Citation Nr: 21074029 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-00 232 DATE: December 14, 2021 ORDER Entitlement to an increased rating of 60 percent, but no higher, for radiculopathy of the left lower extremity (sciatic nerve) is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating of 60 percent, but no higher, for radiculopathy of the right lower extremity (sciatic nerve) is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's radiculopathy of the bilateral lower extremities (sciatic nerve) is manifest by severe incomplete paralysis, but not complete paralysis. 2. The Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating 60 percent, but no higher, for radiculopathy of the left lower extremity (sciatic nerve), are met, effective July 21, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520, 8720. 2. The criteria for a disability rating 60 percent, but no higher, for radiculopathy of the right lower extremity (sciatic nerve), are met, effective July 21, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520, 8720. 3. The criteria for entitlement to a TDIU are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from July 1984 to May 1987. This matter comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in April 2013. The Veteran testified at a virtual Board hearing in February 2021. A transcript of the hearing is of record. The Board remanded this case for additional development in August 2021. The directives of the Board's remand having been substantially complied with the case is now returned for appellate review. 1. Entitlement to an increased rating higher than 20 percent for radiculopathy of the left lower extremity (sciatic nerve) 2. Entitlement to an increased rating higher than 10 percent for radiculopathy of the right lower extremity (sciatic nerve) The Veteran contends that he is entitled to higher ratings for radiculopathy of the bilateral lower extremities. 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). While the Veteran was assigned ratings of 20 and 10 percent, for the left and right lower extremities, respectively, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, based on the medical evidence of record, 60 percent ratings apply for severe incomplete paralysis of the sciatic nerves, effective for the entire appeal, i.e., since July 21, 2009. See December 2017 rating decision (granting an earlier effective date for the award of service connection for bilateral lower extremity radiculopathy of July 21, 2009, the date of the Veteran's reopened claim). An October 2009 private treatment record shows the Veteran had an irritated L5 nerve root causing numbness and tingling of the great toes and pain just below the beltline into his buttocks. The pain had been present for 20 years. A November 2009 private treatment record shows the Veteran had severe low back radicular pain to the big toe and numbness of the big toe and dragging of the foot. He walked with a cane and had severe radicular pain in the left leg down to the foot. The assessment was bilateral L5 sciatica secondary to L5 spondylosis and spondylolisthesis with gross instability. He had dense numbness of both big toes and completely absent reflexes at the ankles. He also had numbness of the left foot. A March 2010 VA examination report shows that the Veteran had bilateral sciatica with radicular symptoms and pain at an 8 out of 10. He occasionally had sharp shooting pain. He also had severe, constant, radiating pain to the bilateral glutes and posterior legs to feet and toes. On examination he had an antalgic gait and had active movement against some resistance in the hips, knees, ankles, and toes. The assessment was L5 radiculopathy, left greater than right. A December 2010 VA treatment record notes that the Veteran used a cane to walk but had no weakness on examination. He had normal sensation per examination but had subjective complaints of numbness. In June 2011, the Veteran had an operation for bilateral L5 spondylosis and instability of the bilateral L5 sciatica. It was noted that the Veteran had severe low back pain and bilateral radicular leg pain, left greater than right. It also was noted that the Veteran had severe radicular left leg pain to the foot and walked with a cane. He was now ready to have his spine corrected, which the examiner noted, should have been done probably 24 years ago. A November 2012 VA examination report shows severe radiculopathy on the left side and mild radiculopathy on the right side. He constantly used a brace and cane. An October 2014 VA examination report shows that the Veteran had severe radiculopathy of the bilateral lower extremities. A December 2017 VA treatment record shows the Veteran complained that he had increasing symptoms of neuropathy. In March 2018, a private treatment record notes evaluation of the peroneal and tibial nerves. A May 2019 VA treatment record also shows the Veteran stated that he had severe neuropathy with no feeling in the lower legs and feet. At the February 2021 Board hearing, the Veteran testified that he recently started experiencing foot drop in the left lower extremity. The Veteran underwent another VA examination in September 2021, which showed mild incomplete paralysis of the sciatic nerve with occasional use of walker, cane, and brace. Nonetheless, based on the findings on examinations from October 2009 to May 2019, as well as the Veteran's testimony at the Board hearing in February 2021, all doubt is resolved in the Veteran's favor that he has had impairment akin to severe incomplete paralysis of the bilateral lower extremities for the entire appeal, i.e., since July 21, 2009, primarily based on the findings of severe radiculopathy of the bilateral lower extremities and severe pain. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance and pain with some motor disturbance. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, or complete paralysis. The Veteran had severe radicular pain in the bilateral lower extremities and complaints of numbness. He also walked with a cane and brace for support with an antalgic gait. The Board thus finds that the level of impairment is most analogous to severe incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. A September 2021 rating decision granted service connection for radiculopathy of the bilateral femoral nerves and assigned separate 10 percent ratings, effective September 9, 2021, based on the findings on the September 20201 VA examination report. There are no probative findings showing impairment of the femoral nerve prior to September 2021. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. The October 2014 VA examination report shows that the Veteran stated that he had numbness throughout the bilateral hips that circled around to the groin causing him to lose the sensation of needing to urinate. A September 2009 private treatment record also notes that the Veteran had some difficulty with bladder and bowel control. It was noted that he had hiatal hernia and gastroesophageal reflux disease. None of the other evidence of record demonstrates bowel or bladder impairment associated with the radiculopathy of the bilateral lower extremities. See, e.g., March 2010 VA examination report; June 2011 private surgical record; November 2012 VA examination report; and September 2017 VA treatment record. The June 2011 surgical record noted erectile dysfunction, but this was not specifically related to the radiculopathy and none of the remaining medical evidence of record relates any erectile dysfunction to the radiculopathy. See, e.g., March 2010 VA examination report. Also, of note, the Veteran withdrew his claim for an increased rating for his lumbar spine disability. See August 2021 Board decision. Thus, other than the radiculopathy of the lower extremities about which he testified; he arguably is not pursuing any claim for any other associated neurological impairment with the lumbar spine disability. The Veteran testified that he had foot drop on the left side. A November 2009 treatment record also noted that his foot was dragging. As noted, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, a schedular maximum evaluation of 80 percent disabling is warranted for complete paralysis of the sciatic nerve. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Notwithstanding the Veteran's complaints and the finding of the foot dragging on examination in 2009, the evidence does not demonstrate that the Veteran has complete paralysis of the sciatic nerve. The evidence also does not demonstrate that he has loss of use of the foot. See 38 C.F.R. §§ 4.63, 4.71a, Diagnostic Code 5167. The October 2014 and September 2021 VA examination reports noted that the Veteran used a walker, cane, and brace and was unable to stand for a long period of time but did not indicate that he did not have any use of either of his feet. Although the Veteran reported on examination in September 2017 that he used a cane and walker for support when he ambulated to prevent falls, the clinician observed that the Veteran was freely ambulated and was able to get on and off the examination table without difficulty. These findings do not rise to the level of complete paralysis of the sciatic nerve or loss of use of the foot with no effective functioning. For the reasons stated above, the Board finds that the preponderance of the evidence demonstrates that separate 60 percent ratings, but no higher, are warranted for the Veteran's service-connected radiculopathy of the right and left lower extremities, effective July 21, 2009. To the extent that any further increase is denied, 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 total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran seeks a TDIU. He testified at the Board hearing that he last worked in March 2003 doing electrical work. See February 2021 Board hearing transcript, p. 15. He also noted that he had a high school diploma and a year and a half of college education. Id. at 17. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes 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, 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. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran meets the schedular criteria for a TDIU, effective July 21, 2009, due to the grant of 60 percent ratings for the bilateral radiculopathy of the lower extremities, noted above. Specifically, effective July 21, 2009, he has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran has a high school diploma and occupational history doing electrical work. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his service-connected lumbar spine with radiculopathy of the bilateral lower extremities. As noted above, the Veteran has severe radiculopathy of the bilateral lower extremities, which impacts his ability to sit or stand for any prolonged period of time. See, e.g., October 2014, September 2021 VA examination report. Although not binding on VA, it also is relevant that the Veteran was found unable to perform gainful employment by the U.S. Social Security Administration, effective May 2011, with a primary diagnosis of disorder of the back. In addition, a February 2021 vocational assessment found that the Veteran had been an electrician helper but could no longer perform the lifting requirements and postural requirements such as climbing, bending, stooping, standing, or walking due to pain and fatigue resulting from his service-connected disabilities. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his service-connected lumbar spine and radiculopathies of the lower extremities as it causes extreme fatigue and pain. The February 2021 vocational assessment noted that the Veteran had difficulty maintaining attention and concentration as well as nightly sleep due to his service-connected disabilities. The Veteran stated that he was unable to lay on his right side and required the use of pillows between his legs to relieve radicular pain. He noted that he slept five hours a night and was constantly fatigued throughout the day. Given the forgoing, the Veteran's service-connected lumbar spine disability and radiculopathy of the bilateral lower extremities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. He has limited education with a high school diploma and a year and a half of college, an occupational history of doing electrical work that involves manual labor, and due to his lumbar spine and radiculopathy of the bilateral lower extremities cannot perform prolonged standing or walking, or the lifting requirements and postural requirements such as climbing and bending. Accordingly, a TDIU is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.