Citation Nr: 18146196 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-03 107 DATE: October 30, 2018 ORDER An increased rating in excess of 40 percent for intervertebral disc syndrome (IVDS) is denied. An increased rating in excess of 10 percent for bilateral lower extremity radiculopathy is denied. A total disability rating based on individual unemployability (TDIU) due to service connected disabilities is granted. FINDINGS OF FACT 1. The Veteran’s IVDS is not manifested by incapacitating episodes having a total duration of at least six weeks during the past twelve months. 2. The Veteran’s bilateral lower extremity radiculopathy is not manifested by moderate incomplete paralysis of the sciatic nerve. 3. The Veteran’s service connected disabilities render him unable to secure or maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 40 percent for IVDS are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.71a, DC 5243. 2. The criteria for an increased rating in excess of 10 percent for bilateral lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.124a, DC 8520. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1973 to July 1982. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran’s IVDS is currently rated as 40 percent disabling under DC 5243. DC 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides 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. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, 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. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides a 40 percent disability rating is assigned 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. 38 C.F.R. § 4.71a, DC 5243. The Veteran’s bilateral lower extremity radiculopathy is currently rated under DC 8520. Under DC 8520, disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve. 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. The Veteran contends his IVDS is worse than indicated by his 40 percent rating and his bilateral lower radiculopathy is worse than indicated by his 10 percent rating. The Veteran was afforded an examination for his back conditions in April 2015. The examiner found the Veteran’s back extension ended at 10 degrees with painful motion beginning at 10 degrees. Forward flexion ended at 15 degrees with painful motion beginning at 15 degrees. After repetitive use testing, the examiner found no change in the Veteran’s extension or flexion. The examiner did not indicate the Veteran suffered from ankylosis in his back. The examiner noted the Veteran’s IVDS did not lead to any incapacitating episodes over the last 12 months. The examiner noted the Veteran had mild radiculopathy symptoms. Lastly, the examiner noted the Veteran regularly used a wheelchair and walker. The Veteran was afforded another examination for his back conditions in January 2017. The examiner noted the Veteran had difficulty walking and used a wheelchair and cane at home. The Veteran reported his pain was worsened by prolonged sitting, standing, or walking and this affected the Veteran’s functioning and ability to bear weight. The examiner reported he was unable to test the Veteran’s range of motion due to the Veteran’s chronic back pain and his Parkinson’s disease which limited the Veteran’s ability to move in all planes. The Veteran was unable to perform repetitive use testing. The examiner noted the Veteran had muscle spasms and guarding. The examiner noted the Veteran did not have any ankylosis of the spine. The examiner noted the Veteran did have IVDS but the Veteran had not had any episodes of acute signs and symptoms due to his IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Regarding the Veteran’s bilateral radiculopathy, the examiner opined the Veteran had bilateral mild constant pain, mild intermittent pain, and mild bilateral numbness but did not have any other signs or symptoms or radiculopathy. In order to qualify for the next higher 60 percent rating for IVDS, the evidence would have to show the Veteran suffered from incapacitating episodes having a total duration of at least six weeks during the past 12 months. After a careful review of the Veteran’s file, the Board does not find evidence that the Veteran suffered from such episodes. The Board has also considered whether the Veteran was entitled to a higher 50 percent disability rating under other disability codes based on a finding of unfavorable ankylosis of the entire thoracolumbar spine. Again, after a thorough review of the Veteran’s record, including the April 2015 and January 2017 examinations, the evidence does not show the Veteran suffered from ankylosis of the spine. Therefore, a higher rating for IVDS is not warranted. The Board turns now to the Veteran’s claim for a rating in excess of 10 percent for his bilateral lower extremity radiculopathy. The Board has reviewed the Veteran’s file and has found the Veteran’s radiculopathy symptoms do not more closely approximate moderate severity symptoms. The April 2015 and January 2017 examiners found the Veteran suffered from mild symptoms. The Veteran’s medical treatment records show his back and his radiculopathy has remained a problem, including symptoms of numb toes. The Veteran had surgery which helped his upper thigh pain. (See May 2016, January, April, May 2017 treatment records.) The Veteran has also complained of back pain which radiates down his bilateral legs, which could be constant, moderate in intensity, sharp, throbbing, aching, or burning. The Veteran reported these symptoms could lead to stiffness, and numbness in his legs. (See October 2016 treatment records.) However, the majority of the Veteran’s medical records do not mention continued, constant, persistent complaints of moderate radiculopathy pain, which appears to be managed with medication. This, in conjunction with the Veteran’s examiners opining his radiculopathy is of mild severity outweigh the Veteran’s contention that his radiculopathy warrants a higher, 20 percent rating. Regarding all the above, the Board acknowledges the Veteran’s statements that his back conditions cause him pain, limit his mobility, and create discomfort. However, while the Veteran is competent to report his symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While his back conditions clearly bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings. If his back did not bother him at all, there would be no basis for compensable ratings, the only question is the degree. Important issues regarding how these problems impact the Veteran will be addressed below. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). TDIU The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, the Veteran has not expressly raised the issue again and the issue is not raised by the record. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more 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. See 38 C.F.R. § 4.16(a). The Veteran had a combined rating of 70 percent as of April 5, 2011 with his IVDS rated as 40 percent disabling and therefore met the criteria for a TDIU as of April 5, 2011. The Veteran is service connected for many disabilities including his IVDS, bilateral lower extremity radiculopathy, a bowel dysfunction, and a bilateral foot disability. In a December 2016 statement, the Veteran said he was unable to secure gainful employment due to his back, neck, and feet. The Veteran said the last date he worked full time was in August 1991. The Veteran has a college education and special training as a welder/electrical technician, clearly a vocation that would require the use of his back, neck, and feet a great deal. The April 2015 examiner noted the Veteran’s back impacted his ability to work. The Veteran could not perform work that involved being up and around. The examiner opined work from a wheelchair would be difficult due to the Veteran’s lack of stamina and coordination. The January 2017 examiner noted the Veteran’s spine disability impacted his ability to work. The Veteran’s back impacted his ability to perform physical work and the Veteran was unable to walk or stand for greater than five to ten minutes or push, pull, or lift things weighing more than five pounds. The examiner noted the Veteran is capable of performing some sedentary work with significant accommodation or positioning and frequent rest breaks. The examiner noted the Veteran’s Parkinson’s disease impacted his ability to perform physical and sedentary duties and it was difficult to separate those symptoms from his back symptoms. A January 2017 examiner opined the Veteran’s foot condition impacted his ability to work. The examiner stated the Veteran’s Parkinson’s disease made it difficult to separate the Veteran’s abilities to perform physical and sedentary duties from his foot disability. However, the examiner stated the Veteran’s flat feet did not impact someone’s ability to perform physical or sedentary duties. A December 2017 examiner opined the Veteran’s fecal incontinence affected his ability to work in that the Veteran was embarrassed to go in public. Additionally, in a September 2017 letter, a vocational expert opined the Veteran was unable to secure substantially gainful employment due to his service connected disabilities. Based on the above evidence, the Board finds the Veteran is unemployable due to his service connected disabilities. The evidence shows the Veteran cannot perform physical work due to his back disabilities because he cannot stand or walk for long and cannot lift heavy objects. Additionally, the evidence shows the Veteran cannot perform sedentary work due to his inability to sit for prolonged periods of time and his lack of stamina due to his back conditions. Beyond the above, the Veteran’s fecal incontinence makes it difficult for the Veteran to be in public. Therefore, a TDIU is granted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel