11th ed. 2003). Severe is generally defined as "of a great degree" or "serious." Id. at 1140. Additionally, a close review of the VA treatment records in the claims file does not show other evidence that would tend to warrant a higher rating or demonstrate that the Veteran's condition could be considered moderate. In this regard, the relevant competent and probative evidence does not tend to show symptomatology of the Veteran's bilateral lower extremity radiculopathy that tend toward the mean or average amount. The Board acknowledges that the Veteran reported pain radiating from the low back into his legs during this period on appeal. Such in contemplated and compensated by the current 10 percent rating for each lower extremity. In reviewing the relevant competent evidence, neurological findings in VA examinations tend to show, at worst, mild severity. The April 2015 VA examination noted normal reflex examination, normal muscle strength, and negative straight leg raise tests. The May 2021 VA examination found the Veteran to have mild incomplete paralysis overall with mild intermittent pain and numbness, bilaterally. Additional findings tending to support a finding of no more than mild incomplete paralysis include normal reflex examination and muscle strength. The Veteran did not have trophic changes or atrophy. The Board finds the VA examination reports of record to be probative of this matter and carry weight as the Veteran's relevant medical history was considered, an in-person examination were performed, and the examiner assessed the Veteran's radicular symptoms, to include via relevant neurological tests. In sum, the Board concludes that the competent and probative findings more nearly approximate the criteria for an evaluation of 10 percent under Diagnostic Code 8520, and that the preponderance of the evidence is against an increased rating. 38 C.F.R. § 4.3. Thus, a rating in excess of 10 percent left and right lower extremity radiculopathy is not warranted. REASONS FOR REMAND 3. Entitlement to TDIU is remanded. TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Generally, to be eligible for a TDIU claim, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to show 100 percent unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, effective July 13, 2010, the Veteran's service-connected disabilities included: residuals, low back injury with degenerative disc disease, evaluated at 40 percent disabling; radiculopathy of the right lower extremity, evaluated at 10 percent disabling; radiculopathy of the left lower extremity, evaluated at 10 percent disabling; tinnitus, evaluated at 10 percent disabling; and left ear hearing loss, evaluated at 0 percent disabling. The combined evaluation for compensation is currently 60 percent disabling. Therefore, the schedular requirements for TDIU per § 4.16(a) have not been met, even with consideration of the possible combination of disabilities, such as those from a common etiology or single incident. Although the Veteran does not meet the schedular criteria for consideration of TDIU, TDIU may still be assigned to a veteran who fails to meet the percentage standards if he or she is unemployable by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(b). Specifically, the regulations provide that, in exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In such a case, the Under Secretary for Benefits or the Director, Compensation Service is authorized to approve an award on an extraschedular basis. The Board is not authorized to award extraschedular benefits in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-36 (2015). An April 2015 VA examination noted that the Veteran's service-connected lower back disability precludes him for standing for more than 30 minutes and he is unable to lift more than 50 pounds. 04/07/2015, C&P Exam. A January 2016 VA examination indicated that the Veteran's service-connected lower back disability precludes him from hard and medium manual labor. 01/21/2016, C&P Exam. Furthermore, a May 2021 VA examination noted that the Veteran's service-connected bilateral lower extremity radiculopathy precludes him from standing or walking for prolonged periods of time. 05/28/2021, C&P Exam. Additionally, the Social Security Administration (SSA) records reveal a determination of disability due, in part, to his lower back disability. The Board finds that sufficient evidence to substantiate a reasonable possible that a veteran is unemployable because of service-connected disabilities to warrant a referral to the Director. Snider v. McDonough, No. 19-6707, 2021 U.S. App. Vet. Claims LEXIS 2050, at *23-24 (Vet. App. Nov. 19, 2021). In doing so, the Board notes that it makes no finding regarding the Veteran's employability for this period. This matter is REMANDED for the following action: Refer the matter of TDIU to VA's Director of Compensation Service for extraschedular consideration per 38 C.F.R. § 4.16(b). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.