Citation Nr: 18151580 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 14-38 221A DATE: November 20, 2018 ORDER Prior to June 16, 2018, an initial rating of 20 percent, but no greater, for lumbar spine degenerative disc disease is granted. Beginning June 16, 2018, a rating of 40 percent, but no greater, for lumbar spine degenerative disc disease is granted. An initial rating of 20 percent, but no greater, for radiculopathy of the right lower extremity is granted. Beginning March 16, 2017, a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. REMANDED The claim for a TDIU prior to March 16, 2017 is remanded. FINDINGS OF FACT 1. Prior to June 16, 2018, the Veteran’s lumbar spine degenerative disc disease was characterized by forward flexion of 80 degrees with functional loss after repetitive-use testing characterized by pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight bearing. 2. Beginning June 16, 2018, the Veteran’s lumbar spine degenerative disc disease has been characterized by forward flexion of 35 degrees with a decrease in range of motion to 30 degrees after repetitive-use testing. 3. The Veteran’s lumbar spine degenerative disc disease has resulted in radiculopathy of the right lower extremity which is characterized by moderate symptomatology. 4. Beginning March 16, 2017, the Veteran’s service-connected disabilities have been of sufficient severity to prohibit substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to June 16, 2018, the criteria for an initial disability rating of 20 percent, but no greater, for lumbar spine degenerative disc disease were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.71a, Diagnostic Code (DC) 5242. 2. Beginning June 16, 2018, the criteria for a disability rating of 40 percent, but no greater, for lumbar spine degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.71a, DC 5242. 3. The criteria for an initial disability rating of 20 percent, but no greater, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.124a, DC 8520. 4. Beginning March 16, 2017, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1969 to June 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which, in part, granted service connection for lumbar spine degenerative disc disease, assigning an initial 10 percent disability rating, as well as radiculopathy of the right lower extremity, also assigning an initial 10 percent disability rating, each effective December 29, 2011, the date that the Veteran filed his claim. With regard to the TDIU claim, during a September 2013 VA spine examination, the Veteran stated that he “worked as a driller in construction most of his life” but “had to stop working last year because his back condition had gotten to the point where it was too difficult to work.” This raises the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part of a claim for increased compensation). As such, the Board has taken jurisdiction of the TDIU issue in accordance with Rice. In May 2016, the Veteran’s representative submitted a statement saying that the Veteran “will be withdrawing” his TDIU claim. This suggests a future intent to withdraw the TDIU claim, not a present intent. As nothing has been filed to positively indicate a present intent to withdraw the Veteran’s TDIU claim, the Board finds that the May 2016 statement lacks the specific intent required to constitute a withdrawal of the Veteran’s TDIU claim. See DeLisio v. Shinseki, 25 Vet. App. 45, 57–58 (2011). Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Such inquiry is not to be limited to muscles or nerves. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint’s range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169–70 (2016); 38 C.F.R. § 4.59. Analysis By way of history, the Veteran’s service treatment records show that he injured his back in a parachute landing in July 1970. He submitted an initial claim for service connection for a lumbar spine disability in December 2011 and, by rating decision dated in September 2013, the RO granted service connection for lumbar spine degenerative disc disease, assigning an initial 10 percent disability rating, as well as radiculopathy of the right lower extremity, also assigning an initial 10 percent disability rating, each effective December 29, 2011, the date that the Veteran filed his claim. The Veteran disagreed with this decision and timely perfected an appeal. 1. Lumbar spine degenerative disc disease Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. 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. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Id. Evaluations for intervertebral disc syndrome are to be performed 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 evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Note 6. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Evidence relevant to the level of severity of the Veteran’s lumbar spine disability includes VA examination reports dated in September 2013 and June 2018. During the September 2013 VA spine examination, it was noted that the Veteran had forward flexion to 80 degrees. He had to lie in bed during flare-ups, but did not indicate how often this occurred. The Veteran could perform repetitive-use testing with no additional loss in range of motion, but functional loss was reflected by pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. There was no guarding or muscle spasm. There was a diagnosis of IVDS but there were no incapacitating episodes. Functionally, the Veteran was not “able to work in any physical occupation requiring heavy lifting/carrying or repetitive bending of the back.” During the June 2018 VA spine examination, it was noted that the Veteran had forward flexion to 35 degrees. During flare-ups, he experienced pain and had difficulty breathing. Functional loss was reflected by “difficulty with walking, standing, sitting and lifting due to pain.” The Veteran could perform repetitive-use testing, after which his forward flexion was reduced to 30 degrees but with no additional functional loss. He experienced painful motion and pain with weight bearing. He had an abnormal gait due to guarding. There was no ankylosis. He used a back brace during flare-ups. Upon review of the relevant medical evidence, the Board finds that an initial 20 percent disability rating is warranted prior to June 16, 2018. While the September 2013 VA spine examination shows forward flexion to 80 degrees, in correspondence accompanying his January 2014 notice of disagreement, the Veteran stated that he “was forced into early retirement in Oct 2012 because [he] became incapable of performing the duties [his] job required.” After standing for 15 to 30 minutes he developed back pain and right leg numbness. He could not sit for more than two to three hours without needing to move around and stretch. While forward flexion of 80 degrees by itself supports the Veteran’s current rating of 10 percent, there was additional evidence of pain during flare-ups and functional loss following repetitive-use testing. Forward flexion of 80 degrees with functional loss and flare-ups accompanied by pain supports a rating of 20 percent under DeLuca. As for the potential for a rating even higher than 20 percent prior to June 16, 2018, the preponderance of the evidence does not reflect that the Veteran demonstrated flexion to 30 degrees or less, favorable or unfavorable ankyloses of the entire thoracolumbar spine, or unfavorable ankyloses of the entire spine. Instead, the evidence showed the Veteran’s flexion had been limited to no less than 80 degrees, including as a result of pain and after repetitive motion, as shown at the September 2013 VA spine examination, and there is also no evidence of any form of ankylosis affecting the spine, which warrants no more than a 20 percent rating under the General Rating Formula. As for the period beginning June 16, 2018, the Board finds that the evidence supports a 40 percent disability rating. By itself, forward flexion of 35 degrees supports a rating of 20 percent. However, there is additional evidence of painful flare-ups, functional loss with pain, and limitation of forward flexion to 30 degrees after repetitive-use testing. Based on the evidence of limitation of flexion to 30 degrees with pain after repetitive-use testing, the Veteran is entitled to a rating of 40 percent effective July 16, 2018. As for the potential for a rating even higher than 40 percent beginning June 16, 2018, the Board finds that such is not warranted. As above, a rating higher than 40 percent based on orthopedic impairment requires a finding of ankylosis. Ankylosis is defined in general as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland’s Illustrated Medical Dictionary (28th ed. 1994) at 86). For VA compensation purposes, unfavorable ankylosis is a condition in which the thoracolumbar 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). There is no evidence that the Veteran’s spine is fixed in position, or ankylosed. Significantly, the Veteran had flexion to 35 degrees during the June 2018 VA spine examination. Also, while a disability rating higher than 40 percent is warranted when there is evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, there is no indicating that the Veteran has experienced any incapacitating episodes throughout the appeal period. In sum, a higher 20 percent evaluation is warranted for the period prior to June 16, 2018; however, an evaluation in excess of 40 percent for the period since that time is not. 2. Radiculopathy of the right lower extremity The Veteran’s radiculopathy of the right lower extremity is rated pursuant to 38 C.F.R. § 4.124a, DC 8520 which pertains to paralysis of the sciatic nerve. Under DC 8520, a 10 percent rating is provided for mild, incomplete paralysis. Id. A 20 percent rating is provided for moderate, incomplete paralysis. Id. A 40 percent rating is provided for moderately severe, incomplete paralysis. Id. A 60 percent rating is provided for severe, incomplete paralysis with muscular atrophy. Id. An 80 percent rating is provided for complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement is possible for muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured 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. The ratings for the peripheral nerves are for unilateral involvement. Id. The words “slight,” “mild,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Evidence relevant to the current level of severity of the Veteran’s radiculopathy of the right lower extremity includes VA examination reports dated in September 2013 and June 2018. Significantly, the September 2013 VA examination indicated that there was no intermittent nerve pain and no constant nerve pain. There was moderate paresthesias and moderate numbness. The overall severity was moderate. The Veteran indicates that “his right leg [will] go numb after standing 20 minutes.” During the June 2018 VA examination, there was no constant pain, intermittent pain, dull pain, or numbness. There was moderate paresthesias and/or dysesthesias. Overall severity was mild. While there was no specific indication that the Veteran’s leg would go numb after standing for a short period of time, there was also no specific indication that his symptoms had improved. In correspondence accompanying his January 2014 notice of disagreement, the Veteran wrote that he “was forced into early retirement in Oct 2012 because [he] became incapable of performing the duties [his] job required.” This included developing right leg numbness after standing for 15 to 30 minutes. Upon review of the evidence, the Board finds that an initial 20 percent disability for radiculopathy of the right lower extremity is warranted. Significantly, there are consistent reports of moderate paresthesias and that the Veteran’s right leg goes numb after standing for relatively short periods of time. This evidence is consistent with a 20 percent rating based on moderate symptomatology. Because there is no medical or lay evidence of nerve pain and the Veteran can still stand for short periods of time without difficulty, the preponderance of the evidence is against the existence of symptomatology that is moderately severe or worse. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. 3. TDIU As above, during a September 2013 VA spine examination, the Veteran stated that he “worked as a driller in construction most of his life” but “had to stop working last year because his back condition had gotten to the point where it was too difficult to work.” In light of Rice, the Board has taken jurisdiction of a TDIU. VA regulations indicate that when a veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a). The same is true for disabilities resulting from common etiology or a single accident. A total disability rating may also be assigned pursuant to the procedures set forth in 38 C.F.R. § 4.16(b) for veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Prior to March 16, 2017, the Veteran’s service-connected disabilities included lumbar spine degenerative disc disease at 20 percent and radiculopathy of the right lower extremity, rated as 20 percent disabling, with a combined disability rating of 40 percent. For this time period, the Veteran does not meet the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). From March 16, 2017, to June 15, 2018, the Veteran’s service-connected disabilities included posttraumatic stress disorder (PTSD) at 50 percent, lumbar spine degenerative disc disease at 20 percent, radiculopathy of the right lower extremity at 20 percent, and bilateral hearing loss at 0 percent, with a combined rating of 70 percent. For this time period, the Veteran meets the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). From June 16, 2018, the Veteran’s service-connected disabilities are PTSD at 50 percent, lumbar spine degenerative disc disease at 40 percent, radiculopathy of the right lower extremity at 20 percent, and bilateral hearing loss at 0 percent with a combined rating of 80 percent. For this time period, the Veteran meets the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). An award of TDIU “does not require proving 100 percent unemployability.” Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, an award of TDIU requires that the claimant show an inability “to secure and follow a substantially gainful occupation by reason of service-connected disabilities.” 38 C.F.R. § 4.16(b). When making this determination, “the central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (internal citations and quotations omitted). Additionally, the Board “must take into account the individual veteran’s education, training, and work history” but “may not consider [nonservice]-connected disabilities or advancing age.” Id. (internal citations omitted). The Veteran’s SSA (Social Security Administration) disability application states that he worked as a driller foreman from August 1975 to October 2012. His highest level of education was a GED (general education development). According to SSA, he became too disabled to work on October 25, 2012, because of his back disorder. Statements made to the SSA are consistent with statements that the Veteran has made to the VA. An April 2012 authorization for release of information states that that the Veteran has “been working at the NTS . . . since 1975.” In his September 2013 VA spine examination, the Veteran stated that he “worked as a driller in construction most of his life” but “had to stop working last year because his back condition had gotten to the point where it was too difficult to work.” Also, according to that examination, the Veteran was not “able to work in any physical occupation requiring heavy lifting/carrying or repetitive bending of the back.” In correspondence accompanying his January 2014 notice of disagreement, the Veteran stated that he “was forced into early retirement in Oct 2012 because [he] became incapable of performing the duties [his] job required.” After standing for 15 to 30 minutes he develops back pain and right leg numbness. He could not sit for more than two to three hours without needing to move around and stretch. The Veteran’s January 2015 TDIU application indicates that the Veteran worked from August 1975 to October 2012. In his June 2018 VA spine examination, the Veteran reported “difficulty with lifting, sitting, standing and walking due to pain.” Beginning March 16, 2017, given the overall disability picture and the Veteran’s history of employment, the Board finds that the evidence as a whole establishes that the Veteran’s service-connected back and radiculopathy disorders alone render him unable to obtain and maintain substantially gainful employment. While the Veteran has some supervisory experience, this is exclusively limited to drilling and construction, which even in a supervisory role would likely require consistent standing and walking, which are prohibited by his back pain and leg numbness. Even if standing and walking were not required, the Veteran’s limited education and inability to sit for extended periods of time would likely prohibit the ability to obtain and maintain substantially gainful employment. Under the circumstances of this case, the Veteran is entitled to a TDIU effective March 16, 2017. REASONS FOR REMAND With regard to the potential for a TDIU prior to March 16, 2017, the evidence discussed above suggests that the Veteran’s service-connected disorders also render him unable to obtain and maintain substantially gainful employment prior to March 16, 2017. However, prior to March 16, 2017, the Veteran did not meet the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). Nevertheless, it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. In such cases, rating boards are to submit to the Director, VA Compensation Service, for extraschedular consideration Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards. 38 C.F.R. § 4.16(b). Given the above, referral to the Director, VA Compensation Service, is warranted for a determination of entitlement to TDIU in the first instance. The matter is REMANDED for the following action: 1. Refer the case to the Director, Compensation Service, for a determination in the first instance as to whether the assignment of a TDIU on an extraschedular basis prior to March 16, 2017, is warranted. 2. If the benefit remains denied, issue the Veteran and the Veteran’s representative a supplemental statement of the case and return the case to the Board. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel