Citation Nr: 1802967 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 10-04 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for lumbar strain. 2. Entitlement to an increase rating in excess of 20 percent for C6-7 radiculopathy of the left upper extremity, from July 12, 2012. 3. Entitlement to an increase rating in excess of 20 percent for musculocutaneous neuropathy of the right upper extremity, from July 12, 2012. 4. Entitlement to an increase rating in excess of 10 percent for radiculopathy of the right lower extremity, from July 12, 2012. 5. Entitlement to an increase rating in excess of 10 percent for radiculopathy of the left lower extremity, from July 12, 2012. 6. Entitlement to a total disability rating based upon individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2004 to November 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In October 2010, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This case was previously before the Board in October 2011, February 2014, November 2014, December 2015, and February 2017. FINDINGS OF FACT 1. For the entire disability rating period under appeal, the Veteran's lumbar strain, was not manifested by forward flexion of the thoracolumbar spine limited to 60 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or muscle spasms; or guarding severe enough to result in an abnormal gait or spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or symptomatology resulting in incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during a 12 month period. 2. The Veteran's C6-7 radiculopathy of the left upper extremity most nearly approximates mild incomplete paralysis of the upper radicular group. 3. The Veteran's musculocutaneous neuropathy of the right upper extremity most nearly approximates mild incomplete paralysis of the upper radicular group. 4. The Veteran's radiculopathy of the right lower extremity most nearly approximates mild incomplete paralysis of the sciatic nerve. 5. The Veteran's radiculopathy of the left lower extremity most nearly approximates mild incomplete paralysis of the sciatic nerve 6. The competent clinical evidence of record is against a finding that the Veteran's service-connected disabilities preclude him from maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbar strain have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5235 - 5243. 2. The criteria for a rating in excess of 20 percent for C6-7 radiculopathy of the left upper extremity, affecting the upper radicular group, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8599-8510 (2017). 3. The criteria for a rating in excess of 20 percent for musculocutaneous neuropathy of the right upper extremity, affecting the upper radicular group, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8510 (2017). 4. The criteria for a rating in excess of 10 percent for radiculopathy of the right lower extremity, affecting the sciatic nerve, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 5. The criteria for a rating in excess of 10 percent for radiculopathy of the left lower extremity, affecting the sciatic nerve, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 6. The criteria for the award of TDIU benefits have not been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Musculoskeletal Disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 and 4.45 (2017), see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. However, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5024 (2017). Lumbar strain The Veteran's service-connected lumbar strain has been rated as 10 percent disabling under Diagnostic Code 5237. 38 C.F.R. § 4.71a (2017). The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243 (2017). Under these relevant provisions, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height is rated at 10 percent. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. In addition, intervertebral disc syndrome may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. A VA medical examination was obtained in October 2009. The VA examination reflected the Veteran's thoracolumbar had a forward flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion on both right and left from 0 to 30 degrees, and lateral rotation on both right and left 0 to 30 degrees. The examination further noted no spinal ankylosis. The Veteran was provided a VA medical examination in July 2012. The examination reflected the Veteran's thoracolumbar had a forward flexion from 0 to 80 degrees with objective evidence of painful motion beginning at 60 degrees, extension from 0 to 25 degrees with evidence of painful motion beginning at 25 degrees, lateral flexion on both right and left from 0 to 30 degrees or greater with no evidence of painful motion, and lateral rotation on both right and left 0 to 30 degrees or greater with no objective evidence of painful motion. The examination reflected the Veteran's range of motion on repetition was unchanged. Additionally, the examination reflected the Veteran's lumbar sprain had no localized tenderness or pain to palpation, no guarding or muscle spasms resulting in abnormal gait or abnormal contour. The examination noted the Veteran with normal strength, no muscle atrophy, no signs or symptoms of no ankylosis or incapacitating episodes in connection with intervertebral disc syndrome. The Veteran was provided a VA medical examination in June 2014. The examination reflected the Veteran's thoracolumbar had a forward flexion from 0 to 90 degrees with objective evidence of painful motion beginning at 80 degrees, extension from 0 to 30 degrees or greater with evidence of painful motion beginning at 25 degrees, lateral flexion on both right and left from 0 to 30 degrees or greater with evidence of painful motion beginning at 25 degrees, bilaterally, and lateral rotation on both right and left 0 to 30 degrees or greater with objective evidence of painful motion beginning at 25 degrees, bilaterally. Additionally, the examination reflected the Veteran's lumbar sprain had no localized tenderness or pain to palpation, no guarding or muscle spasms resulting in abnormal gait or abnormal contour. The examination noted the Veteran with normal strength, no muscle atrophy, no signs or symptoms of radicular pain, no ankylosis, or incapacitating episodes in connection with intervertebral disc syndrome. The Veteran was provided a VA medical examination in February 2016. The examination reflected the Veteran's thoracolumbar had a forward flexion from 0 to 90 degrees, extension from 0 to 10 degrees, lateral flexion on both right and left from 0 to 30 degrees, and lateral rotation on both right and left 0 to 30 degrees. Additionally, the examination reflected the Veteran's lumbar sprain had lumbar paraspinal muscle tenderness due to his low back disability. The examination further noted the Veteran's lumbar sprain with no guarding or muscle spasms resulting in abnormal gait or abnormal contour. The examination noted the Veteran with normal strength, no muscle atrophy, no signs or symptoms of no ankylosis, or incapacitating episodes in connection with intervertebral disc syndrome. The Veteran was provided a VA medical examination in March 2017. The examination reflected the Veteran's thoracolumbar had a forward flexion from 0 to 85 degrees, extension from 0 to 30 degrees, lateral flexion on both right and left from 0 to 40 degrees, and lateral rotation on both right and left 0 to 45 degrees. The examination reflected the Veteran's range of motion on repetition was unchanged. The examination further noted the Veteran's lumbar sprain with no guarding or muscle spasms resulting in abnormal gait or abnormal contour. The examination noted the Veteran with normal strength, no muscle atrophy, no signs or symptoms of no ankylosis, or incapacitating episodes in connection with intervertebral disc syndrome. Since the Veteran's thoracolumbar spine demonstrated a forward flexion greater than 60 degrees, a rating exceeding 10 percent is not warranted under DC 5237. Additionally, a higher rating exceeding 10 percent is not warranted as the competent credible evidence does not indicate that the Veteran had unfavorable or favorable ankylosis in the entire spine, entire thoracolumbar spine, or entire cervical spine. Furthermore the claims folder does not indicate that the Veteran experienced an incapacitating episode for a total duration of at least four weeks during the last 12 months. For VA purposes 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, Diagnostic Code 5243, Note (1) (2017). The Board acknowledges the Veteran's statements in regard to pain and daily impairment his lumbar sprain causes. However; the Board finds the objective medical evidence to be of more probative value in determining the functional impairment of his disability. The Board has considered whether there are any other applicable diagnostic codes which would provide a higher rating, but the Board finds there is not. Bilateral upper extremity Rating Criteria The Veteran's C6-7 radiculopathy of the left upper extremity is rated as 20 percent disabling under Diagnostic Codes 8599-8510. The Veteran's musculocutaneous neuropathy of the right upper extremity is rated as 20 percent disabling under Diagnostic Codes 8510. For impairment of an upper extremity, the disability rating assigned depends on whether the extremity is the major extremity or the minor extremity. The major extremity is the one predominantly used by the Veteran. Only one extremity may be considered major. 38 C.F.R. § 4.69. The Board notes that the RO has rated the left upper extremity as the Veteran's non-dominant extremity, and the Veteran has not disputed that rating. Under DC 8510, the following ratings apply: a 20 percent rating is warranted for mild incomplete paralysis of both the minor and major extremity; a 30 percent and 40 percent rating is warranted for moderate incomplete paralysis of the minor and major extremity, respectively; a 40 percent and 50 percent rating is warranted for severe incomplete paralysis of the minor and major extremity, respectively; and a 60 percent and 70 percent rating is warranted for complete paralysis of the minor and major extremity, respectively, with all shoulder and elbow movements lost or severely affected and hand and wrist movements not affected. 38 C.F.R. § 4.124a, DC 8510. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to the varied level of the nerve lesion or partial regeneration. When the involvement is wholly sensory, the rating should be evaluated as mild, or at most, the moderate degree. See note under "Diseases of the Peripheral Nerves." 38 C.F.R. § 4.124a. The July 2012 VA examination report reflects the Veteran with mild numbness within the bilateral upper extremity. Additionally, both the Veteran's upper radicular group and musculocutaneous nerve was noted with mild incomplete paralysis, bilaterally. The February 2016 VA examination report reflects the Veteran's upper radicular group with mild incomplete paralysis, bilaterally. The examination does not note complete or incomplete paralysis or the musculocutaneous nerve. Based on the above, to include medical treatment records, the Board finds that an increased rating in excess of 20 percent for the Veteran's bilateral upper extremity disability is not warranted. Here, the examinations reflect the Veteran with incomplete mild paralysis of the both upper extremities which provides a 20 percent disability rating for the minor and major extremity. The Board observes that there is also a finding of mild paralysis of the musculocutaneous nerve, bilaterally. Separate ratings for upper extremity radiculopathy under both DCs 8510 and 8514 based on the same neurological symptoms would constitute prohibited pyramiding. 38 C.F.R. § 4.14 (2017). The Board finds that DC 8510 is the most favorable and appropriate code under which to rate the Veteran. Bilateral lower extremity Rating Peripheral Neuropathy of the Lower Extremities The Veteran's radiculopathy of the bilateral lower extremity is rated as 10 percent disabling each under Diagnostic Codes 8520. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. A July 2012 VA examination report noted the Veteran with mild radiculopathy involving the sciatic nerves. A June 2014 VA examination report noted the Veteran with no radicular pain or any other sign or symptoms due to radiculopathy. A February 2016 VA examination report noted the Veteran with mild parathesias/dysesthesias and numbness in the bilateral lower extremity. The examination report further noted the Veteran with mild radiculopathy involving the sciatic nerves. A March 2017 VA examination report noted the Veteran with mild intermittent pain, and numbness in the bilateral lower extremity. The examination report further noted the Veteran with mild radiculopathy involving the sciatic nerves. The Veteran is currently in receipt of 10 percent disability for the radiculopathy affecting the sciatic nerve for both left and right lower extremity separately. The objective clinical evidence reflects that at the most, the Veteran's radiculopathy affecting the sciatic nerve is manifested by mild incomplete paralysis of the sciatic nerve. As such a disability rating in excess of 10 percent for either lower extremity is not warranted. The Board has considered whether there are any other applicable diagnostic codes which would provide a higher rating, but the Board finds there is not. Entitlement to TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry 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). 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 any impairment caused by nonservice-connected disabilities. 38 C.F.R. § 3.341, 4.16, 4.19 (2011); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. It is the established policy of 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. 38 C.F.R. § 4.16 (b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The Veteran contends that he is unable to obtain or maintain substantially gainful employment due to his service connected disabilities. In an April 2015 VA examination report, the Veteran was noted as being employed full-time as a forklift driver for over 3 years. The examination report further noted that while the Veteran has had to take some time off due to his service-connected disabilities; the Veteran remains "quite active". Additionally, the examination report notes that when the Veteran is not working as a forklift driver he volunteers at the local fire department. Most recently, in a March 2017 VA mental health examination, the Veteran was noted as being still maintaining full-time employment with is current company for approximately 6 years. The preponderance of the evidence is against a finding that the Veteran was unable to maintain substantially gainful employment during the pendency of this appeal. The claims folder does not reflect that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Rather, the claims folder reflects that Veteran is currently employed and has been during this appeal. (See March 2017 and April 2014 VA medical examinations). Furthermore, while the Veteran's service connected disabilities may have impacted his employment; the evidence does not reflect that it impaired his ability to obtain or maintain substantial gainful employment. Based on the above, to include the Veteran's lay statements, the Board finds that TDIU is not warranted. The preponderance of the evidence is against the Veteran's contention that his service-connected disabilities were of such severity as to preclude his participation in substantially gainful employment. The Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial evaluation in excess of 10 percent for lumbar strain is denied. Entitlement to an increase rating in excess of 20 percent for C6-7 radiculopathy of the left upper extremity, from July 12, 2012, is denied. Entitlement to an increase rating in excess of 20 percent for musculocutaneous neuropathy of the right upper extremity, from July 12, 2012, is denied. Entitlement to an increase rating in excess of 10 percent for radiculopathy of the right lower extremity, from July 12, 2012, is denied. Entitlement to an increase rating in excess of 10 percent for radiculopathy of the left lower extremity, from July 12, 2012, is denied. Entitlement to TDIU is denied. ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs