Citation Nr: 18145049 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-48 602 DATE: October 26, 2018 ORDER A 40 percent rating, but no higher, for degenerative changes of the lumbar spine is granted. For the rating period from March 1, 2014 to January 24, 2018, a 20 percent rating for right lower extremity radiculopathy is granted. For the rating period from March 1, 2014 to January 24, 2018, a 20 percent rating for left lower extremity radiculopathy is granted. For the rating period beginning January 25, 2018, a rating in excess of 20 percent for right lower extremity radiculopathy is denied. For the rating period beginning January 25, 2018, a rating in excess of 20 percent for left lower extremity radiculopathy is denied. A total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s lumbar spine disability is characterized by functional impairment that is limited by forward flexion of the spine to less than 30 degrees. 2. The Veteran’s lumbar spine disability has not more nearly approximated unfavorable ankylosis of the thoracolumbar spine. 3. The Veteran’s radiculopathy of the right and left lower extremities have been manifested by, at most, “moderate” incomplete paralysis of the sciatic nerve for the entire rating period on appeal beginning March 1, 2014 (within one year of the February 2015 claim for an increased rating). 4. The Veteran’s service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities render him unable to obtain or retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent, but no higher, for the lumbar spine disability are met. 38 U.S.C. §§ 1154 (a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2017). 2. For the rating period from March 1, 2014 to January 24, 2018, the criteria for a 20 percent rating for radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, DC 8520 (2017). 3. For the rating period from March 1, 2014 to January 24, 2018, the criteria for a 20 percent rating for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, DC 8520 (2017). 4. For the rating period beginning January 25, 2018, the criteria for a rating in excess of 20 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, DC 8520 (2017). 5. For the rating period beginning January 25, 2018, the criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, DC 8520 (2017). 6. The criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 2001 to August 2004. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Laws and Analysis for Spine and Radiculopathy Disabilities A low back disability may be rated pursuant to the general rating formula for diseases and injuries of the spine set forth in Diagnostic Codes 5235-5242. The Veteran’s current rating is under Diagnostic Codes 5242 for degenerative arthritis of the spine. Under the general rating formula, a 40 percent rating requires that the condition be manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25 (2017). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating 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. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Upon review of all the evidence of record, lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran’s lumbar spine disability more nearly approximates a 40 percent disability rating as a result of functional impairment which limit forward flexion of the lumbar spine to less than 30 degrees. VA treatment records include an April 2014 treatment record. At that time, the Veteran reported that he had sustained a fall one month prior which led to increased pain with radiating pain down his legs. The Veteran also stated that bending, stooping, and prolonged standing lead to increased episodes. During range of motion testing, forward flexion of the thoracolumbar spine was noted to be limited to 20 degrees. During a February 2015 VA physical therapy note, the Veteran reported worsening pain with prolonged siting. At that time, forward flexion of the spine was limited by 25 percent (i. e., to approximately 67 degrees). In a September 2016 VA physical rehab consult note, the Veteran reported persistent low back pain since February 2014. It was noted that the Veteran was unable to sit without changing positions constantly. He also had increased pain with prolonged standing and ambulated with a single point case. The Veteran was also noted to be unable to tolerate repeated bending or extending secondary to pain. During examination, forward flexion of the thoracolumbar spine was limited to 20 degree due to pain. The Veteran was afforded VA spine examinations in July 2015 and January 2017. During the evaluations, the Veteran reported difficulty lifting and bending and with normal mobility and ambulation. Upon range of motion testing, forward flexion was limited to 70 degrees. The examiner noted that pain was present and caused functional loss. Repetitive use testing did not additionally limit motion. The Veteran did not have ankyloses of the spine. The Veteran was also noted to use a cane to assist with ambulation. Upon review of all the evidence of record, the Board finds that the evidence is in equipoise as to whether the Veteran’s lumbar spine disability more nearly approximates a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. Although range of motion testing in the VA examination reports showed forward flexion to greater than 30 degrees, VA treatment records showed flexion limited to 20 degrees in April 2014 and September 2016. The Veteran has also been found to use a cane to assist with ambulation due to his back pain (see January 2017 VA examination report) and has indicated that he is unable to sit without changing positions constantly. The Veteran has also reported increased pain with prolonged standing. See September 2016 VA treatment record. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a 40 percent rating is warranted for the rating period on appeal. The Board next finds that a higher evaluation for lumbar spine disability in excess of 40 percent is not warranted, as the requirements of unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome of at least six weeks in duration, have not been met or more nearly approximated at any time during the rating period on appeal. The range of motion testing conducted during the examinations discussed above do not meet the minimum criteria for a 50 percent rating, which requires unfavorable ankylosis of the entire thoracolumbar spine. The VA examiners also noted that the Veteran did not have IVDS. The Board has also considered the Veteran’s reported impairment of function, such as back pain and difficulty standing, sitting, and lifting, and has considered additional limitations of motion due to pain. Indeed, as discussed above, these factors have been applied in awarding the next higher 40 percent rating. As such, the additional limitation of motion or function of the spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4. 40, 4.45, 4.59, DeLuca), do not provide a basis the assignment of an even higher rating. In this regard, upon repetitive testing, range of motion did not reveal any additional loss of range of motion of the lumbar spine during the examinations. For these reasons, the Board finds that a 40 percent rating, but no higher, for the Veteran’s lumbar spine disability is warranted for the entire rating period on appeal. The Board has also considered whether a separate compensable rating for neurological impairment is warranted at any time during the rating period in question. In a January 2017 rating decision, the Veteran was awarded service connection for right and left lower extremity radiculopathy and was assigned 10 percent ratings effective January 24, 2017. In a March 2017 notice of disagreement, the Veteran disagreed with the effective dates assigned and indicated that a 20 percent rating was warranted for each lower extremity. In a March 2018 Statement of the Case, the RO granted an earlier effective date (February 20, 2015) for right and left lower extremity radiculopathy disabilities. A 20 percent rating was also assigned effective January 25, 2018 for both right and left lower extremity radiculopathy. The Veteran did not file a substantive appeal as to either effective date or rating assigned. Nonetheless, a claim for radiculopathy is part and parcel of the increased rating claim for the lumbar spine disability. See 38 C.F.R. § 4.71, General Rating Formula, Note 1. As such, the Board will consider whether a rating in excess of 10 percent is warranted for right and left lower extremity radiculopathy for the period prior to January 25, 2015, and in excess of 20 percent thereafter. Diagnostic Code 8520 provides ratings for incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. 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. § 4.124, DC 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Upon review of all the evince of record, the Board finds that the Veteran’s right and left lower extremity radiculopathy more nearly approximate a 20 percent rating for the entire period on appeal beginning March 1, 2014. The only medical evidence which specifically addresses the severity of the Veteran’s radiculopathy is the January 2017 and January 2018 VA examination reports (noting mild and moderate incomplete paralysis of the sciatic nerve roots). In a March 24, 2014 VA treatment record, it was noted that the Veteran had sustained a fall three weeks prior—on approximately March 1, 2014—and developed pain with lumbar radiculopathy. The Veteran requested the use of a cane at that time. In a February 2015 VA physical therapy note, the Veteran stated that he experienced sharp pain into the lateral thigh and lower leg. Numbness in his legs was noted to last for 2-3 minutes and was worse with prolonged sitting. He also reported weakness in his legs with increased pain with walking. In a September 2016 VA treatment records, the Veteran reported persistent low back pain with radicular symptoms. At that time, the Veteran was noted to have radiculitis (left greater than right). For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s right and left lower extremity radiculopathy disabilities more nearly approximate moderate symptoms throughout the rating period on appeal. Moreover, the Board finds that the proper effective date is March 1, 2014, as it was factually ascertainable in the year prior to the February 2015 claim that an increase in disability had occurred. 38 C.F.R. § 3.400(o)(2). Laws and Analysis for TDIU The record reflects that the Veteran has been unemployed since 2011; however, he has indicated that he became too disabled to work as of February 1, 2015. See VA Form 21-8940. TDIU is warranted when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology and disabilities affecting a single body system, such as orthopedic system, are considered to be one disability. Id. Throughout the rating period on appeal, and pursuant to the decision herein, the Veteran is now in receipt of a combined 70 percent rating due to his service-connected lumbar spine, radiculopathy, and asthma disabilities. As such, the Board finds that the Veteran meets the schedular criteria for a TDIU rating. Upon review of all the evidence of record, lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran’s service-connected disabilities precluded all forms of substantially gainful employment. The evidence includes a January 2017 VA spine examination report. At that time, the examiner noted that Veteran was able to perform light duty while taking precaution to engage in proper movements and use of the back. It was also noted that the Veteran would need to be allowed to get up often to relieve pressure if sitting for pronged periods of time. In a January 2018 VA peripheral nerves examination, the examiner indicated that the Veteran’s radiculopathy impacted his ability to work in that the Veteran was limited in his ability to walk, stand, or drive long distances. VA treatment records include an April 2014 treatment record. At that time, the Veteran stated that bending, stooping, and prolonged standing lead to increased episodes of severe back pain. During a February 2015 VA physical therapy note, the Veteran reported worsening pain with prolonged siting. In a September 2016 VA physical rehab consult note, the Veteran was unable to sit without changing positions constantly. He also had increased pain with prolonged standing and ambulated with a single point case. The Veteran was also noted to be unable to tolerate repeated bending or extending secondary to pain. The Board finds that, when reviewed together, the VA examinations and VA treatment records discussed above demonstrate that the Veteran would be unable perform physical or sedentary work due to severe limitations with bending, lifting, standing, sitting, driving, and walking for prolonged periods of time. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful physical or sedentary occupation. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. A TDIU is warranted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel