Citation Nr: 21024404 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 09-45 679 DATE: April 22, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for right lower radiculopathy prior to December 18, 2009 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) between March 9, 2009 and July 23, 2009 is granted REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 9, 2009 is remanded. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran’s right lower radiculopathy has been manifested by symptoms that are, at most, moderate in severity, to include pain, paresthesias and/or dysesthesias, and numbness. 2. From March 9, 2009 to July 23, 2009, the Veteran was unemployable and rated at least 60 percent disabled for injuries with a common etiology. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for right lower radiculopathy prior to December 18, 2009 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.124a, Diagnostic Code 8520. 2. From March 9, 2009 to July 23, 2009, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to January 1979. In May 2008 Veteran filed a claim for, in pertinent part, a disability rating in excess of 10 percent for right lower extremity radiculopathy. The claim was denied in July 2008 by a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran timely initiated an appeal. In April 2012 the Board of Veterans’ Appeals (Board) determined that entitlement to TDIU was part of the Veteran’s claim for increased rating, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded both the TDIU and radiculopathy claims for further development. Since that time, the Veteran’s claims have been the subject of Board decisions in September 2017 and March 2019, which were vacated, in whole or in part, by Court of Appeals for Veteran’s Claims (Court) orders implementing Joint Motions for Remand (JMR) in August 2018 and February 2020, respectively. Pursuant to the February 2020 Court order, the Veteran’s claims returned to the Board in August 2020 as entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy prior to December 18, 2009, and entitlement to TDIU. In the most recent August 2020 Board decision, the Board granted a TDIU for the Veteran for the period from July 23, 2009 to the present. In addition, the Board remanded the Veteran’s claim for a rating in excess of 10 percent for right lower extremity radiculopathy prior to December 18, 2009, and his claim for a TDIU prior to July 23, 2009. The Board determined that there was insufficient evidence on record to adjudicate the Veteran’s claims; the Board determined that the Veteran should undergo a VA examination. Following an examination, the Veteran was awarded a retroactive 20 percent for right lower extremity radiculopathy prior to December 18, 2009. That development having been completed, the Veteran’s claims are before the Board once again and will be adjudicated below. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). 1. Entitlement to a disability rating in excess of 20 percent for right lower radiculopathy prior to December 18, 2009 The Veteran’s claim was initially granted in an August 2006 rating decision, with a 10 percent evaluation assigned. When the Veteran filed his claim, he reported that his legs no longer supported him, and he had fallen numerous times. The Board notes that the Veteran has continuously appealed his claim since the date of filing on February 13, 2006. As such, the period on appeal is from February 13, 2006 to December 18, 2009. The Board also notes that in a December 2020 rating decision and the most recent January 2021 supplemental statement of the case (SSOC), the RO awarded the Veteran an increased 20 percent rating for his disability effective February 13, 2006. Therefore, the Board will consider whether the Veteran is entitled to a rating in excess of 20 percent for the period of February 13, 2006 to December 18, 2009. For the period prior to December 18, 2009, the Veteran’s service-connected radiculopathy of the right lower extremity has been rated under the diagnostic code for the ratings of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this regulation, an 80 percent disability rating is warranted for complete paralysis of the sciatic nerve; characterized by a foot that dangles and drops, the lack of any active movement below the knee, or weakened or lost motion below the knee. A 60 percent disability rating is warranted for incomplete paralysis of the sciatic nerve that is severe and marked by muscular atrophy. A 40 percent disability rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 20 percent disability rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 10 percent disability rating is warranted for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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 level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board observes that the terms “mild,” “moderate,” and “severe” are not defined in the regulations. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38C.F.R. § 4.6. Although the use of the terms “mild,” “moderate,” and “severe” by VA examiners and others is evidence to be considered by the Board, it is not dispositive of the issue. All evidence must be evaluated in arriving at a decision regarding an increased rating.38 C.F.R. §§ 4.2, 4.6 In the JMR granted by the Court in August 2018, the Secretary of VA and the Veteran determined that, in denying a rating in excess of 10 percent for right lower extremity radiculopathy prior to December 18, 2009 in the September 2017 decision, the Board failed to address that, although the Veteran had normal muscle strength in his right lower extremity, an examiner also noted that the Veteran had functional impairment in the form of decreased strength in his lower extremities. The Veteran was provided a VA examination in June 2008. At this examination, the Veteran reported that he would wake up every two to three hours with leg cramps, and he described his pain as a stabbing and burning pain that radiated past his knees. The Veteran also reported that his legs often gave out, causing him to fall. The Veteran explained that he could only walk for 20 or 30 minutes. The Veteran reported using a cane on a regular basis, but he still had a slight limp. Upon sensory examination, the VA examiner noted diminished vibratory sensation and decreased sensation only at the right S1 distribution. The Veteran’s right leg had normal strength (5/5), no muscle atrophy, and the Veteran’s right knee jerk was 3+ and right ankle jerk was 1+. The examiner noted that the Veteran had decreased mobility and manual dexterity and decreased strength in his lower extremities. The examiner also noted that the Veteran had functional impairment in the form of decreased strength to the lower extremity. A December 18, 2009, VA examination report notes the Veteran’s complaints of low back pain with radiation to the right leg. Neurological examination revealed that deep tendon reflexes were normal. Sensory examination was abnormal. In pertinent part, there was a lack of sensation on the plantar aspect of the right foot and over the lateral and anterolateral aspect of the right thigh. Motor testing revealed that the Veteran was weak on extension and flexion of the right leg. No other abnormal motor or sensory testing was found. Lasegue sign was positive for the right leg. Diagnoses included L4 radiculopathy, right leg The February 2020 Court order specifically directed the Board to address evidence concerning falls reported by the Veteran. In February 2009, the Veteran reported having fallen twice within the last 6 months. In March 2009, the Veteran reported to the Emergency Department describing having “passed out” while outside and being awoken several hours later by his daughter; treating providers characterized the event as a syncopal episode. In April 2009, the Veteran reported to VA treating providers that he had fallen several times because his legs did not hold him up, including having fallen on stairs when his legs “gave out” several days prior. The Veteran also complained of weakness and lack of stamina. In June 2009, the Veteran reported having fallen 3 times in the previous 4 months. In July 2009, the Veteran reported having fallen while performing yard work the previous weekend. In the Board’s most recent August 2020 remand, the Board noted that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). At the time of the August 2020 remand, the Board was unable to determine whether the Veteran’s reports of falls are manifestations of the Veteran’s radiculopathy, or whether they are manifestations of a nonservice-connected disability or disabilities. To ensure adequate consideration of this evidence, the Board determined that a VA medical opinion should be obtained which addresses the appropriate medical characterization of the Veteran’s history of falls. The Board also acknowledged the Veteran’s statements in his June 2020 brief. Therein, the Veteran reported his use of Gabapentin to treat his radiculopathy symptoms. On remand, the VA examiner was asked to opine as to the significance of the Veteran’s use of Gabapentin, including whether Gabapentin may have ameliorated symptoms of paralysis, and whether the Veteran’s symptoms, including paralysis, would have been worse without medication. In November 2020, the Veteran underwent a VA examination for his radiculopathy. The VA examiner provided an opinion regarding the Veteran’s falls. The examiner opined that based on examination findings and the Veteran’s lay statements and history with a review of the medical records, the Veteran’s falls and gait instability were at least as likely as not attributable to his right lower extremity radiculopathy. The examiner explained that the Veteran’s objective findings made falling very likely, and his history was believed as well as consistent. The examiner also opined that Gabapentin did little to help the Veteran’s radiculopathy as he had already developed fixed deficits on neurologic examination, and gait instability both of which gabapentin does nothing for. The examiner also noted that the radiculopathy had worsened progressively, and signs and symptoms “may have been clinically insignificant prior to 2009”. The examiner rated the Veteran’s radiculopathy as moderate incomplete paralysis of the sciatic nerve. The Board finds that the disability picture presented more closely approximates the 20 percent rating assigned. Specifically, the probative medical evidence of record indicates that his right lower extremity radiculopathy manifested prior at December 18, 2009 as moderate incomplete paralysis. The Board notes that the November 2020 examiner considered the Veteran to be only “moderate” in 2020 despite accounting for the falls and gait disturbances accountable to the radiculopathy. At the same time, the examiner considered the Veteran’s condition to have progressed significantly since 2009. This weighs against a finding of an earlier, higher rating. The June 2008 and December 2009 examinations likewise support a moderate rating. The examiner noted “no functional limitations to standing and walking.” There was some weakness and loss of sensation, but only in limited areas. Even with falls, the Veteran’s radiculopathy did not prevent most standing and walking. The overall description of symptoms was described in terms of diminished and decreased, which is distinguishable and more moderate from more severe levels such as absent or loss. The Veteran has not exhibited moderately severe incomplete paralysis of the sciatic nerve affecting the right lower extremity. Even in consideration of the Veteran’s falls, the November 2020 examiner opined his condition was “moderate”. The June 2008 examiner noted that the Veteran had functional impairment in the form of decreased strength to the lower extremity, the symptoms during this period on appeal were markedly mild to moderate, rather than severe. Despite decreases in sensation and mobility, the Veteran’s muscle strength was normal and there were no notations of atrophy. In his December 2009 examination, the Veteran’s reflexes were normal. The Board finds that throughout the period of the appeal, the Veteran’s symptoms have been moderate. Therefore, a rating in excess of 20 percent prior to December 18, 2009 is not warranted. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) between March 9, 2009 and July 23, 2009 VA will grant a TDIU where the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment. 38U.S.C. §§1155; 38C.F.R. §§3.340. 3.341, 4.16. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38C.F.R. §4.16(a). Disabilities resulting from a common etiology will be considered as one disability for the purposes of determining whether the criteria of 38C.F.R. §4.16(a) are met. 38 C.F.R. § 4.16(a)(1). The Board previously granted TDIU from July 23, 2009 because it was the earliest date that the Veteran qualified for schedular TDIU. Because VA increased the Veteran’s radiculopathy rating prior to July 23, 2009 from 10 percent to 20 percent disabling, the earliest date for schedular TDIU is now March 9, 2009. As in August 2020 the Board already found that the Veteran’s disabilities precluded gainful employment, TDIU will be granted for this additional period. REASONS FOR REMAND 1. Entitlement to a TDIU prior to March 9, 2009 is remanded. The Veteran’s TDIU has been inferred from his increased rating claim. See April 2012 Board Decision. As such, the period on appeal is from February 13, 2006 to March 9, 2009. VA will grant a TDIU where the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment. 38U.S.C. §§1155; 38C.F.R. §§3.340. 3.341, 4.16. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38C.F.R. §4.16(a). Disabilities resulting from a common etiology will be considered as one disability for the purposes of determining whether the criteria of 38C.F.R. §4.16(a) are met. 38 C.F.R. § 4.16(a)(1). The Veteran is service connected for degenerative disc disease of the lumbar spine at a rate of 10 percent from January 26, 1979 to May 31, 1984, a noncompensable rate from June 1, 1984 to February 12, 2006, and 40 percent rate from February 13, 2006; S1 radiculopathy of the right lower extremity at a rate of 20 percent from February 13, 2006; left lower extremity radiculopathy at a 10 percent rating from March 9, 2009; and right hip strain at a 10 percent rating from July 23, 2009. The Veteran’s bilateral lower extremity radiculopathy and right hip strain are associated with his degenerative disc disease of the lumbar spine. The Board notes that the Veteran’s claim for TDIU has been granted for the period from March 9, 2009 onward. While the Veteran’s increased rating claim has been increased to 20 percent, effective February 13, 2006, the Veteran continues to fail to meet the schedular requirements for his TDIU claim prior to March 9, 2009. When the schedular TDIU requirements are not met, as is the case here, entitlement to a TDIU on an extraschedular basis may still be granted. See 38 C.F.R. § 4.16(b). In this regard, the Board notes that neither the Agency of Original Jurisdiction (AOJ) nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015). 38 C.F.R. § 4.16(b) states that “rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the” schedular TDIU requirements. Accordingly, the issue before the Board is more specifically whether referral to the Director of Compensation Service for consideration of an extraschedular TDIU is warranted. In the JMR granted by the Court in August 2018, it was noted that the Board’s September 2017 decision denying entitlement to a TDIU rating failed to address the Veteran’s vocational rehabilitation records as well as the positive findings from the grant of disability benefits from the Social Security Administration (SSA). In the Court’s February 2020 order, the Board’s previous decision was determined to be limited, in that it did not address evidence indicating that the Veteran would be unable to work in an office environment. The Court referred to the Veteran’s February 2019 statement in support of claim, clarifying that he did not work on computers while in the Navy, but rather was an electrician mate who worked on the power grid of the ship and learned to rebuild breaker panel and redo electric motors. The Veteran further reported that after discharge he completed a six-month program in New York in which he learned how to fix a computer; he explained that he did not learn programming or any other skill applicable to modern computing. The Veteran has stated that he did not know or understand how to work a computer, and has never owned a computer. As to office jobs, the Veteran reported that he was not able to sit for more than an hour without having to lie down. He explained that he never had an office job, or a job that required the use of a computer. In consideration of this evidence, the Court found that the Board had not properly considered whether the Veteran would be able to secure sedentary employment. The Court also noted in its February 2020 order that the Board improperly relied on the Veteran’s above average intelligence when it previously determined that the Veteran would be able to work in an office job. The Court found that the Board failed to reconcile the evidence that the Veteran had no transferable skills, had no overcome his lack of education for suitable employment, and had an inconsistent job history with the findings that the Veteran would be able to work in an office job. In addition, in its February 2020 order the Court found that the Board failed to provide adequate reasons and bases when it made negative credibility findings. The Board found that the Veteran’s testimony regarding his ability to engage in physical activity was not credible because it was inconsistent with medical records showing that he was able to do some strenuous work, including for long periods of time. The Court noted that the evidence also showed that the Veteran could only perform yard work in 1-hour intervals, suffered from antalgic gait, had radiating back pain after working in the yard, and suffered regular falls. As the medical evidence also supports the Veteran’s credibility, the Court determined that the Board’s prior credibility analysis was inadequate. Lastly, the Court determined that the Veteran’s SSA records indicated that the Veteran’s non service-connected disabilities were not a contributing factor his SSA disability determination. Rather, the Veteran’s SSA records revealed that alcohol and drug use was not a contributing factor to the disability determination. In deciding a Veteran’s TDIU claim, consideration shall be given in all claims to the nature of any previous employment, as well as the Veteran’s level of education, special training, and previous work experience. 38C.F.R. §4.16. Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran’s claims file documents that the Veteran completed high school prior to his entrance into the Navy. While in the Navy, the Veteran served as an electrician. Following service, the Veteran enrolled in an auto mechanics course and a digital computer technician program in the 1980s; however, there is no documentation that the Veteran reported these courses or programs. On the Veteran’s October 2012 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran did not report any education after high school. In the October 2012 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran documented that he did not remember when he last worked fulltime, though he reported that his degenerative disc disease of the lumbar spine, right hip strain, and bilateral lower extremity radiculopathy were the disabilities impacting his ability to work fulltime. However, throughout the Veteran’s VA treatment records, the Veteran reports that he quit working full-time at various times. The Veteran’s vocational rehabilitation records document that he quit working as a full-time carpenter in 1996. In April 2009, the Veteran reported that he had been working construction until about six months prior, suggesting he quit working construction in late 2008. At a March 2013 VA examination, the Veteran reported that he quit his last full-time job in 2000. In June 2013, the Veteran reported that he was still able to work despite the death of his mother, though it was unclear whether the Veteran was referring to full-time or part-time work. A February 2012 SSA determination notes that the Veteran reported past work consisting of working in digital computers while in service and work as an electrician. He stated that he last worked from 2001 to 2005, collecting cans on the side of the road, doing yard work, and working in construction. The Veteran also stated that he primarily sat at his house, watching television, and working on jigsaw puzzles. He was able to do some cooking; his wife did all the laundry, cleaning, and caring for their animals. Additionally, the Veteran reported he was unable to stand or walk for long periods due to constant back pain, leg clamps and aches in his fingers, hands, and feet. The Veteran also reported that he was able to sit for 45 to 60 minutes at one time on a good day, but only for 15 to 20 minutes on a bad day. He used a cane for standing and walking for long periods. He indicated that he was able to lift a gallon of milk and lift his arms to wash his hair. As noted by the Court, SSA found that drug and alcohol abuse were not contributing factors to the material determination of the Veteran’s disability benefits. In the present case, there is plausible evidence of record that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities for the period prior to March 9, 2009. Therefore, the Board finds that a remand for referral for extraschedular consideration of TDIU is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). (Continued on the next page)   The matters are REMANDED for the following action: Refer the Veteran’s claim to the Director of Compensation and Pension Service, for consideration of an extra-schedular TDIU award in accordance with 38 C.F.R. § 4.16 (b). The Director should note that an extraschedular evaluation under 38 C.F.R. § 4.16 (b) requires a determination that a Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. P. Saindon Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.