Citation Nr: 1829338	
Decision Date: 05/30/18    Archive Date: 06/12/18

DOCKET NO.  11-32 260	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama


THE ISSUES

1.  Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) lumbosacral spine, prior to April 12, 2017, to include on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b).

2.  Entitlement to a rating in excess of 40 percent for DDD lumbosacral spine, from April 12, 2017, to include on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b).

3.  Entitlement to an initial rating in excess of 20 percent for radiculopathy, right leg, to include on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b).

4.  Entitlement to an initial rating in excess of 20 percent for radiculopathy, left leg, to include on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b).

5.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected DDD lumbosacral spine and radiculopathy of the right and left lower extremities, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b).

REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Michael Sanford, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from May 1973 to May 1977.

This appeal to the Board of Veterans' Appeals (Board) arose from an April 2010 rating decision, the RO granted an increased,20 percent rating for DDD L3-L4, effective January 19, 2010, the date of receipt of the Veteran's claim for an increased rating.  In May 2010, the Veteran filed a notice of disagreement (NOD) with the rating assigned for DDD L3-L4.  In October 2011, a statement of the case (SOC) was issued.  In November 2011, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals).

In an October 2011 rating decision, the RO granted service connection for and assigned an initial 10 percent rating, each, for right and left lower extremity radiculopathy,  effective April 7, 2010.  In a subsequent March 2015 rating decision, new effective dates of January 19, 2010, were granted for bilateral lower extremity neuropathy and initial, increased 20 percent ratings were also granted for those disabilities.

In a September 2015 decision, the Board assumed jurisdiction over claims for higher ratings for the right and lower extremity radiculopathy.  Thereafter, the Board denied an increased rating for DDD L3-L4 and denied higher  ratings for the right and left lower extremity radiculopathy.

The Veteran appealed the Board's September 2015 decision to the United States Court of Appeals for Veterans Claims (Court).  In a September 2016 Order, the Court granted a Joint Motion (filed by representatives of both parties) to vacate and remand the September 2015 Board decision in its entirety; and returned these matters to the Board for further proceedings consistent with the Joint Motion.

In March 2017, the Board raised the issues of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and the issue of whether extra-schedular ratings were warranted for the disabilities for which higher ratings are being sought (the issues above have been recharacterized to reflect this).  The Board then remanded the claims on appeal to the agency of original jurisdiction (AOJ).

In an August 2017 rating decision, the RO recharacterized the lumbar spine disability as DDD lumbosacral spine and granted an increased, 40 percent rating, effective April 12, 2017, for that disability.  As a higher rating is available before and after that date, and a veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as now encompassing both matters set forth on the title page.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

In February 2018, the Veteran appointed California Department of Veterans Affairs as his representative.  The Board acknowledges this new representative.  In March 2018, the Board solicited from the new representative written arguments related to the instant appeal; however, to date, the representative has not responded to that correspondence.

While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. The Board notes that, in addition to the VBMS file, the Veteran has a separate, paperless, electronic Virtual VA (now, Legacy Content Manager) file.  All records have been reviewed.




FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished.

2.  From January 19, 2009 (one year prior to the filing of the current claim for increase) until April 12, 2017, the Veteran's DDD did not result in forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; there also was no evidence of any separately ratable neurological manifestations of lumbar spine disability other than those for separate ratings already have been assigned, or incapacitating episodes of intervertebral disc syndrome (IVDS).

3.  Since April 12, 2017, the Veteran's DDD has not resulted in unfavorable ankylosis of the entire thoracolumbar spine or IVDS having a total duration of at least 6 weeks during any 12-month period; there also has been no evidence of any separately ratable neurological manifestations of lumbar spine disability other than those for separate ratings already have been assigned.

4.  Since the January 19, 2010 effective date of the award of service connection, competent, probative evidence indicates that the Veteran has experienced no more than moderate radiculopathy of the right leg as a separately ratable neurological manifestation of his service-connected lumbar spine disability.

5.  Since the January 19, 2010 effective date of the award of service connection, competent, probative evidence indicates that the Veteran has experienced no more than moderate radiculopathy of the left leg as a separately ratable neurological manifestation of his service-connected lumbar spine disability.

6.  The schedular criteria are adequate to rate the service-connected lumbar spine disability and associated right and left  lower extremity radiculopathy at all pertinent points.

7.  Throughout the pendency of these appeals, the Veteran has not meet the percentage requirements for award of a schedular TDIU due to service-connected DDD and bilateral lower extremity radiculopathy, and the weight of the competent, probative evidence indicates that those disabilities, alone, have not prevented  him from obtaining or retaining substantially gainful employment.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 20 percent for DDD lumbosacral spine, prior to April 12, 2017, are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes (DCs) 5235-5243 (2017), and Formula for Rating IVDS Based on Incapacitating Episodes (for DC 5243) (2017).

 2.  The criteria for a rating in excess of 40 percent for DDD lumbosacral spine, from April 12, 2017, are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs) 5235-5243 (2017), and Formula for Rating IVDS Based on Incapacitating Episodes (for DC 5243) (2017).

3.  The criteria for an initial rating in excess of 20 percent for radiculopathy, right leg, are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.124a, DC 8520 (2017).

4.  The criteria for an initial rating in excess of 20 percent for radiculopathy, left leg, are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.124a, DC 8520 (2017).

5.  The criteria for a TDIU due to service-connected DDD with associated right and left lower extremity radiculopathy, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), are not met.  38 U.S.C. § § 1155, 5107 (2012); 38 C.F.R. § § 3.102, 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).

After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)).

In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ.  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In a March 2010 pre-rating letter sent to the Veteran in connection with his claim for increased rating, the AOJ provided notice to the Veteran explaining what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA.  The letter informed the Veteran of the criteria necessary to establish a claim for an increased rating for lumbar spine disability.  This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.

The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the Veteran's claim, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to the matter herein decided.  Pertinent medical evidence associated with the claims file consists of service records; VA treatment records; and reports of VA examinations and opinions with a private psychiatric medical assessment.  Also of record and consistent with the claim is the transcript of the Board hearing, along with written statements by the Veteran and by his representative on his behalf.  The Board finds that no further AOJ action on this claim, prior to appellate consideration, is required. 

As indicated above, in March 2017, the Board remanded the claims on appeal for additional development, and the record reflects substantial compliance with the prior remand directives as to the claims decided herein.  See Stegall v. West, 11 Vet. App. 268 (1998).  See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that substantial, rather than strict, compliance is sufficient).  In this regard, a March 2017 letter sought information pertaining to any outstanding treatment records and information pertaining the Veteran's employment history.  The Veteran did not respond to the March 2017 letter.  Further, in April 2017, the Veteran was afforded a VA examination to determine the severity of his lumbar spine and radiculopathy disabilities.  The examiner commented on the April 2015 letter of Dr. M.T.W. and opined as to the functional impact of the Veteran's service-connected lumbar spine and associated neurological disabilities.  As such, the Board finds that substantial compliance with the March 2017 remand directives has been achieved.  See id.

In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim herein decided.  As such, the Veteran is not prejudiced by the Board proceeding to a decision on these claims, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Higher  Ratings

Disability evaluations are determined by the application of VA's Schedule of Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The 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 already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); 

As indicated, as the AOJ has already assigned staged ratings for the DDD of the lumbosacral spine under consideration, the Board will consider the propriety of the rating assigned at each stage, as well as whether any further staged rating is warranted. 

A.  DDD Lumbosacral Spine

Although the ratings for the Veteran's lumbar spine disability have been assigned under Diagnostic Code 5424, the criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine, pursuant to which limitation of motion and other factors are evaluated.

Under the General Rating Formula, a 10 percent rating is warranted 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, or for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees or for muscle spasms 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 for forward flexion of the thoracolumbar spine to 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for ankylosis of the entire spine.  The noted criteria apply with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease.  38 C.F.R. § 4.71a.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, right and left lateral flexion are from zero to 30 degrees, and right and left lateral rotation are from zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, right and left lateral flexion and right and left rotation.  The normal combined range of motion 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. Each range of motion measurement is to be rounded to the nearest five degrees.  38 C.F.R. § 4.71a, General Rating Formula, Note (2). 

Alternatively, DDD may be rating under the Formula for Rating IVDS Based on Incapacitating Episodes.  This formula provides for ratings based upon the frequency and duration of incapacitating episodes during a 12-month period.  An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician.  38 C.F.R. § 4.71a, Note (1).

Under this formula, ratings are assignable based on the frequency and duration of incapacitating episodes in a 12-month period: 10 percent for a total duration of at least one week but less than 2 weeks; 20 percent rating a total duration of at least 2 weeks but less than 4 weeks; 40 percent rating a total duration of at least 4 weeks but less than 6 weeks; and 60 percent for a total duration of at least 6 weeks.

The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, 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; Deluca v. Brown, 8 Vet. App. 202, 204-07 (1995).  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).

The Board recognizes that, in Correia, supra, the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  For the period from January 19, 2009 until April 12, 2017, it is not possible to retrospectively test for the Correia criteria, given the specific measurements that would require.  Moreover, since April 12, 2017, the Veteran has been assigned the highest rating possible under the applicable diagnostic criteria based on limitation of motion, with higher ratings requiring ankylosis.  Any error in not conducting Correia-compliant range of motion testing with regard to these joints is therefore harmless.  Accordingly, a remand to obtain findings responsive to section 4.59 and Correia is not warranted.

1.  DDD prior to April 12, 2017

The Veteran was afforded a VA examination in April 2010.  There, the examiner noted that the Veteran's gait was antalgic, and listed the Veteran's range of motion as forward flexion limited to 65 degrees, right and left lateral flexion of 25 degrees, and right and left lateral rotation limited to 25 degrees.  The examiner also reported the Veteran's statement that he could not stand for more than 10 minutes or sit for more than 20 minutes.

On February 2015 VA examination, the VA examiner found that the Veteran's IVDS limited his forward flexion to 80 degrees (90 being normal), and limited his right and left lateral rotation to 20 degrees (30 being normal).  There was no further limitation of motion on repetitive-use testing.  The examiner noted the Veteran's reports of flare-ups, but noted that the examination was not being conducted during a flare-up.  The examiner stated that the Veteran's reports of flare-ups was neither supported nor contradicted by the examination, but indicated that he was unable to speculate as to any further functional loss sustained during a flare-up.  The examiner reported that there was no ankylosis of the spine, and that there were no episodes of "acute signs and symptoms due to IVDS" in the past 12 months which required bed rest prescribed by a physician and treatment by a physician.

The Veteran submitted a letter from Dr. M.T.W., dated April 2015.  In that letter it was noted that the Veteran has low back pain several times per year, sometimes lasting four weeks or more at a time.  Dr. M.T.W. stated that during an episode of pain the Veteran is incapacitated and needs bedrest.

Considering the pertinent medical and lay evidence in light of the applicable legal authority, and taking into consideration the extent of functional loss due to pain and other facts identified in 38 C.F.R. §§ 4.40 and 4.45, the Board finds that, from January 19, 2009 (one year prior to the filing of the current claim for increase) until April 12, 2017, the evidence does not indicate findings that would indicate a higher rating for the Veteran's service-connected DDD lumbosacral spine.  In order to warrant a higher rating for the Veteran service-connected lumbar spine disability, the Veteran's lumbar spine disability must be productive of forward flexion of the thoracolumbar spine to 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine.

In this case, testing throughout this period revealed flexion to no less than 65 degrees, which was shown on April 2010 VA examination.  In addition, no ankylosis was noted at any point.  As such, a rating in excess of 20 percent for the period from January 19, 2009, until April 12, 2017, is not warranted, given the above-noted evidence.  This is so even with consideration of functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with criteria under the General Rating Formula for the spine.  See 38 C.F.R. § 4.40, 4.45, DeLuca, supra; Johnson, supra. 

As noted above, the February 2015 VA examiner was unable to speculate as to any functional loss sustained during a flare-up.  At the examination, flexion was measured as being to 80 degrees, while 90 degrees is normal.  The Veteran reported that he experiences pain during a flare-up and unable to do anything.  Despite the Veteran's contention that he has experienced flare-ups, the evidence does not indicate that such flare-ups were of such a severity to limit flexion of the thoracolumbar spine to 30 degrees or less.  To that end, the Board notes that the Veteran complained largely of pain during flare-ups, not limitation of motion.  As such, the General Rating Formula provides no basis for any higher rating for this period. 

The Board also points out that Note 1 of the General Rating Form directs VA to consider whether combining ratings for orthopedic and neurological manifestations of lumbar spine disability would result in a higher rating.  Here, however, for the period under consideration, there is no evidence of any separately-ratable manifestations of lumbar spine disability other than those for which separate ratings have already been assigned (namely radiculopathy discussed, below).  See 38 C.F.R. § 4.71a.

The Formula for Rating IVDS based on incapacitating episodes likewise provides no basis for any higher rating.  To that end, the Board notes while Dr. M.T.W. described the Veteran as needing bedrest during periods of low back pain, there is no evidence that IVDS has required any prescribed bedrest.  Indeed, while the Veteran has been diagnosed with IVDS, no physician, to include Dr. M.T.W. has prescribed bedrest for incapacitating episodes of IVDS.  Notably, Dr. M.T.W. noted that bedrest was required for pain, but did not state that bedrest was required for incapacitating episodes of IVDS.  Moreover, the Veteran himself stated that bedrest was self-imposed, as opposed to prescribed by a physician, at the April 2017 VA examination, as will be discussed in greater detail below.  Thus, the Formula for Rating IVDS based on incapacitating episodes likewise provides no basis for any higher rating.

2.  DDD since April 12, 2017

The evidence from this period consists primarily of the April 2017 VA examination report.

The Veteran was afforded a VA examination in April 2017.  There, the Veteran reported constant pain and trouble standing due to radiculopathy.  The Veteran reported flare-ups resulting in pain and stiffness occurring once per month and lasting about a week.  Flexion was to 10 degrees and the Veteran declined to perform repetitive-use testing due to pain.  There was no ankylosis.  The examiner noted the Veteran's reports of flare-ups, but stated that the examination was not being conducted during a flare-up.  The examiner stated that the Veteran's reports of flare-ups was neither supported nor contradicted by the examination.  Finally, the examiner stated that he was unable to speculate as to any further functional loss sustained during a flare-up.  The examiner acknowledged that the Veteran has IVDS, but stated there were no incapacitating episodes of such requiring bedrest prescribed by a physician.  The examiner acknowledged the April 2015 letter of Dr. M.T.W. as endorsing the Veteran's reports of exacerbated periods of pain, but nonetheless concluded that there was no evidence that IVDS required that bedrest be prescribed by a physician in the past 12 months.

The above evidence reflects that, since April 12, 2017, the Veteran's lumbosacral strain has been manifested by back pain, fatigue, weakness, and painful and limited motion of the thoracolumbar spine.  The 40 percent rating currently assigned is the maximum schedular rating for limitation of motion of the thoracolumbar spine under the General Rating Formula.  Notably, a rating in excess of 40 percent for the thoracolumbar spine under the General Rating Formula requires a finding of ankylosis.  Here, however, there is no evidence of the Veteran's thoracolumbar spine being fixed in position or ankylosed during the period under consideration, and the absence of ankylosis was specifically noted during the February 2015 and April 2017 VA examinations.  Therefore, the rating considerations pertaining to functional loss due to pain and other factors (as delineated in 38 C.F.R. §§ 4.40 and 4.45, and DeLuca), provide no basis for any higher rating, and a rating in excess of 40 percent under the General Rating Formula is not warranted from April 12, 2017 or at any time pertinent to the current claim.

With respect to neurological manifestations of spine disability pursuant to Note (1) of the General Rating Formula, the Board notes that separate disability ratings have been assigned for right and left lower extremity sciatic neuropathy (the propriety of which will be discussed below), and there is evidence of any separately ratable neurological manifestations of lumbar spine disability other than those for separate ratings already have been assigned.

Furthermore, the Board acknowledges that the Veteran has been diagnosed with IVDS, however, the examiner who conducted the April 2017 VA examination specifically noted that the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.  This is despite the 2015 statement by Dr. M.T.W. which noted bedrest during episodes of pain, not IVDS.  Therefore, a higher rating under the Formula for Rating IVDS based on incapacitating episodes of IVDS is not warranted.  See 38 C.F.R. § 4.71a, DC 5243, Note(1) (2017).




3.  Radiculopathy

The Veteran's bilateral lower extremity radiculopathies have been assigned separate, initial 20 percent ratings under Diagnostic Code 8520.

Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve.  A 20 percent rating is warranted for moderate incomplete paralysis.  A 40 percent rating is warranted for moderately-severe incomplete paralysis.  A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy.  Complete paralysis of the sciatic nerve warrants an 80 percent rating where the foot dangles and drops, there is no active movement possible of muscle below the knee and flexion of the knee is weakened or (very rarely) lost.  38 C.F.R. § 4.124a.

Descriptive words such as "slight," "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 for "equitable and just decisions."  38 C.F.R. § 4.6.

The April 2010 VA examination report noted radiating pain to the lower extremities.  The Veteran reported that pain was rated as 8 or 9 out of 10.  Neurologic examination was normal.  Nonetheless, the examiner diagnosed the Veteran as having bilateral radiculopathy of the lower extremities.

The February 2015 VA examination report noted a normal reflex examination.  Sensory examination was normal, except for the foot/toes on both sides, which showed decreased, but not absent, sensation.  Moderate constant pain was shown, as was moderate paresthesias and numbness.  Radiculopathy was described as moderate.

The April 2017 VA examination report noted a normal reflex examination.  Sensory examination was normal, except for the foot/toes on both sides, which showed decreased, but not absent, sensation.  Severe constant bilateral pain was noted, as was moderate paresthesias and numbness.  The examiner described the Veteran's radiculopathy as moderate, bilaterally.

In light of the above evidence, the Board concludes that that the symptoms of the Veteran's bilateral lower extremity radiculopathy most closely approximates moderate incomplete paralysis.  Moderately-severe incomplete paralysis has not been shown.  To that end, the Veteran has mostly endorsed pain due to his radiculopathy.  On the February 2017 VA examination, constant pain, paresthesias and numbness were all described as moderate.  Further, the April 2017 VA examination report showed that paresthesias and numbness were moderate.  The Board acknowledges that constant pain was described as severe at the April 2017 VA examination.  Despite that, both the February 2015 and April 2017 VA examiners described the Veteran's radiculopathy as moderate, not severe.  Indeed, a review of the totality of the Veteran's symptoms, not solely pain, reveals that the Veteran's symptoms are largely described as moderate-to include numbness and paresthesias.  Thus, the Board concludes that the Veteran's radiculopathy symptoms most closely approximate moderate incomplete paralysis and initial ratings in excess of 20 percent are not warranted.

4.  Extra-Schedular Consideration for All Disabilities

The above determinations are based upon consideration of applicable pertinent provisions of VA's rating schedule.  Additionally, the Board finds that, at no pertinent point has the Veteran's service-connected DDD lumbosacral spine or radiculopathy reflected so exceptional or so unusual a picture as to render the schedular criteria for evaluating the disability inadequate, and to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b).

There is a three-step analysis for determining whether an extra-schedular rating is appropriate.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule.  Id.  If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalizations).  If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id. at 116.

As explained above, pertinent to the current claim, the symptoms associated with the Veteran's service-connected back disability have included back pain, fatigue, weakness, and painful and limited motion of the thoracolumbar spine.  These symptoms are all contemplated by the appropriate rating criteria discussed above. Specifically, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance.  38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37.

For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, disturbance of locomotion, interference with sitting, standing, and weight-bearing, instability, and crepitation. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss.  Hence, the ratings assigned for the service-connected back disability during the claim period contemplate all of the Veteran's reported and observed symptoms during that period, as set forth above, and the Veteran has not demonstrated any symptomatology that falls outside the scope of the applicable criteria. Moreover, all of the Veteran's bilateral lower extremity neurological symptoms are contemplated by DC 8520 in that the DC provides ratings based upon the extent of the overall paralysis of the sciatic nerve and the resulting symptoms, to include the symptoms of pain, paresthesias and numbness.  See 38 C.F.R. §§ 4.123, 4.124.

Under these circumstances, the Board concludes that the requirements for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met, and that referral of the claims for extra-schedular consideration is not warranted.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

For all of the foregoing reasons, the Board finds that the preponderance of the evidence is against assignment of any higher or additional rating for DDD lumbosacral spine, radiculopathy of the right leg or radiculopathy of the left leg at any pertinent point.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

5.  Rice TDIU

As previously mentioned, in March 2017, the Board expanded the appeal to include the matter of entitlement to a TDIU due to lumbar spine disability and associated bilateral lower extremity radiculopathy pursuant to Rice, supra.

Total disability ratings for compensation may be assigned, in circumstances 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. § 4.16(a).

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled.  Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of Compensation and Pension Service for extra-schedular consideration.  The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.  See 38 C.F.R. § 4.16(b).

The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose, 4 Vet. App. at 363.

As this TDIU claim emanates from the Veteran's claim for a higher rating for lumbar spine disability and associated bilateral lower extremity radiculopathy, the sole inquiry is whether those service-connected disabilities alone (without regard to any other service-connected disability) renders the Veteran unemployable, regardless of the AOJ's characterization of the claim.  See Rice, supra.

In this instance, for period the period on appeal, the Veteran was in receipt of a combined 50 percent disability rating prior to Apri 12, 2017, and a combined 60 percent rating thereafter.  The Veteran has never been in receipt of a combined 70 percent disability rating, let alone during the period on appeal.  Accordingly, the percentage requirements for a schedular TDIU are not met.  See 38 C.F.R. § 4.16(a).  

Nevertheless, as mentioned above, if a veteran does not meet the percentage standards but is unable to secure or follow a substantially gainful occupation by reason of his service-connected disability, the claim should be submitted to the first line authority for extra-schedular consideration.  See 38 C.F.R. § 4.16(b).  However, the Board finds that the procedures for extra-schedular TDIU consideration are not invoked in this case as the weight of the evidence indicates that the Veteran's PTSD with associated depressive disorder NOS, alone, does not render him unemployable.

At the outset, the Board acknowledges that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator.  See 38 C.F.R. § 4.16(a). See also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). However, medical evidence addressing the functional effects of the Veteran's disability on his ability to perform the mental and/or physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10 (2017); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).  

Here, the Board notes that the RO sought information pertaining to the Veteran's educational and occupational background in a March 2017 letter.  The Veteran did not respond.  Nonetheless, it appears that the Veteran has worked throughout the appeal period.

The April 2010 VA examination report notes that the Veteran worked through low back and radiculopathy pain.

The February 2015 VA examination report notes that the Veteran's low back disability prohibits him from lifting more than 20 pounds at a time.

The April 2017 VA examination report states that the Veteran is employed as a supervisor at a transit agency.  The examiner stated that the Veteran spends most of his time working at a desk, but has to drive occasionally.  The Veteran stated that when his back pain is too bad, he stays home on self-imposed bedrest.  The Veteran reported using five weeks of sick leave in the past six months.  The Veteran reported having trouble standing or sitting for extended periods.  He explained that he is able to perform light chores at home.

In this instance, the evidence reflects that the Veteran has been employed as a supervisor for a transit system in California.  While the Veteran has experienced some limitations, to include difficulty sitting and standing for long periods, he has maintained his employment despite those limitations.  Further, the Board acknowledges that the Veteran has used sick leave to accommodate his low back pain.  However, despite the use of sick leave, the Veteran has continued to maintain his employment as a supervisor with the transit system.  In conclusion, the evidence reflects that the Veteran has maintained employment in spite of his service-connected low back disability with associated radiculopathy.  As the Veteran has maintained employment, the Board concludes that the Veteran's service-connected disabilities do not prohibit him from securing or maintaining substantially gainful employment.

Finally, the Board notes that, in addition to the medical and other objective evidence discussed above, the lay assertions of record also have been considered. However, to whatever extent the Veteran and/or his representative have asserted the Veteran's unemployability due solely to service-connected DDD and associate radiculopathy, the Board emphasizes that neither is shown to possess expertise in medical or vocational matters.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998).  Hence, the lay assertions in this regard have no probative value.

Under these circumstances, the Board finds that the procedures for referring this matter for extra-schedular consideration are not invoked, and that the claim for a TDIU must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of a TDIU due to DDD lumbosacral spine with associated right and left lower radiculopathy, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56.



ORDER

A rating in excess of 20 percent for DDD lumbosacral spine, prior to April 12, 2017, to include on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b), is denied.

A rating in excess of 40 percent for DDD lumbosacral spine, since April 12, 2017, to include on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b), is denied.

An initial rating in excess of 20 percent for radiculopathy, right leg, to include on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b), is denied.

An initial rating in excess of 20 percent for radiculopathy, left leg, to include on extra-schedular basis pursuant to 38 C.F.R. § 3.321(b), is denied.

A TDIU, due to service connected DDD lumbosacral spine and radiculopathy of the right and left lower extremities, is denied.




____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs