Citation Nr: 18142493 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 14-21 098A DATE: October 16, 2018 ORDER Entitlement to a rating in excess of 40 percent for a lumbar spine disability is denied. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is denied. For the entire rating period on appeal, a 20 percent disability rating, but not higher, for left lower extremity radiculopathy is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s lumbar spine disability did not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine or IVDS with incapacitating episodes of at least six weeks during any 12-months period. 2. For the entire period on appeal, the Veteran’s right lower extremity radiculopathy was asymptomatic, and at worse, manifested as mild incomplete paralysis of the sciatic nerve. 3. Resolving all doubt in the Veteran’s favor, for the entire period on appeal, his left lower extremity radiculopathy manifested as moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5241 (2017). 2. For the entire period on appeal, the criteria for a rating in excess of 10 percent for a right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124, Diagnostic Code 8520 (2017). 3. Resolving reasonable doubt in the Veteran’s favor, for the entire rating period on appeal, the criteria for a 20 percent rating, but not higher, for a left lower extremity radiculopathy have been approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to February 1969. In April 2018, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In June 2018, the Board restored the Veteran’s lumbar spine disability rating to 40 percent, finding that the reduction to 10 percent was improper. The Board additionally remanded the Veteran’s claims to determine whether an even higher rating is warranted for his lumbar spine and associated bilateral lower extremity radiculopathy. Lastly, the Board remanded the claim for a TDIU as it intertwined with the remanded issues. Spine Disability Rating Criteria Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for 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. 38 C.F.R. § 4.71a. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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 disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Intervertebral disc syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined as 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. Id. at Note (1). Spine Disability Rating Analysis As previously indicated, in its June 2018 decision, the Board restored the 40 percent disability rating previously assigned to the Veteran’s lumbar spine disability, pursuant to Diagnostic Code 5241. After a careful review of the evidence, both lay and medical, to include the most recently obtained July 2018 VA examination, the Board finds that a rating in excess of 40 percent is not warranted. Turning to the evidence, in February 2011, the Veteran underwent a VA spine examination, at which time the claims file was not available for review. The examiner noted that the Veteran had no periods of incapacitation or recommended bedrest in the previous 12-months prior to the examination, and reported no impediment to his activities of daily living with the exception of difficulty bending over and trying his shoes. The Veteran reported that on a typical day, he had to frequently get up and down from his chair due to his back discomfort, and was unable to walk more than 200 feet. He further stated that he used a stationary bike at home, which was helpful. He noted that he was up frequently at night due to back pain. He did not wear a back brace, but was taking Tramadol, Naproxen, and Methocarbamol, all which had been helpful. The examiner noted that there was evidence of a surgical incision over the lumbar spine that was 16 cm in length and 2 to 3 mm wide. An identical scar in size was visible also over the left paraspinal region. There was no other gross deformity or swelling in the area. There was no evidence of scoliosis or kyphosis, and no exaggeration of the lumbar lordosis. Upon physical examination, range of motion of the lumbar spine revealed flexion to 90 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees. The examiner noted that range of motion was limited by pain and previous surgery. Repetitive range of motion after three repetitions caused some pain, and there was evidence of fatigue and weakness, but no lack of endurance or incoordination. The examiner noted that additional limitation due to flare-ups could not be determined without resorting to mere speculation. In statement received in February 2011 from the Veteran’s neighbor and friends supported his lay assertions regarding his inability to stand or walk for a long time and confirmed lay observations of him being in pain and unable to be as mobile, as well as him using a cane. Subsequently, in July 2013, the Veteran underwent an additional VA examination to determine the nature and severity of his lumbar spine disability. The examiner noted that the Veteran continued to have back and leg problems since his initial surgery, which resulted in inability to lift more than 25-pounds, and had difficulty with prolonged sitting and standing. The Veteran complained of decreased range of motion and back stiffness. The Veteran reported flare-ups described as “sharp pain with activity, prolonged sitting and standing 8-9/10 for short duration.” Upon physical examination, range of motion of the lumbar spine revealed flexion to 90 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 25 degrees. There was no additional loss of range of motion after repetitive use with three repetitions, but the examiner noted that there was additional functional loss/impairment due to less movement than normal, weakened movement, and pain on movement. There was no evidence of localized tenderness or muscle guarding/spasms. Muscle strength testing showed active movement against some resistance (4/5) throughout, with no evidence of muscle atrophy. The examiner confirmed a diagnosis of IVDS with incapacitating episodes of at least one-week, but less than two-weeks in the previous 12-months. Lastly, it was noted that the Veteran was using a cane, and that his scar was not unstable or painful. A private October 2013 Disability Benefits Questionnaire (DBQ) completed by a private medical provider identified as I.K.B., B.S., D.C., show that the Veteran reported flare-ups, described as constant pain, to include periods where he was unable to move for two weeks. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 30 degrees with objective evidence of pain at 20 degrees; extension to 15 degrees with objective evidence of pain at 10 degrees; right lateral flexion to 20 degrees with objective evidence of pain at 10 degrees; left lateral flexion to 25 degrees with objective evidence of pain 10 degrees; right lateral rotation to 15 degrees with objective evidence of pain at 5 degrees; and, left lateral rotation to 25 degrees with objective evidence of pain at 15 degrees. After repetitive use testing, forward flexion was to 20 degrees; extension was to 15 degrees; right lateral flexion was to 10 degrees; left lateral flexion was to 20 degrees; right lateral rotation was to 10 degrees; and, left lateral rotation was to 20 degrees. The examiner noted that there was additional limitation in range of motion following repetitive use testing and functional loss/impairment due to less movement than normal; weakened movement; incoordination; instability of station; disturbance of locomotion; and, interference with sitting, standing, or weight-bearing. There was evidence of localized tenderness and pain to palpation as well as muscle spasm resulting in abnormal gait. Muscle strength testing reveled active movement against gravity (3/5) for left hip flexion, right knee flexion, and left ankle plantar flexion; active movement with gravity eliminated (2/5) for left knee extension and left ankle dorsiflexion. Other muscles tested were either normal or showed some active movement against some resistance (4/5), and there was no evidence of muscle atrophy. The physician confirmed a diagnosis of IVDS and with incapacitating episodes of at least 4 weeks but less than 6 weeks in the previous 12-months. It was noted that the Veteran used a cane regularly. Further review of the Veteran’s VA treatment records show that he received continuous treatment for back pain, to include a notation in April 2014, that the Veteran called due to “back pain in bed for 7 days.” During his April 2018 Board hearing, the Veteran credibly testified that his back disability continued to worsen. He further reported flare-ups between a week and half to two weeks per month, during which time he could not bend over or get around. He stated, “it puts me down where I can’t do anything.” He indicated that he was not prescribed bedrest by a physician. Furthermore, during his testimony, the Veteran challenged the adequacy of the VA examination (a challenge he also raised in his February 2015 substantive appeal). He explained that he told the examiner that he could not bend his back to 90 degrees per the examiner’s request and attempted to do so with his hands on the wall, but was told by the examiner that he had to do it without touching anything. The examiner then moved on with the examination, but noted that flexion was to 90 degrees. The Veteran indicated that the examiner’s notation that his flexion was to 90 degrees was a “pure lie.” As aforementioned, in its June 2018 decision, the Board restored the Veteran’s 40 percent rating for his lumbar spine disability, and it will not disturb such ratings herein. Subsequent to the Board’s June remand, the Veteran underwent an additional VA examination in July 2018. The Veteran reported that his lumbar spine disability worsened throughout the years. He reported flare-ups described as “can’t stand too long or walk very much. Have to sit down or lay down to take breaks.” He also reported functional loss/impairment described as “can’t do much physical activity because my back tightens up and then I can’t get around.” Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 60 degrees; extension to 10 degrees; right lateral flexion to 20 degrees; let lateral flexion to 15 degrees; and lateral rotation to 20 degrees, bilaterally. After repetitive use testing there was no additional loss of function or range of motion, and the examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. In regard to the Veteran’s reported flare-ups, the examiner indicated that the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up, and noted that pain, weakness, fatigability, and incoordination significantly limited functional ability during a flare-up. The examiner indicated that during a flare-up, in terms of range of motion, forward flexion would be to 40 degrees, extension to 5 degrees, and lateral flexion and rotation to 15 degrees, bilaterally. The examiner noted that range of motion in itself did not contribute to functional loss, but pain was noted during the examination and caused functional loss on forward flexion. There was evidence of pain with weight-bearing and mild generalized tenderness of the lumbar soft-tissue without spasm. Additional factors contributing to the disability included disturbance of locomotion and interference with standing. Muscle strength testing was normal throughout with no evidence of muscle atrophy. There is no diagnosis of unfavorable ankylosis of the entire thoracolumbar spine to warrant a 50 percent rating under the General Rating Formula, and flare ups are not shown by the lay or medical evidence to have caused unfavorable ankylosis of the entire thoracolumbar spine for any period. Moreover, while the Board recognizes that the Veteran is also diagnosed with IVDS and that he self-reported incapacitating episodes of at least four weeks; however, a careful review of the record does not show a physician prescribed bed rest, which is required for rating purposes. See Diagnostic Code 5243. Although the October 2013 private DBQ noted bedrest of at least four weeks, the Veteran specifically testified that he did not have a bed rest prescribed by a physician. In any event, even if prescribed by a physician, bed rest of four weeks but less than six weeks warrants a 40 percent rating, which the Veteran is already in receipt of under the schedular criteria. Therefore, the preponderance of the evidence is against finding that a rating in excess of 40 percent is warranted during any period on appeal. Bilateral Lower Extremity Radiculopathy – Rating Criteria In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1) (2017). Here, the Veteran’s bilateral lower extremity radiculopathy is rated as 10 percent disabling each for both his right and left extremities pursuant to DC 8520. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2017). Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Bilateral Lower Extremity Radiculopathy – Rating Analysis During his February 2011 VA examination, it was noted that he reported left lower extremity symptoms described as “numbness, pins and needles and tightness.” The examiner noted that he later developed paresthesias, tightness, and numbers in the right leg. The Veteran described his pain as 6 to 7 out of 10 in severity, which was constant, every day, in both lower extremities without any other flare-ups. It was noted that it interfered with his ability to lift or to bed, and was precipitated and aggravated by sitting, standing, or driving. In correspondence received by VA in February 2011, the Veteran indicated that he lost feeling in parts of both his legs, indicating that he hit things with his legs and did not even feel it, but later would find a scab. He noted that he had a hard time sitting or standing for a long time, and indicated that he started to use a cane. Statement from the Veteran’s neighbor and friends supported his lay assertions regarding his inability to stand or walk for a long time and confirmed lay observations of him being in pain and unable to be as mobile, as well as him using a cane. VA treatment records dated in July 2011 show reports of back pain radiating down both legs. Additional treatment records dated in January 2012 noted numbness and tingling in the right leg and numbness in both feet, with no evidence of motor deficit. During his July 2013 VA examination, the examiner noted that the Veteran was service-connected for bilateral lower extremity radiculopathy with moderate functional limitation. Reflexes examination was normal. Sensory examination was decreased in lower leg/ankle and foot/toes, bilaterally. Straight leg raising test was positive, bilaterally. The examiner noted that there was evidence of radiculopathy with mild symptoms of constant pain, intermittent pain, and paresthesias, bilaterally. There was mild numbness in the right lower extremity, but no numbness reported in the left lower extremity. The examiner indicated that the level of severity if the Veteran’s lower extremity radiculopathy was mild, bilaterally. During the private October 2013 DBQ, deep tendon reflexes testing was hypoactive (1+) in the left knee, but otherwise normal. Sensation to light-touch testing was decreased in the left thigh/knee, left lower leg/ankle, and bilateral foot/toes. Straight leg raising test was positive, bilaterally. There was evidence of radiculopathy identified by mild right lower extremity constant pain, intermittent pain, and paresthesias, and left lower extremity moderate constant pain, intermittent pain, paresthesias. There was moderate bilateral numbness, bilaterally. It was noted that the level of severity of the right lower extremity radiculopathy was mild, and the left lower extremity was moderate. During his April 2018 Board hearing, the Veteran credibly testified that his back disability and associated radiculopathy continued to worsen, and by 2009, he had to drive his truck (for his job) while constantly massaging his left leg, which led him to voluntarily retire in 2010 realizing that he “could kill somebody doing that – paying more attention to [his] body [than to the road].” Subsequent to the Board’s June remand, the Veteran underwent an additional VA examination in July 2018. The Veteran reported that his bilateral lower extremity radiculopathy worsened throughout the years. Upon examination, reflex and sensory examinations were normal throughout and straight leg raising test was negative, bilaterally. The examiner identified symptoms of radiculopathy, to include left lower extremity mild intermittent pain and paresthesias. The right lower extremity was normal. The examiner concluded that the right lower extremity was not affected and the left lower extremity radiculopathy was mild in severity. After a review of all the evidence, lay and medical, the Board finds that for the entire rating period on appeal, a rating in excess of 10 percent for the right lower extremity radiculopathy is not warranted. Notably, the Veteran’s right lower extremity radiculopathy was always noted to be mild in severity or asymptomatic. Furthermore, during his April 2018 testimony, the Veteran specifically described his left lower extremity radiculopathy as much worse than his right. However, in resolving reasonable doubt in his favor, the Board finds that his left lower extremity radiculopathy warrants a 20 percent disability rating for the entire period on appeal. Notably, although some objective evidence indicates that his left lower extremity radiculopathy was only mild in severity, his competent lay assertions as well as the October 2013 private DBQ supports that his symptoms more nearly approximate moderate incomplete paralysis of the sciatic nerve. Nevertheless, a rating in excess of 20 percent is not warranted, since the reported symptoms do not more nearly approximate moderately severe incomplete paralysis of the sciatic nerve. Moreover, as noted above, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Board considered whether separate ratings is warranted for any other neurologic disorders. The private October 2013 DBQ noted that the Veteran reported bladder and bowel incontinence; however, such was not supported by any lay or medical evidence of record, and the private physician who conducted the examination provided no evidence as to warrant separate ratings for these conditions. In addition, VA medical evidence does not associate any bowel or bladder impairment with the lumbar spine disability. Additionally, the Veteran did not mention these neurologic symptoms during his April 2018 hearing testimony; however, if the Veteran does in fact suffer from bowel and or urinary incontinence, the Board encourages him to file a claim for these conditions, so additional medical evidence can be obtained to determine whether separate ratings are warranted. Finally, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND A remand is necessary in order to refer the Veteran’s TDIU claim for extraschedular consideration. 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). Where the combined rating percentage requirements are not met, entitlement to the 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). Here, the Veteran does not meet the schedular requirements for an award of TDIU under 4.16(a), because his service-connected disabilities of lumbar spine disability, right lower extremity radiculopathy, left lower extremity radiculopathy, and left knee disability result in a combined disability of 60 percent (to include consideration of the Board’s decision herein). Nevertheless, the Board finds that the record reflects that the Veteran is currently unemployed and such unemployment is attributed to his service-connected disabilities. Specifically, the record shows that the Veteran completed four-years of high school and one year of college, but since his discharge from the military always worked as a truck driver. He credibly testified that he had to retire due to his service-connected disabilities, especially his lumbar spine and associated left lower extremity radiculopathy. The February 2011 VA examiner indicated that the Veteran has not worked since November 2010 due to recurrent back pain and from long distance truck driving. Private treatment records dated in April 2014 show reports of severe difficulty performing activities of daily living, to include driving. The most recent July 2018 VA examiner indicated that the Veteran’s back condition impacted his ability to work due to mild to moderate impairment of prolonged sedentary activities such as sitting or driving for greater than a few hours, as well as moderately severe impairment of standing walking, and lifting objects. The Social Security Administration grant of benefits was based, in part, on back disorder. The matter is REMANDED for the following action: 1. Implement the Board’s decision herein. 2. Ensure that all outstanding VA treatment records since the August 2018 SSOC are associated with the claims file. 3. Refer the Veteran’s TDIU claim to the Director of Compensation Service or designee for consideration of whether an extraschedular rating is warranted. Please consider (a) Social Security Administration grant based, in part, on back disorder VBMS entry dated 08/07/2018 titled “Medical Treatment Records – Furnished by SSA;” (b) February 2011 correspondence from the Veteran VBMS entry dated 02/07/2011, titled “Correspondence;” (c) VA examinations in February 2011, July 2013, and July 2018; (d) Private October 2013 DBQ; and, (e) transcript of the Veteran’s April 2018 hearing testimony. 4. Then, readjudicate the TDIU claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel