Citation Nr: 21012829 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 10-31 804A DATE: March 5, 2021 ORDER A rating of 20 percent for right lower extremity neurological impairment prior to September 16, 2020, is granted. A rating in excess of 20 percent for right lower extremity neurological impairment beginning September 16, 2020, is denied. Service connection for left hip disability is denied. service connection for back disability is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s right lower extremity neurological impairment is characterized by moderate incomplete paralysis throughout the appeal. 2. The Veteran’s right lower extremity neurological impairment is not productive of more than moderate incomplete paralysis. 3. The Veteran’s left hip disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including to his service-connected right ankle disability. 4. The Veteran’s back disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including to his service-connected right ankle disability. 5. It is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 20 percent for right lower extremity neurological impairment have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124a, DC 8522-8521. 2. The criteria for entitlement to a disability rating in excess of 20 percent for right lower extremity neurological impairment beginning September 16, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124a, DC 8522-8521. 3. The criteria for entitlement to service connection for a left hip disorder, to include as secondary to service-connected right ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for a back disability, to include as secondary to service-connected right ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1964 to December 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his sister testified before the undersigned Veteran’s Law Judge at a hearing held in April 2017. At the hearing, the Veteran raised a claim for TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In a July 2017 decision, the Board denied a rating in excess of 30 percent for a service-connected right ankle disability but granted a separate 10 percent rating for incomplete paralysis of the superficial peroneal nerve of the right lower extremity. The Board also remanded the issues of entitlement to service connection for a low back disorder and a left hip disorder, and entitlement to a TDIU, for further development. The Veteran appealed the 2017 decision and in May 2018, the Court entered an order granting a Joint Motion for Partial Remand (JMPR) of the parties vacating the decision to the extent that it denied a rating in excess of 10 percent for right lower extremity neurological impairment and remanding that issue for further adjudication consistent with the terms of the JMPR. Most recently, these matters were remanded by the Board in November 2018 for additional development. 1. Entitlement to a disability rating of 20 percent for right lower extremity neurological impairment. 2. A rating in excess of 20 percent for right lower extremity neurological impairment beginning September 16, 2020. The Veteran’s right lower extremity radiculopathy, diagnosed as incomplete paralysis of the musculocutaneous nerve (superficial Peroneal) and idiopathic polyneuropathy, is rated under Diagnostic Code 8522-8521 at 10 percent disabling, effective June 8, 2006, and 20 percent disabling, effective September 16, 2020. DC 8521 provides ratings for paralysis of the external popliteal. DC 8521 provides that mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. DC 8522 provides ratings for paralysis of the musculocutaneous (superficial peroneal) nerve. DC 8522 provides that mild incomplete paralysis is rated as noncompensable; moderate incomplete paralysis is rated 10 percent disabling; and severe incomplete paralysis is rated 20 percent disabling. Complete paralysis of the musculocutaneous (superficial peroneal) nerve, eversion of foot weakened, is rated 30 percent disabling. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied levels of the nerve lesion or to partial regeneration. The Board acknowledges that the terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Based on the evidence of record, the Board finds that a rating of 20 percent is warranted throughout the appeal period for the Veteran’s service-connected right lower extremity radiculopathy. During the April 2017 hearing, the Veteran testified that he experiences numbness, tingling, and sharp pain as a result of his right ankle disability. On VA examination in April 2016, muscle strength testing was 3 out of 5 for plantar flexion and 2 out of 5 for dorsiflexion. The VA examiner noted weakness with all ranges of motion to include loss of eversion and inversion. In July 2017, the Board granted a 10 percent evaluation under Diagnostic Code (DC) 8522 for a disability analogous to moderate incomplete paralysis of the superficial peroneal nerve. However, the Veteran asserted that his right lower extremity neurological impairment is more appropriately rated under DC 8520 relating to the sciatic nerve. Based on the Veteran’s contentions, the Board remanded the issue in November 2018 and a VA examiner was asked to address whether the Veteran has impairment of any right lower extremity nerve. In September 2020, a VA examiner diagnosed the Veteran with incomplete paralysis of the musculocutaneous nerve (superficial Peroneal) of the right lower extremity and idiopathic polyneuropathy of the right lower extremity. During the examination, the Veteran reported injuring his right ankle in 1965 and experiencing a “pinching” around his ankle joint since that time. The examiner noted that the Veteran has symptoms of moderate constant pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner also noted decreased right ankle plantar flexion strength, decreased right ankle dorsiflexion strength, and decreased sensation in right lower leg/ankle and right foot/toes. The examiner indicated that the Veteran has moderate incomplete paralysis of the external popliteal nerve, moderate incomplete paralysis of the musculocutaneous nerve, and moderate incomplete paralysis of the internal popliteal nerve; all other nerves of the right lower extremity, including the sciatic nerve, were noted as normal. Given the Veteran’s competent and credible reports of the onset and continuation of his symptoms and the corresponding medical evidence, the Board finds that a rating of 20 percent is warranted throughout the appeal period. As the evidence does not show that the Veteran has severe incomplete paralysis of the external popliteal nerve or complete paralysis of the musculocutaneous (superficial peroneal) nerve, eversion of foot weakened, a higher rating is not warranted. 3. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected right ankle disability. 4. Entitlement to service connection for a back disability, to include as secondary to service-connected right ankle disability. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service-connected disability; or, aggravated beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310 (2018); see also, El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran is service connected for a right ankle disability and right lower extremity neurological impairment. He is seeking service connection for a left hip disorder and a low back disorder, both of which he asserts have been caused or aggravated by his right ankle and right lower extremity disorders, including his altered gait resulting from these disorders. In December 2017, a VA examination was conducted. After an in-person examination and a review of the Veteran’s medical history, the examiner opined that it does not appear at least as likely as not that either the lumbar spine or left hip conditions occurred during service, are related to an injury during service, or were caused by nor significantly aggravated by the Veteran’s service-connected right ankle condition. The examiner reasoned that the Veteran’s claimed conditions are most likely due to aging and previous injuries, such as a motor vehicle accident in 1974 and falling from a train in 1985. The examiner also opined that it is possible that the Veteran’s service-connected right ankle condition contributed to his hip and back problems, but it is less likely that there was significant aggravation. In July 2018, a VHA medical opinion was obtained. Although the doctor providing the July 2018 VHA medical opinion indicated that there was no evidence in the medical literature to demonstrate that low back and hip disorders are caused by or “arise due to” decreased weight-bearing from lower extremity disorders, this opinion does not sufficiently address whether the Veteran’s low back or left hip disorders are aggravated by his service-connected right ankle disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Therefore, in November 2018, the Board remanded the Veteran’s claims for service connection to obtain a new medical opinion. In December 2019, a VA examination was conducted for the Veteran’s low back disorder and left hip disorder. The examiner noted that the Veteran has a diagnosis of osteoarthritis and trochanteric pain syndrome of the left hip and lumbar spondylosis with radiculopathy and lumbar strain. After an in-person examination and a review of the Veteran’s record, the examiner opined that it is less likely than not that the Veteran’s claimed left hip and low back conditions, had their onset in service or within one year after separation, are otherwise related to an event, injury, or disease incurred in service, or are caused by or aggravated by a service-connected disability, including the Veteran’s service-connected right ankle disability and right lower extremity neurological impairments. In making this opinion, the examiner noted that the December 2017 VA examination was an extremely thorough synopsis of events and conclusions to that date and there is no reason to contradict the conclusions of the 2017 medical opinion. The examiner reasoned that there is no evidence to indicate support for direct service connection or secondary service connection for the Veteran’s left hip and low back disabilities since there are at least two other potential causes for these conditions other than his service-connected right ankle disability, namely a motorcycle accident in 1974 and a significant work related back injury in 1985. As to whether the Veteran’s claimed conditions are aggravated by his service-connected conditions, the examiner stated that it is only be means of speculation that any medical examiner could determine how much the right ankle would contribute to the current left hip and lower back disorders. Given present medical science and the known facts as presented by the December 2017 VA examination, the examiner concluded that there is no objective means to measure this amount without simply guessing. Even with the Veteran’s lay statements and possibility that his altered gait from the right ankle caused the left hip and lower back disorders, the examiner found that the evidence and conclusions outweigh that possibility. The Board notes that the December 2019 opinion regarding the Veteran’s claim for service connection for left hip and low back conditions is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. Although the examiner stated that he could not determine how much the Veteran’s right ankle disability may contribute to the Veteran’s claimed conditions without resorting to mere speculation, the examiner provided a complete explanation as to why this is the case. As such, the Board finds the opinion highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the Veteran contends that his low back and left hip conditions are related to a service-connected disability, the Board finds that the question regarding the potential relationship between the Veteran’s low back and left hip conditions and his service-connected disabilities to be complex in nature. While lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran does not possess the medical knowledge to attribute his low back and left hip conditions to his military service or a service-connected disability. Therefore, the Veteran’s contention that his low back and left hip conditions are related to a service-connected disability is not competent and therefore not probative. As the most probative evidence of record shows that the Veteran’s low back and left hip conditions are not related to service or a service-connected disability, the preponderance of the evidence is against the claim, and service connection for a low back condition and a left hip condition must be denied. 5. Entitlement to a TDIU. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, 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. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran asserts that the impact of his service-connected disabilities cause him to be unable to secure or follow a substantially gainful occupation. The Board notes that the Veteran’s service-connected disabilities meet the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran is capable of gainful employment. 38 C.F.R. § 4.16.  On his TDIU application, the Veteran reported that he last worked full-time on January 1, 1985. See VA Form 21-8940, April 2017. The Veteran’s education consists of one year of high school. During the April 2017 hearing, the Veteran testified that he has not worked since 1985 due to his service-connected ankle disability and that he regularly uses a walking stick to keep himself from falling. He stated that he has applied for work since 1985 but has not found work because he cannot work while using a walking stick. Turning to the medical evidence, a November 2011 VA examination stated that the Veteran gets increased right ankle pain, right ankle swelling, and occasional instability of the right ankle with activities such as standing, walking, climbing, driving a car for long distances, and yardwork, and also in cold or wet weather. Therefore, the examiner stated that the Veteran’s right ankle condition would prevent him from doing physical work, but it would not prevent him from doing sedentary work. In a June 2016 VA examination, the Veteran described the functional impact from his service-connected right ankle disability as trouble with stooping and getting back up, feeling weak and will sometimes give out on him even when he wears a brace. He stated that he has trouble walking distances, has problems with uneven ground or slippery slopes during the winter, has problems climbing stairs, and has difficulty with lifting and carrying due to instability. During the December 2017 VA psychiatric examination, the examiner opined that his diagnosed unspecified depressive disorder is clearly related to the impact of the Veteran’s service-connected right ankle injury, associated chronic pain, and associated functional limitations. The examiner noted that the Veteran has occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. During the December 2019 VA examination, the Veteran reported that his ankle continues to cause functional impact in his ability to drive, walk distances, climb stairs, and lift and carry, and he stated that he has trouble sleeping due to pain. The Veteran noted that he always has pain, his right ankle goes out and he loses his balance, and he suffers from a lack of sleep. Given the evidence regarding the severity of the Veteran’s service-connected disabilities, the Veteran’s functional limitations due to his service-connected disabilities, in light of his individual work experience and training, and with the resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he is entitled to an award of a TDIU rating. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.