Citation Nr: 20021994 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-66 876 DATE: March 30, 2020 ORDER A disability rating in excess of 40 percent for a low back disability is denied. An increased disability rating of 20 percent for left lower extremity radiculopathy is granted. A separate disability rating of 10 percent for right lower extremity radiculopathy is granted. A total disability rating based on individual unemployability (TDIU) is granted. APPELLANT’S CONTENTIONS The Appellant contends that the currently assigned ratings do not accurately reflect the severity of the Veteran’s disabilities during the appeal period. Specifically, the Appellant contends that higher ratings are warranted because the currently assigned ratings did not adequately compensate the Veteran for his inability to lift heavy items and for his required use of a wheelchair and/or cane. FINDINGS OF FACT 1. The Veteran’s low back disability did not manifest as unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 2. The signs and symptoms of the Veteran’s left lower extremity radiculopathy best approximated moderate incomplete paralysis of the lower radicular group. 3. The Veteran’s low back disability manifested in subjective symptoms of right lower extremity radiculopathy. The right lower extremity radiculopathy most nearly approximated mild incomplete paralysis of the sciatic nerve. 4. Prior to his death, the Veteran was unable to obtain or maintain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for a low back disability are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.10, 4.14, 4.2, 4.21, 4.25 4.40, 4.7 38 C.F.R. § 4.71a, Diagnostic Code 5242. 2. The criteria for an increased disability of 20 percent for left lower extremity radiculopathy are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.71a, Diagnostic Codes 8720. 3. The criteria for a separate disability rating of 10 percent for right lower extremity radiculopathy are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.71a, Diagnostic Codes 8720. 4. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to July 1973, May 1974 to April 1983. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in San Juan, Puerto Rico. The Veteran passed away in July 2018. The Appellant is the Veteran's surviving spouse and VA has recognized her as the substituted party in the instant case. 1. Entitlement to a disability rating in excess of 40 percent for a low back disability and entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119 (1999). The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71a, which provides that spine disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the IVDS Formula, a spine disability is rated based on the presence of incapacitating episodes, which are periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula. The General Formula for rating a disability of the spine provides in pertinent part: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent evaluation is warranted 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 is 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 evaluation is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under the appropriate diagnostic codes. Id. at Note (1). Here, after reviewing all of the clinical evidence and subjective complaints, the Board finds that the record is negative for evidence of incapacitating episodes as defined by regulation, and thus, the IVDS Formula cannot serve as a basis for a rating higher than 40 percent. The Board thus turns to an evaluation under the General Formula. The Veteran's low back disability is currently rated 40 percent disabling throughout the period on appeal. In order to warrant a rating higher than the 40 percent disability rating currently assigned for the lumbar spine disability under the General Rating Formula, the evidence must show unfavorable ankylosis of his entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Here, there is no objective medical evidence of unfavorable ankylosis in the claims file. The October 2014 VA examiner indicated that there was no ankylosis of the spine. The Veteran's private and VA medical records are also void of any diagnosis of ankylosis of the spine. In short, the medical evidence of record does not reflect a diagnosis of ankylosis or that the Veteran's spine has been fixed in an unfavorable position during this period. As entitlement to a higher disability rating turns on a showing of unfavorable ankylosis of the thoracolumbar spine, or unfavorable ankylosis of the entire spine, a higher rating for the Veteran's lumbar spine disability is simply not warranted. In making the above determination, the Board considered Correia v. McDonald, 28 Vet. App. 158 (2016) and the recent Court holding requiring examiners to characterize additional functional loss during flare-ups when the examination is not conducted during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, a 40 percent rating is the maximum schedular rating available for limitation of motion of the thoracolumbar spine under the General Rating Formula, to include the functional equivalent of limitation of motion. Therefore, the Board finds that Correia is inapplicable in the instant case, and a retrospective opinion is not needed. Next the Board considers whether higher ratings are warranted for neurologic abnormalities associated with the Veteran's lumbar spine disability. The Board notes that the Veteran is already in receipt of separate disability rating for radiculopathy of the left lower extremity under 38 C.F.R. § 4.124a Diagnostic Code 8720. 38 C.F.R. § 4.124 states that neuralgia is to be rated on the same scale as the identifying nerve, "with a maximum equal to moderate incomplete paralysis." The rating criteria for paralysis of the sciatic nerve are located under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, a 10 percent evaluation is assigned for mild incomplete paralysis, a 20 percent evaluation is assigned for moderate incomplete paralysis, a 40 percent evaluation is assigned for moderately severe incomplete paralysis, and a 60 percent evaluation is assigned for severe incomplete paralysis, with marked muscular atrophy. See id. After review of the evidence, the Board finds the Veteran's left lower extremity radiculopathy more nearly approximated moderate incomplete paralysis of the radicular group. In this regard, the evidence of record includes an October 2014 VA examination report. The examiner indicated that the Veteran did not have muscle atrophy. Muscle strength testing and reflexes were normal. The examiner indicated that the Veteran’s radicular symptoms of the left lower extremity best approximated mild incomplete paralysis of the sciatic nerve. However, the results of the examination included decreased left lower leg/ankle sensation and decreased left foot/toes, as well as a positive straight leg raising test. The Veteran's private and VA medical records are void of any indication that the Veteran’s left lower extremity radicular symptoms were more than mild. Based upon the above, the Board finds that an increased disability rating of 20 percent, but no higher, is warranted for left lower extremity radiculopathy. As there are objective findings of decreased sensation in the lower left leg and foot, and a 10 percent rating is awarded based on subjective complaints, the Board finds that the criteria for a higher rating are met. A rating higher than 20 percent are not met, however, as there is no evidence of trophic changes, muscle atrophy, or other signs indicative of incomplete paralysis of a greater severity. The Board also finds that the Veteran is entitled to a separate 10 percent rating for right lower extremity radiculopathy related to his low back disability. In this regard, the October 2014 VA examination results included normal right leg sensation, muscle strength testing, and reflexes; as well as a negative straight leg raising test. The examiner indicated that the Veteran did not have muscle atrophy and the Veteran’s right leg was not affected by radiculopathy. However, private medical records document the Veteran’s report of severe low back pain radiating to both legs since service. See January 2012 Private Medical Records. Although right lower extremity radiculopathy was not formally diagnosed, based upon the Veteran’s subjective reports, the Board finds that a separate rating for right lower extremity radiculopathy is warranted throughout the period on appeal; and the evidence reflects that the Veteran’s right lower extremity radiculopathy best approximated mild incomplete paralysis of the sciatic nerve, warranting a separate 10 percent rating under Diagnostic Code 8720. A rating in excess of 10 percent is, however, not warranted. Specifically, there was no objective manifestation of radiculopathy in the right lower extremity. As previously stated, the Veteran did not display any loss of muscle strength, muscle atrophy, decreased reflexes, or decreased sensation in the right leg. 2. Entitlement to a TDIU VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, or one 40 percent disability in, the following will be considered as one disability: (1) disabilities of one or both upper or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or, (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that the Veteran meets the schedular requirements for a TDIU. Service connection has been established for lumbar strain with lumbar spondylosis and degenerative disc disease (rated as 40 percent disabling); left lower extremity radiculopathy associated with lumbar strain with lumbar spondylosis and degenerative disc disease (rated as 20 percent disabling); and right lower extremity radiculopathy associated with lumbar strain with lumbar spondylosis and degenerative disc disease (rated as 10 percent disabling). The Veteran’s disabilities affect a single body system and are considered as one disability rated as 60 percent. Thus, the Veteran meets the threshold schedule requirement for an award of TDIU benefits under 38 C.F.R. § 4.16 (a). After reviewing the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. See Gilbert, 1 Vet. App. 54. See also 38 U.S.C. § 5107. In this regard, the record reflects that the Veteran earned a high school diploma. Since service, the Veteran reported primary employment working as a driver for a distributing company. The job required heavy lifting and sitting for long periods of time. He retired in July 2011. Regarding his ability to obtain and maintain substantially gainful employment, the Veteran stated that he was unable to do any work activities or lift any heavy weight. The Veteran is competent to report his own symptoms and work history and the Board finds him to be credible. In accordance with the Veteran’s contentions, CEMQ opined that the Veteran was 100 percent disabled and unable to work. CEMQ reasoned that the Veteran complained of severe low back pain radiating to both legs with cramps, numbness, and paresthesias which became more severe during his civilian work. The Board acknowledges that CEMQ also addressed other nonservice connected diagnoses; however, he specifically stated that the Veteran’s severe back pain radiating to both legs prevented the Veteran from performing his duties without assistance. A vocational specialist opined that the Veteran’s past relevant job was precluded due to the exertional limitations and that his skills were not transferrable to other related occupations. The specialist further opined that the Veteran’s unskilled light occupational base was also significantly eroded due to limitations. The specialist reasoned that the Veteran was limited to lifting/carrying twenty pounds occasionally and ten pounds frequently, standing/walking three hours, sitting six hours, pushing/pulling foot controls occasionally bilaterally, climbing ramps/stairs, balancing, stooping, kneeling, crouching and crawling occasionally, and never climbing ladders/ropes/scaffolds. After reviewing the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise with respect to the issue of whether, prior to his death, the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. See Gilbert, 1 Vet. App. 54. See also 38 U.S.C. § 5107. In making this determination, the Board has considered the Veteran's level of education and his primary employment history of working as a driver. The Board acknowledges that an October 2014 VA examiner indicated that the Veteran’s thoracolumbar spine (back) condition did not impact his ability to work. However, the October 2014 VA examiner did not provide a rationale for this opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning, and neither an examination report nor a medical opinion are entitled to any weight if it contains only data and conclusions). The Veteran has also since received a separate disability rating for right lower extremity radiculopathy which the October 2014 VA examiner did not consider in rendering his opinion. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.