Citation Nr: 18143113 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 13-18 587A DATE: October 18, 2018 ORDER Entitlement to an initial evaluation of 40 percent, but no more, for degenerative disc disease of the lumbar spine is granted. Entitlement to an initial evaluation in excess of 0 percent for residual scars associated with degenerative disc disease of the lumbar spine is denied. Entitlement to an initial evaluation of 20 percent, but no more, for right lower extremity radiculopathy is granted. Subject to the law and regulations governing payment of monetary benefits, an award of a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Considering the Veteran’s pain and functional impairment, including during flare-ups, and the impact of the medication he uses to treat the disability, his back disability is productive of functional impairment analogous to limitation of flexion to 30 degrees. 2. The Veteran’s neuropathy of the right lower extremity is manifested by moderate and complete paralysis. 3. Service connection is in effect for left foot drop with peroneal nerve involvement and left lower extremity sciatic radiculopathy associated with degenerative disc disease lumbar spine, evaluated at 30 percent; degenerative disc disease, lumbar spine, evaluated at 40 percent; right lower extremity radiculopathy associated with degenerative disc disease, lumbar spine, evaluated at 20 percent; and a noncompensable evaluation for residual scars associated with degenerative disc disease. The Veteran’s combined evaluation is 70 percent. 4. The evidence stands in relative equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a increased rating of 40 percent, and no more, for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 5243 (2017). 2. The criteria for a increased rating of 20 percent, and no more, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (b) (2017); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 through September 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Increased Rating The Veteran asserts that his back and right lower extremity disabilities are more severely disabling than currently rated and warrant higher ratings. He also maintains that his service-connected disabilities render him unemployable. To that end, disability ratings are determined by applying a schedule of ratings that are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). For degenerative disc disease of the lumbar spine, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees warrants a rating of 10 percent. A 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 warrants a rating of 20 percent. A forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine warrants a rating of 30 percent. An unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrant a rating of 40 percent. An unfavorable ankylosis of the entire thoracolumbar spine warrants a rating of 50 percent. An unfavorable ankylosis of the entire spine warrants 100 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). For the right lower extremity, incomplete paralysis warrants a 10 percent rating when mild, a 20 percent rating when moderate a 40 percent rating when moderately severe, a 60 percent rating when severe with marked muscular atrophy and an 80 percent rating for complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). The Board notes that words such as mild, moderate, and severe 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. For residual scaring, the statute requires an evaluation of any disabling effects which are not considered under diagnostic codes 7800, 7801, 7802 and 7804, to be considered under the appropriate diagnostic code. Diagnostic Code 7805 (2017). Diagnostic Code 7800, 7801 and 7802 each consider the effects of scars as a result of burning on the body, while diagnostic code 7802 concerns unstable or painful scars. Diagnostic Code 7800, 7801, 7802 (2017). 1. Degenerative joint disease of the thoracolumbar spine: Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See DeLuca v. Brown, 8 Vet. App. 202, 205; see also 38 C.F.R. § 4.40 (2017). The functional loss may be due to absence of part, or all, or the necessary bones, joints and muscles, or associated structures . . . supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. See DeLuca v. Brown, 8 Vet. App. 202, 205; see also 38 C.F.R. § 4.40 (2017). Weakness is as important as limitation of motion, and a part of which becomes painful on use, must be regarded as seriously disabled. See DeLuca; see also 38 C.F.R. § 4.40 (2017). Turning to the most pertinent medical and lay evidence of record, a July 2011 VA examination report reflects that the Veteran had severe low back pain and was treating the condition with medication. The examiner indicated that the Veteran had moderate right lower extremity sensory impairment. The examination was not conducted during a period of flare-ups; his flexion was found to be limited to 50 degrees. A May 2017 VA examination report shows that the Veteran reported flare-ups and functional loss in his lumbar spine The Veteran stated that he felt a shooting and stabbing pain in his lumbar spine and also noticed that he had lost the ability to stand or walk for more than twenty minutes at a time. See VA Examination Report, May 2017. According to the records, the Veteran’s range of motion was found to be “abnormal or outside of normal range” and furthermore, that it rose to the level of a functional loss. See VA Examination Report, May 2017. When examining the Veteran’s forward flexion, extension, right and left lateral flexion and right and left lateral rotation, the Veteran scored 20 degrees or less in the right and left lateral rotation and in the left lateral flexion and less than 30 degrees in the right lateral flexion. See VA Examination Repot, May 2017. He also scored 20 degrees or less in extension and 60 degrees or less in forward flexion. See VA Examination Report, May 2017. Moreover, the examiner concluded that the range of motion exhibited pain in the forward flexion, extension, right and left lateral flexion and ultimately determining that the Veteran’s pain caused the functional loss. See VA Examination Report, May 2017. The examiner also determined that the pain, weakness and fatigability significantly limit the Veteran’s functional ability with flare-ups. See VA Examination Report, May 2017. Given the aforementioned, the Board finds that the Veteran’s functional loss of the forward flexion of the Veteran’s thoracolumbar spine is equivalent to 30 degrees or less, warranting a rating of 40 percent. The Board reaches this sound determination based on the examiner’s conclusion that the Veteran is suffering from flare-ups and an abnormal range of motion due to his below average results from the range of motion and functional limitation examination. See VA Examination Report, May 2017. The Board also finds that the Veteran is competent and credible to report that he experienced flare-ups, a stabbing and shooting pain in his lumbar spine and also an inability to walk longer than twenty minutes, further supporting his claim for functional loss and decrease in range of motion. See VA Examination, May 2017. The Board also notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board also finds that the Veteran does not meet the criteria for a 50 percent or a 100 percent rating since the medical records indicate that the Veteran does not have ankylosis of the spine, nor did he demonstrate any symptoms warranting such a rating. 2. Residual scars associated with degenerative disc disease of the lumbar spine: The medical evidence is clear that the residual scarring appearing on the Veteran’s lumbar spine is neither painful or tender to touch. See VA Examination Report, May 2017. Lay evidence consistently indicates that residual scars associated with degenerative disc disease was never intended to be the basis of his claim for TDIU and that he was not alleging that he is in any pain as a result of the residual scars on his lumbar spine. See Veteran’s Statement, December 2012; see also, Form 9, July 2013. The Board finds that since the evidence does not indicate that the Veteran’s scars were painful, pursuant to diagnostic code 7804, and that since the evidence does not indicate that the Veteran’s scars were as a result of a burn injury to his skin, pursuant to diagnostic codes 7800, 7801 and 7802, an increased rating is inappropriate in this instance. Additionally, because the evidence is weighed in the light most favorable to the Veteran, whom has also made the Board aware of his apparent position in that he did not intend for a claim for residual scars to be the basis for the pending TDIU claim, the Board finds it appropriate to deny the Veteran’s increased rating claim for residual scarring. 3. Right lower extremity radiculopathy: As noted above, the July 2011 VA examination report reflects that the Veteran had moderate sensory impairment of the right lower extremity. The examiner who conducted the May 2017 VA examination report opined that the Veteran showed radicular pain or any other signs or symptoms due to radiculopathy. The reports indicate that the overall severity of the Veteran’s radiculopathy is mild in his right lower extremity. Based on the VA examiner’s assessment, the Board finds that the Veteran’s symptomatology for the right lower extremity radiculopathy warrants a rating of 20 percent, given his moderate and incomplete paralysis. Both extremities were examined and the predominant level of severity resulted in a moderate rating for the right lower extremity. See VA Examination Report, May 2017. The Board also finds that the Veteran does not meet the criteria for a 40 percent or 60 percent rating because finding so would be inconsistent with the medical evidence provided. Likewise, a rating of 80 percent would also be inappropriate since the records do not demonstrate that the Veteran has exhibited symptoms of complete paralysis. TDIU A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master degree in education and his part-time work as a tutor). The Veteran contends that he is entitled to TDIU based on the impact of his service-connected disabilities. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran’s service-connected back, right lower extremity, left lower extremity and scars combine to a 70 percent schedular rating, thus satisfying the criteria set forth in 38 C.F.R. § 4.16(a). In addition to the evidence noted above, allocating an increased rating of 40 percent for the Veteran’s lumbar disability and 20 percent for the Veteran’s right lower extremity disability will total a combined evaluation of 70 percent, thus satisfying the statute and qualifying the Veteran for TDIU status. See 38 C.F.R. § 4.16. In assessing the medical evidence of record in the aggregate and in viewing the evidence in the light most favorable to the Veteran, the Board finds that the evidence supporting the Veteran’s TDIU claim stands in equipoise. The Veteran maintains that in treating his already service-connected illnesses, he has to take narcotic prescription medication every day to control the pain in his lumbar spine and right lower extremity. See VA Form 9, page 1, July 2013; see also, Veteran’s Statement, page 2, December 2012. The Veteran has consistently reported that in taking the prescribed medications, he has lost employment opportunities because he has been unable to successfully pass drug testing requirements. See VA Form 9, page 2, July 2013. He further maintains that it is unlikely in his line of work that any employer will hire him because of his inability to pass drug tests. See VA Form 9, page 2, July 2013. After a review of the evidence of record, the Board finds, resolving and reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful employment. In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jones, Associate Counsel