Citation Nr: 18160089 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 15-39 228 DATE: December 21, 2018 ORDER Entitlement to an initial rating in excess of 20 percent for a low back disability is denied. Entitlement to an initial rating in excess of 20 percent for a left leg radiculopathy disability is denied. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis and disc disease of the lumbar spine disability is not manifested by unfavorable ankylosis of the entire cervical spine, forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine or any incapacitating episodes of IVDS. 2. The Veteran’s service-connected left lower extremity radiculopathy manifested as symptoms approximating no worse than moderate, incomplete paralysis. 3. The schedular criteria for TDIU have not been met and the Veteran’s service-connected disabilities do not render her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.10, 4.40, 4.45, 4.71a; Diagnostic Codes (“DC”) 5235, 5243. 2. The criteria for a disability rating greater than 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, DC 8520. 3. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1997 to August 2010. Increased Rating 1. Entitlement to an initial rating in excess of 20 percent for a low back disability The Veteran’s back disability is rated as 20 percent disabling pursuant to Diagnostic Code 5243. She contends that she is entitled to a higher rating. 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 Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is service-connected for a lumbar spine disability, which is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5243. The disability is currently rated at 20 percent. The Veteran claims that she is entitled to a higher rating for her lumbar spine disability. The Veteran’s spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine holds, in pertinent part, that for DCs 5235 to 5243, a 20 percent rating is warranted for lumbar spine disabilities if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar 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 cervical spine is 340 degrees and of the thoracolumbar 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): 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): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (IVDS) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. Turning to the facts, the Veteran underwent spinal fusion surgery in July 2008. The Veteran was afforded a VA examination in March 2012. The examiner noted that the Veteran had forward flexion to 50 degrees with pain at 40 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The Veteran reported experiencing flare ups that occur four to five times per month lasting one hour and that she takes a pain pill and cannot do any physical activity during a flare up. The examiner noted that the Veteran experienced functional loss of her thoracolumbar spine including less movement than normal, incoordination, and interference with sitting, standing, and weight-bearing. The Veteran did not exhibit guarding or muscle spasms. Additionally, the examiner noted that the Veteran demonstrated symptoms of moderate radiculopathy in her lower left extremity. The Veteran did not exhibit any other neurologic abnormalities related to a thoracolumbar spine condition, such as bowel or bladder problems, or pathologic reflexes. The examiner also noted that the Veteran did not have intervertebral disc syndrome (IVDS) or episodes requiring bed rest. The Veteran provided a letter from her private physician in December 2012, which states that the Veteran suffers from chronic low back pain and is receiving multiple pain medications. The letter also states that the Veteran’s pain and medications negatively affect her ability to function and to work. Private treatment records from July 2014 note that the Veteran continues to experience chronic lower back pain as well as minor degenerative changes in the lower cervical disc spaces. In an August 2014 statement from the Veteran, she indicated that due to her lower back disability, she is unable to sit or stand for more than 15 minutes. Additionally, the Veteran stated that she cannot fully bend over or lift more than five pounds. The Veteran was afforded a VA examination in January 2015. The examiner noted that the Veteran had forward flexion to 75 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The examiner further noted that the Veteran exhibited pain on motion for forward flexion and extension, but it did not result in functional loss. The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use. The Veteran denied experiencing flare ups. The Veteran did not exhibit guarding or muscle spasms of the thoracolumbar spine. The Veteran exhibited normal muscle strength with no evidence of muscle atrophy. The Veteran did not exhibit any ankylosis of the spine. The examiner indicated that the Veteran experienced mild radiculopathy in her left lower extremity including intermittent pain, paresthesias and /or dysesthesias, and numbness. The examiner noted that the Veteran did not experience any other neurologic abnormalities or findings related to her thoracolumbar spine condition. The examiner also noted that the Veteran did not have intervertebral disc syndrome (IVDS) or episodes requiring bed rest. In an October 2015 statement, the Veteran stated that her lower back disability pain causes her to be unable to sit for more than 15 to 20 minutes or stand for more than 10 to 15 minutes. Furthermore, the Veteran stated that she spends most of her time in bed on a heating pad or ice pack due to the pain, and that she cannot bend over or lift more than five pounds. In this case, an increased rating beyond the initial rating of 20 percent for a low back disability is not warranted. There is no evidence in the record to conclude that the Veteran experienced a limitation of forward flexion of the thoracolumbar spine to 30 degrees or less during the applicable appeal period. Furthermore, there is no evidence in the record to suggest that the Veteran has experienced favorable ankylosis of the entire thoracolumbar spine. Additionally, although the Veteran’s private treatment records from November 2011 indicate a limitation of range of motion to 25 degrees flexion, the board does not assign these treatment records significant probative weight relative to the VA examinations from March 2012 and January 2015. The Board finds the VA examinations from March 2012 and January 2015 more probative because they provide significantly greater detail regarding the Veteran’s low back disability, and more thorough reasoning for their conclusions. Neither the March 2012 or the January 2015 VA examinations indicate a limitation of forward flexion of the thoracolumbar spine to 30 degrees or less. As a result, a rating of 40 percent is not warranted. Additionally, the record does not indicate that the Veteran has significant functional loss as a result of her service connected low back disability. In the January 2015 VA examination the Veteran explicitly denied having flare ups. Furthermore, the examiner noted that the Veteran did not experience functional loss due to her low back disability. In the March 2012 VA examination the Veteran did report experiencing flare ups, however, pain on motion for flexion was only limited to 40 degrees. The flare ups and the functional loss described by the VA examiner in the March 2012 report only describe functional loss resulting in less movement than normal, incoordination, and interference with sitting, standing, and weight-bearing. As a result, the record does not warrant an increased rating based on flare ups or functional loss. There is no evidence of favorable or unfavorable ankylosis of the entire thoracolumbar spine as required to support a rating a 50 percent or 100 percent disability rating. The evidence of record does not show that the Veteran has experienced IVDS in her lumbar spine during the period on appeal, nor has she been prescribed bed rest for her back, see March 2012 and January 2015 VA examination reports; as such, a rating pursuant to the Formula for Rating IVDS Based on Incapacitating Episodes (requiring incapacitating episodes for at least 4 weeks to warrant a rating higher than 20 percent) is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s spine disability under the General Rating Formula for Diseases and Injuries of the Spine. 2. Entitlement to an initial rating in excess of 20 percent for a left leg radiculopathy disability The Veteran is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve. Under Diagnostic Code 8520, to warrant a rating of 20 percent, the evidence must demonstrate moderate incomplete paralysis. To warrant a rating of 40 percent, the evidence must demonstrate incomplete paralysis that is moderately severe. To warrant a rating of 60 percent, the evidence must demonstrate incomplete paralysis that is severe, with marked muscular atrophy. To warrant a rating of 80 percent, the evidence must demonstrate complete paralysis, where the foot dangles and drops, no active movement of muscles below the knee is possible, and flexion of the knee is weakened or lost. For rating purposes, the left and right extremities are evaluated individually. Private treatment records from 2008 through 2011 noted that the Veteran experienced radiculopathy in her left lower extremity in part due to her lumbar spine strain. In a March 2012 VA examination, the examiner noted that the Veteran has symptoms of radiculopathy in her left lower extremity. The examiner described the Veteran’s radiculopathy symptoms to be of moderate severity. In an August 2014 statement, the Veteran stated that she has chronic pain in her lower back and left leg that has resulted in a loss of strength in her left leg. Additionally, the Veteran has stated that her leg pain contributes to her inability to sit or stand for extended periods of time. The Veteran was afforded a VA examination in January 2015. The examiner noted that the Veteran experienced incomplete paralysis of the left lower extremity that was mild in severity. The examiner further noted that the Veteran did not need any assistive devices for locomotion. The examiner also noted that there was no functional impact on the Veteran’s ability to work due to her peripheral nerve condition. In an October 2015 statement, the Veteran stated that she has pain in her lower back and left leg that now travels up her back and down her left arm, causing her hand to go numb for extended periods of time. The Veteran also indicated that her pain causes issues with sitting and standing for extended periods of time. There is no objective evidence of record to warrant a rating in excess of 20 percent for the Veteran’s left leg radiculopathy disability. The objective evidence of record indicates that the Veteran experienced moderate incomplete paralysis of her left lower extremity. See March 2012 VA examination report. The Veteran is competent and credible to describe her observable symptoms however her descriptions of her radiculopathy symptoms do not indicate that an increase beyond the current 20 percent rating is warranted. Since the evidence of record more closely approximates the criteria for moderate incomplete paralysis of the Veteran’s left lower extremity, an increased rating beyond the current 20 percent is not warranted. 3. Entitlement to TDIU 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. See 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran’s only service connected disabilities are those affecting her lower back and left lower extremity, with a combined rating of 40 percent. The Veteran does not qualify for a schedular TDIU at this time because her currently rated service connected disabilities do not meet the requirements of 38 C.F.R. § 4.16(a). Because the Veteran’s combined rating did not meet the percentage standards of 38 C.F.R. § 4.16(a) for the appeal period, the claim for a TDIU may be considered only under 38 C.F.R. § 4.16(b) on an extraschedular basis. An extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a); in such cases, the rating authority should refer the matter to the Director of the Compensation Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board concludes that referral for an extraschedular TDIU is not warranted in this case. Consideration has been given to the fact that the Veteran has a long history of lower back and left leg pain that interferes with her daily activities; however, the Veteran has skills, as shown by her prior work experience, that the Board finds would not preclude her ability to secure and follow gainful employment. On the VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), the Veteran reported that she last worked full time in August 2010, when she was an airfield manager with the U.S. Air Force. The Veteran also reported that she does not have any other prior work history. Furthermore, the Veteran has demonstrated leadership skills and competence by attaining the rank of Technical Sargent while in the U.S. Air Force. Additionally, there is no record that the Veteran is receiving benefits from the Social Security Administration. Although the Veteran has provided a statement from her physician stating that she is unable to work, the statement is not supported by the objective evidence of record. In the January 2015 VA examinations, the examiner specifically noted that the Veteran’s service connected peripheral nerve disability did not result in functional loss or impact the Veteran’s ability to work. The examiner reported that the Veteran’s low back disability would limit her from working a physical job. The March 2012 VA examination noted that the Veteran’s low back disability caused functional loss resulting in less movement than normal, incoordination, and interference with sitting, standing, and weight bearing. However, the March 2012 VA examination did not describe functional loss as so severe as to prevent the Veteran from being able to secure and follow a substantially gainful occupation. Accordingly, the Board finds referral of the Veteran’s TDIU claim for extraschedular consideration is not warranted. As the preponderance of the evidence is against a finding of unemployability, the “benefit of the doubt” rule does not apply, and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David M. Sebstead, Associate Counsel