Citation Nr: 21074346 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-15 414 DATE: December 15, 2021 ORDER An effective date prior to November 27, 2015, for the grant of a 40 percent rating for left lower extremity (LLE) radiculopathy is dismissed. An effective date prior to November 27, 2015, for the grant of a 40 percent rating for right lower extremity (RLE) radiculopathy is dismissed. A 10 percent rating, but no more, for hypertension is granted, subject to the laws and regulations governing the payment of monetary benefits. A total disability rating based on individual unemployability (TDIU) is granted. REMANDED A rating in excess of 40 percent for LLE radiculopathy. A rating in excess of 40 percent for RLE extremity radiculopathy. A rating in excess of 40 percent for degenerative joint disease (DJD) of the lumbar spine. FINDINGS OF FACT 1. The Veteran served on active duty from January to December 1978. 2. At the May 2021 Board hearing, prior to the promulgation of a decision on the appeal, the Veteran indicated his intent to withdraw his claims for earlier effective dates for the grant of higher ratings for bilateral lower extremity radiculopathy. 3. Hypertension requires the use of continuous medication for control with reported systolic pressures over 160. 4. The Veteran's service-connected disabilities preclude him from securing and maintaining gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an effective date prior to November 27, 2015, for the grant of a 40 percent rating for LLE radiculopathy have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021). 2. The criteria for withdrawal of an effective date prior to November 27, 2015, for the grant of a 40 percent rating for RLE radiculopathy have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021). 3. The criteria for a 10 percent rating, but no more, for hypertension have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (2021). 4. The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in May 2021. A copy of the transcript has been associated with the record. Effective Date Claims At the May 2021 hearing, the Veteran testified that he sought to withdraw the claims for an earlier effective date for the grant of a 40 percent rating for bilateral lower extremity radiculopathy. He was informed that his appeals were being discontinued and no further action would be taken. No further correspondence was received from the Veteran asserting that he did not understand the consequences of the withdrawal. Based on the above, he expressed his intent to withdraw the claims in May 2021 and was adequately informed by VA in understandable terms the consequences of the withdrawal. As such, the claims are withdrawn. Increased Rating for Hypertension Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran is currently rated at a non-compensable rating for hypertension and contends that he is entitled to a higher rating. A 10 percent rating is warranted for hypertensive vascular disease when the evidence shows: diastolic pressure predominantly 100 or more; or, systolic pressure predominantly 160 or more; or, a history of diastolic pressure predominantly 100 or more and there is a requirement for continuous medication for control. At a February 2016 VA examination, three blood pressure readings were reviewed, with the diastolic pressures of 98, 102, and 94. His systolic pressure readings were 140, 142 and 136. The average blood pressure reading was 139/98. The examiner noted that the Veteran had a history of requiring continuous medication. At a June 2016 VA examination, three blood pressure readings were reviewed, with the diastolic pressures of 75, 72, and 69. His systolic pressure readings were 115, 107 and 108. The average blood pressure reading was 110/72. The examiner again noted that the Veteran had a history of requiring continuous medication, but noted that no opinion could be given on consistent elevation. At a March 2019 VA examination, three blood pressure readings were reviewed, with the diastolic pressures of 90, 92, and 86. The systolic pressure readings were 140, 140 and 136. The average blood pressure reading was 138/89. The examiner noted that the Veteran had a history of requiring continuous medication. At the May 2021 Board hearing, the Veteran testified that he had recently been to the hospital for treatment and repeatedly showed systolic readings above 160. While those treatment records have not been associated with the record, he is competent to report these findings. Additionally, he has been on medication consistently for elevated blood pressure readings. VA treatment records reflect highly fluctuating blood pressure readings, and the Veteran has competently asserted that his blood pressure readings have been over 160. In light of the above, a 10 percent rating, but no more, is warranted for hypertension based on reported reading over 160 and the continuous use of medication. In order to warrant a rating in excess of 10 percent, the evidence must show a diastolic blood pressure predominantly 110 or more, or a systolic blood pressure predominantly 200 or more. After a review of the VA examinations, medical treatment records, none of the blood pressure readings show the criteria needed for a 20 percent rating. Thus, a rating in excess of 10 percent is not warranted. Entitlement to a TDIU 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 as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service connected for DJD of the spine at 40 percent, LLE radiculopathy at 40 percent, RLE radiculopathy at 40 percent, and hypertension now at 10 percent. While his combined rating is yet to be evaluated, it was previously 80 percent, and thus, he has met the schedular criteria for a TDIU for the entire time on appeal. Turning to the evidence, the Veteran reported that he was last employed in December 2009 as a security officer and that he worked as a plumber for many years. He stated that due to his lumbar spine and bilateral lower extremity radiculopathy, he was unable to complete the physical demands of either job. Additionally, he reported not completing high school or any vocational training. At the February 2016 VA examination, the examiner noted that due to the lumbar spine disability and radiculopathy, the Veteran experienced interference with standing, sitting, walking, and lifting. June 2016 and March 2019 VA examiners echoed these findings and noted that the Veteran's lumbar spine and radiculopathy disabilities would impair physical activities with prolonged standing, load bearing, bending, or lifting. An August 2021 private vocational assessment submitted by the Veteran revealed that his service connected disabilities would preclude him from working. Specifically, the private vocational specialist opined that the Veteran would be unable to work due to periods of pain with any prolonged walking, bending, lifting, standing, or sitting. The examiner reasoned that after reviewing the Veteran's VA treatment records, including his VA examinations, it was clear that he would be unable to engage in any physical work, and that he had no training for sedentary work. Additionally, the clinician noted that the Veteran would have trouble maintaining attention and concentration due to physical pain. Also, chronic sleep impairment would cause daytime fatigue due to extreme pain. The examiner specifically noted that even sedentary work would be precluded due to the Veteran's inability to sit for long periods of time. Specifically, he would be precluded from maintaining a seated position for longer than 10-15 minutes before needing to switch positions, with flareups causing him to miss work frequently. Additionally, the examiner noted that the Veteran only completed trade school for plumbing, but that this limited him to physical work which he would be unable to engage in. In sum, the August 2021 vocational expert concluded that the Veteran's extreme pain and physical limitations, would render him unable to meet the requirements of gainful employment. This opinion thoroughly addressed the Veteran's symptoms and their impact in the workplace. Accordingly, the weight of the medical evidence supports a finding that the Veteran's service-connected disabilities render him unable to maintain substantially gainful employment due to lumbar spine and bilateral lower extremity radiculopathy. As such, entitlement to a TDIU is warranted and the appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND With regard to the claims for higher ratings for bilateral lower extremity radiculopathy and a lumbar spine disability, further development is needed. Specifically, in an August 2021 assessment, a privately treating provider opined that the Veteran's lower extremity radiculopathy and lumbar spine disabilities had significantly worsened since his last evaluation in March 2019. Thus, updated examinations must be obtained. Additionally, the Veteran testified at the May 2021 Board hearing that he had sought emergency treatment at a VA Medical Center (VAMC); however, those records have not been associated with the record. Thus, remand is necessary to obtain these potentially relevant records. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding, pertinent, VA and private treatment records, to include all emergency treatment, and associate them with the claims file. 2. Schedule the Veteran for a VA examination to assess the current status of his bilateral lower extremity radiculopathy and lumbar spine disabilities in accordance with rating criteria. The entire claims file should be made available to, and reviewed by, the examiner. Any indicated studies should be performed. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.