Citation Nr: 25003445 Decision Date: 03/11/25 Archive Date: 03/11/25 DOCKET NO. 16-61 818 DATE: March 11, 2025 ORDER 1. Entitlement to an effective date earlier than July 26, 2023, for the grant of a 40 percent rating for left lower extremity radiculopathy (sciatic nerve) is denied. 2. Entitlement to a total disability rating for compensation based upon individual unemployability due solely to service-connected acquired psychiatric condition (psychiatric disorder) is denied. REMANDED 3. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDINGS OF FACT 1. Prior to July 26, 2023, left lower extremity radiculopathy was not manifested by moderately severe incomplete paralysis of the left sciatic nerve. 2. The evidence persuasively weighs against a finding that the Veteran is precluded from securing or following a substantially gainful employment due to the service-connected psychiatric disorder alone. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 26, 2023, for the grant of a 40 percent rating for left lower extremity radiculopathy have not been met. 38U.S.C. §§ 1155, 5107; 38C.F.R. §§4.1, 4.3, 4.124a, DC 8620. 2. The criteria for entitlement to a TDIU rating based solely on the service-connected psychiatric disorder have not 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 served on active duty in the United States Navy from July10, 1978 to April 7, 1981. In a November 2023 decision, the Board granted an increased disability rating of 40 percent, but not higher, for left lower extremity radiculopathy under DC 8620, effective July 26, 2023. The Veteran appealed the November 2023 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2024, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (Joint Motion) to vacate the Board's decision and remand the claim. The Court granted the motion, and the case returned to the Board for further appellate review. Within the Joint Motion, the parties agreed that the Board must consider whether the Veteran is entitled to an effective date earlier than July 26, 2023 for the award of a 40 percent rating for left lower extremity radiculopathy under DC 8620. The parties also agreed that the erred by not addressing whether entitlement to Special Monthly Compensation based on the need for aid and attendance was reasonably raised, and whether the Veteran could be entitled to a TDIU based solely on his service-connected psychiatric disorder such that he would be entitled to special monthly compensation for housebound status. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In a June 2009 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left lower extremity radiculopathy and assigned a 20 percent rating effective April 13, 2009. The 20 percent rating was continued in the July 2015 rating decision currently on appeal. An October 2017 rating decision also continued the 20 percent rating. A November 2022 Board decision remanded the issue to afford the AOJ an opportunity to consider newly received evidence. In the November 2023 Board decision, as discussed above, it granted a 40 percent rating for left lower extremity radiculopathy (sciatic nerve), effective July 26, 2023. A November 2023 rating decision implemented the rating decision. Rating Criteria The Veteran's disability is rated under DC 8620. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DCs 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 DCs 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" shows 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. The words "mild," "moderate," and "severe" as used in the various DCs 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 Board must define the relevant terms of the DC 8620 when assessing the severity of the Veteran's bilateral lower extremity radiculopathy pursuant to the ruling in Chavis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). VA's Adjudication Procedures Manual (Manual), though not binding on the Board, provides also benchmarks for mild, moderate, moderately severe, and severe peripheral nerves conditions. Per the Manual, mild incomplete paralysis is described as the disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. Additionally, a very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. M21-1, III.iv.4.N.4.c. Moderate incomplete paralysis is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment. Symptoms combinations that may fall into the moderate category include: combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished hyperactive reflexes (with or without sensory impairment) graded as medically moderate. Id. A "moderately severe" evaluation level includes motor and/or reflex impairment at a grade reflecting a high level of limitation or disability, and potentially atrophy. To be described as "severe," it would be expected that there is marked muscular atrophy. Id. The term "incomplete paralysis" shows a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id.; see Miller v. Shulkin, 28 Vet. App. 376. 1. Entitlement to an effective date earlier than July 26, 2023, for the grant of a 40 percent rating for left lower extremity radiculopathy (sciatic nerve) The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against the award of a 40 percent rating for left lower extremity radiculopathy prior to July 26, 2023. The reasons follow. The evidence shows that the Veteran's left lower extremity radiculopathy did not result in motor and/or reflex impairment at a grade reflecting a high level of limitation or disability, to include atrophy to warrant a 40 percent rating prior to July 26, 2023. In a May 2015 VA examination report for back conditions, the examiner documented that the Veteran had radicular pain or other symptoms of radiculopathy. The examiner documented that the Veteran did not have constant pain, no paresthesias and/or dysesthesias, and no numbness, but he had moderate intermittent pain in the left lower extremity. The examiner assessed that the Veteran's left lower extremity radiculopathy was characterized as mild. The Veteran's deep tendon reflexes (DTRs) were found to be normal in the left knee and ankle. He also had normal sensory findings in the left upper anterior thigh, thigh/knee/ lower leg/ankle, and foot/toes. The Veteran had no muscle atrophy. Muscle strength testing revealed normal results with left side hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension, where the Veteran had 5/5 muscle strength. In a June 2016 VA examination report for the back conditions, the Veteran had normal muscle strength for left hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. The Veteran did not have muscle atrophy, and had normal sensory testing results for the left upper anterior thigh, thigh/knee/ lower leg/ankle, and foot/toes. The Veteran's DTRs were normal in the left knee and ankle. With regard to the left lower extremity, the Veteran had no constant pain, no intermittent pain, no paresthesias and/or dysesthesias, but mild numbness. The examiner characterized the Veteran's overall severity left lower extremity radiculopathy as no worse than mild. VA treatment records do not support additional evaluation of the Veteran's left lower extremity radiculopathy during the remainder of the appeal period. The Board finds that the evidence persuasively weighs against a finding of moderately severe incomplete paralysis of the left sciatic nerve. The evidence does not support that the Veteran's left lower extremity radiculopathy was manifested by motor and/or reflex impairment at a grade reflecting a high level of limitation or disability, and there was affirmative evidence of no atrophy prior to July 26, 2023 to warrant a 40 percent rating. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to a 40 percent rating for left lower extremity radiculopathy prior to July 26, 2023 is warranted. Rather, the evidence persuasively weighs against an increased rating prior to July 26, 2023. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 2. Whether TDIU could be awarded based on the Veteran's service-connected psychiatric disorder alone. Within the Joint Motion, the parties wrote that, "[O]n remand[,] the Board must address whether TDIU could be awarded based on [the Veteran]'s service-connected psychiatric condition alone such that entitlement to SMC under 38 [U.S.C.] § 1114(s) could be granted." SMC at the rate provided under 38 U.S.C. § 1114(s) is payable where a veteran has a single service-connected disability rated as 100 percent disabling and either additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or is otherwise "permanently housebound" by reason of such disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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 because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is in receipt of a TDIU rating as of May 16, 2016, which was awarded in a September 2016 rating decision. The award of TDIU was based upon the Veteran's service-connected disabilities, which included lumbar degenerative joint disease with intervertebral disc syndrome, epilepsy, bowel dysfunction, left lower extremity radiculopathy, and erectile dysfunction. The Veteran initially appealed the effective date assigned for the award of the TDIU rating. However, after the Board denied an earlier effective date in the November 2023 decision, the Veteran, in his appeal to the Court, stated he did not challenge the Board's denial of an earlier effective date for the award of the TDIU rating. Instead, as noted above, the parties wrote within the Joint Motion that they wanted the Board to consider whether the Veteran could be awarded a TDIU rating based solely on the service-connected psychiatric disorder. Service connection was granted for a psychiatric disorder in a May 2021 rating decision and assigned a 70 percent rating, effective September 26, 2019. This disability rating meets the schedular criteria for entitlement to a TDIU rating. 38 C.F.R. § 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled 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). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). 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 nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has carefully reviewed the evidence of record and finds that the evidence persuasively weighs against a finding that the Veteran was unable to secure or follow substantially gainful employment due to the service-connected psychiatric disorder. The reasons follow. Regarding the Veteran's education, training, skills, and work history, the Veteran has reported inconsistent levels of education. For example, in the VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, he documented completing high school only. However, VA treatment records show that the Veteran reported having completed 1.5 years of college, which is documented on multiple occasions. The Veteran's work history is shown to include working as a custodial laborer for the U.S. Postal Service for approximately 10 years. The formal TDIU application shows he reported working there from 1995 to 2005. At a July 2009 VA medical appointment, he reported he had worked as a mover, press operator, custodian, letter carrier, driver, and line cook. At the May 2021 VA examination, the Veteran reported a past work history of installing HVAC systems, working in an assembly line position, performing wiring for telephone wiring, working at a restaurant, and working at an auto dealership. He noted that he was forced to retire because of physical disabilities (epilepsy and lumbar spine disability). The Veteran also reported having a hobby of minor construction. The Veteran's employment and education history reflects a capacity for learning, training, and adaptation that would not be hindered by the Veteran's service-connected psychiatric disorder. These attributes would facilitate the Veteran's ability to obtain and maintain substantially gainful employment in an occupation that is not precluded by his psychiatric symptoms. As to the Veteran's physical capabilities, as the Board was told to consider whether TDIU could be awarded based solely on the service-connected psychiatric disorder, it is not considering the Veteran's service-connected physical disabilities. The Veteran is already in receipt of a TDIU for his physical disabilities. Thus, for purposes of determining whether he is entitled to a TDIU rating based solely on the psychiatric disorder, the Board finds that the Veteran is physically capable of performing substantially gainful employment. As to the Veteran's mental capabilities, the record shows him to be capable of performing substantially gainful employment. Despite recurrent symptoms characterized by depression, anxiety, dysphoric mood, and difficulty sleeping, the record does not support that these symptoms have resulted in the severity of functional deficits that would preclude substantially gainful employment. The Veteran has generally been found to be alert, cooperative, and attentive with no observable cognitive deficits, a logical and goal-directed thought process, no hallucinations, delusions, or paranoia, and fair judgment and insight. At the May 2021 VA examination, the Veteran reported having several good friends and having hobbies that included minor construction work, drawing, and going to live music shows. He reported he was currently the manager, head coordinator, and liaison for the Jimmy Hendrix birthday and memorial foundation. He noted he was not paid for this work, but spent between 10 to 40 hours a week in this position. Accordingly, the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran is capable of work that would result in income at the level of substantially gainful employment. For example, the evidence is against a finding that the Veteran's service-connected psychiatric disorder would preclude him from occupations such as a warehouse worker, assembly line worker, or custodian, which are positions that would involve repetitive tasks. As noted above, the Veteran reported having worked on an assembly line and as a custodian. Therefore, he has the skills to perform these jobs. Even if he did not have the skills, these are jobs that use everyday skills of lifting, cleaning, and organizing, that would be simple and repetitive in nature. At the May 2021 VA examination, the Veteran reported that he had a hobby involving minor construction. Thus, he is capable of performing these jobs. Similarly, the Veteran would be mentally capable of manual labor positions, such as a landscaper performing simple repetitive tasks, such as mowing, trimming, digging, raking, and watering plants. The Veteran's work with the Jimmy Hendrix birthday and memorial foundation shows that he would be capable of performing substantially gainful employment. While he was not getting paid for such work, the work he was doing is evidence that supports the fact that the Veteran is mentally capable of working even with the service-connected psychiatric disorder. The above-described examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. This is evidence against a finding that the Veteran is unable to secure or follow all forms of substantially gainful employment due solely to his service-connected psychiatric disorder. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a TDIU rating is warranted based solely on the service-connected psychiatric disorder. Rather, the evidence persuasively weighs against the Veteran's claim. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application, and the claim for a TDIU rating based solely on the psychiatric disorder is denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). As a result of the finding that the Veteran is not entitled to a TDIU rating solely for the psychiatric disorder, entitlement to SMC based on housebound status is not warranted. The Veteran does not have one disability rated at 100 percent with additional disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS FOR REMAND 3. Entitlement to special monthly compensation based on the regular need for aid and attendance is remanded. In a July 2023 VA examination report for peripheral nerve conditions, it was reported that the Veteran requires a care provider to live with him in order to assist him with activities of daily living and assure his safety. In the June 2024 Joint Motion, the parties agreed that the Board should consider whether the issue of special monthly compensation based on the regular need for aid and attendance was raised by this record. The record does otherwise support discussion or analysis of the Veteran's need for a care provider, and the Veteran has not received a VA examination for aid and attendance. Accordingly, the Board finds that this issue must be remanded to afford the Veteran a new VA examination. The matter is REMANDED for the following action: Schedule the Veteran for an aid and attendance VA examination. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Husain, Rahat 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.