Citation Nr: 18141343 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 13-03 222A DATE: October 10, 2018 ORDER Entitlement to a rating in excess of 40 percent for a low back disability is denied. Entitlement to an initial rating of 10 percent for radiculopathy of the left lower extremity effective February 8, 2010, is granted. Entitlement to an initial rating of 10 percent for radiculopathy of the right lower extremity effective February 8, 2010, is granted. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. REMANDED Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s low back disability has never presented as unfavorable ankylosis of the entire thoracolumbar spine. 2. During the period on appeal, the Veteran’s left lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve. 3. During the period on appeal, the Veteran’s right lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a low back condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating of 10 percent, but no higher, for service-connected radiculopathy, left lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124(a), Diagnostic Code 8520. 3. The criteria for a rating of 10 percent, but no higher, for service-connected radiculopathy, right lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124(a), Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to July 1986. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision. This matter was previously before the Board in August 2017, when it was remanded for further development. Subsequent to the Board’s remand, a June 2018 rating decision granted service connection for radiculopathy affecting the left lower extremity with an initial 10 percent rating and right lower extremity with an initial 10 percent rating, both effective October 21, 2015. The Board assumes jurisdiction of the initial rating assigned for radiculopathy of the left lower extremity, as it is part and parcel of the Veteran’s appeal of the initial rating assigned for his service-connected lumbar spine disability. See 38 C.F.R. § 4.71(a), General Rating Formula for Disease & Injuries of the Spine, Note (1). The Board notes that the Veteran was previously represented by Disabled American Veterans (DAV). He revoked that service organization as his representative in a February 2013 statement, and has not since filed an updated VA Form 21-22 indicating he would like representation. In August 2018, VA contacted the Veteran regarding representation, and the Veteran confirmed his desire to represent himself in this matter. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 1. Low Back Disability Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss 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. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. In applying these regulations VA should obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. 202; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. § 4.59. A 40 percent rating is currently assigned for the Veteran’s thoracolumbar spine condition from February 18, 2003. Under the General Rating Formula for Diseases or Injuries of the Spine, 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. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note (1) to Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. The Veteran was provided with multiple VA examinations during the period on appeal. The first in August 2010 noted a work injury five years earlier that contributed to the severity of the Veteran’s current low back disability. The examiner opined that this back injury was more likely than not facilitated by the Veteran’s service-connected degenerative back condition. Range of motion (ROM) testing found flexion of the thoracolumbar spine to 60 degrees, but the examiner noted significant pain during testing. The report does not indicate at what point this pain began or whether the exam took place during a flare-up. No ankylosis was indicated in the examination report. An October 2015 VA examination found that the Veteran’s thoracolumbar forward flexion was limited to 45 degrees. The examiner noted pain on flexion, but indicated that this pain did not result in addition functional ROM loss. The examiner further noted additional pain on repeated used and flares, but stated that additional functional loss could not be estimated without resorting to speculation. The examiner found no signs of ankylosis. Following the August 2017 Board remand, a November 2017 VA examination found that the Veteran’s forward flexion was limited to 50 degrees. Pain was noted on examination during rest with additional pain on all ROM tests and with weight-bearing. The examiner was unable to say whether additional functional impairment resulted from repetitive use or flares without resorting to speculation. The examiner found no ankylosis of the spine. The examiners’ reports are competent and credible, as the reports were based on reviews of the Veteran’s medical records and in-person examinations of the Veteran, and are therefore entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran’s medical records, including medical evidence submitted to the Social Security Administration (SSA) related to his disability claim for his back and other non-service-connected conditions, show a consistent history of back pain during the appeal period and before. These records show that the Veteran uses a cane and walker for ambulation and that he has been unable to perform manual labor since at least 2007. These records do not indicate that the Veteran has ever shown signs of ankylosis and are generally silent on the precise functional limitations the Veteran experiences in terms of ROM. Considering the foregoing evidence, the Board finds that an increased evaluation in excess of 40 percent is not warranted. The Veteran’s low back disability has been manifested primarily by limited motion and pain. The ROM recorded in the VA examinations were not less than 30 degrees flexion, but painful motion was recorded on all examinations. The Veteran is in receipt of a 40 percent rating based on these symptoms and limited ROM recorded prior to the period on appeal. This is the maximum possible schedular rating under the applicable diagnostic code for pain for limitation of spine motion, absent ankylosis of the spine, which is not shown here. See 38 C.F.R. §4.71a, Diagnostic Code 5242. The Board has considered the provisions of sections 4.40 and 4.45 regarding the Veteran’s complaints of functional loss, and acknowledges that the examinations of record do not provide opinions on additional functional loss due to pain or flares. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, where a veteran is in receipt of the maximum schedular rating based on limitation of motion, as here, and a higher rating requires ankylosis, a remand for evidence based on additional functional loss due to pain is inappropriate. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); 38 C.F.R. 4.40, 4.45. The Board has also considered the rating criteria for IVDS. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Though the Veteran’s VA examinations have shown signs of IVDS, the Veteran has not experienced incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. For this reason, a rating based on this criteria in not warranted. Thus, a rating in excess of 40 percent is not warranted under Diagnostic Code 5242 on the basis of limitation of motion. As the Veteran is in receipt of the maximum evaluation for the only applicable diagnostic code absent evidence of unfavorable ankylosis of the entire thoracolumbar spine and the record contains no indication of ankylosis, an increased evaluation is not warranted. 2. Radiculopathy In accordance to Note 1 under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. The Veteran’s peripheral neuropathy of the right lower extremity is currently rated 10 percent disabling and his peripheral neuropathy of the left lower extremity is currently rated 10 percent disabling. The lower extremities are rated under Diagnostic Code 8520. 38 C.F.R. § 4.124a. Diagnostic Code 8520 rates incomplete or complete paralysis of the sciatic nerve. Mild incomplete paralysis warrants a 10 percent disability rating; moderate incomplete paralysis warrants a 20 percent disability rating; moderately severe incomplete paralysis warrants a 40 percent disability rating; and, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. 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. An August 2010 VA examination for the Veteran’s peripheral nerve conditions determined that the Veteran showed symptoms of chronic gait ataxia, most likely due to alcoholic cerebellar degenerations, as wells as polyneuropathy described as burning numbness in the legs due to non-service-connected diabetes. The examiner opined that the Veteran did not show signs of radiculopathy related to his service-connected low back disability, and that his peripheral nerve conditions were less likely than not related to service. The October 2015 VA examination for the Veteran’s spine condition diagnosed radiculopathy in the Veteran’s bilateral lower extremities. Symptoms included mild intermittent pain, paresthesias and/or dysesthesias, and numbness in both legs. All symptoms were described as mild. Following the Board remand, a subsequent November 2017 VA examination addressing the Veteran’s peripheral nerve conditions reiterated the findings of the October 2015 examination, and further found that the Veteran’s radiculopathy was most likely the result of his service-connected low back disability. The examiner diagnosed the Veteran with mild symptoms of incomplete sciatic nerve paralysis. The examiners’ reports are competent and credible, as the reports were based on reviews of the Veteran’s medical records and in-person examinations of the Veteran, and are therefore entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA medical records indicate that the Veteran first reported neuropathy symptoms in October 2005. At the time, no diagnosis was determined, though tests were ordered to look for spinal stenosis. An April 2009 MRI report showed signs of bilateral neural foraminal narrowing at L2-L3 and L5-S1 and mild multilevel central canal stenosis. The Veteran’s medical records also show he has consulted a private neurologist, Dr. A.S., for his conditions on a regular basis during and before the period on appeal. The earliest report from this specialist indicated that an EMG study of bilateral lower extremities was normal, but could not rule out small fiber peripheral polyneuropathy or radiculopathy affecting only the sensory root. A subsequent letter from A.S. in June 2011 indicates a diagnosis of lumbosacral radiculopathy with improvement following epidural injections. Based on this evidence, and giving the Veteran the benefit of reasonable doubt, the Board finds that the Veteran’s service-connected radiculopathy symptoms have been active since the date of his claim, February 8, 2010. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As these symptoms have been diagnosed as incomplete paralysis of the sciatic nerve characterized by mild and intermittent pain and numbness, the Board finds entitlement to a 10 percent rating effective February 8, 2010 is warranted, and a rating in excess of 10 percent during the period on appeal is not warranted. REASONS FOR REMAND TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. § 4.16(a). It is established VA policy 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). This requires referral for consideration of TDIU on an extra-schedular basis in all cases of veterans who are unemployable by reason of service-connected disability, but who fail to meet the percentage standards set forth in 38 C.F.R. 4.16(a). Id. In this case, the Veteran’s highest-rated disability is his low back disability and associated radiculopathy conditions, which currently combine as one disability based on a common etiology evaluated at 50 percent, and his total combined rating is 60 percent for all service-connected disabilities. These ratings do not meet the requirements for schedular consideration for TDIU under 38 C.F.R. § 4.16(a). Although the Board cannot assign TDIU on an extra-schedular basis in the first instance, it must specifically adjudicate whether referral for extra-schedular consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In this case, the record establishes the Veteran’s low back disability and associated neurologic abnormalities, specifically radiculopathy, have played a significant role in his unemployment since at least 2007. Evidence of the Veteran’s employment history indicates that he has worked primarily as a laborer since leaving service. During service, he worked as an aircraft maintenance technician. Furthermore, he possesses a high school education with no specialized training that would enable him to obtain gainful employment in a sedentary position. As multiple examinations and a prior SSA determination have noted that the Veteran’s back condition and radiculopathy prevent him from lifting more than 10 pounds or performing physical labor, it appears that these service-connected conditions have effectively prevented him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him. Thus, the Veteran’s case should be referred to the Director, Compensation Service, for consideration of whether TDIU is warranted on an extra-schedular basis in accordance with VA regulations. See 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the issue of entitlement to TDIU to the Director, Compensation Service, for adjudication in accordance with 38 C.F.R. 4.16(b). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Pitman, Associate Counsel