Citation Nr: 20046909 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 14-33 989 DATE: July 14, 2020 ORDER A rating of more than 40 percent since June 22, 2009, for lumbosacral strain is denied. A rating of 40 percent for right lower extremity radiculopathy since June 22, 2009, is granted. A rating of 40 percent for left lower extremity radiculopathy since June 22, 2009, is granted. A rating of 10 percent for bowel incontinence since June 22, 2009, is granted. A total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) from June 22, 2009, through October 31, 2011, is granted. FINDINGS OF FACT 1. Since June 22, 2009, the Veteran’s lumbosacral strain did not cause ankylosis or incapacitating episodes in which a physician prescribed bedrest. 2. Since June 22, 2009, the Veteran’s right lower extremity radiculopathy was moderately severe but did not caused muscle atrophy. 3. Since June 22, 2009, the Veteran’s left lower extremity radiculopathy was moderately severe but did not caused muscle atrophy. 4. Since June 22, 2009, the Veteran had occasional bowel incontinence but did not necessitate the wearing of a pad. 5. From June 22, 2009, through October 31, 2011, the Veteran’s service-connected lumbosacral strain with right and left lower extremity radiculopathy and bowel incontinence prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating of more than 40 percent, since June 22, 2009, for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. 2. The criteria for a rating of 40 percent, since June 22, 2009, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating of 40 percent, since June 22, 2009, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating of 10 percent, since June 22, 2009, for bowel incontinence have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.114, Diagnostic Code 7332. 5. The criteria for a TDIU have been met from June 22, 2009, through October 31, 2011. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from March 1991 to February 1992. In April 2015, the Veteran was afforded a hearing before a Decision Review Officer (DRO). In October 2018, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the Houston, Texas, Regional Office (RO). 1. Entitlement to a rating of more than 40 percent for lumbosacral strain and a rating of more than 10 percent each for right and left lower extremity radiculopathy since June 22, 2009, to include the issues of separate compensable ratings for bowel and bladder impairment and for a scar. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Diagnostic Code 5237 provides ratings for lumbosacral strain. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent raring is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. There are also several relevant note provisions associated with Diagnostic Code 5237. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. 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 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Code 5237. IVDS can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 is the method that should be used. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that for purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Veteran’s right and left lower extremity radiculopathy were previously rated under diagnostic code 8620 for neuritis. However, the Board finds that rating under diagnostic code 8520 for paralysis of the sciatic nerve is more appropriate because it provides for a higher maximum rating and is, therefore, more favorable to the Veteran. See 38 C.F.R. § 4.123, 4.124a, Diagnostic Code 8520. As such, the Board will rate the Veteran’s disability according to diagnostic code 8520. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neurogenic bladder symptoms are rated as voiding dysfunction under 38 C.F.R. § 4.115a. 38 C.F.R. § 4.115b, Diagnostic Code 7542. A 10 percent rating is warranted for daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 20 percent rating is also warranted for disability requiring the wearing of absorbent materials which must be changed less than 2 times per day. 38 C.F.R. § 4.115a. Impairment of sphincter control of the rectum and anus is rated according to diagnostic code 7332. A noncompensable rating is warranted for healed or slight impairment, without leakage. A 10 percent rating is warranted for constant slight, or occasional moderate leakage. A 30 percent rating is warranted for occasional involuntary bowel movements, necessitating the wearing of a pad. A 60 percent rating is warranted for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating is warranted for complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332. Diagnostic code 7801 states a burn scar or scar due to other causes that is not of the head, face, or neck, but is associated with underlying soft tissue damage warrants a rating of 10 percent if the area of the scar is at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square meters). Note (1) states that the six zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) states: “A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7801. Scars that are unstable or painful are rated according to diagnostic code 7804. Diagnostic code 7804 states that one or two scars that are unstable or painful warrants a 10 percent evaluation. Three or four scars that are unstable or painful warrants a 20 percent evaluation. Note (1) to the diagnostic code states that “An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.” Note (2) states that “If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.” Note (3) states: “Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.” 38 C.F.R. § 4.118, Diagnostic Code 7804. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In October 2009, the Veteran was afforded a VA examination. He reported mild to moderate pain lasting several hours from 1 to 6 days each week. The examiner indicated that the Veteran had no ankylosis and no muscle atrophy. The Veteran reported pain to his left lower extremity, but lower extremity nerve testing was normal. He had flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right and left lateral flexion from 0 to 30 degrees each, and right and left lateral rotation from 0 to 30 degrees each. There was no pain on active range of motion. An X-ray study indicated slight narrowing of the disc space at the lumbosacral joint. The examiner diagnosed a herniated disk at the L4 to L5 disc which was superimposed on the chronic lumbosacral strain. The examiner stated that the Veteran’s lumbar spine affected usual daily activities, including chores, shopping, exercise, and sports. A November 2009 statement from the Veteran’s friend stated that the Veteran sometimes could barely walk and days, sometimes up to a week at a time, when he stayed home with paralyzing back pain. He stated that, on at least one occasion, the Veteran left work early because he was barely able to walk and was using a wheelchair as a walker. A December 2009 VA treatment record indicated an episode of bowel incontinence as a result of severe back pain, and occasional bladder incontinence at night due to pain episodes. March 2010 neurologic testing indicated mild-to-moderate right lower extremity radiculopathy and mild left lower extremity radiculopathy. A January 2011 VA treatment record indicates pain traveling from the back to the lower extremities and between the right big toe and little toe. He denied bowel or bladder symptoms at that time. A February 2011 VA CT scan report indicated disc bulging, osteophyte formation, and tears at the L2-L3 and at that L4-L5 levels. An April 2011 VA MRI study indicated degenerative disc disease (DDD). An August 2011 VA treatment record indicates that the Veteran underwent a discectomy and a lumbar fusion. In February 2012, the Veteran was afforded a VA examination. He had flexion to 20 degrees, extension from 0 to 10 degrees, right and left lateral flexion to 10 degrees each, and right and left lateral rotation to 10 degrees each. There was no pain on motion. Muscle strength was normal and there was no muscle atrophy. Reflexes and sensory testing were normal. He had no signs of radiculopathy and no other neurologic impairment as a result of the back disorder. He constantly used a cane for walking. April to May 2012 and April to May 2013 physical therapy treatment records indicated impaired range of motion but no ankylosis. A January 2013 VA treatment record indicates back pain which radiated to both legs, ankles, tops of the feet, and toes, and which caused numbness and weakness in the lower extremities. September and October 2013 and September and October 2014 VA treatment records indicated that the Veteran received injections in his back to treat pain. A June 2014 VA treatment record indicated flexion to 20 degrees, no extension possible, right and left lateral bending to 30 degrees each, right lateral rotation to 25 degrees, and left lateral rotation to 35 degrees. There was no pain on motion. At his October 2018 Board hearing, the Veteran reported that he walked with a shuffle, could not stand up straight, could not sit for extended periods of time, and had difficulty lying down and going to sleep. He reported incapacitating episodes but none in which a physician had prescribed bed rest. He reported radiculopathy throughout both legs except in his big toes. He reported constipation and a history of urinary accidents. He reported no difficulty chewing. An October 2018 VA treatment record indicates that the Veteran had numbness, tingling, and weakness in both legs. He had decreased sensation and reflexes. In December 2019, the Veteran was afforded VA examinations. He was diagnosed with lumbosacral strain, degenerative arthritis, disc bulging, and DDD. He reported flare-ups, difficulty doing household chores, and difficulty lifting his child. He had flexion to 20 degrees, extension from 0 to 10 degrees, right and left lateral flexion to 10 degrees each, and right and left lateral rotation to 30 degrees each. He had pain on movement but it did not result in functional loss. The range of motion itself did not contribute to functional loss. There was pain with weight-bearing and pain on palpation. He had pain on passive range of motion testing and no pain on non weight bearing. Pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over time. The examination was conducted during a flare up which caused pain and lack of endurance and limited the range of motion to the degrees listed above. He had muscle spasm which resulted in an antalgic gait, and had disturbance of locomotion and interference with standing. Muscle strength testing was normal and there was no muscle atrophy. He had normal reflexes in the knees and no reflexes in the ankles. Sensory testing was normal. He had radicular symptoms bilaterally of moderate constant pain, severe intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. Radiculopathy involved the sciatic nerve in both lower extremities. He had no ankylosis and no other neurologic abnormalities related to the back disorder. He occasionally used a cane. He had a scar, but it was not painful, unstable, did not cover a total area equal to or greater than 39 square centimeters, and was not located on the head, face, or neck. Since June 22, 2009, the Veteran has not had ankylosis of the spine and he has not been prescribed bedrest by a physician as a result of incapacitating episodes. Given these facts, the Board finds that the current 40 percent rating adequately reflects the Veteran’s lumbar spine symptoms during the relevant period. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A higher rating is not warranted because there was no ankylosis or incapacitating episodes with bedrest prescribed by a physician. The Veteran also had moderate and severe right and left lower extremity radiculopathy symptoms. Therefore, the Board finds that a rating of 40 percent is warranted in each lower extremity. A 60 percent rating is not warranted as the Veteran did not have any muscular atrophy. During the period on appeal, the Veteran also had occasional bowel incontinence. Therefore, a 10 percent rating is warranted. A 30 percent rating is not warranted as there is no evidence that the incontinence episodes necessitated the wearing of a pad. The disability does not warrant a separate compensable rating for episodes of bladder incontinence because there is no evidence the Veteran had a daytime voiding interval of at least two and three hours, that he woke to void at least two times per night, or that he required the wearing of absorbent materials. Therefore, his disability does not meet the minimum requirement for a compensable rating. 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7542. The disability does not warrant assignment of a separate compensable rating for scars as his scar does not meet the minimum requirement for a compensable rating. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7804. In making these determinations, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206 207 (1995). 2. Entitlement to TDIU from June 22, 2009, through October 31, 2011. The Veteran has been granted TDIU effective November 1, 2011. Therefore, the period on appeal for TDIU begins on June 22, 2009, the date the increased rating claim for the back began, and goes through October 31, 2011. TDIU 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. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from 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). The Veteran’s lumbar spine, right and left lower extremity radiculopathy and bowel symptoms all result from a common etiology in that they are all part of the service connected back disorder. As such, the Veteran has met the minimum schedular rating requirement for TDIU during the entire period on appeal. A November 2009 statement from the Veteran’s friend indicated that the Veteran missed many days of work, sometimes as much as a week at a time as a result of back pain. He stated that, on at least one occasion, the Veteran left work early because he was barely able to walk and was using a wheelchair as a walker. The statement indicated that, in order to work, the Veteran required multiple pain medications. An August 2010 VA treatment record states that the Veteran had to lie down intermittently throughout each day in order to manage his back pain. He reported spending approximately 8 hours each day lying down resting his back. An October 2010 VA treatment record states that the Veteran was terminated from his last place of employment in July 2008 due to missing extensive amounts of work due to back pain and because the medications he was taking to treat his back pain were interfering with his ability to perform his employment duties. An October 2011 TDIU application states that the Veteran last worked from August to October 2008 as a draftsman for a construction company. He became too disabled to work in October 2008. A May 2013 private physical therapy discharge note indicates that the Veteran was unable to perform work activities as a result of his back symptoms and that he had reached the maximum level of improvement due to physical therapy. In October 2013, the Veteran was determined by the Social Security Administration (SSA) to be disabled since November 2008 due to disorders of the back. As his December 2019 VA examination, the Veteran reported that he had not worked since 2008. Given these facts, the Board finds that the Veteran’s lumbar spine and associated neurologic impairments were so severe as to prevent him from securing or following a substantially gainful occupation. TDIU is granted from June 22, 2009, through October 31, 2011. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Miller, 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.