Citation Nr: 23039352 Decision Date: 07/17/23 Archive Date: 07/17/23 DOCKET NO. 15-25 890 DATE: July 17, 2023 ORDER A 20 percent rating, but no higher, for right lower extremity femoral radiculopathy is granted from July 29, 2015. A 20 percent rating, but no higher, for left lower extremity femoral radiculopathy is granted from July 29, 2015. Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted from September 10, 2010 to July 3, 2013. REMANDED Entitlement to an initial rating in excess of 10 percent for a left wrist disability is remanded. FINDINGS OF FACT 1. Since July 29, 2015, the Veteran's right lower extremity radiculopathy has been manifested by moderate incomplete paralysis affecting the femoral nerve. 2. Since July 29, 2015, the Veteran's left lower extremity radiculopathy has been manifested by moderate incomplete paralysis affecting the femoral nerve. 3. The Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation since September 10, 2010. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher, for right lower extremity femoral radiculopathy are met since July 29, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.124a, DC 8526. 2. The criteria for a 20 percent rating, but no higher, for left lower extremity femoral radiculopathy are met since July 29, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.124a, DC 8526. 3. The criteria for an extraschedular TDIU are met from September 10, 2010 to July 3, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1971 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2014 and August 2015 rating decisions issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In a July 2022 rating decision, the AOJ granted service connection for bilateral lower extremity femoral radiculopathy and assigned 10 percent ratings, effective June 21, 2022. In a February 2023 rating decision, the AOJ granted 10 percent ratings for bilateral lower extremity femoral radiculopathy, effective July 29, 2015. In November 2018, March 2021, October 2021, March 2022, and January 2023, the Board remanded these matters for additional development. There has been substantial compliance with the Board's remand directives to obtain a retrospective opinion on the Veteran's bilateral lower extremity femoral radiculopathy and an advisory opinion on extraschedular consideration by the Director. Thus, the Board will proceed with adjudication of these issues on appeal. Regarding, the Veteran's left wrist disability, there has not been substantial compliance with the Board's remand directives, thus as noted above, this issue is remanded below. Increased Ratings 1. A 20 percent rating, but no higher, for right lower extremity femoral radiculopathy is granted from July 29, 2015. 2. A 20 percent rating, but no higher, for left lower extremity femoral radiculopathy is granted from July 29, 2015. I. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, the primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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 is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. II. Rating Criteria Under DC 8526, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent rating, and moderately severe incomplete paralysis of the sciatic nerve warrants a 40 percent rating. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscle atrophy. A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). 38 C.F.R. § 4.124a, DC 8520. The words "mild," "moderate," "moderately severe," 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 of 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 is moderate, or with sciatic nerve involvement, moderately severe incomplete paralysis. 38 C.F.R. § 4.123. As noted above, the terms in the Diagnostic Code are not defined. The Board will provide the required definition. Here, mild incomplete paralysis exists where there are subjective symptoms only, or where there are objective sensory symptoms such as decreased sensation that are productive of minimal or no functional impairment. Moderate incomplete paralysis exists where there are objective sensory symptoms only that are productive of severe functional impairment, or abnormal reflexes or reduced muscle strength productive of substantial functional impairment. Moderately severe incomplete paralysis exists where there is abnormal reflexes or reduced muscle strength productive of severe functional impairment without marked muscle atrophy. Severe incomplete paralysis exists where there is severe impairment resulting from marked muscle atrophy and abnormal reflexes, with trophic changes. III. Analysis The Veteran is currently in receipt of 10 percent ratings from July 29, 2015, for his service-connected bilateral lower extremity femoral radiculopathy associated with his lumbar spine disability. The current appeal period before the Board is from December 23, 2010, the date of award of service connection for his lumbar spine disability. As a preliminary matter, the Board notes that although the Veteran presented for VA back examinations in August 2011 July 2015, November 2019, April 2021 November 2021, and June 2022, and a simultaneous peripheral nerves examination in November 2019, only the June 2022 examination noted involvement of the bilateral femoral nerves. However, in the February 2023 addendum opinion, the VA examiner indicated manifestation of bilateral lower extremity femoral radiculopathy during the July 2015 VA examination. Thus, the Board will analyze the relevant examinations below. During the July 2015 Disability Benefits Questionnaire (DBQ)examination, the examiner diagnosed lumbar radiculopathy of the bilateral lower extremities. The Veteran reported constant pain in his back that radiates down his legs. Muscle strength testing was slightly reduced (4/5) on both sides for in all areas, including hip flexion. Reflex testing was normal in the bilateral knees and in the bilateral ankles. Sensory testing was normal on the right side and in the left upper anterior thigh and decreased in all other areas on the left side. Straight leg testing was positive bilaterally. Radicular symptoms of moderate constant and intermittent pain and mild paresthesias/dysesthesias and numbness were endorsed in bilateral lower extremities. The examiner only endorsed the Veteran's sciatic nerves being affected on both sides with moderate radiculopathy found on both sides. Most recently, the Veteran was afforded a VA examination in June 2022. The Veteran reported radicular pain from his back to his toes, that his hips get stiff and heavy, and that he also feels the numbness and tingling down his legs. Muscle strength testing normally bilaterally in all areas. Reflex testing was hypoactive (1+) l in the bilateral knees and in the bilateral ankles. Sensory testing was normal on in all areas bilaterally, except decreased in the bilateral foot/toes. Straight leg testing was positive bilaterally. Radicular symptoms of moderate intermittent pain, paresthesias/dysesthesias, and numbness were endorsed in bilateral lower extremities. The examiner endorsed the Veteran's femoral nerves being affected on both sides. In a February 2023 VA opinion, the examiner noted that the Veteran's bilateral lower extremity radiculopathy manifested prior to June 2022, particularly during the June 2015 DBQ examination. The examiner stated that the evidence showed that the July 2015 DBQ revealed reduced (4/5) muscle strength, to include bilateral hip flexion, and that decreased strength in hip flexion would indicate involvement of the femoral nerve. Given the totality of the evidence, the Board finds that 20 percent ratings for moderate incomplete paralysis of the bilateral lower extremities is warranted from July 29, 2015, as this is the date of the VA DBQ examination where the February 2023 examiner noted the first manifestation of bilateral lower extremity femoral radiculopathy and the Veteran's symptoms are moderate in nature including moderate constant and intermittent pain, mild paresthesias/dysesthesias and numbness (July 2015 DBQ), and moderate intermittent pain, paresthesias/dysesthesias, and numbness (June 2022 VA examination). See July 2015 DBQ and June 2022 VA examination report. Specifically, the July 2015 examiner endorsed moderate radiculopathy bilaterally, although the femoral nerve involvement was not indicated. However, as noted above, the February 2023 VA examiner indicated that the femoral nerves were indeed involved during this examination. Thus, the Board finds the evidence is at least in approximate balance regarding moderate bilateral lower extremity femoral radiculopathy since July 29, 2015. Thus, resolving all reasonable doubt in the Veteran's favor, 20 percent ratings are warranted from bilateral lower extremity femoral radiculopathy from July 29, 2015. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). However, ratings in excess of the 20 percent ratings assigned herein are not warranted, as there is no indication of at least moderately severe symptoms, given his symptoms have only been objectively described as mild or moderate as noted above, with muscle strength testing being no more than slightly reduced in July 2015 and normal in June 2022, and any decrease in sensory, reflex, or muscle strength testing as noted above are already contemplated in the 20 percent ratings as assigned herein from July 29, 2015. Notably, no other VA examinations during the appeal period indicate radiculopathy of the femoral nerves. Thus, compensable ratings prior to July 29, 2015, and ratings in excess of 20 percent thereafter are not warranted for reasons outlined above. TDIU 3. Entitlement to an extraschedular TDIU due to service-connected disabilities is granted from September 10, 2010 to July 3, 2013. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, and that, 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. 38 C.F.R. § 4.16(a). The above notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the schedular requirements set forth in 38 C.F.R. § 4.16(a), an extraschedular rating may nevertheless be considered under 38 C.F.R. § 4.16(b) where a veteran is unemployable due to service-connected disabilities. The Board is prohibited from assigning an extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance without initially referring the claim to the Director. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board remanded the claim for such consideration in January 2023, which was provided in the March 2023. Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a) (2012); 38 C.F.R. § 4.16(b)). The Director's decision is not evidence, but, rather, the de facto Agency of Original Jurisdiction (AOJ) decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). There is no regulatory definition of "substantially gainful employment," but 38 C.F.R. § 4.16(a) states: "Marginal employment shall not be considered gainful employment." It also states that marginal employment exists when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. However, "[m]arginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold." Id. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate 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. See id. Here, the Veteran submitted a formal claim for a TDIU on May 14, 2015. However, as the Veteran has asserted IU in relation to his back, bilateral knee, and left wrist disabilities, the period for consideration is from September 10, 2010, the effective date of service connection for his left knee disability, the earliest effective date in conjunction with his increased rating claim. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran is service connected for left knee total replacement rated as 100 percent disabling from April 23, 2015 and 60 percent from June 1, 2016; right knee total replacement rated as 100 percent disabling from November 17, 2016, 30 percent from January 1, 2017, and 60 percent from May 10, 2018; adjustment disorder with mixed anxiety and depressed mood rated as 50 percent disabling from April 4, 2019; lumbosacral strain, degenerative disc disease, rated as 10 percent disabling from December 23, 2010, 20 percent from April 20, 2021, and 40 percent from June 21, 2022; left knee degenerative joint disease rated as noncompensable from November 10, 1973, 10 percent from August 11, 2010, and 20 percent from April 21, 2014 to April 22, 2015; left knee limited extension rated as 10 percent from September 10, 2010 and 20 percent from April 21, 2014, to April 22, 2015; bilateral lower extremity sciatic radiculopathy rated as 20 percent from May 14, 2015; left knee instability rated as 10 percent from September 10, 2010 to April 22, 2015; bilateral hand degenerative arthritis thumb rated as 10 percent disabling from July 3, 2013; bilateral hand degenerative arthritis index finger rated as 10 percent disabling from July 3, 2013; bilateral hand degenerative arthritis long finger rated as 10 percent disabling from July 3, 2013; chronic left wrist strain rated as 10 percent disabling from July 3, 2013; right knee instability rated as 10 percent disabling from July 3, 2013, to November 16, 2016; right knee degenerative joint disease rated as 10 percent disabling from July 3, 2013, to November 16, 2016; right knee limitation of extension rated as 10 percent disabling from July 3, 2013, to November 16, 2016; painful left knee scar rated as 10 percent disabling from April 23, 2015; bilateral lower extremity femoral radiculopathy now rated as 20 percent disabling from July 29, 2015; painful right knee scars rated as 10 percent disabling from June 21, 2022; right hand degenerative arthritis rated as noncompensable from July 3, 2013; bilateral hand degenerative arthritis little finger rated as noncompensable from July 3, 2013; ;left hand degenerative arthritis rated as noncompensable from July 3, 2013; left knee scars rated as noncompensable from April 20, 2021; and right knee surgical scars rated as noncompensable from November 17, 2016. Thus, he does not meet the schedular criteria for a TDIU prior to July 3, 2013. See 38 C.F.R. § 4.16(a). Therefore, the issue becomes whether an extraschedular TDIU is warranted for the appeal period from September 10, 2010, to July 3, 2013. The record reflects that the Veteran has a college degree. He reported that his college degree was in the field of recreation. See December2021 statement. He reported he worked as a Vocational Rehabilitation Counselor for the Bureau of Prisons from 1984 to 2004 and as a case manager for a community support specialist from 2005 to February 2010. He reported that his role of a case manager transitioned from full time to part time in June 2009 and he was unable to work starting February 2010. He also reported he worked as a basketball instructor-contractor with a city Department of Recreation for an hour and a half per week and had to quit that part-time job right before he had his first total knee replacement. See May 2015 VA Form 21-8940, October 2020 and December 2021 statements, and 2014 IRS Form 1099-MISC. Thus, the Veteran meets the economic component of a TDIU for the entire appeal period. The evidence of record reveals the Veteran is unemployable due to his service-connected disabilities. Specifically, after conducting a thorough examination, in a December 2010 private opinion, Dr. O. C. and Dr. B. H., stated the Veteran is unable to work and is totally and permanently disabled. Prior to this conclusion, the private doctors noted the Veteran's current pain in his bilateral knees and legs and lower back that radiates into his hips and pelvic areas (service-connected disabilities) produce significant impairment in mobility and activities of daily living. To this end, the doctors noted difficulty with walking, standing, and sitting for prolonged periods of time due to his bilateral knees and legs and lower back disabilities. Additionally, an August 2011 VA examiner also noted his back's medical history including severe flare-ups that disable him for several days and severe radiculopathy down both lower extremities and stated that he is unable to work due to muscle spasms of pain associated with standing for long periods of time, walking extended distances, and lifting. Lastly, during his June 1966 hearing, the Veteran testified that he could not pass a physical for work post-service due to his back condition. He again emphasized that this in a June 2014 lay statement recalling that he has had back problems since April 1966 and that due to his declining mobility, pain, and numerous medical leaves that his employer placed him in permanent disability in January 1987. Moreover, Social Security Administration (SSA) records received in November 2011 indicate the Veteran was awarded SSA disability benefits from February 15, 2010, based essentially on his [service-connected] lumbar spine, [service-connected] left knee, osteoarthritis, dysfunction of major joints, and [then-nonservice-connected] psychiatric disorders. A March 2011 SSA functional assessment found that his maximum standing and sitting capacity was up to four hours due to osteoarthritis in both knees, his maximum sitting capacity was six hours, and he could occasionally climb, kneel, crouch, and crawl. Lastly, private treatment records received in September 2010 and July 2011 indicate the Veteran's long history of chronic pain in his lower back that radiates down through his bilateral hips and legs and bilateral knees due to his service-connected back and left knee disabilities at the time that affect his mobility and prevent him from prolonged standing, sitting, or walking. The Board notes the Director's conclusion that the "caused some impairment to function and difficulty with occupational tasks requiring moderate to heavy physical labor, but records do not support a finding that the back and knee conditions, alone or in conjunction, would have resulted in total occupational impairment or would have caused an inability to maintain gainful employment". To this end, the Board emphasizes that the Director's opinion is not evidence. Thus, given (1) the December 2010 comprehensive findings and medical opinion of Dr. O. C. and Dr. B. H.; (2) the August 2011 VA examiner's medical opinion; (3) SSA records indicating his disability from February 2010 due to service-connected back and left knee disabilities; (4) private treatment records received in September 2010 and July 2011 noting his limitations due to service-connected back and left knee disabilities; (5) the Veteran's October 2020 and September 2021 lay statements recalling his inability to work due to his back and left knee beginning in February 2019; (6) his exclusive work history as a case manager and part-time recreational specialist, which would require physical capabilities, including prolonged walking, standing, and/or sitting; and (7) affording the Veteran the benefit of the doubt, the Board is unable to comprehend a work environment in which he would have been able to maintain his employment and therefore finds he has been precluded from a substantial gainful occupation due to his service-connected disabilities. 38 U.S.C. § 5107(b); Lynch, supra 21 F.4th 776 (Fed. Cir. 2021). Accordingly, an extraschedular TDIU is granted from September 10, 2010, the date of award of service connection for his left knee disability, until July 3, 2013, the date he is currently in receipt of a schedular TDIU. REASONS FOR REMAND 4. Entitlement to an initial rating in excess of 10 percent for a left wrist disability is remanded. The Board regrets additional delay but unfortunately, another remand is required. Pursuant to the Board's January 2023 remand directives, a retrospective addendum opinion was rendered in February 2023. The prior Board remands, most recently in January 2023, requested a retrospective opinion that addressed the additional functional loss during flare ups (as required under Sharp v. Shulkin, 29Vet. App.26, 32 (2017)). However, February 2023 examiner did not provide such opinion stating that there was not enough information or evidence to provide a retrospective opinion. The examiner then stated "Veteran denied flare ups of the wrist on exams dated 11/15/19 and 4/20/21. Veteran's current description of flare ups are most accurate conducted on 6/21/22" however, did not explain what if any information was needed in order to render such information. Thus, a remand is now needed to ensure substantial compliance with the Board's January 2023 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: Provide a retrospective opinion regarding the functional loss attributable to the Veteran's service-connected left wrist knee disability occurring during flare-ups and when the left wrist is used repeatedly over a period of time. In rendering this opinion, the examiner must explicitly provide specific discussion of the nature and severity of flare-ups of the left wrist joint accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion, throughout the appeal period (from July 3, 2013 to the present, as reflected by the record). (Continued on the next page) ? If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran", what extent, if any, flare-ups affect functional impairment. The examiner must include a full rationale and discussion of any specific facts that cannot be determined if unable to opine without speculation. Additionally, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.