Case 23013526

Summary

The Veteran served in the United States Marine Corps and Air Force from February 2003 to July 2003, December 2006 to December 2007, and April 2011 to June 2016. The Veteran appealed the denial of service connection for right lower extremity radiculopathy and sought an increased rating for PTSD and left lower extremity radiculopathy. The Veteran also withdrew his appeals for GERD and left ear hearing loss. The Board granted service connection for right lower extremity radiculopathy. For PTSD, the Board found the Veteran's symptoms more closely approximated a 50 percent disability rating, citing symptoms of anxiety, panic attacks, sleep impairment, memory issues, and social difficulties, and resolving doubt in his favor. The Board considered a higher rating but found the evidence did not support the severity required for 70 percent or 100 percent ratings, noting the Veteran's thought processes were logical and he was oriented and groomed. For left lower extremity radiculopathy, the Board found the Veteran's testimony credible and, resolving doubt in his favor, determined his condition more closely approximated moderate incomplete paralysis throughout the appeal period, warranting a 20 percent rating prior to October 4, 2018. The Board also found service connection for right lower extremity radiculopathy warranted. The claim for TDIU was remanded for additional development due to unclear employment status.

Full Decision Text

Citation Nr: 23013526
Decision Date: 03/07/23	Archive Date: 03/07/23

DOCKET NO. 18-51 384
DATE: March 7, 2023

ORDER

The issue of entitlement to a disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is dismissed.

The issue of entitlement to an initial compensable rating for left ear hearing loss is dismissed.

A 50 percent disability rating, but no higher, for service-connected posttraumatic stress disorder (PSTD) is granted.

A 20 percent disability rating, but no higher, prior to October 4, 2018, for service-connected left lower extremity radiculopathy is granted.

Service connection for right lower extremity radiculopathy is granted. 

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. In April 2022, prior to the promulgation of a decision in the appeal, the Veteran indicated on the record that he wished to withdraw his appeal for a disability rating in excess of 10 percent for GERD and to an initial compensable rating for left ear hearing loss. 

2. The severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximate occupational and social impairment with reduced reliability and productivity.

3. Resolving reasonable doubt in his favor, prior to October 4, 2018, the Veteran's left lower extremity was manifested by impairment analogous to moderate incomplete paralysis of the sciatic nerve.

4. Resolving reasonable doubt his favor, the evidence is sufficient to establish a link between the Veteran's currently diagnosed right lower extremity radiculopathy and his period of service.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal of the issue of entitlement to a disability rating in excess of 10 percent for GERD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for withdrawal of the appeal on the issue of entitlement to an initial compensable rating for left ear hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for a disability rating of 50 percent evaluation, but no higher, for service-connected PTSD, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411.

4. The criteria for a disability rating of 20 percent, but no higher, for peripheral neuropathy of the left lower extremity, prior to October 4, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

5. The criteria for entitlement to service connection for right lower extremity radiculopathy have been met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from February 2003 to July 2003 and December 2006 to December 2007. He also served in United States Air Force from April 2011 to June 2016. 

These matters come before the Board of Veterans' Appeals (Board) from a rating decision issued in September 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). 

In April 2022 the Veteran presented testimony before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 

In addition to the foregoing, the Board finds that the issue of entitlement to TDIU has been raised in conjunction with the claim for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected). Accordingly, this matter
 has been associated with the record. 

In addition to the foregoing, the Board finds that the issue of entitlement to TDIU has been raised in conjunction with the claim for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected). Accordingly, this matter has been added to the claims on appeal.

Withdrawal of Appeal

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The withdrawal must include the name of the Veteran, applicable VA file number, and a statement that the appeal is withdrawn. 38 C.F.R. § 20.204 (b)(1). A withdrawal is effective upon the date it is received by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. § 20.204 (b)(3).

At the April 2022 hearing before the Board, the Veteran withdrew on the record his claims of entitlement to a disability rating in excess of 10 percent for GERD and for an initial compensable rating for left ear hearing loss. The VLJ confirmed with the Veteran that he understood that by withdrawing the claims on appeal, he would have to file a new claim with the RO if he wished to address these issues at any point again. The Board thus finds that the Veteran's withdrawal of his claim was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. See Acree v. O'Rourke, 891 F.3d 1009, 1012-1013. Accordingly, the Board does not have jurisdiction to review the appeal of these claims and they are dismissed.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life and employment. 38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3.

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (
 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  

PTSD 

The Veteran's service-connected PTSD is currently rated at 30 percent disabling from June 14, 2016. His PTSD is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. In relevant part, the rating criteria are as follows:

A 50 percent rating is warranted when the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted when the evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id.

A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411.

The list of symptoms in the General Formula is not intended to constitute an exhaustive list but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126.

The Veteran contends that a higher rating is warranted for his PTSD. Specifically, the Veteran asserts that the March 2016 VA examination does not fully convey the extent of his symptoms, explaining that the body of the examination report supports a rating in excess of 30 percent. See April 2022 Board hearing testimony. 

The Veteran received a March 2016 VA examination. The examiner noted the Veteran had a current diagnosis of PTSD. The examiner found the Veteran to have occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Upon examination the Veteran exhibited anxiety, suspiciousness, panic attacks that occur weekly or less often, impairment of short- and long-term memory, and flattened affect. The examiner
 PTSD. Specifically, the Veteran asserts that the March 2016 VA examination does not fully convey the extent of his symptoms, explaining that the body of the examination report supports a rating in excess of 30 percent. See April 2022 Board hearing testimony. 

The Veteran received a March 2016 VA examination. The examiner noted the Veteran had a current diagnosis of PTSD. The examiner found the Veteran to have occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Upon examination the Veteran exhibited anxiety, suspiciousness, panic attacks that occur weekly or less often, impairment of short- and long-term memory, and flattened affect. The examiner observed the Veteran presented as neatly groomed and dressed. He exhibited a flat affect, and his voice was soft and slow. The examiner indicated there was no thought disorders and no suicidal ideation was noted. 

In an August 2017 VA mental health treatment record the treatment provider noted the Veteran did not express current or recent suicidal or homicidal ideation, intent, or plans. The psychologist observed the Veteran was on time for the appointment. He was neat and clean, and his dress was appropriate. He exhibited an anxious mood, his affect was appropriate, congruent, blunted, constricted, and labile. The doctor noted there were no indications of mania/hypomania. 

A March 2018 private disability benefits questionnaire (DBQ) documented a diagnosis of PTSD, adjustment disorder with anxiety and depressed mood, bipolar features secondary to the stress of having PTSD. The private physician noted it was not possible to differentiate what symptoms are attributable to each diagnosis. The physician found the Veteran to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood. Upon examination the Veteran exhibited symptoms of depressed mood, anxiety, panic attacks more than once a week, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, and mild memory loss, such as forgetting names, directions or recent events.

Additionally, the Veteran exhibited symptoms of flattened affect, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or work-like setting. The physician observed the Veteran was orientated as to time, place and person and memory was somewhat spotty and inexact. During the examination the Veteran's affect was somewhat diminished. He denied any hallucinations and no suicidal ideation was noted. 

In an October 2018 VA mental health treatment record the Veteran did not express current or recent suicidal or homicidal ideation, intent, or plans. He denied any instances of non-suicidal self-directed harm. The treatment provider observed that the Veteran was clean and dressed appropriate. His mood appeared euthymic, and his affect was appropriate, congruent, blunted, constricted, and liable. Additionally, the treatment provider noted the Veteran's speech was normal and his thought process was logical, and goal directed. 

At the April 2022 Board hearing the Veteran testified that his short-term and long-term memory loss attributed to difficulty at work. He described that he experienced an inability to understand, organize, and remember his daily task while working which led to him losing his job. Further, he testified that his psychiatric condition led to the dissolution of his marriage. 

Based on the foregoing, the Board finds the Veteran's symptoms more closely approximates a 50 percent disability rating for PTSD. His VA examination and private DBQ records show symptoms of anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation, impairment of short- and long-term memory, and difficulty in establishing and maintaining effective social relationships. For example, in the March 2018 DBQ the private physician found the Veteran to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood. Also, during the examination the private physician observed the Veteran's memory was spotty and inexact. Thus, resolving all doubt in favor of the Veteran, the record indicated occupational and social impairment with reduced reliability and productivity.

Consideration has been given to assigning a higher rating for PSTD. However, the medical and lay evidence of record does not reflect that the Veteran's symptomatology warrants a 50 percent disability rating. The record does not reflect persistent delusions or hallucinations, grossly inappropriate behavior, gross impairment in thought or communication. The Board acknowledges the Veteran reported difficulty with long-term and short-term memory that caused difficulty at work resulting in losing his job, as well as his psychiatric conditions leading to his divorce. However, his other symptoms are not of similar severity, frequency, and duration of the 70 percent evaluation. As discussed
exact. Thus, resolving all doubt in favor of the Veteran, the record indicated occupational and social impairment with reduced reliability and productivity.

Consideration has been given to assigning a higher rating for PSTD. However, the medical and lay evidence of record does not reflect that the Veteran's symptomatology warrants a 50 percent disability rating. The record does not reflect persistent delusions or hallucinations, grossly inappropriate behavior, gross impairment in thought or communication. The Board acknowledges the Veteran reported difficulty with long-term and short-term memory that caused difficulty at work resulting in losing his job, as well as his psychiatric conditions leading to his divorce. However, his other symptoms are not of similar severity, frequency, and duration of the 70 percent evaluation. As discussed above the Veteran's thought and speech processes were coherent and logical. He was also noted to be fully oriented and adequately groomed and dressed.

Additionally, a 100 percent disability rating is not warranted during the period on appeal. In this regard, the record does not reflect that the Veteran experiences gross impairment in thought process or delusions. The Veteran has not endorsed persistent thoughts of wanting to hurt himself or others. The Veteran did not exhibit persistent disorientation or difficulties with memory of his name or that of his family. 

The Board fully recognizes that the listed symptoms for a 100 percent schedular rating are not all encompassing, and their presence is not necessarily determinative. However, the Veteran's records do not reflect total occupational and social impairment. The record during this period does not reveal symptoms analogous to gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time and place, or memory loss for names of close relatives, or own name.  Accordingly, a 50 percent disability evaluation, but no higher, is warranted. 

Left lower extremity radiculopathy

The Veteran seeks a higher rating for his left lower extremity radiculopathy. The Veteran contends his condition was just as bad in 2016 as it was in 2018 when his disability rating was increased. See April 2022 Board hearing testimony.

The Veteran's left lower extremity radiculopathy is currently assigned an initial disability rating of 10 percent prior to October 4, 2018, and a disability rating of 20 percent from October 4, 2018. His condition is rated under Diagnostic Code 8720. 

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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.

Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in Diagnostic Code 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 disabling. Complete paralysis, with paralysis of quadriceps extensor muscles, is rated 40 percent disabling. 38 C.F.R. § 4.124a.

Paralysis of the external cutaneous nerve of the thigh is evaluated in accordance with the criteria set forth in Diagnostic Code 8529. Under these criteria, a noncompensable (0 percent) rating is assigned for mild or moderate incomplete paralysis of the external cutaneous nerve of the thigh. The maximum 10 percent rating is assigned for severe to complete paralysis of the external cutaneous nerve of the thigh. 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 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
erate," and "severe" as used in the various diagnostic codes are not defined in the Rating Schedule. Regulations provide 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).

According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "mild" means not very severe. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

In a March 2016 VA back examination, the examiner diagnosed left lower extremity radiculopathy of the sciatic nerve. He had left lower extremity moderate intermittent pain, moderate paresthesias and/or dysesthesias, and numbness. 

The Veteran received an October 2018 VA peripheral nerve conditions examination. The examiner diagnosed bilateral lower extremity neuropathy sciatica nerve. The examiner noted the Veteran's left lower extremity moderate intermittent pain and moderate numbness. His left lower extremity had no constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness. Muscle strength and reflex testing was normal. There was no atrophy. Sensory testing reflected decreased sensation in the left upper anterior thigh. The Veteran was diagnosed with moderate incomplete paralysis of the left and right sciatic nerve. The external popliteal nerve, musculocutaneous nerve, anterior tibial nerve, internal popliteal nerve, posterior tibial nerve, anterior crural (femoral) nerve, internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and ilio-inguinal nerve were normal.

The Veteran provided testimony at the April 2022 Board hearing that throughout the period on appeal his condition has not gotten worse, rather it has remained the same since 2016. Specifically, he described that his pain, paresthesia/dysesthesia and numbness feels the same as it did in 2016. He also testified his symptoms include tingling, pins, and needles radiating down from the hip. The Board finds that the Veteran's testimony regarding his left lower extremity radiculopathy throughout the period on apple to be credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Resolving any doubt in the Veteran's favor and viewing the lay and medical evidence, the Board finds that the Veteran's radiculopathy of the left lower extremity more nearly approximates moderate incomplete paralysis for entire appeal period. Accordingly, a 20 percent disability rating is warranted prior to October 4, 2018. 

Consideration has been given to a higher disability rating. However, the medical and lay evidence of record does not reflect that the Veteran's symptomatology warrants a 30 percent disability rating. His left lower extremity radiculopathy does not more nearly approximate severe or incomplete paralysis. None of the available examination reports or medical treatment notes suggest that he experienced severe symptoms, as sensory and muscle strength findings were normal except for decreased sensation of the left upper anterior thigh and positive leg straight leg raising test, and there was no evidence of muscle atrophy. Moreover, he has not shown that he has experienced motor and/or reflex impairment and when the involvement is wholly sensory, the rating should be for at most the moderate degree and the involvement in this case was wholly
Consideration has been given to a higher disability rating. However, the medical and lay evidence of record does not reflect that the Veteran's symptomatology warrants a 30 percent disability rating. His left lower extremity radiculopathy does not more nearly approximate severe or incomplete paralysis. None of the available examination reports or medical treatment notes suggest that he experienced severe symptoms, as sensory and muscle strength findings were normal except for decreased sensation of the left upper anterior thigh and positive leg straight leg raising test, and there was no evidence of muscle atrophy. Moreover, he has not shown that he has experienced motor and/or reflex impairment and when the involvement is wholly sensory, the rating should be for at most the moderate degree and the involvement in this case was wholly sensory.

Lastly, while this appeal was pending as discussed above, the October 2018 VA examination report indicates the Veteran has at least some radiculopathy of the right lower extremity, in addition to the already service-connected radiculopathy of the left lower extremity. The Board finds that such a condition may be found within the scope of his original claim for his lower extremities. See Robinson v. Peake, 21 Vet. App. 545, 552-53 (2008) (discussing the Board's duty to consider all issues raised by the evidence of record). As the examiner referred to some radicular symptoms of the right lower extremity, finding moderate incomplete paralysis in the right lower extremity, the Board cannot conclude that the Veteran only has radiculopathy in the left lower extremity, as opposed to the radiculopathy of the bilateral lower extremities. 

The Board notes, therefore, the Veteran is currently diagnosed with radiculopathy of the right lower extremity. Resolving any doubt in the Veteran's favor, the Board finds that service connection for right lower extremity radiculopathy is warranted.  

REASONS FOR REMAND

Remand is required for additional development regarding the Veteran's employment status. As discussed above, the Veteran testified that he lost his job due to his psychiatric symptoms. However, it is unclear if the Veteran is currently employed. Therefore, the Board finds that a claim of entitlement to TDIU has been reasonably raised by the record. See Rice, supra. 

The matters are REMANDED for the following action:

Issue a notice letter to the Veteran concerning the claim for a TDIU. Ask him to complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. If he provides a completed VA Form 21-8940, complete any necessary additional development of the claim.  

 

JEREMY J. OLSEN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Braxton, Associate 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.