Citation Nr: 18156590 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-58 493 DATE: December 10, 2018 ORDER An increased rating of 20 percent for a right hip disability is granted from July 26, 2013. An increased rating of 20 percent for orthopedic manifestations of a neck disability is granted before December 11, 2017. An increased rating of 30 percent for orthopedic manifestations of a neck disability is granted from December 11, 2017. An increased rating of 40 percent for right upper extremity radiculopathy, associated with a neck disability, is granted from December 11, 2017. An increased rating of 30 percent for left upper extremity radiculopathy, associated with a neck disability, is granted from July 26, 2013. A total disability rating based on individual unemployability is granted on an extraschedular basis for the period from May 23, 2017 to December 11, 2017 A total disability rating based on individual unemployability is granted on a schedular basis for the period from December 11, 2017 to September 26, 2018. VETERAN’S CONTENTIONS The Veteran is seeking increased ratings for disabilities of the neck and right hip. His neck disability is currently rated as 20 percent disabling for orthopedic manifestations, 20 percent disabling for neurological manifestations of the right upper extremity, and 30 percent disabling for neurological manifestations of the left upper extremity. His right hip disability is currently rated as 10 percent disabling. The Veteran contends that these ratings do not accurately reflect the severity of his disabilities. Specifically, he asserts that his neck disability has gotten worse since surgery in 2015, that his range of motion is restricted, and that he cannot tilt his head without causing pain in his arms. He also asserts that his hip disability causes pain with prolonged sitting, and restricts his range of motion, making it difficult to walk or run. FINDINGS OF FACT 1. Throughout the claim period, the Veteran’s right hip disability has manifested in limited motion up to: flexion to 80 degrees, extension to 25 degrees, abduction to 35 degrees, adduction to 20 degrees, and external rotation to 30 degrees, with more severe impairment during flare ups and with use over time. See VA Examinations dated September 2016, January 2018, September 2018. 2. Before December 11, 2017, the Veteran’s neck disability manifested in forward flexion limited to 40 degrees, with more severe impairment during flare ups and with use over time. See September 2016 VA Examination. 3. Since December 11, 2017, the Veteran’s neck disability has manifested in forward flexion limited to 20 degrees, with more severe impairment during flare ups and with use over time. See VA Examinations dated January 2018, September 2018. 4. There is no evidence throughout the claim period of physician-prescribed bedrest for incapacitating episodes of intervertebral disc disease. See VA Examinations dated September 2016, January 2018 (noting eight weeks bed rest following disc replacement surgery), September 2018. 5. Throughout the claim period, the Veteran’s right upper extremity radiculopathy has manifested in subjective complaints of mild constant and intermittent pain, paresthesias or dysesthesias, and objective signs of numbness, as well as decreased sensation to light touch of the forearm, hand, and fingers. See January 2018 VA Examination. 6. Throughout the claim period, the Veteran’s left upper extremity radiculopathy has manifested in subjective complaints of mild to moderate constant and intermittent pain, paresthesias or dysesthesias, and objective signs of numbness, as well as decreased sensation to light touch of the forearm, hand, and fingers. See VA Spine Examinations dated September 2016, January 2018, September 2018; September 2016 VA Peripheral Nerves Examination. 7. Given the increased ratings granted herein, the Veteran’s neck disability, to include his separate ratings for associated radiculopathy, is rated as no more than 50 percent disabling before December 11, 2017. The combined rating since December 11, 2017 is 80 percent. 8. The Veteran was unable to secure or maintain a substantially gainful occupation from May 23, 2017 to September 26, 2018. See Private Treatment Records dated May 2017, June 2017, September 2017, December 2017 (indicating total incapacitation following disc replacement surgery); VA Examinations dated January 2018, September 2018. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 20 percent for a right hip disability are met from July 26, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a Diagnostic Code 5252. 2. The criteria for an increased rating of 20 percent for orthopedic manifestations of a neck disability are met before December 11, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a Diagnostic Code 5243. 3. The criteria for an increased rating of 30 percent for orthopedic manifestations of a neck disability are met from December 11, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a Diagnostic Code 5243. 4. The criteria for an increased rating of 40 percent for right upper extremity radiculopathy, associated with a neck disability, are met from December 11, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.124a Diagnostic Code 8512. 5. The criteria for an increased rating of 30 percent for left upper extremity radiculopathy, associated with a neck disability, are met from July 26, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.124a Diagnostic Code 8510. 6. The criteria for a total disability rating based on individual unemployability on an extraschedular basis are met for the period from May 23, 2017 to December 11, 2017September 26, 2018. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16(b). 7. The criteria for a total disability rating based on individual unemployability on a schedular basis are met for the period from December 11, 2017 to September 26, 2018. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 2006 to May 2007, October 2008 to March 2009, August 2009 to July 2013, and March to July 2016. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. 1. Right Hip Disability The Veteran’s right hip disability is currently rated as 10 percent disabling for limited extension with painful motion, and 0 percent disabling for limitation of extension, abduction, adduction, and external rotation, under diagnostic codes (DCs) 5251, 5252, and 5253. A rating in excess of 10 percent requires either ankylosis of the hip, flexion limited to 30 degrees, abduction limited to 10 degrees, flail joint, or impairment of the femur. See DCs 5250, 5252, 5253, 5254, 5255. There is no evidence throughout the claim period of ankylosis, flail joint, or impairment of the femur. The medical evidence of record reflects flexion limited to no more than 80 degrees and abduction limited to no more than 35 degrees. See VA Examinations dated September 2016, January 2018, September 2018. However, at all three VA examinations, the Veteran reported flare ups of his hip disability. Furthermore, the January 2018 examiner opined that the Veteran’s functional impairment was significantly increased during flare ups and with repeated use over a period of time. The September 2016 examiner did not opine whether flare ups or use over time increased the Veteran’s functional impairment. The September 2018 examiner opined that these factors did not increase his impairment. The Board has the responsibility to interpret VA examinations in light of the entirety of the record, and to reconcile various examinations into a consistent disability picture. 38 C.F.R. § 4.2. The Veteran’s consistent report that he experiences flare ups of his right hip disability accords with the general picture that arises from the VA examinations: his right hip disability is worse at some times than at others. For instance, whereas range of motion measurements were taken at the September 2016 and September 2018 examinations, at the January 2018 examination, the examiner was unable to test for limitation of motion because the Veteran was in too much pain. Resolving all reasonable doubt in favor of the Veteran, the Board finds that his right hip disability has manifested in significantly increased functional impairment during flare ups throughout the claim period. Therefore, because the evidence establishes that the Veteran experienced functional impairment greater than that reflected by the range of motion findings of his VA examinations, the Board finds that the Veteran’s disability picture more nearly approximates the criteria for a 20 percent rating under DC 5252. Accordingly, an increased rating of 20 percent is warranted. This grant amounts to an increase of the Veteran’s previous rating of 10 percent under DC 5251 for non-compensable limitation of motion with pain, under 38 C.F.R. § 4.59. As a result of the grant, the Veteran’s right hip is no longer rated as noncompensable; hence a rating of 10 percent for painful motion under DC 5251 cannot be maintained. Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 only applies where the rating is currently noncompensable). Rather, the rating of 20 percent under DC 5252 replaces the 10 percent rating under 5251, as an increase thereof. A rating in excess of 20 percent requires either ankylosis of the hip, flexion limited to 20 degrees, flail joint, or impairment of the femur. As noted above, there is no evidence throughout the claim period of ankylosis, flexion limited to more than 80 degrees, flail joint, or impairment of the femur. Therefore, a rating in excess of 20 percent is not warranted. Finally, regarding the Veteran’s noncompensable ratings under DCs 5253, and now 5251, compensable ratings require limitation of abduction to 10 degrees, limitation of adduction so that the legs cannot be crossed, or limitation of external rotation to 15 degrees under DC 5253, and limitation of extension to 5 degrees under DC 5251. Throughout the claim period, the Veteran’s right hip disability has been manifested by no more than the following limitations of motion: abduction to 35 degrees, adduction limited but with the legs able to be crossed, external rotation to 30 degrees, and extension to 25 degrees. See VA Examinations dated September 2016, September 2018. Therefore, compensable ratings under DCs 5253 and 5251 are not warranted. 2. Orthopedic Manifestations of a Neck Disability The Veteran’s neck disability is currently rated as 10 percent disabling from July 26, 2013, and 20 percent disabling from December 11, 2017 under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Before December 11, 2017 A rating in excess of 10 percent for a disability of the cervical spine (neck) requires either forward flexion limited to between 15 and 30 degrees, a combined range of motion (flexion, extension, right and left lateral flexion and rotation) no greater than 170 degrees, or muscle spasm or guarding resulting in an abnormal gait or spinal contour. There is no evidence before December 11, 2017 of muscle spasm or guarding of the neck resulting in abnormal gait or spinal contour. See September 2016 VA Examination (noting muscle spasm and guarding not resulting in abnormal gait or spinal contour). The Veteran was afforded one VA examination during this period, in September 2016. The examination reflects flexion limited to 40 degrees, with a combined range of motion of 185 degrees. However, the Veteran reported that he experienced flare ups of his neck disability, and the examiner opined that the Veteran’s functional ability was significantly limited during flare ups and with repeated use over time. Therefore, because the evidence establishes that the Veteran experienced functional impairment greater than that reflected by the range of motion findings of the VA examination, the Board finds that during this period the Veteran’s neck disability more nearly approximated the criteria for a rating of 20 percent. Accordingly, an increased rating of 20 percent is warranted. A rating in excess of 20 percent requires forward flexion limited to 15 degrees or favorable ankylosis of the entire cervical spine. There is no evidence during this period of ankylosis of the cervical spine. Furthermore, as noted above, forward flexion was limited to no more than 40 degrees. Therefore, a rating in excess of 20 percent is not warranted for this period. From December 11, 2017 As just noted, a rating in excess of 20 percent under the General Rating Formula requires forward flexion limited to 15 degrees or favorable ankylosis of the entire cervical spine. There is no evidence in the period since December 11, 2017 of ankylosis of the cervical spine. In addition, the medical evidence from this period reflects forward flexion limited to no more than 20 degrees. See VA Examinations dated January 2018, September 2018. However, the Veteran reported flare ups of his neck disability at both VA examinations during this period, in January and September 2018. The January 2018 examiner stated that the Veteran experienced significantly increased functional impairment during flare ups and with repeated use over time, while the September 2018 examiner stated that these factors did not increase functional impairment. The Board has the responsibility to interpret VA examinations in light of the entirety of the record, and to reconcile various examinations into a consistent disability picture. 38 C.F.R. § 4.2. In this light, the Board notes that the finding of the January 2018 examiner that the Veteran experienced increased functional impairment during flare ups is supported by the Veteran’s own reports and the entirety of the record. The Veteran reported to the January and September 2018 examiners that during flare ups he experienced increased pain on movement, and sometimes had to restrict himself to a seated position in order to sleep at night. Because the January 2018 examiner’s finding is better supported by the evidence of record, the Board finds that in the period from December 11, 2017, the Veteran experienced increased functional impairment during flare ups and with use over time. Because the evidence establishes that the Veteran experienced functional impairment greater than that reflected by the range of motion findings of his VA examinations, the Board finds that the Veteran’s neck disability more nearly approximated the criteria for a 30 percent rating during this period. Accordingly, an increased rating of 30 percent is warranted. A rating in excess of 30 percent requires unfavorable ankylosis of the entire cervical spine. Because there is no evidence of ankylosis of the cervical spine throughout this period, a rating in excess of 30 percent is not warranted. Intervertebral Disc Disease A rating in excess of 30 percent may also be awarded for a neck disability where there is a diagnosis of intervertebral disc disease (IVDS) with incapacitating episodes requiring physician-prescribed bedrest, having a total duration of four to six weeks in the past twelve months. The Veteran had a diagnosis of IVDS from the September 2016 VA examination to the September 2018 VA examination, which noted no diagnosis of IVDS. The January 2018 examiner noted that the Veteran had experienced four to five incapacitating episodes of IVDS per month over the past year, and that he had been on bedrest for eight weeks following a surgery, which the Veteran’s medical records indicate took place in May 2017. See Private Treatment Records dated May 2017, June 2017. However, the January 2018 VA examination did not note any bedrest prescribed by a physician for incapacitating episodes of IVDS, only bedrest following surgery. Nor is there any other evidence of record of physician-prescribed bedrest for incapacitating episodes of IVDS. Therefore, a rating in excess of 30 percent based on incapacitating episodes of IVDS is not warranted. 3. Right and Left Upper Extremity Radiculopathy The Veteran’s right upper extremity radiculopathy is currently rated as 20 percent disabling from December 11, 2017, under DC 8512. His left upper extremity radiculopathy is currently rated as 20 percent disabling before December 11, 2017, and 30 percent disabling thereafter, under DC 8510. Under DCs 8510 and 8512, a rating in excess of 20 percent requires moderate incomplete paralysis of the hand and of the shoulder and elbow, respectively. As noted in the above findings of fact, the Veteran’s right and left upper extremity radiculopathy have manifested in objective signs of mild to moderate constant and intermittent pain, paresthesias or dysesthesias, and numbness, as well as decreased sensation to light touch of the forearm, hand, and fingers, throughout the claim period. Therefore, increased ratings of 40 percent from December 11, 2017 for the right upper extremity (dominant hand), and of 30 percent before December 11, 2017 for the left upper extremity, are warranted. Ratings in excess of 40 and 30 percent for the right and left upper extremity respectively require severe incomplete paralysis of the relevant nerve groups. There is no evidence throughout the claim period of objective signs of severe paralysis, such as trophic changes or muscle atrophy. See VA Spine Examinations dated September 2016, January 2018, September 2018 (noting no muscle atrophy); September 2016 VA Peripheral Neuropathy Examination (noting no trophic changes). Therefore, ratings in excess of 40 and 30 percent for right and left upper extremity radiculopathy, respectively, are not warranted. 4. TDIU The Court of Appeals for Veterans’ Claims (CAVC) has held that a total disability rating based on individual unemployability (TDIU) is part of a claim for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran has submitted private treatment records dated from May to December 2017 which indicate that the Veteran was “totally incapacitated” during this time, and unable to work. Therefore, the Board finds that a claim for a TDIU has been raised. 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 as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). As the Veteran’s claim for a TDIU comprises part of the appeal for an increased rating for a neck disability and not an independent claim, the Board’s jurisdiction is limited to the consideration of the Veteran’s neck disability alone, to include his separate ratings for associated radiculopathy. In light of the increased ratings granted herein, The Veteran has a combined rating of 50 percent for his neck disabilities before December 11, 2017, and a combined rating of 80 percent from that date on. Hence, although the evidence raises the issue of entitlement to a TDIU for the period from May to December 2017, the Veteran does not meet the schedular requirements during that period. However, “[i]t is the established policy of the Department of Veterans Affairs 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.” 38 C.F.R. § 4.16(b). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. Therefore, the Board turns to the issue of whether the Veteran’s service-connected neck disability precluded him from securing and following a substantially gainful occupation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central question is whether the Veteran’s service-connected disability alone was of sufficient severity to produce unemployability, taking into consideration the Veteran’s education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As already noted, the Veteran underwent a disc replacement surgery on May 23, 2017. Afterward, several doctor’s notes reflect the opinion of the Veteran’s private doctor that he was “totally incapacitated” due to his surgery, and unable to return to work. See Private Treatment Records dated June 2017, September 2017, December 2017. The last note, dated December 6, 2017, indicates that the doctor will re-evaluate the Veteran in ninety days. However, there is no indication in the record of when the Veteran’s doctor determined the Veteran was fit to return to work. As to this question, the January 2018 VA examiner noted that the Veteran’s ability to work was still severely limited. The examiner stated that the Veteran’s ability to turn and bend his neck was significantly impaired, which was “crucial to driving, or any occupation requiring [the Veteran] to multitask, even if it is deskwork/clerical.” Therefore, the Board finds that the Veteran was still unable to secure or maintain a substantially gainful occupation as of the time of this examination. In contrast, although the September 2018 examiner noted that the Veteran’s neck disability would impact his ability to work, the examiner also noted that the limitation of the Veteran’s ability to turn and bend his neck did not contribute to functional loss. The physical examination itself reflected improved ranges of motion, supporting this finding. The September 2018 examiner’s findings are competent, credible, and entitled to significant weight. Significantly, there is no probative evidence to the contrary. Therefore, the Board finds that as of September 27, 2018, the Veteran was not unable to secure and maintain substantially gainful employment. Accordingly, a TDIU is warranted on an extraschedular basis for the period from May 23, 2017 to December 11, 2017, and on a schedular basis from December 11, 2017 to September 26, 2018. Thereafter, a TDIU is not warranted. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel