Citation Nr: 21072279 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-30 924 DATE: December 2, 2021 ORDER A disability rating of 20 percent for right leg radiculopathy is granted. A disability rating greater than 10 percent for left leg radiculopathy is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's right lower extremity sciatic nerve radiculopathy is manifested by moderate incomplete paralysis. 2. The Veteran's left lower extremity sciatic nerve radiculopathy is not manifested by moderate incomplete paralysis. 3. The Veteran's service-connected disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for right leg radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for a disability rating greater than 10 percent for left leg radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, DC 8520. 3. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Coast Guard from April 1974 to March 1977. The Veteran died in September 2018. His surviving spouse timely filed a request for substitution and is now the Appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2015 rating decision. In July 2019, the Board issued a decision dismissing the case due to lack of jurisdiction after the Veteran's death. The Appellant filed a request for substitution in October 2018. In July 2019, the Appellant's request for substitution was granted and the Board now has jurisdiction over the claim. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Lower Extremity Radiculopathy The Veteran was assigned a 10 percent rating for both right and left radiculopathy of the sciatic nerve under 38 C.F.R. § 4.124a, DC 8620, 8720. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DCs 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. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The terms "moderate" and "moderately severe" are not defined in the VA Schedule for Rating Disabilities, and the use of such terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of the level of paralysis present. All evidence must be evaluated in arriving at a decision regarding an increased rating. An April 2015 VA examination found mild incomplete paralysis of both the right and left lower extremities, consistent with the Veteran's 10 percent rating. The Veteran then underwent a second VA examination in May 2016 to address the Veteran's claim of worsening radiculopathy. The examiner found no radiculopathy of the left side, however, noted the Veteran to have moderate radiculopathy of the right side. Further, the examiner noted the Veteran's reflex exam and sensory exam was normal. Additionally, there were no noted trophic changes. Therefore, the Board finds that a disability rating of 20 percent for right lower extremity sciatic nerve radiculopathy and 10 percent for the left lower extremity sciatic nerve radiculopathy. The Board finds that higher 40 percent ratings are not warranted for either leg because moderately severe incomplete paralysis has not been shown. Neither the April 2015 or May 2016 VA examination note symptomatology that would show moderately severe incomplete paralysis; therefore, a higher rating is not warranted. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran was service-connected for several conditions including depression, herniated disc, degenerative joint disease, residuals from a total hip replacement, and the above referenced bilateral lower extremity radiculopathy. With the Veteran service connected for depression at 50 percent and a combined total rating of 90 percent, he meets the schedular criteria for a TDIU. The central inquiry in determining whether a TDIU is warranted 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). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19. The record shows the Veteran completed high school with vocational training as an electrician. The Veteran worked as an electrician since he was discharged from the military. The Veteran stopped working in 1998. The Board finds that a TDIU is warranted. A May 2016 private vocational assessment report submitted by the Veteran illustrated that the Veteran is unable to secure and follow substantially gainful employment, to include sedentary skilled or unskilled work. The private assessment further stated that this conclusion was based on noted pain, weakness, fatigability, and incoordination, which significant limited his functional ability with repetitive use. Additionally, the assessment noted that the Veteran's orthopedic conditions provide an objective basis for his complaints of pain. He has pain from his lower extremities, as well as his back. Further, it was noted that the Veteran is in a constant level of pain, which interferes with his concentration, attention, focus, and staying on task. This evidence, particularly the Veteran's chronic pain, weakness, and incoordination would preclude him from engaging in gainful employment consistent with his educational and occupational background. Therefore, a TDIU is warranted for the entire period on appeal. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.