Citation Nr: 1751666 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-09 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating higher than 40 percent for lumbar spine degeneration with left lower extremity radiculopathy. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from October 1985 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which increased the assigned rating for the Veteran's low back disability to 40 percent effective from May 21, 2010. As discussed below, the rating criteria for spine conditions contemplate separate ratings for associated neurologic conditions. A separate 10 percent rating for right lower extremity radiculopathy was granted from May 21, 2010. A claim for TDIU was denied. In May 2011, a few months after the above rating decision was issued, the Veteran filed another claim for an increased rating for his low back condition. Given that this claim was filed less than a year after the February 2011 rating decision and essentially contests the rating assigned in that decision, the Board has construed it as a notice of disagreement. Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a notice of disagreement."). A March 2013 rating decision increased the rating for right lower extremity radiculopathy to 20 percent effective from September 5, 2012. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in August 2017. A copy of the hearing transcript is of record. FINDINGS OF FACT 1. The Veteran's low back disability is not manifested by unfavorable ankylosis of the spine. 2. The Veteran's right lower extremity has not demonstrated an overall level of moderate incomplete paralysis prior to September 5, 2012, or moderately severe incomplete paralysis thereafter. 3. From November 1, 2016, the Veteran's left lower extremity has demonstrated mild incomplete paralysis of the sciatic nerve. 4. The Veteran meets the schedular criteria for a TDIU as of November 1, 2016, and his service-connected disabilities would preclude him from obtaining or maintaining gainful employment from that date. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for lumbar spine degeneration have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2016). 2. The criteria for a rating higher than 10 percent for right lower extremity radiculopathy prior to September 5, 2012, and higher than 20 percent thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, Diagnostic Code 8520 (2016). 3. From November 1, 2016, the criteria for a separate 10 percent rating for left lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, Diagnostic Code 8520 (2016). 4. The criteria for a TDIU have been met from November 1, 2016. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A. Lumbar Spine The Veteran's lumbar spine degeneration is rated under Diagnostic Code (DC) 5237, which is part of the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under that formula, the assigned 40 percent rating contemplates forward flexion limited to 30 degrees or less, or favorable ankylosis of the thoracolumbar spine. A higher 50 percent rating is assigned for unfavorable ankylosis of the thoracolumbar spine. Ankylosis has been defined in precedent cases as stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). Note (5) to the General Rating Formula specifies that unfavorable ankylosis is defined, in pertinent part, as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension," with additional resulting impairment. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. In this case, unfavorable ankylosis has not been demonstrated at any time during the appeal period. VA examinations in December 2010, September 2012, April 2014 and November 2016 all document some range of motion capability for the Veteran's lumbar spine. The two most recent examinations specifically noted the absence of any ankylosis, favorable or otherwise. Therefore, a rating higher than 40 percent is not warranted. B. Radiculopathy In addition to the above, Note (1) of the General Rating Formula specifies that any objective neurologic abnormalities associated with a spine condition are to be separately rated under an appropriate diagnostic code. Indeed, the Veteran has already been assigned a separate rating for right lower extremity radiculopathy. The Board will consider the propriety of that rating, as well as whether a separate rating is also warranted for left lower extremity radiculopathy. DC 8520 provides ratings for paralysis or incomplete paralysis of the sciatic nerve. Disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A disability rating of 80 percent 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 the knee weakened or lost. 38 C.F.R. § 4.124a, DC 8520. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. See "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. The words "mild," "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 1. Right Lower Extremity The Veteran is currently assigned a 10 percent rating for right lower extremity radiculopathy prior to September 5, 2012, and a 20 percent rating thereafter. Prior to September 5, 2012, a rating higher than 10 percent is not warranted. VA records from September 2010, November 2010, and December 2010 all noted diminished sensation, but with normal strength and reflexes. A December 2010 VA examination documented numbness in the toes, calf, and thigh, as well as diminished reflexes, but with normal strength. In January 2011, the Veteran reported only slight numbness "on and off" in the right foot. In March 2011, following his low back surgery, he indicated that right leg pain was gone. The December 2010 VA examination findings could arguably be consistent with a moderate level of incomplete paralysis. See VA Manual M21-1.III.iv.4.G.4.c (moderate incomplete paralysis may involve a larger area in the nerve distribution being affected by sensory symptoms, and includes combinations of significant sensory changes and reflex or motor changes of a lower degree). However, given that the symptoms reported the following month were not as severe, and had dissipated by March 2011, the overall weight of the evidence is against a finding that right lower extremity radiculopathy was characterized by moderate incomplete paralysis for any significant length of time. From September 5, 2012, a rating higher than 20 percent is not warranted. VA examinations from September 2012, April 2015, and November 2016 documented the Veteran's symptoms (intermittent pain, paresthesias, and numbness) as being no more than moderate, with overall severity of the condition classified as moderate. This is consistent with the other findings from these examinations, namely strength of 4/5 for only part of the right leg (ankle, foot, and toes), diminished ankle reflexes, and diminished sensation in only the lower part of the leg. The higher 40 percent rating contemplates motor and/or reflex impairment at a grade reflecting a high level of limitation or disability, as well as possible atrophy. See M21-1.III.iv.4.G.4.c. Those findings have not been shown or approximated here. 2. Left Lower Extremity Prior to November 2016, a separate rating for left lower extremity radiculopathy is not warranted. Although VA records dated August 2010 noted some pain radiating to the left posterior thigh, examination revealed normal strength, reflexes and sensation. In December 2010, the Veteran reported having no left leg symptoms, and VA examinations from December 2010, September 2012, and April 2014 recorded normal neurological findings. VA records from May 2015 noted reports of left leg pain and documented strength of 4/5, but did not record reflexes, sensation, or other findings. From November 1, 2016, a separate 10 percent rating is appropriate for left lower extremity radiculopathy. The VA examination performed on that date documented mild paresthesias and mild numbness, and the examiner assessed the overall severity of the Veteran's condition as mild. Notably, strength, sensation, and reflexes were found to be normal. Nevertheless, the Board finds the examiner's assessment supports a separate 10 percent rating for mild radiculopathy. A higher 20 percent rating is not warranted, however. As stated, the examination findings were normal. Neither the signs associated with radiculopathy nor the overall impairment from the condition was described by the examiner as reaching the "moderate" level. See M21-1.III.iv.4.G.4.c (moderate incomplete paralysis includes combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment graded as medically moderate). 3. Other Considerations In evaluating the Veteran's claim for an increased rating for his lumbar spine condition, the Board has considered whether there are any additional neurologic abnormalities associated with his condition. However, in multiple VA outpatient records and VA examinations, the Veteran denied any bowel or bladder incontinence, and there is no indication of any other associated neurologic conditions. The Board has also considered whether a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes may be warranted. However, ratings under this formula are based on incapacitating episodes defined as periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. The record does not reflect that the Veteran was prescribed any bed rest for his condition. II. TDIU 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 disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2016). However, even when the rating percentage requirements are not met, entitlement to TDIU benefits may be nonetheless considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is determining whether a TDIU is warranted is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363. The Veteran is service-connected for the following conditions: lumbar spine degeneration (40 percent), right lower extremity radiculopathy (10 percent prior to September 5, 2012, and 20 percent thereafter), left lower extremity radiculopathy (10 percent from November 1, 2016), and a right wrist fracture (10 percent from March 10, 2017). Because the Veteran's conditions all relate to the orthopedic body system and/or have a single etiology, they are considered to be one disability for TDIU purposes. His combined rating is 50 percent prior to November 1, 2016, and 60 percent thereafter, meaning he only meets the schedular criteria for a TDIU as of November 1, 2016. In his May 2010 VA Form 21-8940, the Veteran reported working in operations, marketing and taxes from 1995 to 2009. He also worked in administration from 2004 to 2007, and had worked as a library assistant for the City of Oakland from 2003 through the present. He indicated that he was still employed at the time but was unable to work. VA vocational rehabilitation records from April 2012 show that he had been on medical leave from his library assistant position since October 2010. These records also reflect that he had a bachelor's degree in political science, a master's degree in administration, and certificates for paralegal studies and tax preparation. With respect to the functional impact of the Veteran's conditions, multiple records show that he could not engage in prolonged sitting, standing or walking, and could not do any kneeling, squatting, bending, stooping, or heavy lifting. An April 2017 VA examination also noted that the Veteran's wrist condition limited fine motor function like writing and using tools. As part of a July 2012 employment analysis, it was determined that the Veteran's limitations were so significant that no accommodations would support him being able to do his job as a library assistant. Notations from his vocational rehabilitation records and an April 2014 VA examination reflect that he would be unable to obtain or sustain employment that was not light or sedentary in nature. While acknowledging his high levels of pain, his vocational rehabilitation file nevertheless stated that he had an advanced education evidenced by his graduate degree, as well as strong transferable skills in business administration and financial management, and that placement would be sought with an employer who could provide flexible hours and allow working from home, which could be the case with financial management consulting firms like Charles Schwab. Based on this evidence, the Board finds that a TDIU is not warranted prior to November 1, 2016. The Board acknowledges the various functional limitations identified in the evidence, as well as the Veteran's employment history. However, the April 2012 vocational rehabilitation records indicate the Veteran was capable of performing the mental and physical acts of some forms of employment, particularly given his education and skill set. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1991). Moreover, the assigned 50 percent rating in effect during this period, particularly the 40 percent rating for his lumbar spine, represents the average impairment in earning capacity in civil occupations resulting from his conditions, and is considered adequate to compensate for considerable loss of working time. 38 C.F.R. § 4.1. Ultimately, the Veteran does not meet the schedular criteria for a TDIU for this period, and the evidence does not reflect some factor that takes his case "outside the norm" of any other veteran rated at the same level. Van Hoose, supra. Therefore, a TDIU prior to November 1, 2016, is not appropriate. From November 1, 2016, a TDIU is warranted. The Veteran meets the schedular criteria for a TDIU from this date, which includes additional impairment from his left lower extremity radiculopathy, as well as his right (dominant) wrist from March 10, 2017. While the Board acknowledges the vocational rehabilitation findings regarding the Veteran's ability to work for financial management consulting firms, such employment is subject to the ability to work from home during flexible hours. Given the additional service-connected disabilities in effect during this period and the fact that the Veteran now meets the schedular criteria, the Board concludes that he would not be able to obtain or maintain employment under such circumstances. Indeed, during his August 2017 hearing, he testified that he briefly worked for a management company but only lasted about 2 months. Therefore, a TDIU is warranted for this period. ORDER A rating higher than 40 percent for lumbar spine degeneration is denied. A rating higher than 10 percent for right lower extremity radiculopathy prior to September 5, 2012, and higher than 20 percent thereafter, is denied. A separate 10 percent rating for left lower extremity radiculopathy is granted from November 1, 2016. A TDIU is granted from November 1, 2016. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs