Citation Nr: 18146245 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 14-10 054 DATE: October 31, 2018 ORDER Entitlement to a rating higher than 40 percent for lumbar spine degenerative disc disease with facet arthropathy is denied. Entitlement to a rating higher than 20 percent for radiculopathy of the right lower extremity is denied. Entitlement to a rating higher than 20 percent for radiculopathy of the left lower extremity is denied. REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. During the appeal period, the Veteran’s lumbar spine disability manifested by complaints of stiffness, fatiguability, lack of endurance, and loss of motion, but does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine and/or does not cause incapacitating episodes as defined by the VA. 2. The Veteran’s right leg radiculopathy was manifested by pain, numbness, and decreased sensation and reflexes in the extremity. Symptoms indicative of moderately severe incomplete paralysis of the sciatic nerve are not shown. 3. The Veteran’s right leg radiculopathy was manifested by pain, numbness, and decreased sensation and reflexes in the extremity. Symptoms indicative of moderately severe incomplete paralysis of the sciatic nerve are not shown. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for lumbar spine degenerative disc disease with facet arthropathy have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5243 (2017). 2. The criteria for a rating higher than 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for a rating higher than 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1991 to January 1993. Increased Rating Disability evaluations 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 his 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbar Spine The Veteran’s lumbar spine disability is currently rated 40 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. Disabilities of the spine are evaluated under the General Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71(a), Diagnostic Codes 5235-5242. The General Rating Formula provides a 40 percent disability rating 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 the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under the IVDS Rating Formula (Diagnostic Code 5243), a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that 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 should be evaluated 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. Turning to the facts of the case, the Veteran filed a claim for increase for the lumbar spine disability in July 2010. At the October 2010 VA examination, the Veteran reported having daily back pain that radiated down to his buttocks and both legs. Range of motion testing revealed forward flexion from 10 to 20 degrees, extension to 10 degrees, and bilateral flexion and rotation from 10 to 20 degrees. Repetitive motion limited extension from 5 to 10 degrees; there was no additional limitations after three repetitions of range of motion. The examiner found that the Veteran’s range of motion was normal for the Veteran due to other factors not related to his service-connected spine disability. In so finding, the examiner reasoned that the Veteran was able to lie down and get up from the exam table with only mild discomfort. In addition to pain, the Veteran also endorsed fatigue, stiffness, weakness, and spasms of the spine. He also claimed to be incapacitated daily by his pain, but was not prescribed strict bed rest from a physician in the past 12 months. While lumbar lordosis was present, there was no evidence of scoliosis, reverse lordosis, or ankylosis of the lumbar spine. The Veteran exhibited less muscle strength than normal in his bilateral legs. However, there was no muscle atrophy and muscle tone was normal. Subsequent treatment records document the Veteran’s reports of low back pain. He took prescriptions to help alleviate his pain. He also periodically received transforaminal epidural injections from a private physician for his back pain. See generally, VA and Private Treatment Records dated 2010 through 2016. In October 2016, the Veteran obtained a Disability Benefits Questionnaire from his private physician to assess the severity of his lumbar spine disability. At that time, the clinician diagnosed degenerative scoliosis, intervertebral disc syndrome, and lumbar instability. The Veteran’s symptoms included pain and muscle spasms, which resulted in abnormal gait. He also had reversal of the lordic curvature. Repetitive movement increased the level of pain and fatigue in the Veteran’s lumbar spine. The clinician also indicated that the Veteran had incapacitating episodes of bedrest prescribed by a physician for at least five weeks in the past 12 months. Most recently, in March 2018, the Veteran was afforded a VA examination to assess the severity of his spinal disability. At that time, the examiner diagnosed the Veteran with degenerative disc disease of the spine with facet arthropathy, status post microdiscectomy. The Veteran described having severe pain in his low back, along with increased popping. He also described having muscle spasms and having to wear his back brace more often. He also reported having about 10 falls over the past 12 months and required assistance to put on his socks and shoes. Range of motion testing revealed the following: forward flexion to 20 degrees and extension to 10 degrees; total range of motion was 70 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner noted that the Veteran’s muscle spasms resulted in abnormal gait and spine contour. The Veteran’s spine disability caused disturbance in locomotion and interference with sitting and standing. However, there was no ankylosis of the spine or intervertebral disc syndrome. Upon review of the record, the Board finds that a rating in excess of 40 percent is not warranted. A higher rating requires unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof. The examination reports of record found no evidence of actual ankylosis of the spine. Although the Veteran manifests functional impairment in that he has difficulty when moving his back, neither the medical nor the lay evidence of record suggests that the spine is in a fixed position. Thus, the claim for a rating higher than 40 percent is denied.   Increased Rating for Nerve Disabilities In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, a disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. 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. 38 C.F.R. § 4.124a. Descriptive words such as “slight,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.124a. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124. For the entire appeal period, the Veteran’s service-connected radiculopathy of the left and right sciatic nerves were each rated 20 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. Moderately severe incomplete paralysis is rated 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. Diagnostic Code 8620 refers to neuritis of the sciatic nerve while Diagnostic Code 8720 refers to neuralgia of the sciatic nerve. At the October 2010 VA examination, the Veteran reported that his low back pain radiated down both legs. Upon examination, the Veteran demonstrated normal muscle function and sensation to vibration, pain, light touch, and position, bilaterally. However, reflexes were absent in knee jerk and ankle jerk testing, bilaterally. In subsequent treatment records, physicians noted that the Veteran had radicular symptoms in his lower extremities. Specifically, he indicated that his back pain radiated to his buttocks, thighs, calves, and feet, bilaterally. See generally, VA and Private Treatment Records dated 2010 through 2016. In October 2016, the Veteran obtained a Disability Benefits Questionnaire from his private physician to assess the severity of his bilateral radiculopathy. At that time, the Veteran endorsed decreased sensation in the bilateral thighs, knees, legs, ankles, feet, and toes. There was also decreased sensation to position, vibration, and cold. His radiculopathy symptoms included pain, numbness, and paresthesias and/or dysesthesias. Most recently, at the March 2018 VA examination, the Veteran reported having pain and numbness radiating down his legs to his calves. Upon testing, the Veteran endorsed less strength than normal in the bilateral extremities. His reflexes in the bilateral knees and ankles were hypoactive. While he had decreased sensation to light touch in the bilateral legs, ankles, feet, and toes, sensation was normal in the bilateral thighs and knees. He endorsed moderate pain, numbness, and paresthesias and/or dysesthesias in the bilateral lower extremities. Based on the above, the Board finds that a rating in excess of 20 percent is not warranted for radiculopathy of either leg. Throughout the appeal period, the Veteran’s radiculopathy was manifested by pain, numbness, tingling, and slight reflex and sensation abnormality. The medical evidence demonstrates that while the Veteran did indeed report pain, sensation remained intact, albeit decreased. Straight leg testing revealed normal results and the Veteran's reflexes were normal to slightly abnormal on occasion. There were no trophic changes. When considering these objective findings of radiculopathy absent atrophy or trophic changes, the Board finds that the Veteran’s radiculopathy of the bilateral legs has been manifested by no more than moderate incomplete paralysis of the sciatic nerve. The Board recognizes that at the October 2010 VA examination, the Veteran endorsed absent reflexes in the ankle and knee. In light of the Veteran’s entire medical history, the Board finds that this one instance of absent reflexes is not significant enough to warrant a rating in excess of 20 percent. Most often, the Veteran’s reflexes were diminished but present. The Board finds that given the length of the appeal period, one instance of absent reflexes is not significant enough to warrant a higher rating. In sum, the claims for higher ratings for radiculopathy of the bilateral legs is denied. Formula for Rating IVDS Based on Incapacitating Episodes The Board also finds that a rating higher than 40 percent for the Veteran’s lumbar spine disability is not warranted based on incapacitating episodes. For the entire appeal period, the Veteran’s orthopedic and neurologic manifestations of lumbar spine IVDS result in a combined 60% rating. See 38 C.F.R. §§ 4.25, 4.26. A higher rating under the Formula for Rating IVDS Based Incapacitating Episodes is not available. REASONS FOR REMAND Entitlement to TDIU The Agency of Original Jurisdiction (AOJ) most recently adjudicated the issue of entitlement to TDIU in May 2018. At that time, the AOJ denied the claim, reasoning that the Veteran’s service-connected disabilities did not meet the basic schedular requirements for a grant of TDIU. The Veteran’s claim was also denied because he failed to complete and return a signed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). Since that time, the Veteran’s service-connected disability ratings have increased and thus, currently meet the criteria for schedular TDIU. He should be afforded another opportunity to submit the requisite paperwork pertaining to his TDIU claim. In addition, the AOJ should schedule the Veteran for a VA examination to determine the impact the Veteran’s service-connected disabilities have on his ability to obtain and maintain gainful employment. The matters are REMANDED for the following action: 1. Ask the Veteran to fully and accurately complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability and send it to the AOJ. 2. Associate with the claims folder the entire contents of the Veteran’s Vocational Rehabilitation folder, if any. 3. Schedule the Veteran for an appropriate examination to determine the impact the Veteran’s service-connected disabilities have on his ability to engage in gainful employment. All findings should be reported in detail and all functional impairment caused by the service-connected disabilities should be detailed. 3. Readjudicate the claim of entitlement to TDIU. If the claim is not granted to the Veteran’s satisfaction, provide him and his representative a Supplemental Statement of the Case and allow them the appropriate time to respond before returning the appeal to the Board. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Orie, Associate Counsel