Citation Nr: 21004154 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-57 322 DATE: January 26, 2021 ORDER An initial 40 percent disability rating, but no higher, for radiculopathy, left lower extremity associated with status post laminectomy, lumbosacral spine, is granted. A disability rating higher than 20 percent for status post laminectomy, lumbosacral spine, is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his left lower extremity (LLE) radiculopathy is manifested by moderately severe symptomatology. 2. The preponderance of the evidence is against finding that the Veteran’s spine is manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 3. The Veteran failed to complete a VA Form 21-8940 as requested in March 2019 and the evidence is insufficient to establish that he is unemployable as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for LLE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for a rating in excess of 20 percent for the Veteran’s lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1957 to June 1980. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran’s claim in March 2019 in order to obtain new VA examinations and addendum medical opinions on his increased rating claims, as well as to obtain information regarding the Veteran’s unemployability. In December 2019, the Veteran cancelled the scheduled VA examinations and stated that his back issues have been taken care of. See December 2019 Report of General Information. Additionally, in accordance with the Board’s March 2019 remand directives, the Veteran was sent a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. However, no response has been received from the Veteran to date. The Board notes that the duty to assist is not a one-way street and the Veteran had an obligation to cooperate with VA relative to attending the scheduled examinations and returning the VA Form 21-8940 sent to him. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). In light of the foregoing, the Board finds that there has been substantial compliance with the March 2019 remand directives and will decide the claims upon the evidence already of record. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. 1. Entitlement to an initial disability rating higher than 10 percent for radiculopathy, LLE associated with status post laminectomy, lumbosacral spine The Veteran is seeking an initial disability rating in excess of 10 percent for his service-connected LLE radiculopathy due to constant pain causing him to have to use a cane. See December 2015 Notice of Disagreement; July 2016 Statement in Support of Claim. Following review of the record, the Board finds that a 40 percent rating, but no higher, for LLE radiculopathy is warranted throughout the claim period. As an initial matter, the AOJ has evaluated the Veteran’s LLE radiculopathy under Diagnostic Code 8720, neuralgia of the sciatic nerve. However, the more appropriate diagnostic code for this disability is found at 38 C.F.R. § 4.124a, Diagnostic Code 8520 for incomplete paralysis of the sciatic nerve, as this code most closely represents the Veteran’s disability picture, described below. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the selection of a particular diagnostic code “is a determination that is completely dependent upon the facts of a particular case,” and the Board has discretion in determining the appropriate diagnostic code). The rating schedule provides the following guidance in evaluating the severity of disabilities of the peripheral nerves. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum rating equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 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 on 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 Veteran was afforded a VA examination in connection with this claim in April 2015. At that time, the examiner noted involvement of the left sciatic nerve and reported that the Veteran did not suffer functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation. The examiner reported normal LLE muscle strength but hypoactive deep tendon reflexes in the left knee and ankle. The VA examiner indicated that the Veteran suffered severe intermittent LLE pain, but no numbness or parasthesia. The examiner observed muscle atrophy of the left thigh of 1 cm as compared to the right thigh, measured at 27 cm inferior to the anterior superior iliac. The VA examiner characterized the overall severity of the Veteran’s LLE radiculopathy as moderate. Private medical records documenting the symptoms associated with the Veteran’s LLE radiculopathy are also of record. Those records document normal muscle bulk, normal muscle tone, and normal muscle motor strength of the LLE, but the Veteran’s progressive reports of LLE pain and some numbness in the foot. See, e.g., June 2015, January 2016, July 2016, and August 2016 private encounter summaries. In addition to the medical evidence of record, the Veteran has provided descriptions of his LLE radicular symptoms. He has described his LLE pain as constant, rather than intermittent, with his only relief coming from lying down. He has also reported using a cane to walk. See July 2016 Statement in Support of Claim. Based on the above, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the symptoms of his service-connected LLE radiculopathy most closely approximate the symptoms associated with a 40 percent disability rating, for moderately severe incomplete paralysis of the sciatic nerve, throughout the claim period. This finding is based upon the objectively reported symptomatology and the Veteran’s competent and credible reports of constant, severe pain. The Board does not find, however, that an even higher rating is warranted at any point during the claim period. In that regard, the evidence of record does not reflect that the Veteran’s symptoms more closely approximate severe incomplete paralysis of the sciatic nerve. Indeed, the VA examiner characterized the overall severity of the Veteran’s LLE radiculopathy as moderate. Furthermore, although that examiner reported some atrophy of the left thigh, contemporaneous private examinations noted normal muscle bulk and tone. In any event, the Board does not find that a 1 cm difference in circumference between thighs, coupled with contemporaneous findings of normal muscle bulk and tone of the left thigh, establishes the marked atrophy required to meet the criteria for a 60 percent disability rating. As a preponderance of the evidence of record weighs against finding that the Veteran’s muscular atrophy is marked in nature, and given the severity, duration, and frequency of the Veteran’s pain symptomatology, a 40 percent disability rating under DC 8520 is the highest possible rating warranted for this disability. The Board has favorably applied the benefit-of-the-doubt doctrine in granting an initial 40 percent rating. However, the preponderance of the evidence is against assignment of an even higher schedular rating at any point. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to an increased disability rating higher than 20 percent disabling for status post laminectomy, lumbosacral spine The Veteran contends that he is entitled to a higher rating for his service-connected lumbar spine disability. See July 2016 Statement in Support of Claim. Following review of the record, the Board finds that a rating higher than the 20 percent rating currently assigned is not warranted at any point during the claim period. The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. 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. 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. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s service-connected lumbar spine disability. The Board acknowledges the Veteran’s lay reports of functional loss due to pain during flare-ups. See April 2015 VA examination. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the Board does not find sufficient evidence of record to support a finding that those statements would result in limitation of motion more nearly approximating forward flexion of the spine to 30 degrees or less or favorable ankylosis of the thoracolumbar spine. In that regard, per the April 2015 VA examination report, the Veteran had abnormal initial range of motion, with forward flexion from 0 to 60 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 30 degrees, and left lateral rotation from 0 to 30 degrees. During the testing, the Veteran exhibited pain with forward flexion, extension, right lateral flexion, and left lateral flexion. The Veteran was able to perform repetitive use testing with at least three repetitions, and with no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repeated use over time, and the VA examiner opined that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The VA examiner indicated that an opinion could not be rendered, without resorting to mere speculation, as to whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The VA examiner made the same findings relative to the Veteran’s self-reported flare-ups. When asked to describe the symptoms of his flare-ups, the Veteran reported that twisting while standing and standing for more than 15 minutes both made his back hurt. Notably, the Veteran did not describe reduced motion when describing the flare-ups—only pain. Relative to the April 2015 VA examiner’s findings, the Board remanded the Veteran’s claim to elicit additional information regarding functional loss suffered during flare-ups or after repetitive use over time. See March 2019 Board remand. However, as previously explained herein, the Veteran cancelled the scheduled VA examination, stating that his back issues had been taken care of. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. While the Veteran does have IVDS, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes; April 2015 VA examination. Finally, the Veteran has not described, nor does the evidence otherwise show, neurologic disorders other than the LLE radiculopathy addressed above. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for his lumbar spine disability. As the preponderance of the evidence is against the claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a TDIU The final question before the Board is whether the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment. See April 2015 Notice of Disagreement. Following review of the record, the Board finds that this claim must also be denied. VA will grant TDIU when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. The central question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful employment as a result of a service connected disability provided that if there is only one such disability, this disability shall be ratable at 60 percent or more; 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). Here, even considering the grant of a 40 percent rating for LLE radiculopathy herein, the facts show that the Veteran does not have a single disability (as that term is defined in the regulation) that is rated 60 percent or more or a combined total disability rating of 70 percent. See July 2020 Rating Decision Codesheet (detailing the Veteran’s other service-connected disabilities). Thus, the schedular requirements for a TDIU are not met. In the case of a Veteran who is unemployable by reason of a service-connected disability, but who fails to meet the schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a TDIU on an extraschedular basis, there must be impairment so severe that it is impossible for the average person to secure and follow substantially gainful employment. Per the April 2015 VA examination report, the Veteran indicated that his hearing loss impacts his ordinary conditions of daily life, including his ability to work as a musician, due to his difficulty with hearing musical notes, even with his hearing aids in, causing him to lose out on jobs. See also November 4, 2014 VA treatment record (“…hearing aid does not work when he is playing music”). Given the aforesaid statements, the Board remanded the issue of TDIU to gather additional facts relative to the Veteran’s employment history by sending him a VA Form 21-8940 to complete and return. See October 2019 Subsequent Development Letter; July 2020 SSOC. However, the Veteran did not complete and submit the form, and the record remains unclear as to whether he is currently following substantially gainful employment. Additionally, the Board does not have information as to the Veteran’s current level of income as a musician. While the April 2015 examination report indicates that the Veteran’s hearing loss, back, and LLE radiculopathy have a functional impact on his ability to work, there is no indication that they ultimately preclude him from being able to secure and follow substantially gainful employment, as the Veteran stated that he continues to work as a musician. In sum, the Veteran does not meet the schedular criteria for a TDIU, and the Board finds that there is insufficient evidence to refer the claim for extraschedular consideration, as the Veteran failed to complete the VA Form 21-8940. The Veteran’s failure in submitting this form precludes the Board from considering potentially favorable evidence, as a completed form could have provided more information regarding the Veteran's work history, salary, and reasons for not being able to maintain employment. See Wood, 1 Vet. App. at 193.   As the preponderance of the evidence is against the claim for a TDIU, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. STEPANICK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.