Citation Nr: 21041755 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 12-10 891 DATE: July 10, 2021 ORDER Entitlement to a separate 20 percent rating from January 8, 2010 to April 13, 2012, for radiculopathy of the sciatic nerve of the left lower extremity is granted subject to the rules and regulations governing the award of monetary benefits. Entitlement to an award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted effective January 8, 2010, subject to the rules and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran had symptoms consistent with left lower extremity radiculopathy which caused functional impairment since his January 8, 2010 increased rating claim for service-connected degenerative disc disease of the lumbar spine, 2. The preponderance of the evidence is against a finding that the Veteran experienced an increase in disability with respect to his left lower extremity radiculopathy in the year prior to the January 8, 2010 increased rating claim on appeal. 3. Throughout the period on appeal, the Veteran's left lower extremity radiculopathy was productive of no more than moderate symptomatology. 4. The Veteran has met the schedular requirements throughout the appeal period and the evidence is at least in equipoise that the Veteran's service-connected disabilities are of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. For the period from January 8, 2010 to April 13, 2012 the criteria for a 20 percent rating, but no higher, for left lower radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 2. The criteria are met for the grant of a TDIU effective January 8, 2010. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1999 to July 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in August 2018, February 2020, and December 2020 for further development. 1. Entitlement to a separate rating of 20 percent for left lower extremity radiculopathy of the sciatic nerve prior to April 30, 2012. The Veteran seeks a separate rating for service connected left lower extremity radiculopathy of the sciatic nerve prior to April 30, 2012. By way of background, in a March 2016 rating decision, the RO awarded service connection for left leg radiculopathy with a 20 percent evaluation effective April 30, 2012. Notably, the RO indicated that the effective date was the date the Veteran's claim was received. However, the Board notes the issue of radiculopathy is an element of the rating assigned for the Veteran's service-connected degenerative disc disease of the lumbar spine. See 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note 1.While a net effect of the Veteran's claim is the assignment of an earlier effective date for service connection for radiculopathy of the left lower extremity, the Board's analysis of the Veteran's appeal is based upon his January 8, 2010 increased rating claim for his service connected back disability rather than a separate and distinct service connection claim for radiculopathy. See 38 U.S.C. § 5110, 38 C.F.R. § 3.400. Therefore, the question before the Board is whether the Veteran had radiculopathy of the left lower extremity prior to April 30, 2012 and if so, what was the severity of his disability. The Board finds that the evidence is at least in equipoise that the Veteran had symptoms of left lower extremity radiculopathy which caused functional impairment and were manifested, at most, by moderate incomplete paralysis of the sciatic nerve. The Board has carefully reviewed the Veteran's claims file. On the issue of whether the Veteran had left leg radiculopathy prior to April 30, 2012, VA sought and received medical opinions dated August 2020, September 2020, October 2020, January 2021, and March 2021. The Board notes that the opinions were based exclusively on a medical records review and were authored by the same physician who consistently opined that it was less likely than not that the Veteran had left lower extremity radiculopathy prior to April 30, 2012. The examiner's rationale was that MRIs prior to April 2012 did not show objective findings of nerve compression or inflammation. However, the examiner also indicated and cited to evidence of pain radiating down the Veteran's left leg prior to April 30, 2012. In an April 2009 pain physician consultation, the assessment was chronic nonspecific lumbar spinal pain with episodic non - dermatomal left lower extremity radiating pain. A November 2010 VA treatment records noted exacerbation of the Veteran's back for 48 hours with pain radiating into the left lower extremity. The Board also notes that other VA examiners noted radicular symptoms. A VA Back examination dated June 2005 noted radiating pain on movement of the left leg. A February 2010 VA Back examination indicated that the Veteran could straight leg raise his left leg 45 degrees in contrast to the right leg, which was 75 degrees, however radiating pain to the legs was not noted. At a March 2013 VA Back examination, the Veteran reported immobility a variety of leg manifestations that occur at least two times weekly and resulted in interference with sitting, standing and/ or weight bearing after repetitive use. The examiner confirmed the symptoms of the Veteran's left lower extremity radiculopathy included constant moderate pain, intermittent pain, moderate paresthesias, and severe numbness of the left leg. In an addendum medical opinion dated March 2021, the VA examiner indicated that non specific leg symptoms frequently manifest in persons with degenerative changes of the lumbar spine without nerve compression or nerve compromise. The examiner noted that relevant treatment records indicated that the Veteran had waxing and waning of non specific legs symptoms over the years without evidence of nerve compression or quantifiable nerve findings on examination. In a recent case, Saunders v. Wilkie, 888 F.3d 1356 (Fed. Cir. 2018), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that pain can constitute a disability under 38 U.S.C. § 1110. The Saunders case instructs that a "clinical diagnosis" is not necessary to establish service connection for a disability so long as its manifestations result in functional impairment in earning capacity. In this case, the record establishes, and the Board finds that the Veteran's radicular symptoms have resulted in functional impairment in earning capacity throughout the appeal period. Specifically, VA treatment records, medical records furnished by the Social Security Administration, and the Veteran's credible lay statements reflect that the Veteran has experienced severe pain since about 2008 and required narcotics such as morphine for pain relief. He also had documented left leg numbness since at least 2008. The Veteran stopped working in 2009 because of his back and tried to attend college but could not carry a full load of classes. Records also documented that he is limited in the amount of time he can sit or stand before his back locks up requiring him to use a table or a chair to help him stand. On a bad day it is difficult for him to walk and sometimes his pain is so bad he has to crawl to the bathroom. Since VA has conceded the symptoms of the Veteran's left lower extremity radiculopathy are associated with the Veteran's service-connected degenerative disc disease of the lumbar spine, the Board finds the effective date related to such impairment should coincide with the Veteran's January 2010 increased rating claim for his back disability. The Veteran's left lower extremity radiculopathy has been rated 20 percent disabling since April 30, 2012 under Diagnostic Code 8520, Incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, a 10 percent rating is assigned for evidence of mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A 20 percent rating is assigned for evidence of moderate incomplete paralysis of the sciatic nerve. Id. A 40 percent rating is assigned for evidence of moderately severe incomplete paralysis of the sciatic nerve. Id. A 60 percent rating is assigned for evidence of severe incomplete paralysis, with marked muscle atrophy, of the sciatic nerve. Id. An 80 percent rating, the highest schedular rating allowed, is assigned for evidence of complete paralysis of the sciatic nerve, to include symptoms of foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Id. In assessing the severity of the Veteran's left lower extremity radiculopathy, the Board finds that the weight of competent and credible medical and lay evidence, as discussed above and associated with the Veteran's claims file, supports a finding of moderate symptomatology consistent with a 20 percent rating under DC 8520. Throughout the entirety of the appeal period from January 8, 2010 through April 30, 2012, a showing of moderately severe symptomatology required for the higher 40 percent rating, has not been demonstrated. Lastly, to the extent that statute and regulation authorizes an effective date up to one year prior to an increased rating claim, the Board finds the evidence fails to establish that it is ascertainable the Veteran experienced an increase in disability with respect to left lower extremity radiculopathy within the year prior to his January 2010 increased rating claim for his back disability. In October 2008, the Veteran was seen for a neurosurgical consult due in part to his left lower extremity radicular symptoms described as both numbness and burning, shooting pains. Thus, the record establishes this impairment was present prior to January 2009, which prohibits an effective date prior to the date of the Veteran's January 8, 2010 increased rating claim. See 38 U.S.C. § 5110 (b)(3), 38 C.F.R. § 3.400 (o)(2). In summation, the Board finds a separate 20 percent evaluation but no higher for left lower extremity radiculopathy from January 8. 2010 to April 13, 2012 is warranted in this case and, to that extent, the Veteran's appeal is granted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 21, 2010. TDIU is an element of all claims for higher ratings. Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU on appeal arises from the Veteran's claim for an increased rating of his service connected low back disability filed on January 8, 2010. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, because of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16 (a), "Marginal employment shall not be considered substantially gainful employment." The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's service-connected disabilities effective as of January 8, 2010 are left shoulder bursitis rated at 20 percent, left lower extremity radiculopathy rated at 20 percent, degenerative disc disease of the lumbar spine rated at 10 percent, degenerative joint disease of the right ankle rated at 10 percent, right knee strain rated at 10 percent, left knee strain rated at 10 percent, status post right foot fracture with pain and swelling rated at 10 percent, left ankle strain rated at 10 percent and right foot scar rated noncompensable. Thus, the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16 (a), are satisfied. In light of the Board's decision that the Veteran is entitled to a rating of 20 percent rating for his left lower extremity radiculopathy for the entire period on appeal, he has met the schedular rating requirements since the date of his claim. The Veteran contends that his service-connected disabilities render him unemployable. On review of the record, the Board finds that the evidence is at least in equipoise that such is shown. The Veteran last worked in August 2009 as a network engineer for a computer technology company but had to resign. VA treatment records for the Veteran's respective disabilities documented functional limitations pertaining to each of his muscle skeletal disabilities as a result of pain, swelling and or numbness including difficulty with walking, standing, bending, and sitting. Furthermore, the Veteran has required the use of narcotic pain relief to manage many of his disabilities. A February 2010 VA Back examination opined that the effects of the Veteran's back disability included decreased mobility and pain and effects on activities such as chores, shopping, exercise, recreation, bathing, and sports were moderate to severe. In lay statements, the Veteran noted that he attempted to attend university in August 2010 but could not complete a full semester due to the pain and numbness and medical issues he was experiencing. He also noted that pain medication, muscle relaxers and sleeping medications also affected him. The Board gives probative value to the February 2010 VA examiner's findings regarding work limitations. They are consistent with the Veteran's lay statements and medical treatment records. In light of the foregoing evidence, the Board resolves all reasonable doubt in the Veteran's favor (as required under the law) and concludes that the evidence supports a finding that his service-connected disabilities precludes him from securing or following substantially gainful employment and has done so for the entire period on appeal. Therefore, the criteria for TDIU are met, effective January 8, 2010. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.