Citation Nr: 21027432 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 12-33 847A DATE: May 5, 2021 ORDER A rating higher than 20 percent for right lower extremity radiculopathy (recharacterized as sciatic nerve involvement) is denied. Effective December 8, 2020, a rating of 20 percent, but no more, for left lower extremity radiculopathy (sciatic nerve involvement) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's right lower extremity radiculopathy (recharacterized as sciatic nerve involvement) has resulted in symptoms of moderate severity. 2. Since December 8, 2020, the evidence shows that the Veteran has moderate radiculopathy (sciatic nerve involvement) of his left lower extremity, associated with his service-connected lumbar spine disability. 3. The evidence shows that the Veteran is currently employed full-time. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for right lower extremity radiculopathy (recharacterized as 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. 2. Since December 8, 2020, the criteria for a disability rating of 20 percent for left lower extremity radiculopathy (sciatic nerve involvement) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for an award of TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2001 to April 2010. These matters come before the Board of Veterans' Appeals (Board) from a June 2010 rating decision. The Veteran testified before a Decision Review Officer (DRO) at a hearing held in November 2014 and before the undersigned Veterans Law Judge (VLJ) at a hearing held in March 2019. Transcripts of these hearings are of record. In August 2019, the Board remanded these matters for additional development. 1. Entitlement to a higher rating for right lower extremity radiculopathy, currently rated as 20 percent disabling under DC 8726, with a separate rating of 10 percent under DC 8520 (in effect since December 8, 2020). The Veteran is service-connected for neurological abnormalities associated with his service-connected lumbar spine disability. He is currently in receipt of two ratings for this disability, namely: a rating of 20 percent under DC 8726 for femoral nerve involvement (in effect since April 18, 2010), and a rating of 10 percent under DC 8520 for sciatic nerve involvement (in effect since December 8, 2020). The record reflects that a June 2010 rating decision originally granted service connection for sciatic nerve involvement and rated it as 10 percent disabling under DC 8620. Nevertheless, an October 2011 rating decision subsequently recharacterized the Veteran's disability as femoral nerve involvement and assigned a higher rating of 20 percent under DC 8726, effective October 14, 2011. More recently, a May 2020 rating decision extended the rating of 20 percent under DC 8726 to the entire appeal period (since April 18, 2010) and a December 2020 rating decision granted service connection for right leg radiculopathy with sciatic nerve involvement, rated as 10 percent disabling, effective December 8, 2020. The Veteran has recently asserted that the rating of 10 percent under DC 8520 for sciatic nerve involvement should be assigned for the entire appeal period (since April 18, 2010). 01/20/2021, VA Form 20-0996 Request for Higher-Level Review. However, this is not an initial decision under the AMA. See 38 C.F.R. §§ 3.2400, 19.2. A rating decision granting a higher rating for a disability that is the subject of a pending legacy appeal for an increased rating is generally not an initial decision and is therefore not appealable under the AMA. The caselaw supports the proposition that once a claim for an increased rating is placed in appellate status, the period addressed by a subsequent rating decision granting an increased rating remains part of the pending appeal, and cannot be separately appealed by filing a new NOD. See AB v. Brown, 6 Vet. App. 35, 38 (1993) ("Where a claimant has filed [a notice of disagreement (NOD)] as to [a regional office (RO)] decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, thus does not . . . abrogate the pending appeal, and, hence, no new jurisdiction-conferring NOD may be filed as to that subsequent decision."); see also Hamilton v. Brown, 4 Vet. App. 528, 541 (1993) (holding that once a claim is in "appellate status" by virtue of a previously filed NOD, the claimant may not file an additional NOD which could confer jurisdiction on the United States Court of Appeals for Veterans Claims as to that claim). Indeed, the Board's action herein follows the above caselaw and continues the appeal of this issue that it remanded in August 2019 for additional development. After careful review of the record, the Board concludes that the AOJ has mischaracterized the Veteran's neurological disability associated with his service-connected lumbar spine disability. Specifically, the Board finds that the AOJ's decision, in October 2012, to recharacterize the Veteran's disability from sciatic nerve involvement to femoral nerve involvement is not supported by the totality of the evidence, to include evidence obtained after that decision was made. The AOJ's decision, in October 2012, to recharacterize the Veteran's disability from sciatic nerve involvement to femoral nerve involvement was based on a May 2012 VA examination that describes the Veteran's right lower extremity radiculopathy as involving the femoral nerve and as moderate in severity. This description is reiterated in an April 2013 VA examination. The Board, however, has not found any other instance where femoral nerve involvement is reported. Rather, the bulk of the evidence establishes that the Veteran's neurological disability is due to sciatic nerve involvement. This includes a VA examination that was conducted in April 2012, just one month before the first reference to femoral nerve involvement, and at least two more recent VA examinations (July 2017 and December 2020). More importantly, VA and private treatment records consistently references sciatica as well as the fact that the Veteran underwent lumbar surgery with L5-S1 diskectomy in 2007. As defined in the disability benefits questionnaire (DBQ) for back issues, sciatica covers nerve involvement in the L5-S1 vertebrae. Based on this ample evidence, the Board concludes that the Veteran's radiculopathy has been mischaracterized as femoral nerve involvement. The proper characterization is sciatic nerve involvement. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that "service connection for a 'disability' is not severed simply because the situs of a disabilityor the Diagnostic Code associated with itis corrected to more accurately determine the benefit to which a veteran may be entitled for a service connected disability). Having found that the Veteran's radiculopathy is sciatic in nature, the Board finds that he is entitled to a single rating under DC 8520. The Board will therefore recharacterize the Veteran's disability from femoral nerve involvement back to sciatic nerve involvement, for the entire appeal period. This recharacterization does not affect the current rating of 20 percent for the entire appeal period. It does affect the separate rating of 10 percent assigned by the December 2020 rating decision, as this rating for sciatic involvement and is now duplicative. The Board now turns to the question of whether a rating higher than 20 percent is warranted for the Veteran right lower extremity radiculopathy. Paralysis of the sciatic nerve is evaluated 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, mild incomplete paralysis is rated as 10 percent disabling. 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. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. The Board turns to a dictionary to define these terms. In this regard, moderate is generally defined as "tending toward the mean or average amount." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 798 (11th ed. 2003). Severe is generally defined as "of a great degree" or "serious." Id. at 1140. Additionally, 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. Turning to the evidence, the December 2020 VA examination indicates that the Veteran's radiculopathy manifests as moderate numbness and mild paresthesias or dysesthesias. It also establishes that these symptoms are bilateral. The examiner noted that the Veteran requires constant use of a cane, but no other assistive device. Functional impact was described as difficulty standing or sitting for long periods of time, with two to four weeks of work time lost in the last 12 months. It was noted that the Veteran was currently working full-time as a teacher. Based on the evidence of record, the Board finds no support for a rating higher than 20 percent under DC 8520 for the Veteran's right leg radiculopathy. VA examiners have consistently described the Veteran's neurological disability as, at worst, of moderate severity, and there is no indication that the Veteran's symptoms have been severe at any point of the appeal period. In fact, several VA examinations during the appeal period are silent regarding the severity of the Veteran's radiculopathy, which weighs against a finding of severe symptoms. Moreover, the functional impact of the Veteran's disability appears to be limited to difficulty walking or standing for prolonged periods, requiring him to use a cane but no other assistive device. Additionally, the Veteran is noted to be currently employed full-time. This fact also weighs against a finding of severe symptoms. Notwithstanding, the Board finds that the December 2020 VA examination supports a separate rating of 20 percent for radiculopathy of the opposite leg. As the present appeal stems from an appeal for the rating assigned for the Veteran's low back disability, the Board has jurisdiction to assign this separate rating, which pertains to a neurologic abnormality associated with the low back disability. See 38 C.F.R. § 4.71a, Note (1) to General Rating Formula for Diseases and Injuries of the Spine; see also Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, 2021 WL 1432578, at *12. (stating that "VA's consideration of . . . neurologic manifestations as part of the claim seeking higher compensation for the lumbar spine disability is . . . consistent with VA's duty to sympathetically read pro se pleadings"). As mentioned, the December 2020 VA examination shows moderate symptoms, bilaterally. This is the first time that left lower extremity radiculopathy has been documented. Therefore, the newly assigned rating of 20 percent for left leg radiculopathy is granted, effective December 8, 2020. A rating higher than 20 percent for left lower extremity radiculopathy is denied, as there is no argument or indication that the severity of the Veteran's symptoms is greater than moderate. Finally, as the present decision is not resulting in a reduction of the Veteran's overall rating for any part of the appeal period, the procedural requirements normally required for reductions are inapplicable in this case. See 38 C.F.R. § 3.105(e); see also Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007); O'Connell v. Nicholson, 21 Vet. App. 89 (2007). 2. Entitlement to a TDIU. A total disability rating 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 due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Service connection is in effect for obstructive sleep apnea (50 percent), lumbar intervertebral disc syndrome with degenerative arthritis changes status post lumbar spine surgery (40 percent), right lower extremity intervertebral disc syndrome involving the femoral (now sciatic) nerve (20 percent), left knee patellofemoral pain syndrome (10 percent), right knee patellofemoral pain syndrome (10 percent), right ear tinnitus (10 percent), nonalcoholic steatohepatitis (10 percent since March 26, 2019), right foot Achilles enthesophyte formations, plantar heel spur, and degenerative changes (noncompensable), macular cysts in both eyes (noncompensable), left ear hearing loss (noncompensable), status post right ear tympanic membrane perforation (noncompensable), sinusitis (noncompensable), scar status post appendectomy (noncompensable), surgical scar status post lumbar spine surgery (noncompensable), arachnoid cyst in the right posterior fossa (noncompensable), and migraine headaches (noncompensable). These ratings result in a combined rating of at least 80 percent from April 18, 2010throughout the entire appeal period. As such, the Veteran meets the percentage threshold for schedular TDIU consideration. 38 C.F.R. § 4.16(a). The Veteran raised the issue of entitlement to a TDIU at his March 2019 Board hearing, where he testified that he was let go of his employment as a special education teacher in January 2019. In view of this, the Board remanded the issue of entitlement to a TDIU for additional development, to include asking the Veteran to submit a TDIU application with updated employment/education information. The Veteran has not submitted a complete TDIU application. Nevertheless, a recent December 2020 VA examination indicates that he was currently working full-time as a teacher. As the evidence of record shows that the Veteran is employed full-time, the Board has no choice but to deny the claim for a TDIU, as entitlement to this benefit requires evidence that the Veteran is unable to work due to impairment from service-connected disability. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.