Citation Nr: 21041589 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-30 114 DATE: July 9, 2021 ORDER The claim of entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy prior to May 29, 2015, is denied. The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Prior to May 29, 2015, the preponderance of the evidence of record reflects that the Veteran's right lower extremity radiculopathy manifested with mild incomplete paralysis of the sciatic nerve overall. 2. Resolving reasonable doubt in favor of the Veteran, his service-connected disabilities render him unable to obtain or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right lower extremity radiculopathy prior to May 29, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for establishing entitlement to TDIU benefits have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from January 1973 to October 1981. The instant matter is on appeal from a November 2013 rating decision. The Board previously remanded these issues in order for the Regional Office to consider new evidence of record. The Veteran submitted a statement in July 2020 clarifying the scope of his present appeal. He stated that he was not asking for an increased rating for his right lower extremity, but instead an earlier effective date for the grant of a 40 percent rating for the disability, which was granted effective May 29, 2015. Thus, the issue has been recharacterized as above to reflect the Veteran's intentions more accurately. Increased Ratings Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). 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 evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. The claim of entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy prior to May 29, 2015 The Veteran contends that he is entitled to a rating in excess of 10 percent for his right lower extremity radiculopathy prior to May 29, 2015. The Board notes that this appeal stems from an initial grant of service connection for right lower extremity radiculopathy effective November 2012. The Regional Office subsequently granted entitlement to service connection for right calf muscle atrophy with an initial rating of 30 percent also effective November 2012. In a June 2015 rating decision, the Regional Office recharacterized both the Veteran's right lower extremity radiculopathy and muscle atrophy into a single 40 percent rating from May 2015 and on. However, prior to May 2015, the combined ratings for right lower extremity radiculopathy, 10 percent, and right calf muscle atrophy, 30 percent, equated to this same 40 percent rating. Thus, while the Veteran has expressed his desire to have a 40 percent rating prior to May 2015 for his right lower extremity radiculopathy, he was actually in receipt of such when considering the separate evaluations for the radiculopathy and muscle atrophy. As the Veteran continued the appeal specifically with respect to the right lower extremity radiculopathy prior to May 2015, the Board will address the merits of this increased rating claim prior to the date of the recharacterization of the issue. 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. 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. In the present case, the Veteran reported experiencing increased radiculopathy in his right lower extremity in statements and medical records associated with his November 2012 claim. He underwent a VA examination in September 2013 to assess his back disability, as well as associated radiculopathy. He reported pain in the back and right thigh, as well as loss of strength in the right leg. The Veteran described the pain as "excessive", requiring pain medication. He could not walk "very far", and it was difficult to put a shoe on his right foot. The Veteran experienced mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the right lower extremity. There were no other signs or symptoms of radiculopathy. The examiner assessed mild radiculopathy overall in the right lower extremity with the sciatic nerve root involved. VA treatment records reflect ongoing complaints of radicular pain associated with his back disability. By way of example, in February 2014, the Veteran reported some increased right leg pains and weakness in the right quadricep muscle. There was a finding of some right distal femur pain that could be related to the sciatic nerve. The Veteran reported an eight-month history of anterior distal thigh paresthesias. An August 2014 study found no indication of active lumbosacral radiculopathy, but, upon clinical examination, the practitioner noted sensory loss that may have indicated higher lumbar root issues. As of the May 2015 VA examination, the Veteran's right lower extremity radiculopathy with sciatic nerve root involvement was deemed moderately severe overall, which precipitated the 40 percent rating effective May 29, 2015. In sum, the evidence of record prior to May 29, 2015, reflects that the Veteran's right lower extremity radiculopathy was mild in nature. The Veteran subjectively reported excessive pain, but concurrent treatment records throughout this initial period reflect more complaints with respect to the right lower extremity atrophy and overall loss of power related to that separately service-connected condition. The radiculopathy itself was not shown to rise to a moderate level overall, to include during relevant testing. The Board recognizes that the Veteran believes his right lower extremity radiculopathy was worse than reflected with the 10 percent rating during this period on appeal. However, while the Veteran is competent to relate the symptoms he experiences and how his symptoms affect his daily life, he is not competent to opine on complex medical issues, such as the severity, degree, or etiology of neurological conditions. Jandreau, 492 F.3d at 1377. In this case, there are specific tests in order to determine the overall impairment or paralysis of a nerve root, which cannot be replicated by a lay person. The Veteran's VA treatment records reflect an electromyography test that revealed no electrical evidence of active lumbosacral radiculopathy, clinical findings that noted sensory loss of unknown severity medially, and a VA examination that found mild overall incomplete paralysis of the sciatic nerve following a thorough evaluation. Thus, while the Veteran believes his right lower extremity radiculopathy to be worse than represented by the initial rating during this period, the preponderance of the evidence of record supports this present evaluation. Furthermore, the Board cannot consider the Veteran's documented muscle atrophy in the right lower extremity as part of the overall disability as this was separately service-connected and rated at 30 percent. Consideration of this additional disability of the right lower extremity in the Veteran's rating for radiculopathy would run afoul of the rule against pyramiding. See, e.g., 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right lower extremity radiculopathy prior to May 29, 2015. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU 2. The claim of entitlement to a TDIU The Veteran contends that his service-connected disabilities render him unable to secure or maintain gainful employment. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, a total rating may nonetheless be granted on an extra-schedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). In the present case, the Veteran is service-connected for degenerative disc disease (100 percent from November 21, 2012, to March 1, 2013); right hip total arthroplasty (100 percent from September 19, 2014, 70 percent from December 1, 2015); obstructive sleep apnea (50 percent from January 8, 2018); depressive disorder (50 percent from January 8, 2018); lumbar degenerative disc disease status post discectomy (40 percent from March 1, 2013, to October 24, 2014); degenerative disc disease (40 percent from February 28, 2014); right lower extremity radiculopathy with right calf muscle atrophy (10 percent from November 30, 2012, 40 percent from May 29, 2015); right calf muscle atrophy (30 percent from November 30, 2012, to May 29, 2015); bilateral plantar fasciitis (30 percent from January 8, 2018); tinnitus (10 percent); right hip arthritis (10 percent from November 30, 2012, to September 19, 2014); right thigh scar (10 percent from September 19, 2014); bilateral hearing loss (noncompensable), shortening of the right lower extremity (noncompensable); right thigh scar (noncompensable); and, erectile dysfunction (noncompensable). Thus, the Veteran meets the schedular requirements for a TDIU throughout the period on appeal. The record reflects that the Veteran has a high school education, and spent his civilian career as a postal carrier since 1981. There is no indication of additional training or education since his discharge from service. The record reflects a number of functional impairments caused by his service-connected disabilities. His hearing loss causes difficulty hearing others, and the Veteran constantly asks people to repeat themselves. His back disability causes him to be unable to meaningful standing or walking. The Veteran's right lower extremity disability causes sensory changes, weakness, and fatigue in the limb. He also experiences difficulty climbing stairs. He endorsed significant difficulty performing any physical work tasks secondary to his disabilities. The Veteran additionally cannot lift, stoop, squat or carry loads. His hip in particular became so painful that he frequented the emergency room prior to his departure from employment. Due to this pain, the Veteran has been taking significant pain medication as well. Sleep apnea causes difficulty with concentration and focus. A December 2015 employment filing reflects that his last day of employment was July 1, 2015, and he lost approximately six months of time in the 12 months preceding his last day of employment. In light of the competent medical evidence and lay testimony of record, the Board concludes that the Veteran is entitled to TDIU. At the outset, the Board has already determined that the Veteran is competent to testify regarding his work history. In this regard, the Board finds the Veteran's claimed unemployment to be credible. See 38 C.F.R. § 3.303 (b); see also Charles v. Principi, 16 Vet. App. 370 (2002); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Furthermore, the Veteran does not have experience or training in sedentary employment, and the claims file does not include evidence indicating that the Veteran has the necessary skills to perform this type of work. Since discharge from active duty, and between periods of active duty, the Veteran has worked as a postal carrier. With education up to, at the highest, high school, sedentary work is not a meaningful or gainful employment opportunity for the Veteran. See Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) (consideration of whether a veteran is entitled to TDIU must be looked at as a practical matter, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits). As such, the award of TDIU should occur at the point at which the Veteran is no longer capable of obtaining and retaining employment that is not exclusively sedentary. Following a long career as a postal carrier, the Veteran's physical disabilities now render him unable to engage in meaningful walking or standing, lifting, squatting, stooping, or other physical activities. He uses a cane regularly due to these service-connected disabilities. While he may be able to sit, such does not render him automatically capable of sedentary employment. Given the Veteran's educational and occupational background, exclusively sedentary employment is not realistic at this time. Furthermore, the combined effect of his hearing loss, sleep apnea, and pain medications may impair his functioning in a sedentary environment as well. Resolving reasonable doubt in favor of the Veteran, the Veteran's service-connected disabilities have precluded obtaining and maintaining substantially gainful employment effective the day after his last day of employment with the post office. Accordingly, the Veteran's claim of entitlement to TDIU must be granted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.