Citation Nr: 21074002 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-23 794 DATE: December 13, 2021 ORDER Entitlement to service connection for an initial rating of 40 percent, but no higher, for left leg radiculopathy is granted. Entitlement to an initial compensable rating for scar status post spinal fusion is denied. Entitlement to a total disability based on individual unemployability (TDIU) from October 31, 2012 is granted. REMANDED Entitlement to a rating in excess of 40 percent for spondylolisthesis Grade I L5/S1 (back condition) is remanded. REFERRED The Board notes that in the May 2016 substantive appeal, the Veteran's representative expressed disagreement with the effective date of the service connection grant for radiculopathy of the right leg. Specifically, the representative alleged that the Veteran's effective date of April 8, 2016 is in error because medical records demonstrate right leg disability as early as October 29, 2012 and again on April 9, 2014. Therefore, the Board considers the issue as raised and the claim for an earlier effective date for the grant of service connection for radiculopathy of the right leg is referred to the RO for adjudication. FINDINGS OF FACT 1. The Veteran's left leg radiculopathy is manifest by no more than moderate severe incomplete paralysis. 2. The Veteran's scar status post spinal fusion is not manifest by any disabling effects not considered under Diagnostic Codes 7800-04. 3. The evidence of record demonstrates that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation from October 31, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an initial rating of 40 percent, but no higher, for left leg radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to an initial compensable rating for scar status post spinal fusion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. 3. The criteria for entitlement to a TDIU from October 31, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from May 1987 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2013 and September 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing in December 2020. A transcript of the proceeding has been associated with the claims file. The Veteran's claims were remanded by the Board in a February 2021 decision for further development, including VA examinations and VA treatment records. As for the claims of an increased rating for left leg radiculopathy, scar status post spinal fusion, and entitlement to a TDIU, the Board finds that the RO has substantially complied with the February 2021 Board remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). However, as for the claim of entitlement to an increased rating for spondylolisthesis, the Board finds that further development is needed to properly develop the claim. Id. During the pendency of the appeal, in a November 2021 rating decision, the RO granted the Veteran a TDIU effective April 8, 2016. However, as the RO's actions do not constitute a full grant of the benefit sought and the Veteran has not expressed satisfaction with the increased ratings, the issue remains on appeal. Ab v. Brown, 6 Vet. App. 35, 39 (1993). INCREASED RATING Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 1. Entitlement to service connection for an initial rating of 40 percent, but no higher, for left leg radiculopathy The Veteran contends that the severity of his left leg radiculopathy symptoms warrants a higher rating. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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 evidence relevant to the severity of the Veteran's left leg radiculopathy includes VA examinations, VA treatment records, and lay statements offered by the Veteran and his spouse. In January 2013, the Veteran was afforded a VA examination for his service-connected spondylolisthesis. During the examination the Veteran reported near constant discomfort with sharp, sciatic jolts up to several times per day. The examiner indicated that the Veteran's signs and symptoms of radiculopathy included intermittent pain of severe severity. The Veteran was afforded another examination for his service-connected spondylolisthesis and left leg radiculopathy in April 2016. During the back examination, the Veteran noted pain radiating down both his legs. The examiner noted that the Veteran's signs and symptoms of radiculopathy included constant pain and paresthesias and/or dysesthesias of moderate severity. Overall, the examiner opined that the Veteran's symptoms involved the sciatic nerve and were of mild severity. However, on the peripheral nerve conditions examination, the examiner opined that the Veteran's symptoms of incomplete paralysis of the sciatic nerve were of moderate severity. During the August 2021 VA examination for the Veteran's back condition, he experiences "pins and needles with electric shocks" down both legs. The examiner noted the Veteran's signs and symptoms of radiculopathy included constant pain, paresthesias and/or dysesthesias, and numbness of moderate severity. The symptoms were described as sharp pains shooting from the back into the thighs, sometimes extending to the feet. A peripheral nerve conditions examination was also completed in August 2021. The examiner diagnosed the Veteran with left leg radiculopathy. The Veteran reported that during flare ups of the back, his left leg goes numb, and he is unable to bear weight. The examiner determined the Veteran's radiculopathy symptoms included constant pain. Intermittent pain, paresthesias and/or dysesthesias, and numbness of moderate severity. The examiner noted the Veteran walked with a limp due to low back pain with radiculopathy effecting the left leg. The nerve affected is the sciatic nerve, which is manifested by incomplete paralysis that is moderately severe. The examiner concluded by noting that the Veteran's condition impacts his ability to work during flare-ups and he is not able to walk for distance or safely carry or lift objects. In a medical opinion accompanying the August 2021 VA examination, the examiner stated that the Veteran experiences numbness of the left leg frequently which causes weakness. The examiner further opined that the Veteran cannot stay in one position for any extended period of time, and when he first reported symptoms, they were not as debilitating as they are now. The Veteran's VA treatment records contain numerous complaints regarding left lower extremity pain. Since at least August 2013, the Veteran has complained of pain that radiates down his left leg and numbness in his feet. In March 2020, the Veteran stated that he is beginning to lose his balance due to his left leg pain. He is concerned about falling and requested a rollator to assist with walking. The Veteran continued to express concern with his balance in February 2021 and he noted that he uses his rollator to assist with walking, especially long distances. Throughout the appeal, both the Veteran and his spouse have asserted that his left leg pain is debilitating and warrants an increased evaluation. Specifically, during the December 2020 Board hearing, they testified that the Veteran loses strength in his legs and he will trip and fall. He uses a walker or wheelchair for tasks like grocery shopping as he cannot walk far at one time. Based on the above, the Board finds that the disability is primarily manifest by impairment of motor function and pain that is more nearly approximate to a moderately severe rating. Throughout the appeal, the Veteran has expressed pain and numbness in this left leg that has resulted in weakness and difficulty with mobility. The Veteran's contentions that his left leg radiculopathy is manifested by constant pain and weakness are supported by the findings of the January 2013 VA examiner who opined that the Veteran's intermittent pain was severe. Further, the August 2021 VA examiner opined that the Veteran's intermittent pain, paresthesias and/or dysesthesias, and numbness are moderately severe. The examiner also opined that the numbness the Veteran experiences causes weakness. Throughout the appeal, the severity, frequency, and duration of the Veteran's left leg radiculopathy is more analogous to moderately severe incomplete paralysis. However, the evidence does not suggest that the Veteran's left leg radiculopathy is "severe" as to warrant a rating in excess of 40 percent. Neither the VA examinations nor the VA treatment records indicate that the Veteran's left leg radiculopathy is manifested with marked muscle atrophy. Accordingly, the Board finds that entitlement to an initial 40 percent rating, but no higher, for left leg radiculopathy is warranted. 2. Entitlement to an initial compensable rating for scar status post spinal fusion In April 2016 and January 2021 correspondence from the Veteran's representative, the Veteran acknowledges that his service-connected scars do not qualify for an increased rating under the schedular criteria. However, as the Veteran has not explicitly withdrawn this issue, the Board will continue with adjudication of the issue. The Veteran's scar status post spina fusion is rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. The evidence relevant to the Veteran's scar includes a January 2013 VA examination that notes that Veteran's back scars, but indicates that the scars are not painful or unstable and do not cover a total area greater than 39 square centimeters. In April 2016, the Veteran was afforded a VA examination specifically for his scars. The examiner noted that the scars were neither painful nor unstable. Two linear scars were identified measuring 9 centimeters and 8.5 centimeters. A September 2021 VA examination also indicated that the scars were neither painful nor unstable. The two linear scars on the lumbar spine each measured 7 centimeters by 0.1 centimeters. The scars do not have underlying tissue damage and cover an approximate total area of 1.4 centimeters squared. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's back scars under Diagnostic Code 7805 as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. The scars are not painful or unstable and do not cover an area greater than 39 square centimeters. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's scars are not of the head, face, or neck, are not deep and nonlinear, and are not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's scars are not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for scar status post spinal fusion. 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. 3. Entitlement to a TDIU from October 31, 2012 The Veteran contends that he is unable to obtain or maintain employment due to his service-connected disabilities. A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 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. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, the United States Court of Appeals for Veterans Claims (Court), offered guidance in defining "unable to secure and follow a substantially gainful occupation." In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court found that 38 C.F.R. § 4.16 (b) has 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. From October 31, 2012, the Veteran has established service connection for spondylolisthesis rated as 40 percent disabling, left leg radiculopathy rated as 40 percent disabling, orchialgia rated as 10 percent disabling, and scar status post spinal fusion rated as noncompensable. The Veteran's combined rating for compensation purposes is 70 percent. 38 C.F.R. §§ 4.25. Therefore, the Veteran met the schedular rating criteria for TDIU beginning October 31, 2012. 38 C.F.R. § 4.16 (a). The remaining inquiry is whether he was unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. The evidence of record shows that the Veteran last worked in 2009 as a homecare professional according to his May 2016 Application for an Increased Compensation Based on Unemployability. During the December 2020 Board hearing, the Veteran testified that his duties as a homecare professional included light housework, laundry, cleaning dishes, preparing breakfast, and administering medication. He further testified that he is unable to complete those activities as even pushing a vacuum would pop his back out. Additionally, he testified that due to his back disability he is unable to do activities that include walking or sitting for a long duration. He and his spouse testified that he is unable to walk long distances or stand for a long period of time, and he uses a walker or wheelchair for mobility and to complete tasks like grocery shopping. He also testified that the medication he takes for his disabilities makes him groggy and he cannot concentrate. He stated that he is unable to drive after taking his medications. In January 2013, the VA examiner opined that the Veteran's back disability impacts his ability to perform occupational tasks as he is limited in walking, sitting, standing, or lifting. The April 2016 VA examiner opined that the Veteran may be able to work in a sedentary job with accommodations, but also acknowledged that the Veteran would likely miss a fair amount of work due to his back disability. The August 2021 VA examiner opined that the Veteran's left leg radiculopathy would impact his ability to work during flare-ups as he would be unable to walk for distance or safely carry or lift objects. As for the Veteran's spondylolisthesis, the examiner opined that the Veteran cannot stand, walk, or sit for any period of time, and his bending is extremely limited. A desk job with long periods of sitting or a job requiring standing, lifting, or bending would not be possible for the Veteran according to the examiner. Based on the foregoing, the Board finds that the preponderance of the evidence supports a finding that the Veteran's service-connected disabilities render him unemployable. Specifically, the evidence suggests that the Veteran is both physically and mentally unable to perform the occupational tasks required of a homecare professional. The Veteran's disabilities preclude him from engaging in tasks such as walking or standing without support of an assistive device. Furthermore, the Veteran is unable to sit for long periods due to his back disability. During the December 2020 Board hearing, the Veteran testified that he is unable to complete tasks of his previous employment including light housework and food preparation due to his back disability. Additionally, the Board finds that the Veteran is mentally unable to perform the tasks of his previous employment due to the medications he takes for his back disabilities. The Veteran testified that his medication makes him groggy, and he is unable to concentrate. As medication administration was a requirement of his employment, the Board finds that the Veteran would have a difficult time safely administering medications while taking the medications necessary to treat his back disability. Therefore, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Accordingly, a TDIU from October 31, 2012 is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS FOR REMAND Entitlement to a rating in excess of 40 percent for spondylolisthesis Grade I L5/S1 (back condition) is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that the severity symptoms of his spondylolisthesis warrant a rating higher than 40 percent. The Board notes that the VA has a duty to maximize benefits by examining all possible rating methods in search of the highest level of schedular compensation, to include secondary service connection. Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). Throughout the appeal, the evidence of record indicates that the Veteran may have bowel, bladder, and sleep problems related to his service-connected spondylolisthesis. Specifically, in March 2013, April 2014 VA treatment record, he complained of trouble sleeping because of back pain. During the April 2016 VA examination, the Veteran stated that he can only sleep for short periods of time due to his back condition. In a February 2021 VA treatment record, a diagnosis of insomnia is noted along with his back pain. The Veteran stated that melatonin helps with his sleeping. His VA treatment records include a January 2019 emergency department visit for a back flare-up where the Veteran complained of difficulty voiding at times and diarrhea. During the December 2020 Board hearing, the Veteran testified that he has bowel problems and has to go to the bathroom 7 or 8 times a day. He also testified that his back pain wakes him up at night. The Board cannot make a fully informed decision on whether the Veteran's service-connected spondylolisthesis is manifested by sleep, bowel, or bladder problems because no VA examiner has opined as whether the Veteran has a diagnosis of these conditions that are related to or proximately due to his back condition. Accordingly, a remand is necessary for a VA examination. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected spondylolisthesis Grade I L5/S1. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, including whether the Veteran has any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment or sleep impairment. If the examiner determines that the Veteran has diagnosed bowel, bladder, or sleep impairments, the examiner should opine as to whether the diagnosed impairments are (1) at least as likely as not proximately due to his service-connected spondylolisthesis; or (2) at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected disability spondylolisthesis. When rendering an opinion, the examiner is asked to consider the Veteran's December 2020 Board hearing testimony, March 2013, April 2014, January 2019, and February 2021 VA treatment records, and the April 2016 VA examination. Any opinion expressed should be accompanied by a complete rationale. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.