Citation Nr: 20021710 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-18 096 DATE: March 26, 2020 ORDER The appeal for a rating greater than 20 percent for a low back disability, is denied. From July 26, 2013 to April 12, 2018, a 10 percent disability rating for left leg radiculopathy, is granted. From April 13, 2018 to the present, a 20 percent disability rating for left leg radiculopathy, is granted. From April 13, 2018 to the present, a 20 percent disability rating for right leg radiculopathy is granted. The appeal for a total disability rating due to individual unemployability (TDIU) prior to April 12, 2013, is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s service-connected lumbar spine disability resulted in forward flexion to 45 degrees at worst, with objective findings of mild, left lower extremity radiculopathy prior to April 13, 2018 and moderate left and right lower extremity radiculopathy thereafter. 2. The Veteran is not shown to have been unemployable due to service-connected disabilities, prior to April 12, 2013. 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 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Codes 5237-43 (2019). 2. The criteria for a 10 percent rating for left lower extremity radiculopathy from July 26, 2013 to April 12, 2018, and a 20 percent rating thereafter, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124, 4.124a, Diagnostic Codes 5237, 8520 (2019). 3. The criteria for a 20 percent rating for right lower extremity radiculopathy from April 13, 2018, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.124, 4.124a, Diagnostic Codes 5237, 8520 (2019). 4. The criteria for a TDIU prior to April 12, 2013, are not met. 38 U.S.C. § 1155, 5110 (2012); 38 C.F.R. §§ 3.400, 4.16(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1954 to September 1957. This appeal was previously remanded by the Board in May 2017. Prior to recertification to the Board, the Veteran’s attorney withdrew representation. As such, the Veteran proceeds with this appeal pro se. Increased Rating Entitlement to a rating greater than 20 percent for a low back disability 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). Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine indicates, in pertinent part, that for DCs 5235 to 5243, a 20 percent evaluation 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 requires forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1) instructs VA to evaluate any associated objective neurologic abnormalities under an appropriate diagnostic code. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) 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 20 percent rating 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 is warranted 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. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method results in the higher evaluation. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In this case, service connection for the Veteran’s low back disability was granted in April 1963 and a 20 percent disability rating has been in effect since January 1963. The Veteran filed a claim for a higher rating for his low back disability in July 2013. During the pendency of the claim, the Veteran was provided with VA examinations for the low back disability in July 2014 and April 2018. A VA addendum opinion was also issued in August 2019. During the July 2014 VA examination, the Veteran reported that his low back disability resulted in pain with bending, lifting and prolonged ambulation. The Veteran also reported flare-ups that resulted in pain with excessive activities and cold weather. On objective examination, the Veteran had forward flexion to 55 degrees with pain beginning at 55 degrees. The examiner noted that there was no additional limitation of motion following repetitive testing. The examiner also noted that there was no additional limitation or functional loss during flare-ups or with repeated use. The examiner noted that the Veteran had IVDS but had not had any incapacitating episodes over the past 12 months. During the April 2018 VA examination, the Veteran reported that he had flare-up pain with sitting and standing too long. He also reported functional impairment manifested by pain with sitting and standing too long. On objective examination, he had flexion to 45 degrees. The examiner noted pain with all ranges of motion, except flexion. The examiner noted that the Veteran had pain with weight-bearing. The examiner also determined that the Veteran did not have IVDS. In the August 2019 VA addendum opinion, the examiner explained that the Veteran had daily flare-ups lasting 2-3 hours which resulted in decreased range of motion on repetition of back movement, estimated as 5 degrees decreased range of motion on extension, lateral bending bilateral and rotation bilaterally. The examiner did not report any reduction forward flexion due to flare-ups. VA and private treatment records are consistent with the examination reports with respect to lumbar spine flexion and functioning. As forward flexion has not been shown to be 30 degrees or less, to include during flare-ups, and ankylosis has not been shown, a rating greater than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine is not warranted. In reaching this conclusion, the Board has considered the DeLuca provisions. The Board acknowledges the April 2018 VA examination report regarding the Veteran’s reports of functional impairment manifested by increased pain in the back with sitting and standing for too long. Moreover, the April 2018 VA examiner noted that the Veteran’s flexion was limited to 45 degrees during a flare. Thus, even with consideration of the functional impairment of pain, fatigue, weakness, and lack of endurance following repetitive use or during flare-ups, the Veteran’s flexion was not limited to 30 degrees or less at any point pertinent to the appeal. Additionally, that the evidence of record is against a finding that the Veteran has had ankylosis at any time during the appeal period. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). In this case, both the July 2014 and April 2018 VA examiners specifically found that the Veteran did not have ankylosis of the thoracolumbar spine. VA treatment records do not indicate otherwise. The Board has considered the medical evidence and the Veteran’s description of the functional impairment including during flare-ups and having to occasionally use a back brace or cane. Nevertheless, the Board finds that the Veteran’s functional impairment does not demonstrate the level of disability associated with flexion limited to 30 degrees or less, or favorable ankylosis of the thoracolumbar spine, which are the criteria associated with the next higher rating of 40 percent. The Board has also considered whether a higher evaluation may be warranted due to incapacitating episodes associated with intervertebral disc syndrome. However, the lay and medical evidence of record is against a finding that the Veteran has had incapacitating episodes of the low back of at least four weeks during the past 12 months necessitating bed rest prescribed by a physician. Further, neither VA nor private treatment records indicate physician-prescribed bedrest for at least four weeks at any point pertinent to the appeal. The Board has considered whether separate, compensable ratings are warranted for any neurological manifestations and for the following reasons, finds that a separate rating is warranted for left lower extremity radiculopathy throughout the entirety of the appeal period. Indeed, associated left lower extremity radiculopathy has been shown. A private treatment record dated in December 2003 noted the Veteran’s report of low back pain that radiated down both legs. During the July 2014 VA examination, the examiner indicated that the left lower extremity was not affected. During the April 2018 VA examination, the Veteran had moderate, intermittent pain in the left lower extremity. The VA examiner determined that the Veteran had left lower extremity radiculopathy that affected the sciatic nerve and was moderate in severity. Resolving doubt in favor of the Veteran, the Board finds that left lower extremity radiculopathy was present throughout the entire period on appeal. Under Diagnostic Code 8520, a 10 percent disability rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent disability rating is warranted for moderate incomplete paralysis of the sciatic nerve; a 40 percent disability rating is warranted for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent disability rating is warranted for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy; and an 80 percent disability rating is warranted for complete paralysis of the sciatic nerve. The Board finds that the severity of the left lower extremity radiculopathy prior to April 13, 2018, was mild and should be rated 10 percent disabling for that period. In this regard, the Veteran’s left lower extremity radiculopathy was manifested only by pain prior to April 13, 2018 and not found on objective examination during the July 2014 VA examination. The Board also finds that from April 13, 2018, the Veteran’s left lower extremity radiculopathy warrants a 20 percent disability rating because the April 2018 VA examiner found the severity of the disability to be moderate. For these reasons, the Board finds that the Veteran’s left lower extremity radiculopathy should be rated as 10 percent disabling from July 26, 2013 to April 12, 2018, and 20 percent disabling from April 13, 2018. Additionally, the Board has considered whether the Veteran is entitled to a separate rating for his left lower extremity radiculopathy during the one-year look back period prior to the date of the claim for increased rating for the back disorder. However, as private treatment records show left lower extremity radiculopathy present in December 2003, the appropriate effective date for the separate rating is, July 26, 2013, the date of the claim for increased rating. 38 C.F.R. § 3.400(o). VA has already recognized and assigned a 10 percent disability rating for associated radiculopathy of the right lower extremity, and the Veteran has not disagreed with that rating. However, upon review of the results of the April 2018 VA examination, it is apparent that the Veteran’s right lower extremity radiculopathy has worsened in severity. Indeed, the VA examiner identified “severe” dull intermittent pain and “severe” numbness of the right lower extremity. As the Veteran’s right leg radiculopathy manifests in wholly sensory symptomatology, VA regulations state that such can be rated at most to the “moderate” degree. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nervous System. Given the VA examiner’s April 2018 assessments, the Board will assign an increased rating to 20 percent, but no higher, for the Veteran’s right lower extremity radiculopathy effective April 13, 2018 under Diagnostic Code 8520. Although at times during the appeal period the Veteran has asserted he has loss of bladder control due to his spine disability, neither the 2014 or 2018 VA examiners identified such as an associated neurological abnormality, even when prompted. See the July 2014 VA examiner’s report, at page 8; see the April 2018 VA examiner’s report at page 7. The Board recognizes that a July 2015 private treatment record did in fact list bladder dysfunction as a symptom of his back disability, but no further explanation or analysis was provided. Moreover, within the same report, the Veteran specifically denied blood in his urine and loss of bladder control. Accordingly, while the Veteran is competent to attest to having intermittent bladder control problems, he is not competent to medically attribute such to his service-connected lumbar spine disability as an associated neurological abnormality. A separate compensable rating for associated bladder impairment is therefore not warranted. In sum, a rating higher than 20 percent for the Veteran’s service-connected lumbar spine disability is denied. However, a separate rating of 10 percent prior to April 13, 2018, and 20 percent from April 13, 2018 to the present is warranted for left lower extremity radiculopathy. An increased rating from 10 to 20 percent for right lower extremity radiculopathy, effective April 13, 2018 is also granted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine to the extent noted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinki, 1 Vet. App. 49 (1990). TDIU Entitlement to a TDIU prior to April 12, 2013 Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). 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 his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, in its May 2017 decision, the Board granted a TDIU from April 12, 2013 and remanded the issue of entitlement to a TDIU prior to April 12, 2013. The Board granted the claim because as of April 12, 2013, the Veteran was not able to work due solely to service-connected adjustment disorder. Additionally, April 12, 2013 is the effective date for service connection for the Veteran’s adjustment disorder. In a July 2016 statement, the Veteran asserted that he was unemployable due to all of his service-connected disabilities, which includes the lumbar spine and thumb disabilities for which increased rating claims were pending at the time TDIU was raised. The Veteran’s increased rating claim for his thumb was initiated in July 2012. The Veteran’s increased rating claim for his spine was filed in July 2013. The Board remanded the appeal with respect to the period prior to April 12, 2013 because the AOJ had not yet adjudicated the claim. On remand, the AOJ determined that TDIU was not warranted prior to April 12, 2013. For the following reasons, the Board agrees. The Board acknowledges the Veteran’s December 2019 statement that he is not able to play his guitar with his left thumb disability and that this affects his employment as he is a professional guitar player. Similarly, he previously reported that he was unable to stand for long periods of time due to his back disability and as a result, would have difficulty performing one of his other jobs, airline agent, as it requires standing. See e.g. April 2018 VA examination report. The Veteran submitted a private opinion dated in January 2016 in support of a finding that he could not work due to his adjustment disorder. Indeed, the Board placed a high probative value on the report when it granted the TDIU from the effective date of service connection for the adjustment disorder in April 2013. However, the Board is not permitted to grant the claim for TDIU due to the adjustment disorder, prior to the effective date of service connection for the adjustment disorder. Moreover, although the Veteran was limited prior to April 12, 2013 inasmuch as he would have had difficulty maintaining a full time job in his prior experience as professional guitar player and/or airline agent, due to his then-service connected disabilities, there is no indication that he could not gainfully work in any capacity due to the disabilities for which he was service-connected prior to April 12, 2013. The evidence of record shows that notwithstanding his back or finger disabilities, the Veteran was able to hold a desk job doing security work at a hospital. See a September 2014 VA mental health examination report (indicating that after the Veteran retired as a customer service agent for the airlines, he then did security work at a hospital with his “job being a desk job as his back pain prevented him from standing”). The Veteran’s background in customer service, and his ability to work at a job where he can sit at a desk demonstrates a functional capacity that would not preclude all types of gainful employment. Indeed, the only service-connected disability that the has been shown to render the Veteran unable to secure or follow gainful employment is his adjustment disorder (see January 2016 letter). Thus, while the Veteran may have been unemployable prior to April 12, 2013 due to his adjustment disorder, as his disorder was not service-connected prior to April 12, 2013, TDIU due to such disability is not warranted. The disabilities for which he was service-connected prior to April 12, 2013 were not so severe as to render him unable to secure or follow gainful employment. For these reasons, TDIU prior to April 12, 2013, is not warranted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, 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.