Citation Nr: 21001345 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-53 131 DATE: January 7, 2021 ORDER A rating higher than 40 percent for a low back disability is denied. A rating higher than 20 percent for radiculopathy of the left lower extremity is denied. From December 7, 2011, a 20 percent rating for radiculopathy of the left lower extremity is granted, subject to controlling regulations governing the payment of monetary awards. From December 7, 2011, a total disability based on individual unemployability (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. REFERRED The issues of service connection for a cervical spine disorder and erectile dysfunction are being referred based on additional evidence submitted within one year of the June 2013 rating decision in which the claims were denied and are referred to the Regional Office (RO) for appropriate action. FINDINGS OF FACT 1. The Veteran’s low back disability is not manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. 2. Since December 7, 2011, the Veteran’s lumbar spine disability has resulted in left lower extremity radiculopathy analogous to no more than moderate paralysis of the left sciatic nerve. 3. Since December 7, 2011, the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a low back disability, other than a temporary total rating for convalescence from April 20, 2016 to June 30, 2016, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237-5243. 2. The criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. The criteria for a 20 percent rating for radiculopathy of the left lower extremity, since December 7, 2011, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, DC 8520. 4. The criteria for a TDIU, since December 7, 2011, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1983 to September 1983. The case is on appeal from a January 2017 rating decision. The Board notes that the January 2017 rating decision denying a higher rating for a low back disability (other than the assignment of a temporary total rating for convalescence from April 20, 2016 to June 30, 2016) and granting a TDIU from August 31, 2016, was a readjudication of an earlier August 2012 rating decision that denied a higher rating for the low back disability and deferring adjudication of a TDIU based on the back disability, which was subsequently denied in a June 2013 rating decision. Both claims have remained pending since the denial of the claims by August 2012 and June 2013 rating decisions based on the submission of additional evidence within one year of the August 2012 rating decision. See August 2013 SSA/SSI Letter; June 2013 RO letters; September 2012 Statement in Support of Claim. Both claims have been pending because the August 2012 rating decision denying an increased rating for a back disability, and the June 2013 rating decision denying a TDIU, did not become final due to the additional evidence submitted. See Turner v. Shulkin, 29 Vet. App. 207, 211 (2018); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). The claims remain open until VA provides a determination that explicitly addresses and is directly responsive to this new submission. Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015) (explaining that Beraud controlled the Veteran’s case). In addition, although the RO granted a TDIU from August 31, 2016, the issue of a TDIU was raised as part and parcel of the December 2011 higher back rating claim, and thus, no further appeal is necessary for that issue and the Board has jurisdiction over it. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). Therefore, the issues have been included on the title page. Additionally, in the January 2017 rating decision, the RO assigned a separate rating for radiculopathy of the left lower extremity associated with the service-connected low back disability, from August 31, 2016. The Board notes that the Veteran did not appeal with respect to the propriety of the assigned effective date or rating for radiculopathy of the left lower extremity; however, the issues are part and parcel of his increased rating claim for his low back disability as the rating criteria governing the evaluation of such disability specifically indicate that any associated objective neurologic abnormalities be separately evaluated under an appropriate DC. See 38 C.F.R. § 4.71a, General Rating formula for Diseases and Injuries of the Spine. Therefore, the issues have been included on the title page. In September 2020, the Veteran revoked the power of attorney of record. The Veteran proceeds unrepresented in the instant appeal. See 38 C.F.R. § 14.631(f)(1) (stating that a power of attorney may be revoked at any time). In addition, the Veteran stated “let the ALJ – Decide Case with evidence on record.” As such, the decision below is based on the evidence of record. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A rating higher than 40 percent for a low back disability. 2. A rating higher than 20 percent for radiculopathy of the left lower extremity. 3. A compensable rating for radiculopathy of the left lower extremity prior to August 31, 2016. A. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating 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 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 warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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 Intervertebral Disc Syndrome 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 Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes 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 for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. DC 8520 provides ratings for paralysis of the sciatic nerve. DC 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and 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. 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 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. The words “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. 38 C.F.R. § 4.6. B. Analysis The Veteran’s low back disability is assigned a 40 percent rating throughout the rating period on appeal, other than a temporary total rating for convalescence from April 20, 2016 to June 30, 2016. As noted above, the Board finds the appropriate period for consideration is from the date of claim, or December 7, 2011. The January 2017 rating decision record reflects the Veteran’s service-connected lumbar spine disability is rated as 40 percent disabling under DC 5293 since 2003, and that a separate 20 percent rating was assigned for radiculopathy of the left lower extremity. The Board notes that the rating criteria pertaining to spinal disabilities were amended in 2002 and 2003, and, DC 5293 in effect prior to the amendment did not allow a separate evaluation for neurological manifestations, but included those manifestations within the evaluation assigned for a back disability. 38 C.F.R. § 4.71a, DC 5293. The Board finds that considering the low back disability under the amended criteria, DCs 5237-5243, does not result in a reduction or severance of service connection, but rather is a correction of the previously assigned DC to more accurately determine the benefit to which the Veteran is entitled. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011); see also 38 C.F.R. § 3.951. In evaluating the Veteran’s increased rating claims, the Board must address the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board recognizes the Veteran’s complaints of pain and functional loss as a result of his low back disability, notably his difficulty walking and standing. However, the competent and probative evidence of record does not indicate a higher rating is warranted based on pain and functional loss. Although a December 2011 private opinion notes significant functional loss due to the Veteran’s back disability, clinical findings, such as range of motion of the spine, were not provided. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998); Bloom v. West, 12 Vet. App. 185, 187 (1999) (an opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). For these reasons, the opinion is of diminished probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Moreover, the August 2012 VA back examination report shows thoracolumbar flexion to 90 degrees and extension to 15 degrees. In addition, and although functional loss due to less movement than normal and pain on movement was noted, no impact on the Veteran’s ability to work was reported. Further, the October 2016 VA back examination report reflects forward flexion of the spine to 35 degrees and extension to 20 degrees. No ankylosis of the spine was specifically reported. The evidence during the rating period on appeal does not indicate the Veteran’s low back symptoms are equivalent to unfavorable ankylosis of the entire thoracolumbar spine due to pain or functional loss. Although the examiner did not estimate flare ups in terms of degrees in compliance with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), as noted above, the Veteran requested a Board decision based on the evidence of record. Additionally, the evidence does not show the Veteran has incapacitating episodes. Although a December 2011 private opinion references incapacitation, and the October 2016 VA back examination notes IVDS, the evidence does not show the Veteran had incapacitating episodes having a total duration of at least 6 weeks in any 12-month period during the rating period on appeal. There is no evidence of physician prescribed bedrest. As such, a higher rating is not warranted under the applicable rating criteria for intervertebral disc syndrome. With respect to associated radiculopathy of the left lower extremity, the 20 percent rating currently assigned under DC 8520 contemplates moderate incomplete paralysis of the sciatic nerve. The August 2012 VA examiner reported ankle reflex was normal, and no muscle atrophy of the lower extremity was noted. The October 2016 VA examiner reported reflexes in the lower extremities were normal, and no muscle atrophy of the lower extremity was noted. A higher rating under DC 8520 is not warranted because for moderately severe incomplete paralysis, severe incomplete paralysis of the sciatic nerve with marked muscular atrophy, and complete paralysis of the sciatic nerve, the respective criteria for a 40 percent, 60 percent, and 80 percent rating, are not shown at any time during the rating period on appeal. In addition, the October 2016 VA examiner reported no neurologic abnormality associated with the service-connected low back disability, other than radiculopathy of the left lower extremity. However, the Board is granting the 20 percent rating for radiculopathy of the left lower extremity throughout the rating period on appeal. In that respect, although no radiculopathy was noted on VA examination in August 2012, the August 2013 SSA determination notes lumbar radiculopathy. In addition, VA treatment records in September 2015 reflect radiculopathy associated with back pain. See January 2016 records. As such, resolving doubt in the Veteran’s favor, the Board finds that the 20 percent rating is warranted throughout the rating period on appeal. As noted, the rating period on appeal is from the date of claim, or December 7, 2011 (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). However, the evidence of record does not reveal a factually ascertainable increase in severity of the condition within the one year look back period prior to the filing of the claim. Although the December 2011 private opinion (dated in November 2011) references radiculopathy, without more, the opinion does not establish that a compensable rating for radiculopathy of the left lower extremity is warranted prior to the date of claim. Reasonable doubt was already applied in finding that the 20 percent rating for radiculopathy of the left lower extremity is warranted from the date of the claim for an increase in the back disability. Thus, a separate compensable rating for radiculopathy of the left lower extremity, prior to December 7, 2011, is clearly not warranted. The Veteran is competent to report his back and left lower extremity symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Board considered the lay statements and the clinical findings of record. The Board attributes greater probative value to the clinical findings which do not show unfavorable ankylosis of the entire thoracolumbar spine, required bed rest, or more than moderate radiculopathy of the left lower extremity. As such, higher ratings are not warranted. In sum, the evidence is in favor of a 20 percent rating for radiculopathy of the left lower extremity throughout the rating period on appeal. The preponderance of the evidence is against a rating higher than 20 percent for radiculopathy of the left lower extremity and a rating higher than 40 percent for the low back disability. Thus, the benefit-of-the-doubt doctrine is not applicable and a rating in excess of 20 percent for radiculopathy of the left lower extremity and in excess of 40 percent for the low back disability are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 4. A TDIU prior to August 31, 2016. A. Legal criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more 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). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). B. Analysis Based on the Board’s decision to award a 20 percent rating for radiculopathy of the left lower extremity throughout the rating period on appeal, the Veteran has met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) since December 7, 2011, the date of the claim. See also 38 C.F.R. § 4.25. Prior to August 31, 2016, in addition to the 20 percent rating for radiculopathy of the left lower extremity, his back disability was rated at 40 percent and his psychiatric disorder was rated at 30 percent, resulting in a combined 70 percent rating. As noted above, the RO granted a TDIU from August 31, 2016. Thus, the issue is whether a TDIU is warranted during the rating period on appeal prior to August 31, 2016. The August 2013 determination of the SSA reflects the Veteran was last employed in 2001 due to disabilities to include a back disorder and a psychiatric disorder. In addition, a December 2011 private report states that the Veteran was unable to work due to symptoms to include constant back pain resulting in significant functional limitations, as well as psychiatric symptoms. Although the December 2016 back addendum opinion notes the Veteran was capable of sedentary work, the December 2016 VA mental disorders addendum opinion notes a corresponding increase in psychiatric symptoms with increased back pain, adding that sedentary employment would require accomodation for the Veteran’s psychiatric symptoms. See also August 2013 SSA determination. Given the totality of the evidence of record, to include the Veteran’s level of education and work history, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected back and psychiatric disorders, since December 7, 2011. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.