Citation Nr: 21076751 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-53 598A DATE: December 27, 2021 ORDER Entitlement to a disability rating greater than 40 percent for post-operative neurological deficit status-post removal extradural upper lumbar tumor is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The record evidence shows that the Veteran's post-operative neurological deficit status-post removal extradural upper lumbar tumor is manifested by no more than moderate severe incomplete paralysis. CONCLUSION OF LAW The criteria for a disability rating greater than 40 percent for post-operative neurological deficit status-post removal extradural upper lumbar tumor are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to November 1974 and from August 1976 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The AOJ was asked to obtain VA and private treatment records and request the Veteran to submit a VA Form 21-8940 and/or any information regarding his education and work history since discharge from service. The AOJ substantially complied with these instructions. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Entitlement to a disability rating greater than 40 percent for post-operative neurological deficit status-post removal extradural upper lumbar tumor The Veteran seeks an increased rating for his post-operative neurological deficit status-post removal extradural upper lumbar tumor (neurological disability). He currently is rated at 40 percent for his service-connected neurological disability evaluated under 38 C.F.R. § 4.124a, DC 8520. Turning to the evidence of record, the Veteran underwent a June 2014 VA peripheral nerves condition examination. The examination report noted review of the claims file and medical records, recounted the Veteran's complaints and history, and included an in-person examination. There was a diagnosis of chronic bilateral sciatic sensorimotor neuropathy, status post remote laminectomy with an onset of 1974; as well as diabetic neuropathy with dysesthesias, bilateral lower extremities with an onset of 2014. The report indicated bilateral hip flexion weakness; mild parasthesia and/or dysesthesias and moderate numbness in the left lower extremity; and mild numbness in the right lower extremity. There was no muscle atrophy or trophic changes. During the sensory exam, there was decreased sensation for light touch for the bilateral upper anterior thigh, thigh/knee, and foot/toes. Etiology of abnormal gait was due to the Veteran's diabetes mellitus type II neuropathy. There was mild incomplete paralysis of the right and left internal popliteal (tibial) nerve. A scar was noted, but it was not painful and/or unstable. Straight leg testing and Romberg testing results were negative. The Veteran reported his ability to work was impacted due to his medical condition, to include an accomodation in duties from firefighter to inspector while working in the fire department. The examiner noted that the Veteran retired in 2009 from the fire department and has been unemployed since then. Additionally, the examiner remarked that symptoms of bilateral thigh numbness, left lateral foot numbness/tingling, and bilateral leg weakness correlated with sciatic nerve distribution into bilateral lower extremities. These symptoms existed several years prior to his diagnosis of diabetes mellitus. Whereas diabetic neuropathy of internal popliteal (tibial) nerve, with bilateral feet dysesthesias and incoordination of flexion/extension of toes in both feet are "not specific for or exclusive to sciatic nerve distribution." Private treatment records from October 2014 include a neurophysiology report from Dr. W.T. The Veteran reported normal strength in both legs and no atrophy. Findings revealed an abnormal study. Dr. W.T. stated, "The chronic neuropathic changes in L4 to S1 muscles are most prominent on the left leg and S1 muscles. No Myopathic units were noted. An underlying axonal polyneuropathy cannot be excluded. Clinical correlation is recommended." Private treatment records from November 2014 include progress notes from Dr. W.T. It was indicated that neuropathy is most likely related to the Veteran's diabetes. The Veteran underwent a September 2020 VA back conditions examination. The examination report noted review of the VA e-folder and medical records, recounted the Veteran's complaints and history, and included an in-person examination. There was a diagnosis of postoperative residuals, extradural upper lumbar tumor with residual neurological deficit. Flare-ups of the thoracolumbar spine were not reported. Functional loss was reported, to include an inability to run, jump, or climb stairs. Range of motion was normal and there was no evidence of pain with weight bearing. Muscle strength was normal. No muscular atrophy. Bilateral knees and bilateral ankles were hypoactive during the deep tendon reflexes. Sensory exam results were normal. The Veteran reported radiculopathy, to include moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left lower extremity. The report indicated that the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) of the left side were involved with a mild severity of radiculopathy on the left side. No ankylosis was reported. The Veteran reported regular use of a walker for stability and weakness in the legs. The examiner noted, however, that the leg weakness is not related to the tumor excision in the spinal area. Further, the examiner explained: A spinal nerve deficit would be a focal weakness, typically asymmetrical. The etiology of such diffuse weakness can have a variety of etiologies such as diabetes, disuse, deconditioning, labyrinthitis, cerebellar disorder and a variety of other sources. After a thorough evidence review and a detailed physical examination on [September 2020], it was determined that the only demonstrable current chronic neurological deficit related to spinal disease was sensory in nature. These deficits were manifest as subjectively described left side [lower extremity] moderate pain, mild paresthesias and mild numbness, which constitute a mild left radiculopathy. The objective sensory examination was non-contributory and provided no objective confirmation of the reported symptoms, pain, weakness, paresthesias and numbness. No other confirmed neurological deficits were identified on [September 2020]. A well healed surgical scar located on the midline vertical lumbar was noted. Functional impact was not reported. The examiner noted that, although the Veteran had reported constipation in February 2020, during the September 2020 examination he stated that dietary adjustments have eliminated prior constipation. As such, the examiner found the prior constipation was likely erroneously attributed to neurogenic anal sphincter and found it has resolved. The examiner stated, "In fact, the typical symptom in a neurogenic condition of the anal sphincter would be laxity and incontinence, not spastic sphincter and constipation." The examiner remarked that there is no evidence that progression has taken place since the original surgical procedure because there were no other neurological abnormalities found, no objective signs of numbness, diminished sensory innervation, or neurological symmetry or neurogenic bladder/anus. Regarding the Veteran's ability to function in an occupational environment, the examiner remarked that he would be physically limited due to his back condition, "primarily his limitations due to pain, such that heavy lifting, heavy carrying, repetitive bending, and climbing would be unsustainable, making him limited to light or sedentary work." After careful consideration of the record evidence in the claims file, the Board finds that the evidence does not support assigning a disability rating greater than 40 percent for post-operative neurological deficit status-post removal extradural upper lumbar tumor. The Board notes initially that, to meet the requirements of a 60 percent rating under DC 8520, it must be shown that his neurological disability is severe with marked muscular atrophy. See 38 C.F.R. § 4.124a, DC 8520. Here, the Veteran received VA examinations in June 2014 and September 2020 for his neurological disability and his symptoms were rated as moderately severe. The moderately severe rating is because there is no evidence of manifestations beyond that which is wholly sensory. In this regard, there is no muscular atrophy or other signs or symptoms that demonstrate the next higher tier of severe symptoms. Specifically, the September 2020 VA examiner determined that the "only demonstrable current chronic neurological deficit related to spinal disease was sensory in nature." In other words, this examiner suggests that these deficits were manifested as moderate and mild. The Board finds that the September 2020 VA examiner's conclusions are consistent with the other evidence of record. Indeed, during the appeal period, VA and private treatment records do not provide any evidence to contradict the VA medical conclusions reached in September 2020. The evidence of record does not show manifestations of neurological disability that are severe with marked muscular atrophy. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 40 percent for his Veteran's service-connected neurological disability. In summary, the Board finds that the criteria for a disability rating greater than 40 percent for post-operative neurological deficit status-post removal extradural upper lumbar tumor have not been met. REASONS FOR REMAND Entitlement to a TDIU is remanded The Veteran asserts that his service-connected disabilities render him incapable of securing or following substantially gainful employment. Here, service connection is in effect for postoperative residuals, extradural upper lumbar tumor with residual neurological deficit (rated as 40 percent disabling from March 18, 1991), and residual scar associated with postoperative residuals, extradural upper lumbar tumor with residual neurological deficit (rated as 10 percent disabling from May 18, 2016). In other words, he does not meet schedular criteria for a TDIU for the period on appeal. See 38 C.F.R. § 4.16(a). The Board notes that a TDIU can be awarded on an extraschedular basis if it is established by the evidence of record that the service-connected disabilities rendered a Veteran unable to secure and follow substantially gainful employment. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). The Board also notes that it is prohibited from adjudicating a TDIU claim on an extraschedular basis in the first instance and must refer such claims to the Director, Compensation Service, for a decision. Turning to the evidence of record, VA treatment records include a June 2018 neurosurgery consult. Regarding employment, the chief of neurosurgery concluded that significant limitations for things like standing, walking, and climbing would prevent the Veteran from taking on any significant physical work responsibility. In his January 2020 VA Form 21-8940, the Veteran reported he was last employed at a fire department on a full-time basis from October 1980 to April 2009. He reported that accommodations were made for his duties because of his disabilities. He left his employment because of his disabilities. He had one year of college education. As previously mentioned, in the September 2020 VA examination, the examiner remarked that, when it came to employment, the Veteran would be physically limited due to his back condition, "primarily his limitations due to pain, such that heavy lifting, heavy carrying, repetitive bending, and climbing would be unsustainable, making him limited to light or sedentary work." The Board finds that there is sufficient evidence to suggest that the Veteran may be unemployable due to his service-connected disabilities such that referral to the Director, Compensation Service, for consideration of extraschedular entitlement to a TDIU is warranted. See Ray, 31 Vet. App. 58. The matters are REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU on an extraschedular basis to the Director, Compensation Service, for a decision. A copy of any referral sent to the Director, and the Director's decision, should be included in the claims file. 2. Thereafter, readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.