Citation Nr: 20043799 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 16-04 837 DATE: June 29, 2020 ORDER Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine condition is denied. Entitlement to an initial disability rating in excess of 20 percent for right sciatic nerve condition is denied. Entitlement to a total rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran’s lumbar spine disability has not been productive of unfavorable ankylosis. 2. During the entire period on appeal, the Veteran’s right sciatic nerve condition was characterized by moderate incomplete paralysis; moderately severe incomplete paralysis was not shown. 3. The manifestations of the Veteran’s service-connected disabilities have not been sufficiently incapacitating as to prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine condition have not been met. 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to an initial disability rating in excess of 20 percent for right sciatic nerve condition have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.123, 4.124a, Diagnostic Code 8521. 3. The criteria for entitlement to TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to January 1970. This matter comes before the Board of Veteran’s appeals through an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes this matter was remanded in an August 2018 Board decision for further development. This development has been completed. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part IV. 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. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In initial rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating to determine whether and when an ascertainable increase has occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id. 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine condition The Veteran contends that his service-connected spine condition warrants a higher disability rating than 20 percent. Under the General Rating Formula, 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, disabilities are evaluated as follows: Forward flexion of the thoracolumbar spine to 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine (40 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Unfavorable ankylosis of the entire spine (100 percent); 38 C.F.R. § 4.71a, General Rating Formula (and including Diagnostic Codes 5235-5243). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, 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. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. Id. at Note (2). As stated above, this matter was remanded by the Board in September 2018. The Veteran underwent a September 2019 VA examination concerning his back condition. The VA examiner diagnosed lumbar strain and intervertebral disc syndrome (IVDS). The Veteran reported pain to his back while loading ammunition during service in Vietnam. He further reported that the pain increased in 1992 and now experiences constant pain, that travels down his right leg. The examiner did not observe spasms, guarding, atrophy, pain with motion, tenderness, or weakness. The Veteran reported no flare-ups. Range of motion testing showed flexion of 0 to 70 degrees, extension of 0 to 20 degrees, and bilateral flexion and rotation of 0 to 20 degrees. There was no evidence of pain on active range of motion, and no additional limitation with repetitive motion. The Veteran’s motor, sensory, and muscle tone examinations were normal. The examiner indicated no neurologic abnormalities were present except radiculopathy. The examiner findings concerning IVDS included a finding that the Veteran did have 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. Since the Veteran has not experienced incapacitating episodes a separate rating under Note (6) is not applicable. The Board finds the September 2019 examination to be the most probative medical evidence of record. Accordingly, a rating in excess of 20 percent for the lumbar spine disability is not warranted. 2. Entitlement to an initial disability rating in excess of 20 percent for right sciatic nerve condition The Veteran contends that his right sciatic nerve condition warrants a rating in excess of 20 percent. The Veteran’s right sciatic nerve is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8521. Under Diagnostic Code 8521, relating to paralysis of the external popliteal (common peroneal) nerve, a 20 percent rating is warranted for moderate incomplete paralysis; a 30 percent rating is warranted for severe incomplete paralysis; and a 40 percent rating is warranted for complete paralysis. The terms “mild,” “moderate,” “moderately severe” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. Note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. The Veteran underwent a September 2019 VA examination. The examiner confirmed a right lower extremity radiculopathy diagnosis. The Veteran’s radiculopathy symptoms of constant pain, intermittent pain, paresthesias were considered mild; while numbness was considered moderate. The examiner noted no additional symptoms of radiculopathy. The overall severity of the Veteran’s radiculopathy was classified as moderate. No muscle atrophy was observed. The examiner indicated the radiculopathy did not affect the Veteran’s ability to work. The Board finds the September 2019 examination to be the most probative medical evidence of record. Based on the foregoing, the evidence does not support a rating in excess of 20 percent for the Veteran’s right lower extremity sciatic nerve during the entire appeal period, as the Veteran’s disability has not been determined to be of greater than moderate severity. 3. Entitlement to a total rating due to individual unemployability (TDIU) The Veteran contends that he cannot work due to his service-connected disabilities. Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). As of the date of this decision, the Veteran is currently service connected for lumbar strain at 20 percent, right sciatic nerve associated with lumbar strain at 20 percent, tinnitus at 10 percent, and a noncompensable rating for right ear hearing loss. See January 2020 rating code sheet. The Veteran has a combined disability rating of 40 percent, as the evaluation for his lumbar strain and sciatic nerve are from a common etiology. A review of the record does not indicate any evidence that the Veteran’s conditions prevent him from working. Thus, the Board notes that he does not meet the criteria for schedular TDIU consideration. See 38 C.F.R. § 4.16(a). The Board additionally determines that referral to the Director, Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis is not warranted. 38 C.F.R. § 4.16(b). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board, R. Smith Department of Veterans Affairs 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.