Citation Nr: 18146377 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 10-36 190 DATE: October 31, 2018 ORDER A disability rating higher than 20 percent for lumbosacral strain prior to December 13, 2017, and higher than 40 percent thereafter, is denied. A separate 20 percent disability rating for left lower extremity radiculopathy from December 13, 2017 is granted. A separate 10 percent disability rating for right lower extremity radiculopathy from October 10, 2012, and 20 percent rating from December 13, 2017 is granted. Entitlement to special monthly compensation based on the need for aid and attendance is granted. A total disability rating based on individual unemployability (TDIU) from December 13, 2017 is granted. REMANDED Entitlement to a TDIU prior to December 13, 2017 is remanded. FINDINGS OF FACT 1. Prior to December 13, 2017, lumbosacral strain was not manifested by favorable ankylosis or forward flexion of 30 degrees or less; from December 13, 2017, lumbosacral strain was not manifested by unfavorable ankylosis. 2. From December 13, 2017, left lower extremity radiculopathy was manifested by moderate incomplete paralysis of the sciatic nerve. 3. From October 10, 2012, right lower extremity radiculopathy was manifested by mild incomplete paralysis of the sciatic nerve; from December 13, 2017, moderate incomplete paralysis was present. 4. The Veteran requires regular assistance with dressing and bathing due to his service-connected disabilities. 5. From December 13, 2017, the Veteran meets the schedular criteria for a TDIU, and his service-connected disabilities precluded him from obtaining or maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for lumbosacral strain prior to December 13, 2017, and higher than 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 2. The criteria for a separate 20 percent rating for left lower extremity radiculopathy from December 13, 2017 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, Diagnostic Code 8520. 3. The criteria for a separate 10 percent rating for right lower extremity radiculopathy from October 10, 2012, and 20 percent from December 13, 2017, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, Diagnostic Code 8520. 4. The criteria for an award of special monthly compensation based on the need for regular aid and attendance of another person are met. 38 U.S.C. §§ 1114(l), 5107(b); 38 C.F.R. §§ 3.350, 3.351, 3.352. 5. The criteria for a TDIU from December 13, 2017 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy from September 1974 to October 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision. The Veteran testified before a Veterans Law Judge (VLJ) at a Board hearing in April 2013. That VLJ has since left the Board, and the Veteran did not respond to an April 2018 letter asking if he would like another hearing. The matter was also previously remanded in June 2014 and March 2016. Preliminary Discussion Prior to adjudicating the Veteran’s claims on appeal, some clarification of his service-connected disability is necessary. The Veteran was service-connected for lumbosacral strain. In June 2008, he was involved in motor vehicle accident (MVA), and subsequent imaging from November 2010 showed L4-L5 and L5-S1 annular tears with herniation and protrusion of the discs. A November 2014 VA examiner stated that the service-connected strain did not cause the degenerative disc disease (DDD) found on examination. Rather, disc disease was due to aging, post-service occupational stress and the MVA. A December 2017 VA examiner also noted that the Veteran’s diagnosis had changed to lumbar intervertebral disc syndrome (IVDS), and noted the MVA and subsequent imaging findings. No VA examiner or other medical professional has differentiated between lumbosacral strain and DDD/IVDS as the cause for the Veteran’s limited range of motion. Therefore, the Board will treat any limited motion as associated with the service-connected strain. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected versus nonservice-connected condition). As to the Veteran’s radiculopathy, the Board will also consider this to be associated with his service-connected strain because there is some evidence of lower extremity neurologic impairment shortly after service and many years before the 2008 MVA. Specifically, during an October 1977 VA examination, the Veteran reported back pain radiating in the right thigh, and examination revealed some diminished sensation over the right foot and leg. A December 1980 VA examination also noted reports of burning in the right thigh. In addition, the evidence also shows diagnoses of lower extremity diabetic neuropathy. However, the Board will associate any lower extremity neurologic impairment to radiculopathy in accordance with Mittleider, but only for when radiculopathy was actually diagnosed, as discussed below. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 1. Lumbosacral Strain The Veteran’s lumbosacral strain is rated under Diagnostic Code (DC) 5237. He is assigned a 20 percent rating prior to December 13, 2017, and a 40 percent rating thereafter. DC 5237 is part of the General Rating Formula for Diseases and Injuries of the Spine found in 38 C.F.R. § 4.71a. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or when there is favorable ankylosis of the thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Note (5) of the General Rating Formula states that, for VA compensation purposes, unfavorable ankylosis is a condition in which the thoracolumbar 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 of 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 a neutral position (zero degrees) always represents favorable ankylosis. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment).   a. Prior to December 13, 2017 A rating higher than 20 percent is not warranted prior to December 13, 2017. A December 2008 VA examination measured forward flexion at 75 degrees, with the onset of pain at 60 degrees. There was no additional loss of motion following repetitive testing. Ankylosis was not diagnosed. VA treatment records from May 2012 noted flexion limited by pain to 45 degrees. The Veteran submitted a disability benefits questionnaire (DBQ) in support of his claim in May 2013. This DBQ documented forward flexion of “20” with pain at “15.” However, the Board does not find this DBQ to be probative evidence for two reasons: First, it was not specifically signed by a physician. Rather, there is merely a notation listing the name of the person who performed the range of motion testing. Second, the range of motion section of the DBQ specifically states that motion was assessed using a tape measure, and therefore it is not even clear whether the recorded measurements are “degrees” of lost motion. In that regard, the use of a goniometer in the measurement of limitation of motion is considered indispensable. 38 C.F.R. § 4.46. A November 2014 VA examination documented flexion of 65 degrees with the onset of pain at 65 degrees. There was no change with repetitive testing. The examiner also observed the Veteran flex more than 65 degrees outside of the formal examination. In sum, forward flexion was not shown to be 30 degrees or fewer at any time during this period, even when considering pain and repetitive testing. In addition, no ankylosis was diagnosed at any time. Therefore, the criteria for a higher 40 percent rating have not been met. b. From December 13, 2017 A rating higher than 40 percent is not warranted from December 13, 2017. As noted above, the higher 50 percent rating is assigned only when there is unfavorable ankylosis of the thoracolumbar spine. The VA examination conducted on December 13, 2017 specifically noted that no ankylosis was present, let alone unfavorable ankylosis. Therefore, the higher rating is not applicable. c. IVDS As discussed earlier, the Veteran has been diagnosed with IVDS. Under 38 C.F.R. § 4.71a, there is a separate rating formula for IVDS based on “incapacitating episodes.” These episodes are defined in note (1) of the formula as periods of acute signs and symptoms that require “bed rest prescribed by a physician.” The evidence does not show that the Veteran was ever prescribed bed rest for his lumbar spine condition. Therefore, a rating under the IVDS formula is not appropriate. 2. A separate 10 percent rating for left lower extremity radiculopathy from December 13, 2017 The General Rating Formula for Diseases and Injuries of the Spine provides that any neurologic abnormalities associated with spine disability will be separately rated. The December 2017 VA examination diagnosed radiculopathy of the sciatic nerve, and therefore a separate rating under DC 8520 is appropriate. DC 8520 provides that mild, moderate and moderately severe incomplete paralysis of the sciatic nerve will be assigned 10, 20 and 40 percent ratings, respectively. Severe incomplete paralysis, with marked muscular atrophy, warrants a 60 percent rating. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The terms “moderate,” “moderately severe” and “severe” are not defined in the VA Schedule for Rating Disabilities, and the use of such terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of the level of paralysis present. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. §§ 4.2, 4.6. Beginning in October 2012, the Veteran’s VA records show specific diagnoses of right radiculopathy. However, left lower extremity radiculopathy was not diagnosed until the December 2017 VA examination. A November 2014 VA examiner attributed neurologic impairment to diabetes, and private records from June 2016 also document symptoms of pain and numbness diagnosed as diabetic neuropathy. Therefore, a separate rating for left lower extremity radiculopathy is not warranted until December 13, 2017, when it was first diagnosed. During that examination, left leg strength was slightly reduced at 4/5, and no muscle atrophy was present. Reflexes were diminished at 1+, but sensation was normal. The examiner noted symptoms of moderate constant pain, severe intermittent pain, mild paresthesias, and mild numbness. He assessed an overall level of moderate sciatic radiculopathy. These findings are consistent with a moderate level of incomplete paralysis, based on the examiner’s characterization of the condition as moderate, as well as a moderate amount of constant pain. While intermittent pain was noted to be severe, paresthesias and numbness were mild, essentially “balancing” these symptoms around a moderate level. Similarly, while there was objective evidence of reduced strength and diminished reflexes, sensation was normal. Collectively, the overall disability picture presented is one of moderate incomplete paralysis. 3. A separate 10 percent rating for right lower extremity radiculopathy from October 10, 2012, and 20 percent from December 13, 2017 Whereas left radiculopathy was not diagnosed until December 2017, right radiculopathy was first diagnosed in VA treatment records on October 10, 2012. The Board will consider a separate rating from that date, notwithstanding the November 2014 VA examiner’s finding that impairment was due to diabetic neuropathy. From October 10, 2012, a 10 percent rating is warranted. VA records from January 2013 show the presence of numbness but normal reflexes. Additional records from March 2013 again showed diminished sensation but normal reflexes. The Veteran reported right leg weakness, though motor strength testing could not be completed. Private records from September 2013 and VA records from April 2014 reflect an unremarkable neurologic examination with no reports of weakness, numbness or tingling. During the November 2014 VA examination, knee reflex was diminished at 1+ and ankle reflex was absent. Sensation was decreased in the lower leg, foot and toes. Strength was normal. At worst, this evidence shows diminished or absent reflexes and decreased sensation with normal strength during the November 2014 VA examination, which corresponds to an overall mild level of impairment. Earlier records show less impairment, including at times the absence of any symptoms. Therefore, a 10 percent rating is granted from October 10, 2012 through January 5, 2015. Private treatment records from January 6, 2015 document strength of 3/5 and a 20 to 40 percent sensory deficit in the right leg. The December 2017 VA examination noted strength of 4/5, except for the right ankle at 3/5. No muscular atrophy was present. Reflexes were diminished at 1+ and sensation was decreased. The examiner noted symptoms of moderate constant pain, severe intermittent pain, mild paresthesias, and moderate numbness. He assessed an overall level of moderate sciatic radiculopathy. These findings are consistent with a moderate level of incomplete paralysis, based on the examiner’s characterization of the condition as moderate, as well as a moderate amount of constant pain and moderate numbness. While intermittent pain was noted to be severe, paresthesias were mild, essentially “balancing” these symptoms around a moderate level. In addition, the higher “moderately severe” level of paralysis contemplates more strength impairment than the 3/5 documented in January 2015, as well as the possibility of muscle atrophy, which has not been show. Collectively, the overall disability picture presented is one of moderate incomplete paralysis. 4. Special monthly compensation based on the need for aid and attendance The need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C. § 3.350(b). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether a claimant is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The personal functions which the Veteran is unable to perform should be considered with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996). There is no indication that the Veteran’s service-connected lumbosacral strain and associated bilateral lower extremity radiculopathy require adjustment of any special prosthetic or orthopedic appliance, or that they result in the loss of coordination of the upper extremities. Moreover, Social Security Administration (SSA) records from June 2010 show that the Veteran’s toileting difficulties (inability to tend to the wants of nature) were due to prostate cancer and diabetes. These records also show that the Veteran sometimes goes fishing on the water, which involves hazards greater than those incident to a “daily environment,” without any apparent assistance. However, there is evidence showing that he requires assistance with dressing and undressing as well as keeping himself clean in presentable. The December 2008 VA examiner noted that the Veteran struggled to remove his socks and shoes and then put them back on. SSA records and a June 2015 statement collectively show that the Veteran’s wife assisted him with washing his feet and legs, as well as donning his socks and shoes, due to his inability to bend over to do it himself. She also sometimes helped him put on pants. A January 2018 VA examiner stated that the Veteran was unable to perform bathing and dressing activities. Because the evidence shows the Veteran requires at least regular assistance with both dressing and bathing due to his service-connected disabilities, the criteria for special monthly compensation for aid and attendance are met. 5. A TDIU from December 13, 2017 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 due a single service-connected disability ratable at 60 percent or more, or due to 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). In light of the separate ratings assigned for radiculopathy, the Veteran meets the schedular criteria for consideration of TDIU from December 13, 2017, as his lumbosacral strain and bilateral radiculopathy are considered one disability for TDIU purposes and combine to a 60 percent rating. The central inquiry is determining whether a TDIU is warranted 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). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In September 2015, VA received information from the Veteran’s former employer. He worked as a manager and operator for a land management company’s mowing division until June 24, 2008, when he sustained a work-related injury. The company did not identify any concessions made to the Veteran due to his disability while he was employed. His SSA records show that the duties of this job included using machines and equipment as well frequently lifting 50 pounds or more. His VA Form 21-8940 (TDIU application), SSA records, and various examination reports and treatment records show he previously worked as supervisor at a fertilizer company, as a correctional officer, and at a textile mill. His SSA records show that the fertilizer company job involved unloading trucks, carrying heavy bags and stocking shelves. VA records from January 2014 show he reported having three years of college in the education field but did not complete his degree. His TDIU application shows he received vocational training in electrical work and air-conditioning repair in 1972 or 1973. Regarding functional impairment, the December 2017 VA examiner stated that he had a decreased capacity for lifting and carrying, and for prolonged sitting, standing and walking. A January 2018 VA examiner noted that the Veteran used a cane to ambulate due to the presence of lower extremity weakness, and as noted above, the Veteran also requires regular assistance with dressing and bathing. Evidence from before December 2017 includes SSA records stating the Veteran was limited to frequently lifting 10 pounds or occasionally lifting 20 pounds. A December 2008 VA examiner indicated that his service-connected lumbosacral strain resulted in “significant” effects on occupational function, including decreased mobility and problems with lifting and carrying. Based on this evidence, the Board finds that a TDIU is warranted from December 13, 2017. In addition to meeting the schedular criteria, the above functional impairment would likely preclude the Veteran from performing the duties of the physically-oriented employment he is used to, including heavy lifting and carrying or operating mowing equipment. While he reported three years of college level training in the education field, he did not complete a degree and it is not clear that he would be able to maintain employment in this field with the above limitations. REASONS FOR REMAND Entitlement to a TDIU prior to December 13, 2017 is remanded. Prior to December 13, 2017, the Veteran does not meet the schedular criteria for a TDIU. An extraschedular TDIU may nevertheless be assigned under 38 C.F.R. § 4.16(b), which states that such cases may be forwarded to the Director of Compensation Service for extraschedular consideration. The matter is REMANDED for the following action: Refer the Veteran’s claim for a TDIU prior to December 13, 2017 to VA’s Director of Compensation Service for extraschedular consideration. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel