Citation Nr: 1750197 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 08-26 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased disability rating for multilevel degenerative disc disease of the lumbosacral spine, currently evaluated as 40 percent disabling. 2. Entitlement to an increased disability rating for right lower extremity radiculopathy, currently evaluated as 20 percent disabling. 3. Entitlement to an increased disability rating for left lower extremity radiculopathy, currently evaluated as 10 percent disabling. 4. Entitlement to service connection for erectile dysfunction as secondary to service-connected multilevel degenerative disc disease of the lumbosacral spine. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1968 and from July 1977 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which continued a 20 percent disability rating for multilevel degenerative disc disease of the lumbosacral spine, while granting a separate 10 percent disability rating, effective August 4, 2006, for left lower extremity radiculopathy associated with the multilevel degenerative disc disease of the lumbosacral spine. The Veteran perfected a timely appeal with respect to the 20 percent disability rating assigned for his multilevel degenerative disc disease of the lumbosacral spine. Although he did not expressly contest the 10 percent rating assigned for his radiculopathy, the Board subsequently determined that this issue was also on appeal in accordance with the VA schedular criteria for rating spine disorders, which include evaluation of any associated objective neurologic abnormalities including radiculopathy of the lower extremities. See 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine. In a November 2011 decision, the Board granted a higher 40 percent rating for the Veteran's lumbar spine disorder and also assigned higher ratings of 20 percent and 10 percent, respectively, for his right and left lower extremity radiculopathy. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued a March 2012 Order granting a Joint Motion for Partial Remand (Joint Motion) to vacate and remand that portion of the decision which denied a disability rating above 40 percent for the Veteran's lumbar spine and ratings in excess of 20 percent and 10 percent for his right and left-sided radiculopathy. The Board remanded this matter to the RO in December 2012 for development consistent with the March 2012 Joint Motion. As that development has been completed, the matter is again before the Board for adjudication. In January 2017, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA) with regard to the etiology of the Veteran's erectile dysfunction. The requested opinion was received in June 2017. Although a copy of this medical opinion has not been provided to the Veteran or his representative, the Board is granting the Veteran's claim concerning erectile dysfunction in full. Thus, the Veteran is not prejudiced by the Board reaching a decision on the merits of this issue. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's erectile dysfunction is caused by his service-connected multilevel degenerative disc disease of the lumbosacral spine. 2. The Veteran's service-connected disabilities cause him to be unable to secure or maintain substantially gainful employment. 3. At no point during the appeal period has the Veteran's multilevel degenerative disc disease of the lumbosacral spine been productive of favorable or unfavorable ankylosis of the thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome requiring bed rest for at least six weeks. 4. At no point during the appeal period has the Veteran's right lower extremity radiculopathy been productive of more than moderate incomplete paralysis of the sciatic nerve. 5. At no point during the appeal period has the Veteran's left lower extremity radiculopathy been productive of more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Entitlement to special monthly compensation at the rate provided by 38 U.S.C.A. § 1114(k) (West 2014) for loss of use of a creative organ is established. 38 C.F.R. § 3.350(a)(1) (2017). 2. The criteria for the assignment of a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). 3. The criteria for a rating in excess of 40 percent for multilevel degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2017). 4. The criteria for a rating in excess of 20 percent for right lower extremity radiculopathy associated with low back disability have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 5. The criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy associated with multilevel degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks a rating in excess of 40 percent for service-connected multilevel degenerative disc disease of the lumbosacral spine, a rating in excess of 20 percent for right lower extremity radiculopathy, a rating in excess of 10 percent for left lower extremity radiculopathy, service connection for erectile dysfunction as secondary to multilevel degenerative disc disease of the lumbosacral spine and an award of TDIU. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Based on the evidence of record, the Board finds that service connection for erectile dysfunction and the grant of TDIU is warranted, but that higher ratings for the Veteran's multilevel degenerative disc disease of the lumbosacral spine, right lower extremity radiculopathy and left lower extremity radiculopathy are not warranted. A. Impairment of a creative organ The Board finds that the Veteran is entitled to a noncompensable rating for erectile dysfunction under DC 7522, as well as special monthly compensation for loss of a creative organ pursuant to 38 U.S.C.A. § 1114(k). The VHA expert providing the June 2017 medical opinion found that it was at least as likely as not that the Veteran's current erectile dysfunction is caused by the combination of his service-connected lumbar spine disability, including bilateral lower extremity radiculopathies, and the medications taken for these disabilities. The expert reasoned that the Veteran's lumbar spine and lower extremity disabilities affect his groin, which could affect the neurological portion of erectile functioning. The examiner further noted that the Veteran has been on chronic narcotics for over 10 years to manage his back and lower extremity pain, and that these opiates can cause a decrease in testosterone, which would also decreased erectile functioning as well. The Board finds the examiner's opinion highly probative as it contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the foregoing, the Board concludes that entitlement to a separate noncompensable rating under DC 7522 for a disability analogous to penis deformity with a loss of erectile power. Erectile dysfunction is not specifically addressed in the Rating Schedule; however, under DC 7522, a penis deformity with a loss of erectile power warrants a 20 percent disability rating. This is the sole disability rating provided under this diagnostic code provision. Here, the Veteran was found to have a normal penis with no deformity on physical examination and is unable to achieve an erection with medication. See April 2010 VA Medical Record; see also April 2012 VA Examination Report. As such, the Board finds that the Veteran is entitled to a noncompensable rating for erectile dysfunction under DC 7522, and special monthly compensation for loss of use of a creative organ at the rate provided by 38 U.S.C.A. § 1114(k). See 38 C.F.R. § 3.350(a)(1) and § 4.115(b) (Note 1). B. TDIU The Veteran seeks a TDIU, reporting that he is currently unable to work in a substantially gainful occupation because of his service-connected disabilities. He contends that he cannot walk, stand or sit for any length of time, and that his mind does not function as it should. See July 2016 Substantive Appeal. The Board finds that entitlement to a TDIU is warranted. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran has the following service-connected disabilities at the following ratings: multilevel degenerative disc disease of the lumbosacral spine rated as 40 percent, right lower extremity radiculopathy rated at 20 percent, left lower extremity radiculopathy rated at 10 percent and hemorrhoids rated as noncompensable. The Veteran's lumbar spine and lower extremity radiculopathy disabilities are considered as one disability for the purpose of determining whether the Veteran has one 60 percent disability, or one 40 percent disability in combination. See 38 C.F.R. § 4.16 (a) (indicating that disabilities of a common etiology will satisfy the requirement for one disability ratable at 60 percent or more or 40 percent or more). Therefore, as the Veteran has one disability rated as 60 percent or more, the schedular criteria for an award of TDIU are met. 38 C.F.R. §§ 4.25, 4.16(a). The Board finds that the Veteran is entitled to a TDIU because the functional impairments caused by his service-connected lumbar spine and lower extremity disabilities prevent him from working in a substantially gainful occupation when considering his educational background and work experience. The Veteran has a high school education and completed a two year college degree. See 2006 Social Security Administration Disability Report; see also June 2007 Social Security Administration Determination. The evidence of record shows that after service he worked as an assembler, radar technician, cook, and at a textile plant. See 2006 Social Security Administration Disability Report. He last worked as a heat set operator at the textile plant from June 1998 to January 2006, a job that required him to push, pull, lift and carry 50 pound wheels of yarn and operate heavy machinery. See id. The Veteran reported that his job required him to walk, stand, stoop, kneel, crouch, reach, lift and carry most of the day. See id. Thus, the Veteran's background shows that he has spent most of his career in semiskilled employment. There is no evidence that the Veteran worked in sedentary employment, such as an office or an office-type setting. The evidence further shows that his service-connected disabilities cause functional impairment that would prevent him from completing the tasks required in the type of positions commensurate with his education and experience. The Veteran reported that his service-connected disabilities prevent him from standing, walking or sitting for any length of time. During the April 2014 VA examination, the examiner found that the Veteran's service-connected lumbar spine and lower extremity radiculopathy disabilities have a severe impact on his ability to perform both physically active and sedentary employment tasks. During this examination the Veteran demonstrated restricted range of motion in his spine and instability of station. He was unable to perform repetitive-use testing with three repetitions as a result of his instability. He was also found to have functional loss due to the contributing factors of less movement than normal, weakened movement, incoordination, pain on movement, instability, disturbance of locomotion and interference with sitting, standing or weight-bearing. The Veteran reported using a cane or walker to ambulate, depending on whether he was at home or the distance he needed to walk. The April 2012 VA examiner noted that the level of pain the Veteran is in requires ongoing use of narcotic pain medications, which cause sedation. His restriction in range of motion is severe with even minor motion eliciting severe pain. Sitting for prolonged periods of time elicits increased pain despite medication. He also requires the use of assistive devices for basic activities of daily living. Given the Veteran's functional impairment as described above, the Board finds that he is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. His inability to engage in physical activities involving prolonged standing or walking preclude him from working in any semiskilled position such as those he has worked in the past. Moreover, his pain and use of narcotic pain medicines negatively impacts his ability to work in sedentary employment positions as well. The Social Security Administration noted that "[a]ny skills or education he may have acquired are of little use to him now due to credible frequent deficits in concentration and attention triggered by intense and persistent debilitating musculoskeletal pain." See June 2007 Social Security Determination. Although the determination of the Social Security Administration is not binding on the VA, the Board finds this determination to be persuasive in this instance, particularly given that the April 2014 VA examiner also noted that the Veteran's pain not only restricts his range of motion, but also his ability to stand or sit for a prolonged period of time. Thus, the criteria for entitlement to a TDIU have been met and an award of TDIU is warranted. C. Lumbar Spine Rating The Board finds that a rating in excess of 40 percent is not warranted for the Veteran's lumbar spine disability because the evidence does not demonstrate that the symptoms associated with this disability resulted in incapacitating episodes of six weeks or more in a twelve month period, or more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a. Under the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating; unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. When evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Here, the evidence does not show that the Veteran has suffered any ankylosis of the thoracolumbar spine, favorable or unfavorable, at any point during the appeal period. Both the August 2006 and the September 2014 VA examinations specifically note that the Veteran does not have ankylosis of the spine. At worst, the Veteran's lumbar spine disability was productive of limitation of forward flexion to 40 degrees with pain beginning at 15 degrees, limitation of extension to 5 degrees with pain beginning at 0 degrees, limitation of right and left lateral flexion to 15 degrees with pain beginning at 5 degrees, limitation of right lateral rotation to 10 degrees with pain at 5 degrees, and limitation of left lateral rotation at 15 degrees with pain at 10 degrees. Although he could not perform repeat testing during the April 2012 VA examination and was found to have functional limitation due to multiple contributing factors as set forth above, the evidence does not show that the Veteran's lumbar spine disability resulted in all or part of the spine being fixed in flexion or extension. Thus a rating in excess of 40 percent under the General Rating Formula is not warranted. The Board further finds that a rating in excess of 40 percent is not warranted using the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the formula, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243 (Intervertebral Disc Syndrome), an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). There is no evidence that the Veteran suffered from incapacitating episodes having a total duration of at least six weeks at any point during the appeal period or during the 12 months prior to the April 2006 claim. The Veteran's medical records do not show that the Veteran was prescribed or recommended bed rest by his treating physicians for at least six weeks during the relevant time period. Moreover, the May 2010 VA examination noted that the Veteran had no incapacitating episodes in the previous year, the April 2012 VA examination noted incapacitating episodes that occurred at least 2 weeks but less than 4 weeks and the September 2014 VA examiner noted no incapacitating episodes. Thus, a rating in excess of 40 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. D. Associated Lower Extremities Neurologic Symptoms The Board finds that the competent evidence of record warrants no more than a 20 percent disability rating for radiculopathy of the right lower extremity and no more than a 10 percent separate disability for radiculopathy of the left lower extremity. See 38 C.F.R. § 4.124a, Diagnostic Code 8620. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, Diagnostic Code 8520. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. The evidence does not show that the left and right lower extremities are productive of more than mild and moderate incomplete paralysis of the sciatic nerve. Private treatment records show that during treatment in May 2010 the Veteran reported low back pain and bilateral leg pain, which was worse on the right than the left side. The impression at that time included lumbar radiculitis for which the Veteran received lumbar epidural steroid injection. More recent VA treatment records reflect that the right side has been more predominant in terms of the level of pain radiation during the appeal period. During the May 2010, April 2012 and September 2014 VA examinations the Veteran was found to have full strength (5/5) in both lower extremities with no muscle atrophy or trophic changes. It was noted during the April 2012 VA examination that he uses a cane or walker to ambulate, but the examiner reported that these devices were used for his lumbar spine condition rather than his lower extremity disabilities. The Board notes that the Veteran has competently attested to the right being worse than the left side in pain symptoms. During the April 2012 VA examination he reported mild paresthesias and/or dysesthesias in connection with his lower extremity disabilities, and during the September 2014 VA examination he reported experiencing moderate constant pain in both legs. In sum, the evidence does not warrant a disability rating in excess of the existing 10 percent for the left lower extremity, as the evidence shows no more than mild symptoms of neuropathy associated with the multilevel degenerative disc disease of the lumbosacral spine, and to that extent the Veteran's claim is denied. Also, the evidence does not warrant a disability rating in excess of 20 percent for the right lower extremity for moderate symptoms of neuropathy associated with the multilevel degenerative disc disease of the lumbosacral spine. Finally, the competent evidence does not show, and the Veteran denies having, any other associated objective neurologic abnormalities to specifically include any bowel or bladder impairment. Although he reported during a July 2011 VA medical appointment that he was having intermittent foot drag as well as loss of bowel control, he reported having no bowel issues during a June 2010 VA medical appointment and again during the subsequent VA medical appointments in October 2011, April 2012, November 2012, February 2013, August 2013 and VA examinations in April 2012 and September 2014. These records also show no evidence of foot drop. The Veteran reported having urinary urge incontinence during the September 2014 VA examination; however, it was noted that this was not spontaneous incontinence and it was previously found during the April 2012 VA examination that the Veteran did not have bladder symptoms related to his service-connected lumbar spine disability. The VA examinations and other medical records show no evidence of foot drop. Thus, the Board affords little probative value to the July 2011 VA medical record. ORDER Special monthly compensation pursuant to 38 U.S.C.A. § 1114(k) for loss of a creative organ is granted, subject to the law and regulations governing the payment of VA monetary benefits. A TDIU is granted, subject to the law and regulations governing the payment of VA monetary benefits. A rating in excess of 40 percent for multilevel degenerative disc disease of the lumbosacral spine is denied. A rating in excess of 20 percent for right lower extremity radiculopathy is denied. A rating in excess of 10 percent for left lower extremity radiculopathy is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs