Citation Nr: 21003921 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-05 176 DATE: January 25, 2021 ORDER Entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD) with orthopedic manifestations is denied. Entitlement to a rating in excess of 20 percent for radiculopathy, right lower extremity is denied. Entitlement to a rating in excess of 20 percent for radiculopathy, left lower extremity is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s low back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 2. The Veteran’s right lower extremity radiculopathy of sciatic nerve is manifested by no more than moderate incomplete paralysis. 3. The Veteran’s left lower extremity radiculopathy of sciatic nerve is manifested by no more than moderate incomplete paralysis. 4. The competent medical and other evidence of record reflects it is at least as likely as not the Veteran is unable to obtain and/or maintain substantially gainful employment due to 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. § 3.102, 3.159, 4.45, 4.59, 4.71a, DC 5242. 2. The criteria for a disability rating in excess of 20 percent for right lower extremity radiculopathy of sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating in excess of 20 percent for left lower extremity radiculopathy of sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to May 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2009 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in June 2019. A transcript of the hearing is in the Veteran’s file. This matter was previously before the Board in November 2019, at which time it was remanded for a VA examination. A review of the record reveals that there has been substantial compliance with the Board’s prior remand directives as to the issues decided below. See Stegall v. West, 11 Vet. App. 265 (1998). Increased Rating 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. Additionally, when evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); see also 38 C.F.R. § 4.59. 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. 1. Entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD) with orthopedic manifestations The Veteran contends he is entitled to a higher rating for his service-connected degenerative disc disease of the lumbar spine, which has been rated 40 percent disabling under DC 5242. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. 38 C.F.R. § 4.71a, DC 5237 and Note. The General Rating Formula for Diseases and Injuries of the Spine provides a 40 percent rating for forward flexion of the thoracolumbar spine to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. A review of the Veteran’s private treatment records and VA treatment records, to include VA examinations in November 2011, March 2015 and October 2020, shows that he has diagnosed with degenerative arthritis of the spine and intervertebral disc syndrome, but not requiring bed rest. He has symptoms of pain and makes regular use of a walker. There have been no showings of ankylosis or incapacitating episodes throughout the appeals period. Additionally, throughout the entire appeal period, the Veteran has not shown any probative evidence of ankylosis, which would be required for an evaluation higher than 40 percent under the rating criteria. The Board notes the Veteran’s wife indicated at the June 2019 Board hearing that the VA examiner should have marked the presence of ankylosing spondylitis on the examination. However, none of the examiners in the November 2011, March 2015 or October 2020 found ankylosis, nor was there any indication of ankylosis in treatment records. Further the examination reports contain range of motion measurements that contradict any contention that the Veteran’s spine is ankylosed. The November 2011 VA examination showed forward flexion to 10 degrees, the March 2015 showed forward flexion to 50 degrees and the October 2020 VA examination showed the Veteran had normal range of motion with pain. Even during flare-ups, which the Veteran described as daily and constantly, the examiner noted pain but no limitation of range of motion. The Board acknowledges that the Veteran believes he has ankylosis of the spine, but as the Veteran had some movement of the spine, the Board finds this contention of ankylosis is not probative (i.e. the Veteran’s spine was not fixed in one position). In order to warrant a higher evaluation, the Veteran would need to show evidence of ankylosis or incapacitating episodes. The probative medical evidence of record has not shown such symptoms. As such, a rating in excess of 40 percent for the Veteran’s low back disability is not warranted at any point during the appeal period. 2. Entitlement to a rating in excess of 20 percent for radiculopathy, bilateral lower extremities The Veteran’s service-connected radiculopathy of the bilateral lower extremities is currently rated as 20 percent disabling for each leg under DC 8520. 38 C.F.R. § 4.124a DC 8520, which governs disabilities of the sciatic nerve, provides for a 10 percent rating for incomplete paralysis of the sciatic nerve that is mild, a 20 percent rating for a moderate disability, a 40 percent rating for a moderately severe disability, a 60 percent rating for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy, and an 80 percent rating is authorized for complete paralysis of the sciatic nerve, evidenced by foot dangles and drops, no active movement possible of muscles below the knees, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. At a November 2011 VA examination, the Veteran reported radicular symptoms including mild intermittent pain, paresthesias and numbness. In March 2015, the Veteran underwent a VA examination for his spine. He reported experiencing moderate intermittent pain with severe paresthesias and/or dysesthesias and numbness. The examiner concluded that the radiculopathy was moderate in severity based on imaging studies provided but the global lack of sensation was not consistent with severe radiculopathy. The examiner noted there appeared to be other underlying etiologies for his radiculopathy not due to the spine alone. At the time of the October 2020 VA examination, the examiner noted mild paresthesias and/or dysesthesias and numbness but no pain in the bilateral lower extremities. Overall, the radiculopathy was considered to be mild in severity. The Veteran’s treatment records show the Veteran had continuous sciatica pain, paresthesias and alternating thigh numbness in June 2013, bilateral radicular leg pain in April 2015 and was diagnosed with peripheral neuropathy after complaints of bilateral lower extremity pain, numbness and tingling in July 2018. Based on the above, the Board finds that the disabilities are primarily manifest by mild to moderate pain, paresthesias and/or dysesthesias and numbness. Thus, a rating in excess of 20 percent for the service-connected radiculopathy of the left and right lower extremities is not warranted. 38 C.F.R. § 4.124a, DC 8520. Although in March 2015, paresthesias and/or dysesthesias and numbness were noted as severe, all other symptoms were considered moderate, as well as the general condition of the radiculopathy overall. The October 2020 and the November 2011 VA examiner determined that the Veteran’s radiculopathy was mild and there were no symptoms identified as moderate at that time. Although some muscle strength was decreased, there was no indication of muscle atrophy. Reflex testing revealed absent reflexes in the ankle in March 2015 but hypoactive reflexes in October 2020. Sensory testing reflected decreased sensation in November 2011, then absent in March 2015 and decreased again in October 2020. Although the Veteran drags his foot and uses a wheelchair, the evidence of record does not show complete paralysis. The Board finds that the most probative evidence of record is against a finding that the bilateral radiculopathy is manifest by a moderately severe disability, muscle atrophy or complete paralysis to warrant disability ratings in excess of 20 percent. The Board thus finds that the level of impairment is most analogous to moderately incomplete paralysis, which warrants 20 percent initial disability ratings, throughout the appeal period. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) 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 if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R 3.340, 3.341, 4.16. Unlike the analysis for increased rating claims, which are based on average levels of impairment, the analysis for a TDIU claim is based upon the individual. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22. Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is currently assigned a 40 percent rating for degenerative disc disease of his low back, a 20 percent rating for radiculopathy of the right and left lower extremities, and noncompensable rating left ankle sprain. As the disabilities for his back and radiculopathy all stem from a common etiology, i.e., the Veteran's back disability, they are considered as one for TDIU purposes under § 4.16(a). Consequently, he has a disability rating of 60 percent and he satisfies the criteria for consideration of TDIU on a schedular basis. In his application for TDIU, the Veteran indicated that his highest education level was two years of college. He was last employed in 2001 as a maintenance/supervisor of an apartment complex. The Veteran noted that he left his last position after he had a heart attack. In a November 2011 VA examination, the examiner noted the Veteran’s back condition impacts his ability to work as he had decreased ambulation and pain on forward bending which made lifting and carrying objects difficult. At the March 2015 VA examination, the examiner noted his disability is bothersome with lifting, bending, prolonged walking stairs/climbing, changing position, kneeling. The examiner found that sedentary activity was feasible with frequent changes in position. In the October 2020 Back conditions VA examination, the examiner found the Veteran cannot sit for more than 15 minutes or stand for more than 5 minutes. The Veteran reported he has pain that goes down to his legs and he has lost bladder control and is unable to hold urine to make it to the restroom in time. He drags both of his feet, has trouble walking and his hips do not move. He is unable to walk without his walker and falls often. He also has a hard time going up and down in a chair. The October 2020 peripheral nerves condition examiner, likewise, found the Veteran’s nerve condition impacts his ability to work as he can only stand or walk for 5 minutes at a time. The examiner noted the Veteran is unable to lift, carry, push, and pull due to his back, neuropathy and knee conditions. The Veteran is unable to operate foot pedals, bend, squat, stoop, crouch, kneel, crawl, balance, climb, twist, reach or turn intermittently. The Veteran is unable to drive or travel. Based on the evidence of record, the Board finds that it is at least as likely as not the Veteran is unemployable due to his service-connected disability. As noted above, he meets the schedular requirements, he has been unemployed throughout the pendency of this appeal, he has limited education and his employment history is limited to labor requiring physical work. Although the Veteran originally listed other impairments as a reason he cannot work, the evidence shows his back and radiculopathy conditions are the primary cause of his inability to work. As there is at least a balance of evidence on the question of whether his service-connected physical disabilities have been shown to be severe enough to preclude employment, entitlement to TDIU is warranted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.