Citation Nr: 21071424 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-07 599 DATE: November 30, 2021 ORDER Entitlement to an initial 20 percent rating, but not higher, for right lower extremity femoral radiculopathy is granted for the entire period on appeal from May 28, 2014, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a 20 percent rating from November 16, 2018 to December 16, 2019, but not higher, for left lower extremity femoral radiculopathy is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an initial rating higher than 20 percent rating from May 28, 2014 to November 16, 2018, and from December 16, 2019, for left lower extremity femoral radiculopathy is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) from May 28, 2014 is dismissed as moot. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's right lower extremity radiculopathy symptomatology more nearly approximates moderate incomplete paralysis of the femoral nerve, but not severe incomplete paralysis for the entire period on appeal. 2. For the period from November 16, 2018 to December 15, 2019, the evidence is at least evenly balanced as to whether the Veteran's left lower extremity radiculopathy symptomatology more nearly approximates moderate incomplete paralysis of the femoral nerve, but it has not more nearly approximated severe incomplete paralysis of the femoral nerve for the entire period on appeal. 3. The evidence reflects that the Veteran is in receipt of 100 percent rating based on his connected disabilities from May 28, 2014, and that a TDIU could not assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114 (s)(1). CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial 20 percent disability rating, but not higher, for right lower extremity femoral nerve radiculopathy have been met for the entire period on appeal from May 28, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8526. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for a 20 percent disability rating, but not higher, for left lower extremity femoral nerve radiculopathy have been met for the period from November 16, 2018 to December 15, 2019, but the criteria for a disability rating higher than 20 percent for left lower extremity femoral nerve radiculopathy have not been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8526. 3. The question of whether the Veteran is entitled to a TDIU is rendered moot by the grant of a 100 percent rating from May 28, 2014. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.340, 3.341, 4.14, 4.16, 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for, among one other thing, left and right lower extremity radiculopathy, evaluating each as 10 percent disabling. The Veteran filed his notice of disagreement with, among one other thing, the 10 percent ratings assigned for right and left lower extremity radiculopathy in May 2018, was issued a statement of the case in January 2019, and in February 2019 perfected his appeal to the Board. In a January 2019 rating decision, the RO granted a 20 percent rating for left lower extremity radiculopathy from September 30, 2017, and a 10 percent rating from November 16, 2018, creating a staged rating. In March 2019, the Board, inter alia, denied a rating higher than 20 percent for left lower extremity radiculopathy, and a rating higher than 10 percent for right lower extremity radiculopathy. In September 2019, the Board, among other things, remanded the Veteran's claims for higher ratings for right and left lower extremity radiculopathy for new VA examinations. In a November 2020 rating decision, the RO granted a 20 percent rating for left lower extremity radiculopathy, from December 16, 2019. In January 2021, the Board remanded the Veteran's claims for, inter alia, a higher rating for left and right lower extremity radiculopathy for additional VA examinations. In February 2021, the RO, among other things, continued its ratings for right and left lower extremity radiculopathy, notifying the Veteran in a supplemental statement of the case. In May 2021, the Board, inter alia, remanded the Veteran's claims for higher disability ratings for right and left lower extremity radiculopathy for a new VA examination. In June 2021, the RO continued its ratings for right and left lower extremity radiculopathy, notifying the Veteran in a supplemental statement of the case. In July 2021, the Board again remanded the Veteran's claims for new VA examinations, and in September 2021, the RO again continued its denials of the Veteran's claims for higher ratings, notifying the Veteran in a supplemental statement of the case. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). 1. Right and Left Lower Extremity Femoral Radiculopathy The Veteran's left lower extremity femoral radiculopathy is currently rated 20 percent disabling from May 28, 2014, 10 percent disabling from November 16, 2018, and 20 percent disabling from December 16, 2019, and his right lower extremity femoral radiculopathy is rated 10 percent disabling from May 28, 2014, both under DC 8526. Under DC 8526, mild incomplete paralysis of the anterior crural (femoral) nerve, as well as neuritis (8626) and neuralgia (8726) of that nerve, warrants a 10 percent rating. Moderate incomplete paralysis of the femoral nerve warrants a 20 percent rating. Severe incomplete paralysis of the femoral nerve warrants a 30 percent rating. With complete paralysis of the femoral nerve, which warrants a 40 percent rating, there is paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Rather than applying a mechanical formula, the Board must instead evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The term "incomplete paralysis," with peripheral nerve injuries, 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 the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, DC 8510-8730. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, note at "Diseases of the Peripheral Nerves." VA has generally considered that the mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuously assigned a lower medical grade reflecting less impairment and/or affecting a smaller area in the nerve distribution. The moderate level of evaluation would be reserved for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuously assigned a higher medical grade reflecting greater impairment and/or affecting a larger area in the nerve distribution. This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. In a December 2014 disability benefits questionnaire (DBQ) the Veteran reported sharp needle pain in his back down to his legs. The sensory examination reflects decreased sensation to light touch in the left upper anterior thigh, thigh/knee, and right lower leg/ankle. The DBQ indicated that the Veteran had radicular pain which included mild intermittent pain of the left lower extremity, and mild paresthesias and/or dysesthesias of the left and right lower extremities. The examiner reported involvement of the sciatic nerves, and described the severity as mild on the right side, and moderate on the left side. A September 2017 DBQ reflects decreased sensation to light touch in the left upper anterior thigh, left thigh/knee, and right lower leg/ankle. The examiner noted moderate right lower extremity intermittent pain, numbness, and paresthesias and/or dysesthesias, and severe left lower extremity intermittent pain, numbness, and paresthesias and/or dysesthesias. The examiner indicated that the Veteran's radiculopathy was moderate on both sides, with involvement of the sciatic nerve. The examiner reported mild incomplete paralysis of the right sciatic nerve, moderate incomplete paralysis of the left sciatic nerve, mild incomplete paralysis of both the right and left common peroneal nerve, mild incomplete paralysis of the right and left femoral nerve, and mild incomplete paralysis of the right and left external cutaneous nerve of the thigh. A November 2018 DBQ reflects mild intermittent pain, and paresthesias and/or dysesthesias in the right and left lower extremities. Light touch testing indicates normal sensation, but the Veteran had trophic changes attributable to peripheral neuropathy described as shiny skin with loss of hair up to the knee bilaterally. The examiner noted mild incomplete paralysis of the right and left femoral nerves. In a December 2019 DBQ, the examining nurse practitioner (NP) stated that the Veteran reported constant pain, numbness, and tingling in both legs that is exacerbated with prolonged standing and sitting. The Veteran reported pain that wakes him at night as well. The DBQ reflects moderate constant pain, paresthesias and/or dysesthesias, and numbness in the right and left lower extremities, as well as decreased sensation in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes in both the left and right side. The NP noted no trophic changes attributable to peripheral neuropathy, but noted an abnormal gait due to pain secondary to left lower extremity radiculopathy. The DBQ indicates that the Veteran has mild incomplete paralysis of the right sciatic nerve, common peroneal nerve, superficial peroneal nerve, deep peroneal nerve, tibial nerve, posterior tibial nerve, and femoral nerve, and moderate incomplete paralysis of the left sciatic nerve, common peroneal nerve, superficial peroneal nerve, deep peroneal nerve, tibial nerve, posterior tibial nerve, and femoral nerve. The Veteran reported that his right and left lower extremity radiculopathy prevents him from standing or sitting for prolonged periods of time. In a September 2020 addendum opinion, the NP opined that the Veteran is experiencing moderate incomplete paralysis nerve involvement of the femoral nerve of the left lower extremity as evidence by his altered gait and decreased strength and sensation, and mild incomplete paralysis of the femoral nerve in the right lower extremity, evidenced by decreased sensation but normal strength. In a February 2021 DBQ, the NP reported that the Veteran was experiencing right and left lower extremity radiculopathy evidenced by pain, tingling, and numbness, but indicated that there is no noted loss of strength, and some loss of sensation. The NP stated both the femoral and sciatic nerve appear to be involved. The NP noted decreased sensation in the right and left upper anterior thigh, thigh/ knee, lower leg/ ankle, and foot/ toes. She also reported mild constant pain, paresthesias and/or dysesthesias, and numbness in both the right and left lower extremities, with involvement of the femoral and sciatic nerves on both sides. The NP indicated that the severity of the Veteran's radiculopathy was mild on both sides. A June 2021 DBQ reflects that the Veteran suffered from mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the right and left lower extremities, with normal muscle strength, reflexes, and sensation. The examiner reported that the Veteran had no trophic changes attributable to peripheral neuropathy, and that his gait was normal. The DBQ indicated that the Veteran had mild incomplete paralysis of the right and left femoral nerves, and the NP reported that the Veteran had difficulty standing, walking, climbing up and down stairs, and driving or sitting for long periods of time. In a September 2021 DBQ, the physician reported that femoral and sciatic nerve involvement will have the same symptoms of pain, numbness, and paresthesias/dysesthesias, and that no other nerve involvement of the lower extremities is noted based on the DBQs. Based on the foregoing, the Board finds that a 20 percent rating for both the Veteran's right and left lower extremity radiculopathy is warranted for the entire period on appeal from May 28, 2014. While the December 2014 DBQ and November 2018 DBQ each indicate that the Veteran suffered from mild symptomatology on both sides, and September 2017 examiner noted mild incomplete paralysis of the femoral nerve on both sides, the December 2014 DBQ and September 2017 DBQ, and February 2021 DBQ reflect reduced light touch sensation, and the Veteran has competently and credibly described sharp needle pain down to his legs. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). Additionally, the September 2017 DBQ indicates that the examiner reported moderate symptomatology on the right lower extremity, and severe symptomatology on the left lower extremity, while the December 2019 NP reported moderate radiculopathy symptomatology in the right and left lower extremities. The Veteran has also reported significant functional limitations with standing, walking, climbing stairs, and sitting due to his right and left lower extremity radiculopathy symptomatology. While the November 2018 DBQ indicates that the Veteran's right and left lower extremity symptomatology was predominantly mild with the examiner reporting mild incomplete paralysis of the right and left femoral nerves, considering the evidence presented in DBQs prior to and subsequent to the November 2018 DBQ, it is reasonable to conclude that the Veteran's symptomatology was more severe than indicated by the November 2018 DBQ. There is no other indication in the evidence of record that the Veteran's right and left lower extremity radiculopathy symptomatology suddenly improved or worsened during the period on appeal. However, the previously discussed DBQs do not indicate, and there is no evidence within the claims file which suggests, that the Veteran's left or right lower extremity radiculopathy symptomatology more nearly approximates severe incomplete paralysis of the femoral nerve to warrant a disability rating higher than 20 percent. While the September 2017 examiner described severe left lower extremity intermittent pain, numbness, and paresthesias and/or dysesthesias, the examiner ultimately found the severity of the incomplete paralysis of the femoral nerve to be mild. Additionally, while the Veteran has described sharp pain and difficulty standing, walking, and climbing up and down stairs, the December 2014, November 2018, and June 2021 DBQs indicate that the Veteran suffers from primarily mild to moderate incomplete paralysis of the right and left femoral nerves. The additional DBQs also reflect numbness, paresthesias/ dysesthesias, and intermittent and constant pain described as mild to moderate. The examiners provided the Veteran with thorough examinations and based their opinions regarding the severity of the Veteran's right and left femoral nerve symptoms on an accurate characterization of the evidence of record, including consideration of the Veteran's reports of pain and functional limitations. Therefore, the opinions are afforded significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). While the examiners' description of the level of severity is not binding on the Board, 38 C.F.R. § 4.10 (assigning to medical examiners the "the responsibility of furnishing... full description of the effects of disability upon the person's ordinary activity"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present"), the moderate rather than severe characterization is consistent with the above evidence. The definitions for moderate include of average or medium quantity, quality, or extent. Webster's II New College Dictionary 694 (1995) at 704. Definitions of 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. 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 majority of the above symptoms were in the moderate range. The evidence of record is thus at least evenly balanced as to whether the Veteran's right and left lower extremity femoral radiculopathy symptomatology more nearly approximate moderate incomplete paralysis for the entire period on appeal from May 28, 2014, but the preponderance of the evidence is against a finding that the moderate incomplete paralysis was severe. Entitlement to an initial 20 percent rating, but not higher, is warranted for both the Veteran's right and left lower extremity radiculopathy for the entire period on appeal from May 28, 2014, is therefore warranted and the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). 2. TDIU The Veteran contends that he is unable to work due to his service connected disabilities, including his right and left lower extremity radiculopathy, thus entitlement to a TDIU has been raised as part and parcel of the rating issues on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. 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 following: 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. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. "A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment." Id. The ultimate question, however, is "whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Id. The Veteran's VA Form 8940 indicates that the Veteran has completed 4 years of high school, was most recently employed as a truck driver, became too disabled to work October 1, 2012, and that all of the Veteran's service connected disabilities prevent him from securing and following any substantially gainful occupation. In light of the decision herein, the Veteran is service connected for: depressive disorder, rated 70 percent disabling from May 28, 2014; obstructive sleep apnea, rated 50 percent disabling from May 28, 2014; thoracolumbar spine arthritis, rated 20 percent disabling from February 11, 2009, and 40 percent disabling from September 30, 2017; left lower extremity sciatic nerve radiculopathy, rated 20 percent disabling from May 28, 2014; left lower extremity femoral nerve radiculopathy, rated 20 percent disabling from May 28, 2014; right elbow arthritis, rated 10 percent disabling from February 11, 2009; right wrist traumatic arthritis, rated 10 percent disabling from February 11, 2009; tinnitus, rated 10 percent disabling from February 11, 2009; right lower extremity sciatic nerve radiculopathy, rated 10 percent disabling from May 28, 2014; right lower extremity femoral nerve radiculopathy, rated 20 percent disabling from May 28, 2014; bilateral hearing loss, rated 50 percent disabling from February 11, 2009, and 10 percent disabling from October 4, 2014; and right fifth finger flexion deformity, rated noncompensable from February 11, 2009. The Veteran thus has a 100 percent rating for the period from May 28, 2014 to include consideration of the bilateral factor of 4.8 percent for diagnostic codes 8520, and 8526 under 38 C.F.R. § 4.26. A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. Locklear v. Shinseki, 24 Vet. App. 311, 314, n. 2 (2011) (citing Herlehy v. Principi, 15 Vet. App. 33, 35 (2001)). However, the Court has held that a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for Special Monthly Compensation (SMC) benefits pursuant to 38 U.S.C. § 1114 (s). See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). In the instant case, the Veteran has a TDIU for the period from October 2, 2012 to May 28, 2014, and a 100 percent disability rating for his service connected disabilities for the period from May 28, 2014. The Board finds that a grant of a TDIU from May 28, 2014 cannot contribute to the Veteran's eligibility for SMC at the (s) level. That would require unemployability due to a single service connected disability and additional disability combining to 60 percent or greater. The above evidence does not reflect unemployability due to a single service connected disability at any time during the appeal period. The Veteran indicated in his VA Form 21-8940 that all of his service connected disabilities render him unable to secure and follow a substantially gainful occupation. The evidence reflects that the Veteran's back disability, radiculopathy, and right wrist and elbow arthritis prevent him from working, indicating that these disabilities render him unable to sit for prolonged periods of time, or perform sedentary work which would be a prerequisite for a position for which the Veteran would be qualified considering his education and experience as a truck driver. Moreover, the Veteran's hearing loss encumbered his ability to communicate with others. None of the evidence reflects that any of these disabilities, by itself, would render the Veteran unemployable. Thus, the grant of a TDIU subsequent to May 28, 2014 could not assist in obtaining SMC pursuant to 38 U.S.C. § 1114(s)(1). For the foregoing reasons, the issue of entitlement to a TDIU must be dismissed as moot. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.