Citation Nr: A21020144 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 190923-33667 DATE: December 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from October 23, 2018 is granted. Entitlement to a disability rating in excess of 20 percent thereafter for right lower radiculopathy, sciatic nerve involvement is denied. Entitlement to a disability rating in excess of 20 percent thereafter for left lower radiculopathy, sciatic nerve involvement is denied. FINDINGS OF FACT 1. From October 23, 2018, the Veteran's service-connected disabilities rendered him unable to secure and follow substantially gainful employment. 2. The Veteran's right lower extremity radiculopathy, sciatic nerve involvement was manifest by no more than moderate incomplete paralysis. 3. The Veteran's left lower extremity radiculopathy, sciatic nerve involvement was manifest by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. From October 23, 2018, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for a disability rating in excess of 20 percent for right lower radiculopathy, sciatic nerve involvement are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating in excess of 20 percent for left lower radiculopathy, sciatic nerve involvement are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in April 2019 by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a claim for a TDIU on October 23, 2018. The RO issued an April 2019 rating decision which awarded service connection for bilateral lower extremity sciatica, rated as 20 percent disabling for each extremity, continued a 40 percent rating for a lumbosacral spine disability and denied the TDIU. The Veteran filed a May 2019 supplemental claim, listing both the ratings for the bilateral sciatica and the TDIU issues. The RO did not consider whether new and relevant evidence had been presented with that supplemental claim. 38 C.F.R. § 3.2500. The RO issued a decision on the merits referencing medical records which had been submitted. The Board finds that the RO found implicitly that new and relevant evidence had been presented. Such a favorable finding is binding on the Board. The Veteran elected the Board's hearing docket. See September 2019 VA Form 10182. This restricts the Board's review to the evidence of record at the time of the DATE rating decision and evidence submitted with, or within 90 days of filing of, the Veteran's hearing before a Veterans Law Judge (VLJ). 38 C.F.R. § 20.302. The Veteran appeared at a hearing before a VLJ on July 2, 2021. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from October 23, 2018 The Veteran contends that he is unable to work due to his service-connected disabilities. Specifically, he has contended that lumbar spine, bilateral radiculopathy, and urinary incontinence disabilities have prevented him from working. See July 2021 Hearing Transcript. Upon review of the evidence, the Board finds that the Veteran's service-connected disabilities have rendered him unable to secure and follow substantially gainful employment. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the disability ratings assigned for his or her service-connected disabilities met certain thresholds. 38 C.F.R. § 4.16(a). The Veteran was in receipt of service connection lumbar spine disability, evaluated as 40 percent disabling effective April 1, 2006; urinary incontinence, 60 percent disabling effective July 13, 2010; right lower extremity radiculopathy, evaluated as 20 percent disabling effective October 23, 2018; left lower extremity radiculopathy, evaluated as 20 percent disabling effective October 23, 2018; lumbar post-operative scar, evaluated as 10 percent disabling; left thumb scar, evaluated as noncompensable; and allergic rhinitis, evaluated as noncompensable. Consequently, the Veteran meets the schedular criteria for TDIU since October 23, 2018, with a combined disability evaluation of 90 percent. Id. The Board turns to the second aspect of TDIU: whether the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). Pertinent to the Veteran's educational history, he has a high school education and left his occupation as a United States Postal Service employee. During the July 2021 hearing, the Veteran testified he was worked for the United States Postal Service and he attempted to participate in VA vocational rehabilitation with an objective of becoming an athletics educator, but he was unsuccessful because he as unable to perform the physical demands of work. The Veteran reported on his October 2018 application for TDIU that he became too disabled to work April 30, 2009. See October 2018 VA Form 21-8940. The Board must consider whether service-connected disabilities render the Veteran unemployable; the Veteran does not allege that a single disability renders him unemployable. Rather, he alleges that a combination of his service-connected disabilities renders him unemployable. The Veteran indicated he has a high school education and one year of college. As ot the impairment from his lumbar spine, radiculopathy, and urinary incontinence, the Veteran contends he has a less than sedentary residual functional capacity based on limitations in sitting, standing, posture, and unscheduled breaks. In this regard, the Veteran has submitted a private assessment from May 2019 which indicated he would miss more than four days per month on average due to lumbar spine disability and other non-service-connected disabilities. See May 2019 Examination. The Veteran also submitted a private assessment from June 2019 that finds lumbar spine disability would cause the Veteran to miss work 3 times per month on average and would reduce his ability to sit for less than 2 hours and stand and walk for 2 hours. See June 2019 Examination. The December 2018 VA examination of the Veteran's lumbar spine disability indicates the Veteran has difficulty with standing, walking, bending, and sitting. See December 2018 Examination. The examiner also noted the Veteran has moderate intermittent pain, paresthesias or dysesthesias, and numbness, and mild constant pain. Finally, VA examination for the Veteran's urinary incontinence associated with his lumbar spine disability requires him to change absorbent pads less than twice a day and that frequent urination and incontinence would impact his ability to work. See December 2018 Examination Given the Veteran's deficits from his service-connected lumbar spine, radiculopathy, and urinary frequency, securing his past relevant employment as a Postal Service employee would be very difficult, if not impossible. Further, given his education, he does not have the transferrable skills to obtain and maintain other employment in light of limitations from his service-connected disabilities. Accordingly, based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities have rendered him unable to secure and follow substantially gainful employment since October 23, 2018. While the Veteran indicated that he became too disabled to work in April 2009, this is not within one year of his claim for TDIU, the Board does not find that he did not become unemployable in the year prior to his October 23, 2018 claim. Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later. 38C.F.R. § 3.400(o)(1). If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10Vet. App.125, 126-27 (1997). If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. 38C.F.R. § 3.400(o)(1), (2). If the increase occurred after the date of the claim, the effective date is the date of increase. Id. Here, the Veteran indicated he became too disabled to work more than one year prior to his claim, as shown by his reports that he last worked in April 2009. Based on the foregoing and resolving reasonable doubt in the Veteran's favor, the Board finds that his service-connected disabilities prevented him from securing or following a substantially gainful employment from June 29, 2018. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16(a). Therefore, entitlement to TDIU as of such date is warranted. 2. Entitlement to a disability rating in excess of 20 percent thereafter for right lower sciatic nerve radiculopathy. 2. Entitlement to a disability rating in excess of 20 percent thereafter for left lower sciatic nerve radiculopathy. The Veteran disagreed with the April 2019 rating decision that assigned initial evaluations for bilateral radiculopathy of 20 percent for each leg, effective October 23, 2018. The Veteran's service-connected radiculopathy with sciatic nerve involvement has been rated 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, 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. Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8626, 8726). The Veteran's radiculopathy with femoral nerve involvement in both lower extremities have been rated at a 10 percent rating throughout the appeals period. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the quadriceps extensor muscles is rated at as 40 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 maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. Analysis The Veteran was provided with VA examination in December 2018. At his December 2018 VA examination, the Veteran's muscle strength, sensory and reflex examinations were normal. Straight leg raising tests were negative. At his December 2018 examination, the examiner diagnosed moderate radiculopathy of the sciatic nerve and noted the Veteran has moderate intermittent pain, paresthesias or dysesthesias, and numbness, and mild constant pain. See December 2018 Examination. Sensory examination was normal for the bilateral lower extremities, straight leg test was positive bilaterally, and there were no other signs or symptoms of radiculopathy. The examiner found the Veteran's radiculopathy was moderate overall in severity. With regard to the Veteran's right and left lower extremity, higher ratings for radiculopathy with sciatic involvement are not warranted at any time over the appeals period. The evidence shows that the Veteran's motor and sensory functions were normal. He had normal reflexes and no evidence of trophic changes and there was was no evidence of complete paralysis. The Veteran testified at a hearing before the undersigned, however, he did not allege the VA examination was inadequate for adjudication purposes and his testimony regarding radicular symptoms is consistent with the December 2018 examination findings. 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. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the preponderance of the evidence is against the Veteran's claim for higher ratings. In denying such a rating, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.