Citation Nr: 19166303 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 18-19 899 DATE: August 27, 2019 ORDER Entitlement to an evaluation in excess of 20 percent for service-connected lumbar spine disability is denied. Entitlement to an initial evaluation of 20 percent, and no higher, is warranted for service-connected right lower extremity (RLE) radiculopathy. Entitlement to an initial evaluation of 20 percent, and no higher, is warranted for service-connected left lower extremity (LLE) radiculopathy. Entitlement to an effective date earlier than December 16, 2016, for the separate award of service connection for RLE radiculopathy is denied. Entitlement to an effective date earlier than December 16, 2016, for the separate award of service connection for LLE radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability is manifested with flexion to 60 degrees, extension to 20 degrees, with objective evidence of pain on motion, but no incapacitating episodes that required bed rest. 2. The Veteran’s service-connected RLE radiculopathy is manifested with moderate paralysis of the sciatic nerve. 3. The Veteran’s service-connected LLE radiculopathy is manifested with moderate paralysis of the sciatic nerve. 4. An increased rating claim for the Veteran’s lumbar spine DA was part of his TDIU claim received by the AOJ on December 16, 2016. 5. The Veteran’s service-connected disabilities do not preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DCs) 5242-5243 (2018). 2. The criteria for initial evaluation in excess of 10 percent for service-connected right lower extremity (RLE) radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520 (2018). 3. The criteria for initial evaluation in excess of 10 percent for service-connected left lower extremity (LLE) radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520 (2018). 4. The criteria for entitlement to an effective date earlier than December 16, 2016, for the award of service connection for RLE radiculopathy have not been met. 38 C.F.R. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2018). 5. The criteria for entitlement to an effective date earlier than December 16, 2016, for the award of service connection for LLE radiculopathy have not been met. 38 C.F.R. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2018). 6. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Navy from January 1978 to October 1978. This case comes before the Board on appeal of a March 2017 rating decision. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 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, the higher evaluation 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. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Moreover, separate ratings for distinct periods of time, based on the facts may be for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2018). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an evaluation in excess of 20 percent for service-connected lumbar spine disability At the outset, the Board notes that the Veteran filed an application for TDIU in December 2016. In the March 2017 rating decision, the RO maintained the Veteran’s lumbar spine DA at 20 percent disabling, under DC 5242. The Veteran filed his notice of disagreement, seeking a higher evaluation, but based on the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted. Under DC 5242, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40-percent rating is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50-percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100-percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237 (2018). Note (1) of the General Rating Formula provides that VA should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Id. Note (2) provides that 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 thoracolumbar spine is 340 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Id.; see also Plate V. Furthermore, DC 5243 provides that intervertebral disc syndrome (IVDS) is to be rated 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. In this instance, in the January 2017 VA examination, the Veteran’s lumbar spine degenerative arthritis was changed to IVDS. The Veteran reported that his condition had worsened requiring epidural injections. He reported flare-ups described as pain when bending, walking, and sleeping. He added that his back pain travels into both legs. The Veteran reported functional impairment as not being able to lay on his back without severe pain and trouble sleeping because he must sleep on his side and sit up every two to three hours due to pain. On examination, range of motion testing of the lumbar spine was flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation and left lateral rotation to 30 degrees. The Veteran exhibited pain on all range of motion (ROM). The examiner indicated that pain caused functional loss, and there was evidence of pain with weight bearing, as well as objective evidence of localized tenderness on paravertebral muscle and vertebra. The Veteran was able to perform repetitive use testing with no additional loss of motion. The examiner indicated that pain, weakness, lack of endurance, and incoordination caused functional loss after repetitive use testing. Likewise, during a flare-up the Veteran would experience pain, weakness, lack of endurance and incoordination, but no additional loss of motion. The Veteran had localized tenderness of his lumbar spine that resulted in abnormal spinal contour, but there was no muscle guarding. The Veteran also exhibited less movement than normal, weakened movement, abnormal alignment, deformity, instability of station, disturbance of locomotion, interference with sitting and standing. There was no muscle atrophy or ankylosis noted. The Veteran did have IVDS, but there were no episodes of acute signs and symptoms of IVDS that required bed rest during the past twelve months. Additionally, the Veteran did not use any assistive devices and there were no other pertinent physical findings related to the Veteran’s lumbar spine condition. The examiner remarked that the functional impact of the Veteran’s condition is that he is unable to stand on his feet more than ten to fifteen minutes, unable to bend to wash dishes nor able to sleep more than a few hours at a time due to severe back pain. Based on the foregoing, the Veteran’s lumbar spine disability does not warrant a rating in excess of 20 percent. The Veteran had flexion to 60 degrees, extension to 20, with right/left lateral flexion to 10 degrees and right/left lateral rotation to 30 degrees, for a combined range of motion of 170 degrees. Likewise, the Veteran had IVDS but there were no incapacitating episodes that required bed rest during the past twelve months. As such, a higher evaluation is not warranted as the Veteran neither had forward flexion to 30 degrees nor favorable ankylosis of the entire thoracolumbar spine. Even more, the Veteran did not have incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. Although there were neurologic abnormalities noted on the examination, the Veteran is already service-connected for bilateral lower extremity (BLE) radiculopathy and there were no other neurologic manifestations. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected bilateral lower extremity (BLE) radiculopathy At the outset, the Veteran is current in receipt of a 10 percent rating under DC 8620. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case” and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts, 5 Vet. App. at 538. One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms. See also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the diagnostic code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Here, the Veteran’s bilateral lower extremity (BLE) radiculopathy is more accurately rated under DC 8520, for incomplete paralysis of the sciatic nerve. Specifically, in January 2017 VA examination, the examiner indicated that the Veteran had decreased sensitivity in his bilateral lower extremities with intermittent and constant pain that involved his sciatic nerve. Although the previous DC 8620 for neuritis could explain the Veteran’s lower extremity condition, the more accurate description of the Veteran’s condition is DC 8520 for incomplete paralysis of the sciatic nerve. Moreover, this change in Diagnostic Code does not amount to a reduction, as the rating of the Veteran’s BLE radiculopathy increases from 10 percent to 20 percent as a result of this decision. As a brief explanation, DC 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and moderately severe incomplete paralysis is rated 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. DC 8620 refers to neuritis of the sciatic nerve, while DC 8720 refers to neuralgia of the sciatic nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, DCs 8510-8540 (2018). Descriptive words such as “slight,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. In the January 2017 VA examination, the Veteran reported bilateral lower extremity pain and decreased sensitivity due to his lumbar spine disability. First, the Veteran exhibited hypoactive deep tendon reflexes in his bilateral lower extremities. Then, on sensory examination, the Veteran showed decreased sensation to light touch on his feet. On straight leg raising test (SLR), the Veteran tested positive bilaterally, which is an indication of radiculopathy. The examiner indicated that the Veteran had radicular pain or other signs or symptoms due to radiculopathy, including constant and intermittent pain in his BLE, noted to be moderate. There was no indication of paresthesias/dysesthesias or numbness. The examiner added that there were no other signs or symptoms of radiculopathy. However, the examiner indicated that the Veteran’s lumbar spine impacted his sciatic nerve bilaterally and the radiculopathy was moderate in severity. Based on the foregoing, the Veteran’s BLE radiculopathy most closely approximates a 20 percent disability rating, and no higher. The Veteran’s BLE manifested with moderate incomplete paralysis of the sciatic nerve. The examination revealed decreased reflexes, sensation, and a positive SLR test bilaterally. However, a rating in excess of 20 percent disabling is not warranted, as there was no indication that the Veteran’s BLE radiculopathy was moderately severe or severe with marked muscular atrophy. Accordingly, a 20 percent disability rating, and no higher, is granted for the Veteran’s BLE radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. Effective Date Except as otherwise provided, the effective date of an award of benefits based on an original claim, a claim after final allowance or a claim for an increase, “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400 (2018); see also 38 U.S.C. § 5110(a) (2012); Sears v. Principi, 16 Vet. App. 244 (2002). Additionally, as the Court indicated in Rice, a TDIU claim may be considered part of an increased rating claim and vice versa. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (stating that a TDIU request “involves an attempt to obtain an appropriate rating for a disability upon which entitlement to TDIU is based has already been service connected, as part of a claim for increased compensation”). 3. Entitlement to an effective date earlier than December 16, 2016, for the award of service connection for bilateral lower extremity (BLE) radiculopathy Here, the Veteran filed his claim for a TDIU that was received by the AOJ on December 16, 2016. As noted above, a TDIU is part of an increased rating claim and vice versa; thus, when the Veteran filed his claim for TDIU, it was also an increased rating claim for his lumbar spine disability. The record does not show that the Veteran filed a claim for BLE radiculopathy prior to December 16, 2016. The Board notes that the Veteran had a claim for BLE peripheral neuropathy prior to December 2016; however, the Veteran withdrew his appeals with the AOJ in April 2013. See 38 C.F.R. § 20.204. As his claims were withdrawn, there was no claim for BLE radiculopathy prior to December 16, 2016. Therefore, the Board finds that there is no evidence to support the assignment of an effective date earlier than December 16, 2016, for the grant of service connection for BLE radiculopathy. Accordingly, the claim for entitlement to an effective date prior to December 16, 2016, for the award of service connection for BLE radiculopathy is denied. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § § 4.15. To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § § 3.340. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran works and without regard to the Veteran’s earned annual income.” Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of one or more service-connected disabilities without regard to advancing age. 38 C.F.R. § §§ 3.341 (a), 4.16(a). If unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. Factors to be considered in determining entitlement to TDIU include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor. 38 C.F.R. § § 4.16(b). Notably, this inquiry must focus on whether, considering his service-connected disorders, the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran contends that his service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. Based on the evidence of record, the Board disagrees. To begin, the Veteran does not meet the schedular criteria for TDIU. He is currently service-connected for lumbar spine disability, at 20 percent disabling and as decided herein, service-connected for right and left lower extremity radiculopathy at 20 percent disabling, each. For a combined rating of 50 percent disabling. Therefore, the schedular criteria is not met. Moreover, the evidence does not reflect that he is precluded from obtaining or maintaining substantially gainful employment as a result of his service-connected disabilities. Specifically, in his December 2016 TDIU application, the Veteran stated that his back, knees, shoulder and mental condition prevent him from securing or following substantially gainful employment. He reported that he worked for a security guard for seven months, a care worker for three years, a driver for two months, and food supervisor for three months, dating back to 2002. The Veteran reported his highest level of education completed was two years of college. In the January 2017 VA examination, the examiner remarked that the Veteran is unable to stand on his feet for more than ten to fifteen minutes, unable to bend at all to wash dishes, and unable to sleep but for a few hours a night due to his lumbar spine and corresponding radiculopathy. Although, the Veteran would be limited in jobs that require physical activity, there is no limitation on the Veteran’s ability to perform less physically demanding jobs. Even more, the Veteran’s education level does not appear to be a hindrance to his ability to obtain substantially gainful employment, based on his diverse work history. Furthermore, the Veteran is not service-connected for a knee, shoulder, or mental health condition that would further preclude his employability. The Board notes that for a veteran to prevail on a claim for TDIU, neither nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. Likewise, the Board’s inquiry must focus on whether, considering his service-connected disorders, the Veteran can perform the physical and mental acts required by employment. In this instance, the Veteran’s physical limitations would preclude him from physically demanding jobs, but the Veteran’s service-connected disabilities alone, do not render him unemployable. Therefore, TDIU is not warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umo, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.