Citation Nr: 22010632 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 14-08 771 DATE: February 24, 2022 ORDER A 20 percent initial rating for service-connected right lower extremity lumbar radiculopathy is granted. A 20 percent initial rating for service-connected left lower extremity lumbar radiculopathy is granted. A 40 percent rating (but not higher) for service-connected right lower extremity lumbar radiculopathy from May 5, 2015 is granted. A 40 percent rating (but not higher) for service-connected left lower extremity lumbar radiculopathy from November 26, 2019 is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from May 29, 2013 is granted. REMANDED TDIU prior to May 29, 2013 (to include on an extraschedular basis) is remanded. FINDINGS OF FACT 1. The evidence reasonably shows that the Veteran's service-connected right lower extremity lumbar radicular symptoms have been at least moderate in severity prior to May 5, 2015. However, the persuasive evidence of record does not support a finding of moderately-severe or severe impairment or complete paralysis as contemplated by the pertinent rating criteria during this period. 2. The evidence reasonably shows that the Veteran's service-connected left lower extremity lumbar radicular symptoms have been at least moderate in severity prior to November 26, 2019. However, the persuasive evidence of record does not support a finding of moderately-severe or severe impairment or complete paralysis as contemplated by the pertinent rating criteria during this period. 3. The evidence reasonably shows that the Veteran's service-connected right lower extremity lumbar radiculopathy symptoms are consistent with moderately severe impairment from May 5, 2015 onwards. However, the persuasive evidence of record does not support finding (and the Veteran does not allege) severe impairment with evidence of atrophy or complete paralysis at any time on appeal. 4. The evidence reasonably shows that the Veteran's service-connected left lower extremity lumbar radiculopathy symptoms are consistent with moderately severe impairment from November 26, 2019. However, the persuasive evidence of record does not support finding (and the Veteran does not allege) severe impairment with evidence of atrophy or complete paralysis at any time on appeal. 5. The evidence reasonably shows the Veteran's service-connected disabilities satisfied the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) and cumulatively produced impairment that, considering her education, work history, and experience, is inconsistent with obtaining or following substantially gainful employment from May 29, 2013. CONCLUSIONS OF LAW 1. The criteria for a 20 percent initial rating for service-connected right lower extremity lumbar radiculopathy are met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.124a (2021). 2. The criteria for a 20 percent initial rating for service-connected left lower extremity lumbar radiculopathy are met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.124a (2021). 3. The criteria for a 40 percent rating (but not higher) for service-connected right lower extremity lumbar radiculopathy are met from May 5, 2015. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.124a (2021). 4. The criteria for A 40 percent rating (but not higher) for service-connected left lower extremity lumbar radiculopathy are met from November 26, 2019. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.124a (2021). 5. The criteria for TDIU are met from May 29, 2013. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1986 to June 1987 and October 1988 to September 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision. In December 2018, a hearing was held before the undersigned; a transcript is of record. Although the Veteran briefly referenced her lower extremity radiculopathy during a prior July 2015 hearing with another Veterans Law Judge (VLJ) who then addressed these issues during an associated low back rating appeal in October 2015, that Veterans Law Judge has since retired. The undersigned is the only sitting Board member who has held a hearing in these matters. TDIU has been raised by the Veteran's representative during the pendency of the rating claims on appeal and, therefore, will be considered pursuant to Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). VA has obtained the Veteran's service treatment records (STRs) and pertinent post-service treatment records. The Veteran has been examined by VA several times in conjunction with this appeal and, cumulatively, the reports from those examinations and other medical evidence of record paints a sufficiently clear disability picture over the appeal period to apply the pertinent rating criteria. The Board previously remanded this matter in April 2019 and August 2020 for pertinent treatment and Social Security Administration (SSA) records and additional examinations that considered the impact of flare-ups on radiculopathy. The Agency of Original Jurisdiction (AOJ) has obtained all records sought in those remands and the examination reports obtained since indicate that examiners attempted to elicit subjective reports regarding the impact of flare-ups on radicular symptoms. Crucially, the Veteran has had ample opportunity to respond and has not alleged that notice or development was inadequate. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." The Veteran's lower extremity lumbar radiculopathies are currently rated 0 percent prior to May 29, 2013 and 20 percent from that date under Diagnostic Code 8520, for impairment of the sciatic nerve. See 38 C.F.R. § 4.124a. Under that Code, mild incomplete paralysis warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; severe incomplete paralysis (with marked muscular atrophy) warrants a 60 percent rating; and complete paralysis (e.g., when "the foot dangles and drops," "no active movement [is] possible of muscles below the knee," or "flexion of [a] knee [is] weakened or (very rarely) lost") warrants a maximum 80 percent rating. Id. 1. A 20 percent initial rating for service-connected right lower extremity lumbar radiculopathy. 2. A 20 percent initial rating for service-connected left lower extremity lumbar radiculopathy The approximate balance of the evidence shows the Veteran's lower extremity radicular symptoms were productive of moderate symptoms on both sides prior to May 5, 2015. Records as early as June 2009 show treatment for bilateral lower extremity radicular symptoms that were aggravated by prolonged walking or standing and ranged from mild to moderate in severity (suggesting they were moderate when aggravated). On November 2011 VA examination, there were hypoactive reflexes at both knees with mild intermittent pain and paresthesias (or dysesthesias), but moderate numbness bilaterally. Although a March 2013 VA examiner indicated only mild sciatic involvement, they explicitly described the associated symptoms as moderate bilaterally. While a December 2014 private provider largely described observed impairments as "slight," they acknowledged that the Veteran's symptoms were exacerbated by increased activity. The evidence during this early period on appeal does not persuasively contradict the indications of moderate radicular symptoms. Consequently, the Board finds the approximate balance of the evidence supports an award of a 20 percent rating for both right and left lower extremity lumbar radiculopathy throughout the appeal period. However, the persuasive evidence of record does not support finding observations or reports of symptoms consistent with more than moderate severity in those extremities until May 5, 2015 and September 17, 2019, respectively. 3. A 40 percent rating (but not higher) for service-connected right lower extremity lumbar radiculopathy from May 5, 2015 A May 5, 2015 VA examination report appears to be the earliest record indicating more than moderate right lower extremity radicular symptoms. At that time, the Veteran reported her symptoms were aggravated by prolonged sitting, caused difficulty going up stairs while carrying weight, and involved an intolerable pressure that interfered with basic tasks (like reaching her feet and tying her shoes). The examiner also observed severe constant and intermittent pain, severe paresthesias (or dysesthesias), and severe numbness on the right. Subsequent evidence suggests she continued to present with similarly severe radicular symptoms or impairment from time to time (e.g., July 2015 testimony identifying functional impairment of similar severity (having to lift her foot up with her hand in order to get in the car, difficulty walking up steps), November 2019 and October 2020 VA examinations noting moderate constant pain and severe intermittent pain bilaterally). Consequently, the Board finds the approximate balance of the evidence certainly supports a higher 40 percent rating for moderately severe right lower extremity sciatic radiculopathy under Code 8520 from May 5, 2015. However, the persuasive evidence of record does not support finding (and the Veteran does not allege) right lower extremity sciatic radiculopathy has involved any muscular atrophy or symptoms indicating complete paralysis of the sciatic nerve under the pertinent rating criteria (i.e., a dangling or dropped foot, complete loss of active movement in muscles below the knee, or weakened or lost knee flexion) at any time on appeal. Therefore, the Board cannot award a still higher 60 or 80 percent rating for this disability at any time on appeal. 4. A 40 percent rating (but not higher) for service-connected left lower extremity lumbar radiculopathy from November 26, 2019 As referenced above, November 26, 2019 and October 2020 VA examination reports found moderate and severe lower extremity radicular symptoms bilaterally. Specifically, both found moderate constant pain with severe intermittent pain on both sides. Even though both noted mild numbness and paresthesias (or dysesthesias) at the time, the presence of both moderate and severe pain indicates the Veteran's disability was, at the very least, intermittently productive of moderately severe impairment bilaterally. However, this appears to be the earliest record in the file suggesting more than moderate left lower extremity radicular symptoms. The May 2015 VA examination report indicating more severe symptoms in the right lower extremity noted only moderate symptoms on the left. While many records prior to the November 2019 examination do not include specific descriptions of left lower extremity radicular symptoms that allow for estimating severity, those that do note pain that was rated between four and five which, on its face, remains more consistent with moderate than moderately-severe complaints given those ratings are in the median range and, if anything, lean towards the lower half of the overall ten-point pain scale. Similarly, the persuasive evidence of record does not support finding (and the Veteran does not allege) symptoms consistent with severe left sciatic radiculopathy (i.e., marked muscular atrophy) or symptoms suggesting complete paralysis of the left sciatic nerve (i.e., foot dangling or dropping, complete loss of active motion in the muscles below the knee, or weakened or lost knee flexion) at any time on appeal. Consequently, the Board grants a 40 percent rating (but no higher) from November 26, 2019. 5. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from May 29, 2013 VA will award TDIU on a schedular basis "where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities" and Veterans have either (1) one disability rated 60 percent or more or (2) multiple disabilities that combine to at least a 70 percent rating with one disability rated at least 40 percent. 38 C.F.R. § 4.16(a). Considering the Board's awards of higher ratings for service-connected right and left lower extremity radiculopathy above, the Veteran's service-connected disabilities would be cumulatively rated 20 percent from May 7, 2009, 30 percent from September 15, 2011, 60 percent from November 16, 2011, 90 percent from May 29, 2013, and 100 percent from May 5, 2015. Given that the Veteran has never had a disability rated 60 percent on its own, she meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) from May 29, 2013, when she is rated 90 percent overall with a single disability rated 40 percent or more disabling (right upper extremity cervical spine radiculopathy). What remains for consideration is whether the evidence supports a substantive finding of unemployability due to service-connected conditions. To that end, the Board notes that March 2010 vocational rehabilitation records show the Veteran was deemed occupationally impaired as a result of her service-connected right knee and low back disabilities. Specifically, an evaluation report indicates such conditions caused functional loss that, in tandem with her limited education, training, and work experience, left her unqualified for work that was compatible with her limitations or consistent with her interests, aptitudes, or abilities. Moreover, they determined that the local labor market did not offer reasonable opportunities for suitable employment due to a lack of transferable skills and disability restrictions. VA examinations from November 2011 through October 2020, taken cumulatively, are consistent with that finding insofar as they indicate her service-connected back, knee, and various radiculopathy disabilities interfere with her ability to perform physical labor. September 2009 private records snow her left knee pops, gives out, prevents kneeling or squatting, and worsens with standing or walking. Social Security Administration (SSA) records, VA treatment records, and VA examination reports throughout the record consistently show that one of her primary jobs for the last several decades was as a mobile X-ray technician and involved repeated heavy lifting (of patients and equipment) as well as driving, activities that are significantly impaired by her service-connected orthopedic conditions and associated neurological involvements. The other was as a massage therapist, which involved prolonged periods of standing (which also aggravates her service-connected orthopedic and neurological conditions). Finally, a fully favorable August 2016 SSA evaluation specifically found her service-connected low back disability (along with a non-service-connected shoulder condition) contributed to functional impairments and limitations causing "significant limitation in [her] ability to perform basic work activities." Considering the above, the Board finds the approximate balance of the evidence reasonably shows the Veteran's service-connected disabilities cumulatively cause impairment that precludes obtaining or following gainful employment consistent with her education, training, and work experience since at least the date she meets the schedular criteria for TDIU (May 29, 2013) and grants such benefit. Whether TDIU is warranted prior to that date is addressed in the remand section below. REASONS FOR REMAND 1. TDIU prior to May 29, 2013 (to include on an extraschedular basis) is remanded. The Veteran does not meet the schedular criteria for TDIU prior to May 29, 2013 at this time, and TDIU has not yet been referred to VA's Compensation Service Director for extraschedular consideration as required by 38 C.F.R. § 4.16(b). Corrective action is required at this time. The matters are REMANDED for the following action: 1. Forward the record to VA's Director, Compensation Service for extraschedular consideration of TDIU prior to May 29, 2013 along with a full statement as to the Veteran's service-connected disabilities, employment history, education and vocational attainment, and all other relevant factors pursuant to 38 C.F.R. § 4.16(b). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.