Citation Nr: 21073370 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-02 566 DATE: December 8, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to September 13, 2019, and in excess of 20 percent thereafter for radiculopathy of the left lower extremity is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to September 13, 3019, the Veteran had no more than mild left lower extremity radiculopathy of the sciatic nerve. 2. For the period from September 13, 2019, the Veteran has had no more than moderate left lower extremity radiculopathy of the sciatic nerve. 3. The preponderance of the evidence does not show that the Veteran's service-connected disabilities have rendered him unable to obtain or maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for left lower extremity radiculopathy affecting the sciatic nerve prior to September 13, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124, 4.124a, Diagnostic Code 8520. 2. The criteria for a rating greater than 20 percent for left lower extremity radiculopathy affecting the sciatic nerve from September 13, 2019 to present, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124, 4.124a, Diagnostic Code 8520. 3. The criteria for a total disability rating due to individual unemployability (TDIU), are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to May 1986. In July 2018, a travel Board hearing was conducted before a Veterans' Law Judge (VLJ). A transcript of the hearing is associated with the claims file. When that VLJ retired from employment with the Board, a June 2021 letter was sent requesting clarification whether the Veteran wanted a new hearing. The letter informed the Veteran that he was entitled to another hearing with a different VLJ or, if he did not respond within thirty days, the Board would assume that he does not want another hearing and proceed accordingly. The Veteran did not respond to the letter and the Board has proceeded with this appeal. In January 2019, September 2020, and February 2021, the Board remanded the issues on appeal for further development. The case has been returned to the Board and the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the issues of entitlement to an earlier effective date and an increased rating for radiculopathy of the right lower extremity are currently on appeal in the AMA appeals system and will be addressed in a separate Board decision. 1. Entitlement to an initial rating in excess of 10 percent prior to September 13, 2019, and in excess of 20 percent thereafter for radiculopathy of the left lower extremity Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. For any rating claim, separate (staged) ratings may be assigned for separate periods, based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The Veteran has asserted that he should have higher ratings for his left lower extremity radiculopathy as the symptoms are worse than contemplated by the currently assigned ratings. The Veteran's radiculopathy is rated under 38 C.F.R. § 4.124a, DC 8520. Under the DC 8520 criteria, disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A maximum disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. 38 C.F.R. § 4.124a. 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 should be for the mild or at most, the moderate degree. See 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6; see Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). At a February 2012 VA examination for the back conditions, the Veteran reported pain radiating down his back through his left buttocks into his left lower leg. He reported mild intermittent pain in his left lower extremity, mild numbness in his left lower extremity, and mild paresthesias and/or dysesthesias in his left lower extremity. There were no other signs or symptoms of radiculopathy. No other neurologic abnormalities were noted. In a January 2019 Board decision and subsequent June 2019 rating decision, service connection was granted with a 10 percent evaluation for left lower extremity radiculopathy effective December 29, 2011, based on mild incomplete paralysis as shown in the February 2012 VA examination. The Board noted that remand was necessary to determine whether a higher evaluation was warranted. Pursuant to the remand, the Veteran's Social Security Administration (SSA) records were obtained. The Veteran listed "nerve damage in legs" under disabilities in his October 2017 claim for SSA benefits. On September 13, 2019, the Veteran was afforded a VA examination for peripheral nerve conditions. At that time, the Veteran reported moderate constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness in his left lower extremity. There were no other signs or symptoms of radiculopathy. The examiner found that the Veteran had incomplete paralysis of the sciatic nerve in the left lower extremity that was moderate in severity. No other neurologic abnormalities were noted. The September 2019 VA examiner noted that there was no electrodiagnostic evidence of peripheral neuropathy, plexopathy, or radiculopathy affecting the lower extremities, and the Veteran's EMG dated in January 2014 was normal bilaterally. Based on this examination, a March 2020 rating decision increased the Veteran's evaluation of left lower extremity sciatic radiculopathy to 20 percent effective September 13, 2019. Pursuant to a September 2020 Board remand, the Veteran was afforded a new VA examination in October 2020. The examiner indicated a diagnosis of left lower extremity sciatic radiculopathy that had resolved. The Veteran's sensory exam and straight leg raising tests were all normal. The examiner indicated no radicular pain or any other signs or symptoms due to radiculopathy or any other neurologic abnormalities. Specifically, she found that the sciatic nerve was normal and indicated no incomplete or complete paralysis. The examiner opined that there was no objective evidence of left lower extremity sciatic radiculopathy. She stated that based on review of the available medical records, medical literature and clinical experience, she found that the Veteran's subjective complaints during the examination appeared to be out of proportion to objective exam findings. She explained that the Veteran's current symptom complex during the examination was not congruent with his neurological exam supported by the imaging study reports to include a June 2013 MRI and January 2014 EMG noted to be normal. She also noted that upon examination, the Veteran had normal muscle strength and tone, no muscle atrophy, symmetric reflexes and a normal sensory exam. An addendum opinion was obtained in May 2021. The examiner again indicated a diagnosis of left lower extremity sciatic radiculopathy that had resolved. She also noted a diagnosis of bilateral symmetric glove and stocking distribution peripheral neuropathy. She stated that this diagnosis was separate and distinct from a diagnosis of sciatic radiculopathy and was not related to the Veteran's service-connected back disability, but is consistent with a history of diabetes mellitus, type II, which is not a service-connected disability. The Veteran reported moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the left lower extremity. The examiner specifically found that the left lower radicular group and sciatic nerve were normal with no incomplete or complete paralysis. The Board acknowledges the Veteran's lay statements of record including his July 2018 hearing testimony indicating that he currently suffers from lower left extremity radiculopathy of the sciatic nerve and that his symptoms warrant higher evaluations. The Veteran is competent to report observable symptoms and the Board does not doubt his credibility. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed, specialized determinations pertinent to the rating criteria are the most probative evidence regarding evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The Veteran's lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. Therefore, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent prior to September 13, 2019, and in excess of 20 percent thereafter for radiculopathy of the left lower extremity. In this regard, the Board finds that there is no evidence of record indicating that the Veteran's symptoms of left lower extremity radiculopathy were worse than "mild" in nature prior to the September 13, 2019 examination to warrant a greater evaluation during that period. During the September 13, 2019 examination and following VA examinations, the Veteran's symptoms were shown to be moderate in nature, at worst. At no point during the appeal period did the Veteran's symptoms reflect moderately severe or severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve to warrant a rating in excess of 20 percent. Thus, the Board finds the rating more closely approximates mild impairment prior to September 13, 2019 and moderate impairment thereafter. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent prior to September 13, 2019, and in excess of 20 percent thereafter for radiculopathy of the left lower extremity. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) Total disability ratings for compensation based on individual unemployability 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 as a result of a single service-connected disability ratable at 60 percent or more, or as a result 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 degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id.; see also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for a TDIU, the critical inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. 38 C.F.R. § 4.16; see also Pederson v. McDonald, 27 Vet. App. 276 (2015). Significantly, the impact of any nonservice-connected disabilities, or advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit to the Director, Compensation Service, for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R.§ 4.16(a). Id. The Veteran has been service connected for a chronic low back strain with a 10 percent evaluation from May 1986 and a 40 percent evaluation from May 1989; left lower extremity radiculopathy with a 10 percent evaluation from December 2011 and a 20 percent evaluation from September 2019; and right lower extremity with a 10 percent evaluation from September 2019. Therefore, his combined evaluations for compensation are as follows: 10 percent from May 1986; 40 percent from May 1989; 50 percent from December 2011; and 60 percent from September 2019. For the above 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; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war (POW). 38 C.F.R. § 4.16(a). The Board finds that the Veteran's chronic low back strain and left and right lower extremity radiculopathy are disabilities resulting from a common etiology and thus, the Veteran meets the schedular criteria of a single disability rated 60 percent as of September 13, 2019 under 38 C.F.R. § 4.16(a). Prior to that time, the Veteran does not meet the schedular criteria and the Board will consider whether referral for an extraschedular TDIU is warranted. The Board cannot award TDIU on this basis in the first instance. Turning to the record, during a December 2012 VA examination, the Veteran reported that his back and associated radiculopathy disabilities limit his ability to sit, sleep, and be as active as he would like. At the time of the examination, the Veteran was employed full-time as a sales manager. He stated that he has to travel to his new work location the day before to recover in order to do local travel involved in his sales visits. The examiner stated that the Veteran's back disability impacts his ability to work in that he has decreased mobility and limits his endurance at physical activities including long hours of sitting, driving, and standing. During a July 2018 Board hearing, the Veteran testified that he was prescribed gabapentin for his back pain prior to suffering a heart attack. He stated that due to being on gabapentin and other medications, his employer did not allow him to drive a company car. He further stated that he no longer used gabapentin for his back pain due to conflicting heart medications. He also clarified that he went on short-term disability and then long-term disability leave, and then was terminated from employment because long-term disability leave only lasted one year and he did not return after that time period. He stated that he was an outside salesperson and a large portion of his job duties included driving. His last day of full-time employment was in October 2016 and he has not had employment since. In his Application for Compensation Based on Unemployability, the Veteran reported that his last date of employment was in October 2016 and prior to retirement, he worked as an outside sales territory manager. He worked full-time in sales at the same corporation from February 1998 to October 2016. He reported completing a high school education. The Veteran's employer from 1998 through 2016 submitted a statement in December 2019 indicating that the Veteran went on long-term disability leave beginning November 2016 and did not return. December 2019 VA examination reports reflect that the Veteran's back disability may limit bending and lifting, and his peripheral nerve conditions cause difficulty with bending, lifting, stooping, squatting and walking long distance. The October 2020 VA examiner found that the Veteran's lumbar spine disability alone should not preclude light duty or sedentary employment, but strenuous physical employment is limited. In both her October 2020 and May 2021 opinions, the VA examiner found that there was no objective evidence of a peripheral nerve condition; and thus, no impact on the Veteran's ability to work. The Board also reviewed the Veteran's SSA disability application and associated documents and findings. While SSA determinations are not binding on the Board, they are relevant, and the records relied upon to make SSA determinations are probative evidence, specifically in consideration of the Veteran's claim for TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA). The Veteran initially filed a claim for SSA disability compensation in 2017 based on diabetes, hypertension, low back disability, nerve damage in legs, hypothyroidism, anxiety, depression, bipolar disorder, bone spurs, and limited mobility in shoulders. He asserted he had an inability to work as of October 2016 due to these disabilities. He reported that he had difficulty with lifting, walking, standing, sitting, squatting, and bending. The SSA found that the Veteran's medically determinable impairments included diabetes mellitus, ischemic heart disease, hypertension, depressive, bipolar, and anxiety disorders. The Board emphasizes that none of these disabilities are service connected. The SSA made a fully favorable determination in April 2017 that the Veteran was disabled as of October 21, 2016 due to the combination of impairments. For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the claimant's case outside the norm of such veteran. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A compensable rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. Id. The Board finds that the Veteran's nonservice-connected disabilities including diabetes, ischemic heart disease, hypertension, and mental health conditions contribute substantially to the Veteran's overall disability picture and ability to work as indicated in his ongoing VA and private treatment records as well as his SSA records and determinations. (Continued on the next page) The Board finds the evidence overall does not establish that he is unable to obtain or retain employment consistent with his education and occupational history based solely on his service-connected disabilities. While the Board acknowledges that the Veteran's service-connected back and lower extremity radiculopathy impairs his ability to perform physically demanding tasks or engage in prolonged sitting, the evidence does not show that such impairment would preclude him from obtaining or maintaining a position consistent with her extensive experience in sales. Indeed, the Veteran last worked as a sales manager. As none of his service-connected disabilities impact his mental ability or interpersonal skills, the evidence does not show that these disabilities preclude him from engaging in sedentary work that allows him to avoid sitting for prolonged periods of time. Indeed, neither the Veteran nor the evidence suggests that employment consistent with his sales and managerial experience requires physically demanding tasks. The Board takes notice to the fact that managerial and sales duties can be executed without requiring heavy lifting, bending, climbing, or prolonged sitting, standing, or walking. Additionally, such employment would be performed in an environment that permits the Veteran to adjust his position (moving from sitting to standing) as his service-connected back and lower extremity disabilities require. In sum, absent evidence indicating that the Veteran's service-connected disabilities functionally impair his ability to engage in critical thinking, organization, planning, and interpersonal communication, the Board cannot find that such are so severe as to preclude him from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. For these reasons, the Board finds that a TDIU is not warranted during any period of the appeal. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.