Citation Nr: 21013797 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-44 279 DATE: March 10, 2021 ORDER Entitlement to a compensable disability rating for right lower extremity radiculopathy prior to September 4, 2019, and in excess of 10 percent thereafter, is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities from December 20, 2010, is granted. FINDINGS OF FACT 1. Prior to September 4, 2019, the evidence of record does not show manifestations of right lower extremity radiculopathy more nearly approximated as mild incomplete paralysis of the sciatic nerve. 2. From September 4, 2019, the Veteran’s right lower extremity radiculopathy was not shown to have resulted in more than mild incomplete paralysis of the sciatic nerve. 3. From December 20, 2010, the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for right lower extremity radiculopathy prior to September 4, 2019, and in excess of 10 percent thereafter, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.20, 4.40, 4.124a, Diagnostic Code 8520 (2019). 2. The criteria for an award of a TDIU from December 20, 2010, due to service-connected disabilities, have been met. 38 U.S.C. §§ 1101, 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to December 1977 and from November 1980 to September 1992. These matters come to the Board of Veterans’ Appeals (Board) from April and June 2011 rating decisions which, in pertinent part, continued 10 percent ratings each for thoracic and lumbar spine disabilities and denied entitlement to TDIU. In February 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In June 2019, the Board remanded the matters for further development, to include obtaining VA examinations. In a June 2020 rating decision, the RO, in pertinent part, granted entitlement to service connection for right lower extremity radiculopathy, evaluated at 10 percent effective September 4, 2019, and granted entitlement to TDIU effective March 5, 2015. In a September 2020 decision, the Board noted that while the Veteran had not specifically appealed the rating assigned for his right lower extremity radiculopathy, it was before the Board as part of his increased rating claim for his service-connected thoracolumbar spine disability. The Board, in pertinent part, remanded the increased rating claim for right lower extremity radiculopathy and entitlement to TDIU for further development, to include obtaining a VA medical opinion. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App. 119 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to a compensable disability rating for right lower extremity radiculopathy prior to September 4, 2019, and in excess of 10 percent thereafter. The Veteran contends that an increased rating is warranted for his right lower extremity radiculopathy. The Veteran’s right lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520, which evaluates paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at Diseases of the Peripheral Nerves in 38 C.F.R. § 4.124a. This claim comes to the Board as part of a December 2010 increased rating claim for the Veteran’s thoracolumbar spine disability. Therefore, the Board has considered the Veteran’s right lower extremity increased rating claim from December 2009 to present. Turning to the evidence of record, VA treatment records dated in June and July 2009 reflect complaints of a flare-up of acute low back pain with right lower extremity pain and numbness. A physical therapy consult was placed with a referral diagnosis of low back pain with radiculopathy. However, the examining physical therapy clinician noted that the right lower extremity symptoms had not acted discogenic at that point. A May 2015 Social Security Administration (SSA) examination report reflects the Veteran reported occasional right-sided sciatic pain. A September 2019 VA examination report reflects that right lower extremity radiculopathy was diagnosed in June 2009. Upon examination, the examiner found mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the right lower extremity resulting in overall mild radiculopathy involving the sciatic nerve. Due to conflicting evidence as to onset of right lower extremity radiculopathy, the Board remanded the matter in September 2020 for a VA medical opinion as to when the Veteran’s right lower extremity radiculopathy first manifested and the severity of those manifestations, if any. In a November 2020 addendum opinion, the examiner noted June and July 2009 complaints of right leg pain and numbness and the May 2015 SSA examination noting complaints of right-sided sciatica. The examiner noted, however, that a March 2018 VA examination report was negative for right-sided radiculopathy despite a positive straight leg raise test. Furthermore, right-sided radiculopathy was not diagnosed until the September 2019 VA examination. The examiner explained that the evidence of record supported symptoms of sciatica in approximately June 2009. However, sciatica is defined as an inflammatory response of a nerve root causing pain following a specific pattern. Sciatica often comes and goes and examination findings were not consistent with neurologic deficiencies that would establish the diagnosis of right-sided radiculopathy. Furthermore, October 2016 imaging studies revealed neural foraminal stenosis at L5-S1 on the left side only, supporting a diagnosis of left-sided radiculopathy, but not right-sided radiculopathy. On the other hand, it was not until October 2019 that imaging studies revealed neural foraminal stenosis with probable nerve root contact at L4-5 and L5-S1, supporting a diagnosis of bilateral lower extremity radiculopathy. Thus, the examiner opined that it was at least as likely as not that the Veteran’s right lower extremity radiculopathy manifested as evidenced by positive neurologic findings on the September 4, 2019 VA examination report. Based on the foregoing, the Board finds that the Veteran is not entitled to a compensable disability rating for right lower extremity radiculopathy prior to September 4, 2019. Although the record contains some complaints of right lower extremity symptoms prior to September 2019, VA examinations were within normal limits and no diagnosis of radiculopathy was made. As such, based on the lay and medical evidence of record, the Board finds that the Veteran’s radicular symptoms, if any, did not rise to the level of “mild,” or the level required for a compensable rating. From September 4, 2019, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s right lower extremity radiculopathy. The medical evidence of record reflects symptoms of mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the right lower extremity resulting in overall mild radiculopathy. The evidence of record does not reflect that the Veteran’s right lower extremity radiculopathy manifested by incomplete paralysis of the sciatic nerve with moderate severity or higher. In sum, the Board concludes that the preponderance of the evidence is against a claim for a compensable disability rating prior to September 4, 2019 for right lower extremity radiculopathy, and in excess of 10 percent thereafter. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to March 5, 2015. The Veteran asserts entitlement to a total disability rating based upon individual unemployability (TDIU). The Veteran is in receipt of TDIU from March 5, 2015. However, he contends that he has been unable to work due to his service-connected disabilities for the entire period on appeal. The law provides that a TDIU may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or his service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran’s claim for TDIU was raised as part of his December 20, 2010 increased rating claims pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Prior to March 5, 2015, the Veteran is service-connected for persistent depressive disorder as noncompensable from September 12, 1992 and at 70 percent from November 5, 2014; thoracolumbar spine degenerative joint and disc disease at 10 percent from September 12, 1992 and at 40 percent from February 9, 2018; migraine headaches as noncompensable from September 12, 1992 and at 30 percent from December 20, 2010; left upper extremity radiculitis at 20 percent from December 20, 2010; thoracic spine muscular strain at 10 percent from September 12, 1992; cervical spine muscular strain at 10 percent from September 12, 1992; right knee synovitis at 10 percent from September 12, 1992; left knee synovitis at 10 percent from September 12, 1992; left lower extremity radiculitis at 10 percent from December 20, 2010; right lower extremity radiculitis at 10 percent from December 20, 2010; and left wrist fracture, right hand fracture, deviated septum, chronic sinusitis, prostatitis, left variocele, epididymitis, left tibia puncture scar, and genital herpes, all evaluated as noncompensable from September 12, 1992. The Veteran’s cervical spine disability and associated neurologic manifestations and migraine headaches qualify as one disability under 38 C.F.R. § 4.16(a), and together they are 50 percent disabling. The Veteran’s combined disability rating for all service-connected disabilities is 70 percent from December 20, 2010. Therefore, the Veteran meets the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Turning to the evidence of record, physical therapy records received in December 2010 and dated in October and December 2010 reflect the Veteran reported that his cervical and thoracolumbar spine disabilities prevented him from lifting anything more than light to medium weights, sitting or standing more than 30 minutes, traveling for more than an hour, and limited his social activities. He reported that it was difficult to sit and concentrate due to his neck and back pain, bending and twisting was painful, that he had a headache almost all the time, and that he no longer golfed. VA treatment records dated in December 2010 and January 2011 reflect the Veteran had previously worked as a loan officer and as a HVAC technician but was unemployed as he could no longer lift a ladder. The Veteran reported he had been depressed for years with chronic suicidal ideation without intent or plan. A February 2011 VA musculoskeletal examination report reflects the Veteran reported he was laid off as an HVAC technician a year earlier. He reported constant pain in his cervical, thoracic, and lumbar spine, with radiating pain up his neck that caused him migraines and down his left upper and lower extremities associated with heavy work activities and flare-ups. Repetitive bending, twisting, lifting, reading, computer work, sleep positions, sitting more than 20 minutes, and standing longer than 10 to 20 minutes were all aggravating. The Veteran also reported intermittent knee pain with morning stiffness, popping and catching sensation, and feeling of giving way, and falls over the last year. His independent activities of daily living were mildly affected, with his son and wife helping him to perform yardwork, grocery shop, and clean house. After examining the Veteran, the examiner indicated the Veteran’s cervical spine disability and associated neurologic manifestations would result in mild-to-moderate weakness and fatigability, and mild loss of coordination secondary to repetitive activity and painful flare-ups. The Veteran’s thoracolumbar spine disability and associated neurologic manifestations would result in moderate weakness, fatigability, and loss of coordination secondary to repetitive activity and painful flare-ups. The Veteran’s bilateral knee disability would result in mild-to-moderate weakness and fatigability, and moderate loss of coordination secondary to repetitive activity and painful flare-ups. The examiner indicated that the Veteran would not be able to perform the duties of his usual occupation of HVAC technician, but that the Veteran would be able to perform activities associated with sedentary-type employment. A March 2011 VA headache examination report reflects the Veteran reported daily, unremitting headache pain at 4-5/10, with intermittent exacerbations brought on by increased activity resulting in nausea, photophobia, phonophobia, and blurry vision. The Veteran reported missing work one to two times per month when he worked as an HVAC tech but no longer worked due to increased neck pain and headaches. He reported currently missing one to two social engagements per month due to headaches. After examining the Veteran, the examiner indicated that the Veteran had three to four prostrating migraines per month that were moderately disabling overall, and daily headaches not prostrating or significantly disabling. March 2011 VA treatment records reflect the Veteran reported flare-ups of back pain radiating into his left leg one to two times per month lasting three days as well as back spasms once per month that were incapacitating for a week or more. The Veteran also reported little interest or pleasure in doing things, feeling down, depressed, or hopeless, trouble falling or staying asleep or sleeping too much, feeling tired or having little energy, poor appetite or overeating, feeling back about himself, trouble concentrating, and thoughts that he would be better off dead, making it somewhat difficult to do his work, take care of things at home, or get along with others. A November 2014 VA psychiatric examination report reflects that the Veteran reported living with his spouse of 22 years, and that he would prepare meals, but mostly watched television during the day or went to the bar in the evening. He reported a DUI in 2008 and described himself as an occasional binge drinker. Upon examination, the Veteran was oriented to person, place, and time, maintained good eye contact, and was able to maintain minimal personal hygiene and activities of daily living. There were no impairments of thought processes or communication, and there were no hallucinations or delusions. However, the examiner noted chronic suicidal ideation without plan or intent. The examiner found symptoms of depression and that while the Veteran indicated episodes of binge drinking, his behavior was not inappropriate. The examiner provided a diagnosis of persistent depressive disorder resulting in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. November 2014 VA examination reports for the Veteran’s musculoskeletal disabilities and migraine headaches reflect that the Veteran reported mild headaches weekly with fuzzy vision and nausea and more severe headaches once per month requiring a quiet room and sleeping overnight. He reported back pain lasting for a minute and radiating into his legs brought on by heavy work activity and aggravated by bending, twisting, lifting heavy objects, sitting more than 45 minutes and standing for more than 20 minutes. He reported persistent intermittent pain in his cervical spine and stiffness in in knees in the morning, along with aching pain with popping sensation throughout the day. The Veteran was able to walk for about an hour without significant pain in his knees but going up and down stairs without the use of a handrail would aggravate his knees. The Veteran reported he was able to do activities of daily living including eating, dressing, undressing, bathing, and toilet hygiene. He was able to drive, write, and keyboard, sit for 45 minutes, stand for 20 minutes, walk for one hour, climb one to two flights of stairs, and lift 15 pounds and carry it for a short distance. A November 2014 VA treatment record reflects the Veteran reported chronic passive suicidal ideation, except when he worked as a loan officer many years ago. A January 2015 VA peripheral nerves examination report reflects the Veteran report constant burning pain in his left leg with flare-ups five to six times per month lasting for one and half days up to seven days. He reported dull constant pain in his left arm with flare-ups four to five times per month lasting for half an hour. The Veteran was able to stand for eight to 10 minutes, sit for 15 minutes, walk one mile, climb one flight of stairs, or lift 12 pounds from the floor before an increase in his left upper and lower extremity pain. VA Vocational and Rehabilitation & Employment records dated in March 2015 reflect that while VA found the Veteran was entitled to benefits, it was not currently feasible for him to secure and maintain suitable employment. Specifically, his service-connected medical conditions contributed substantially to his impairment of employability and that the Veteran had not been unable to overcome that impairment. Social Security Administration (SSA) records reflect the Veteran last worked in January 2010. A May 2015 SSA examination report reflects the Veteran reported four to five migraines per month lasting 12 to 36 hours, resulting in sensitivity to light, sounds, and nausea. He reported chronic cervical spine pain radiating into his left arm, chronic mid- and low back pain that made it difficult to sit up straight, and chronic knee pain with locking of his knees while descending stairs. A functional assessment reflects the Veteran could sit for 4 hours, stand between 2 and 4 hours, walk for two hours, lift five pounds, carry 15 pounds frequently or 25 pounds occasionally, occasionally bend, stoop, squat, crouch, or crawl, and occasionally perform manipulative activities such as reaching, pushing, pulling, and grasping. A May 2015 SSA psychiatric examination report reflects moderate limitations due to his psychiatric disability due to avoidance of people. The Veteran would be able to understand, remember, and carry out simple oral instructions and follow simple procedures, but his ability to relate to others had been mildly impaired, with moderate impairment more recently due to avoidance, and his ability to withstand the mental stress of pressures associated with day-to-day work activity was moderately impaired. Ultimately, the Veteran was noted to have severe impairments due to migraine headaches, degenerative joint disease of the knees, cervical and lumbar spine with associated neurologic manifestations, depressive disorder, and nonservice-connected chronic obstructive pulmonary disease (COPD). It was noted that the Veteran’s past relevant work as a service manager and loan officer exceeded his residual functional capacity due to an inability to sit for six hours a day and manipulation limitations, and he was unable to perform work as a service technician. He was ultimately granted SSA disability benefits, with a primary diagnosis of disorders of the back and secondary diagnosis of COPD. The Board notes that while findings from SSA constitute probative evidence with respect to a TDIU claim, they are not dispositive or altogether binding on VA. SSA’s legal criteria for assessing disability for Social Security benefits purposes differs in important respects from VA’s own framework for determining entitlement to TDIU. SSA bases disability on a claimant’s residual functional capacity, and whether there is substantial gainful activity that could be performed with that residual functional capacity. A VA claim for a TDIU focuses on unemployability based on impairments caused only by service-connected disabilities. Also, unlike SSA, VA does not consider age in making its determination. After reviewing the evidence of record, the Board finds that from December 20, 2010, the weight of the evidence shows that the Veteran was unable to secure and follow substantially gainful employment consistent with his education and occupational experiences by reason of his service-connected disabilities. The evidence of record demonstrates that the Veteran’s occupational history consisted of both sedentary and physical work, including as a loan officer and HVAC technician. However, his service-connected musculoskeletal disabilities and associated neurologic manifestations limited his ability obtain or maintain both sedentary and physical work. He is unable to sit or stand for long periods and his ability to do manipulations in an office setting, such as reaching, pushing, pulling, and grasping, is limited. Bending, twisting, and lifting aggravated his musculoskeletal disabilities. Furthermore, the Veteran’s service-connected psychiatric disability, migraine headaches, and musculoskeletal disabilities, including the stress of pressures associated with day-to-day work activities and pain from his disabilities, would have a significant impact on the Veteran’s ability to concentrate, thereby impacting his obtain or maintain even sedentary employment. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran and finds that the Veteran’s claim for a TDIU should be granted from December 20, 2010. See 38 C.F.R. §§ 3.102, 3.321(b), 3.400, 4.16(a). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.