Citation Nr: 21004905 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-24 678A DATE: January 28, 2021 ORDER Entitlement to a rating in excess of 30 percent for headaches is denied. Entitlement to a rating in excess of 10 percent prior to March 1, 2013 and 20 percent thereafter for a back disability is denied. Entitlement to a rating in excess of 10 percent prior to May 29, 2019 and 20 percent thereafter for right lower extremity radiculopathy is denied. REMANDED A total disability rating based on individual unemployability (TDIU), to include extraschedular consideration, is remanded. FINDINGS OF FACT 1. The Veteran’s headaches are not manifested by frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran’s back disability is not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or by muscle spasm or guarding severe enough to result in an abnormal gain or abnormal spinal contour prior to March 1, 2013. The Veteran’s back disability is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 3. The Veteran’s right lower extremity radiculopathy is not manifested by moderate incomplete paralysis prior to May 29, 2019 and moderately severe incomplete paralysis after May 29, 2019. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for a rating in excess of 10 percent prior to March 1, 2013 and 20 percent thereafter for a back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, DC 5237. 3. The criteria for a rating in excess of 10 percent prior to May 29, 2019 and 20 percent thereafter for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1964 to October 1968 and from June 1971 to October 1990. These matters were previously before the Board and were remanded in a May 2018 decision for further development. This development has been completed and the matters are again before the Board. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Headache Claim The Veteran contends his headaches are worse than indicated by his 30 percent disability rating. The Veteran’s headaches are rated under DC 8100. Under DC 8100, a 10 percent disability rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent disability rating is warranted for headaches with frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran has had multiple examinations for his headaches. In a March 2011 headache examination, the Veteran did not report any prescribed bed rest due to his headaches, but that he had severe pain, sensitivity to light and sound, and vomiting. The Veteran reported at least one episode per month, lasting three to four days. However, the examiner found the Veteran did not suffer from prostrating attacks. In March 2012, a private examiner noted the Veteran had cluster headaches which led to pain, throbbing, sleep problems, and neck pain. In August 2012, a private examiner submitted a statement about the Veteran’s employability. The examiner noted the Veteran had headaches and that the Veteran’s headaches would prevent him from “adequately performing daily activities or work” and would prevent physical activities such as “walking, standing, bending, stooping, or moving extremities.” This examiner noted that based on the opinions of Dr. C.R., it was his opinion that “there would be no work in the national economy which [the Veteran] could reasonably perform.” The Veteran had another examination for his headaches in March 2013. The examiner considered the Veteran’s symptoms but that the Veteran did not have characteristic prostrating attacks of migraine headache pain. The Veteran had an examination for his headaches in August 2016 in which the examiner saw the Veteran in person, reviewed his file, and noted his symptoms of pain, throbbing, and sensitivity to sound. The examiner opined the Veteran did not have characteristic prostrating attacks. The Veteran had another examination for his headaches in July 2019 in which the examiner saw the Veteran in person, reviewed his file, and considered the Veteran’s current symptoms, which included pain, nausea, vomiting, sensitivity to light and sound. The Veteran’s pain typically lasted less than one day. The examiner reported the Veteran had characteristic prostrating attacks of migraines once every month which did not lead to severe economic inadaptability. In October 2019, a clarifying addendum was sought based on the review of medical records which showed the Veteran sometimes had prostrating attacks due to his headaches. The examiner opined the Veteran has prostrating attacks once every month and met the criteria during the 2011 examination and the March 2013 examination but not in the 2016 examination. The Veteran’s medical records also indicate he continues to seek treatment and take medications for his headaches. Clearly, from his examinations and his continued treatment for this condition, his headaches cause him problems. However, while one examiner in August 2012 noted the Veteran’s headaches would prevent him from adequately performing work, no other examiner has stated the Veteran’s headaches would lead to severe economic inadaptability. Indeed, five other examiners have found the Veteran did not have prostrating attacks that lead to severe economic inadaptability while only one stated his headaches would interfere with his ability to work. Thus, the Board finds the weight of the evidence is against a higher rating and therefore, the claim will be denied. There is no basis for any form of staged rating for this disability: The medical evidence consistently indicates a level of impairment that would not meet the next higher rating. Back and Right Lower Extremity Radiculopathy Claims The Veteran contends his back disability is worse than indicated by his 10 percent rating prior to March 1, 2013 and 20 percent rating thereafter. The Veteran also contends his right lower extremity disability is worse than indicated by his 10percent rating prior to May 29, 2019 and 20 percent rating thereafter. Under DC 5237, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or spinal contour. Important for this case, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 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 rating is warranted for unfavorable ankylosis of the entire spine. The Veteran’s right lower extremity radiculopathy is currently rated under DC 8520. Under DC 8520, disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. In March 2012, the Veteran’s spouse submitted a statement noting that his back pain was so bad, he was “unable to do hardly any physical work.” The Veteran’s spouse said the Veteran retired early due to his back and headaches and that the pain was so bad on some days, he could not get out of bed. The Veteran’s spouse said that his headaches now occur one to two times per month and could last for days. Because of his back pain, the Veteran was no longer able to exercise so he had constant muscle spasms. Prior to March 1, 2013, the Veteran’s records indicate he was treated for his back. (See e.g. August 2009, April 2010, February 2011 treatment records.) The Veteran had an examination for his back in December 2011. The examiner saw the Veteran in person, reviewed his file, and noted the Veteran’s current symptoms. The examiner found the Veteran’s forward flexion was to 70 degrees but painful motion beginning at 70 degrees. There was no additional loss of range of motion after repetitive use testing. The examiner reported the Veteran had less movement that normal and pain on movement. The examiner noted the Veteran had IVDS but that it did not lead to incapacitating episodes. In March 2012, Dr. C.R. said the Veteran’s back should be rated at the 100 percent level based on the rating table. However, this opinion is fashioned from a fill-in-the-blank form without any explanation or indication the Veteran’s records were reviewed. In order for the Veteran’s back disability to warrant a 100 percent rating, he would have had to have ankylosis. However, a finding of ankylosis is not supported by the Veteran’s record, including from this docotor. Indeed, in this same document, Dr. C.R. said that the conditions underlying the Veteran’s pain were degenerative disc disease and lumbar radiculopathy, but did not mention ankylosis of the entire spine. This is the second medical opinion from Dr. C.R. that suggests the Veteran is totally disabled due to one service-connected disability and the other. The Board has reviewed these medical statements closely and find they are entitled to almost no probative value: This medical report not only has limited probative value, but also undermines the Veteran claims in submitting such incomplete medical statements in support of his claims. The form itself cites the criteria VA used to evaluate back problems, yet the doctor still indicates a 100% rating for the back is warranted, notwithstanding the fact that the criteria, cited on the report itself, clearly is not met in this case, based on the limited information this doctor himself cites. Repeated examinations (required in this case due to the findings of this doctor, causing delay in this case) of the problems at issue utterly undermine the medical findings of Dr. C.R. The opinions of Dr. C.R. have almost no probative value and such submitted reports undermine the Veteran’s overall veracity. The Veteran’s record prior to March 1, 2013 shows, at best, that the Veteran struggled with his back disability and had limitation in his range of movement. However, the evidence does not indicate his range of motion was limited to forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees nor does the record indicate the Veteran suffered from ankylosis. Turning to the period on appeal from March 1, 2013, again, the Veteran’s record indicates he continued to seek treatment for his back disability. The Veteran had another examination for his back in March 2013. The examiner considered the Veteran’s symptoms and that the Veteran reported flare ups. The examiner found forward flexion ended at 40 degrees with painful motion beginning at 40 degrees. There was no additional loss of range of motion found after repetitive use testing, but that the Veteran had pain on movement and interference with sitting, standing, and/or weight bearing. The Veteran had another examination for his back in August 2016 in which the examiner saw the Veteran in person, reviewed his file, and noted his forward flexion was to 60 degrees with pain noted on exam but that it did not cause functional loss. After repetitive use, there was no additional loss of range of motion and the examiner found the Veteran did not have guarding or muscle spasm. The examiner reported the Veteran did not have ankylosis and did not have IVDS. To ensure the duty to assist has been met in this case, the Veteran had an examination for his back in May 2019. The examiner saw the Veteran in person, reviewed his file, and noted the Veteran’s current symptoms. The examiner noted the Veteran’s forward flexion was to 50 degrees with pain on examination but that did not cause functional loss. The examiner found pain, fatigue, weakness, lack of endurance, and incoordination led to functional loss with forward flexion limited to 40 degrees. The Veteran denied flare ups. The examiner found the Veteran’s back caused muscle spasm, not resulting in abnormal gait or abnormal spinal contour. The examiner opined the Veteran did not have ankylosis but did have IVDS. The examiner opined the Veteran’s IVDS did not lead to episodes requiring bed rest. The Veteran had most recently had an examination for his back in October 2019. The examiner saw the Veteran in person, reviewed his file, and noted the Veteran had degenerative arthritis of his spine. The examiner considered the Veteran’s symptoms of worsening back pain, muscle spasms, and tingling and numbness in his lower extremities. The Veteran reported flare ups one to three times per month that lasted from one day to three days. The examiner found the Veteran’s forward flexion was to 55 degrees with pain noted on rest, but no pain with weight bearing. After repetitive use testing, there was no additional loss of range of motion. The examiner reported that pain, weakness, fatigability, and incoordination did not limit functional ability and that the examiner is medically consistent with the Veteran’s statements describing functional loss during a flare up. The examiner reported the Veteran did have guarding or muscle spasm resulting in abnormal gait or abnormal spinal contour. The examiner found the Veteran had no ankylosis in his spine and no IVDS, but did regularly use a cane. In an October 2020 addendum, the Veteran’s back disability examiner stated that regarding the appeal period from March 2013 to August 2016, he was unable to provide a retroactive opinion regarding range of motion measurements for active motion, passive motion, weight-bearing, and/or non-weight bearing. The examiner stated that “measurements obtained on the exams from March 2013 to August 2016 already reflect active range of motion and non-weightbearing range of motion and would not differ from the exam findings of record.” Pertaining to the March 2012 back questionnaire submitted by Dr. C.R. who attributed a 100 percent disability was “in error” because Dr. C.R. listed a “Diagnostic code for the Veteran of ‘unfavorable ankylosis of the spine’ with a rating of 100 percent. The Veteran has lumbar degenerative disc disease with degenerative arthritis. There is no documented ankylosis of the lumbar spine.” The examiner also reported there was “a reasonable medical nexus for Dr. C.R.’s opinion that the Veteran’s lumbar radiculopathy is secondary to his back condition.” From March 1, 2013, the Veteran’s back has continued to be problematic and painful for the Veteran. The evidence also indicates that his forward flexion is now more limited than it was prior to March 1, 2013, hence the increased rating to 20 percent. However, the evidence does not indicate the Veteran’s forward flexion was limited to less than 30 degrees or that he has ankylosis. Therefore, a rating in excess of 20 percent for the period on appeal from March 1, 2013 will be denied. Turning to the Veteran’s claim to a higher rating for his right lower extremity radiculopathy prior to May 29, 2019, the Board notes that like the Veteran’s back disability, the Veteran has struggled with right lower extremity radiculopathy pain. The December 2011 examiner noted the Veteran had moderate pain and mild intermittent pain in his right lower extremity. However, this examination did not indicate the overall severity of the Veteran’s right lower extremity radiculopathy. A March 2013 examination showed the Veteran had mild right lower extremity radiculopathy. The Veteran’s record prior to May 29, 2019 indicates his right lower extremity radiculopathy continued to bother him, however, these records do not contain objective medical evidence of the severity of the Veteran’s radiculopathy. Thus, when looking at the evidence as a whole for this period on appeal, the Board finds the weight of the evidence shows the Veteran’s right lower extremity radiculopathy was mild and therefore, a higher rating is not warranted. Turning to the period from May 29, 2019, in August 2016, an examiner found the Veteran had mild right lower extremity radiculopathy. The May 2019 back examiner found the Veteran had moderate right lower extremity radiculopathy. The Veteran had an examination for his right lower extremity radiculopathy in May 2019 in which the examiner saw the Veteran in person, reviewed his file, and noted the Veteran’s current worsening symptoms. The examiner found the Veteran had moderate constant pain, paresthesias, and numbness in his right lower extremity. Overall, the examiner found the Veteran had moderate incomplete paralysis of his right sciatic nerve. The October 2019 examiner found the Veteran had moderate right lower extremity radiculopathy. Again, while the Veteran’s record and his examinations show he continued to be treated for his right lower extremity radiculopathy and that it had worsened, the objective evidence of record does not indicate that it had increased to moderately severe incomplete paralysis. Therefore, the claim will be denied. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating for any of his service-connected disabilities. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding all the above, the Board recognizes the Veteran’s disabilities cause him problems. The Board also acknowledges the Veteran believes his conditions are worse than his rating provides and that he continues to seek treatment for his conditions. However, while the Veteran is competent to relate the symptoms he experiences, he is not competent to opine on complex medical issues, such as the severity of a medically diagnosed condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence and has weighed it appropriately as discussed above. This does not mean that the Board did not consider the Veteran’s statements regarding the severity of his symptoms. In fact, the Board has carefully considered the Veteran’s statements and his spouse’s statements about how his disabilities affect his daily life, lead to pain, and an inability to perform certain daily activities. While the Veteran’s disabilities clearly bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings and the ratings cited above, the only question is the degree. Further, some evidence, as cited above, does not support the current findings. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND The Board finds a remand is necessary for the Veteran’s claim to a TDIU, to include on an extraschedular basis as the Veteran does not meet the schedular requirements. The Board has considered the Veteran’s argument that he meets the schedular requirements for a TDIU if you combine his separate back and bilateral lower extremity radiculopathy disabilities because they all stem from one disability. (see November 2020 representative statement.) However, while combining disabilities rated under the same diagnostic code (such as left and right lower extremity radiculopathy) is proper for considering whether the Veteran meets the schedular requirements, combining separate disabilities rating under different diagnostic codes for this purpose is not proper. But the Board does find there is significant evidence that the Veteran’s service-connected disabilities prevent him from working and therefore, finds that extraschedular TDIU consideration is warranted. The Board understands the Veteran’s representative had other concerns with the October 2020 supplemental statement of the case (SSOC), but that these matters should be addressed with the remand for extraschedular consideration. The Board’s analysis is limited to merely granting or denying the Veteran’s request for referral for extraschedular consideration. Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). See also Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Nevertheless, the Board may adjudicate whether a referral to the Director of Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun, 22 Vet. App. at 115; Barringer v. Peake, 22 Vet. App. 242 (2008). More recently, the Court clarified that the initial decision whether to remand for extraschedular referral to the Director of Compensation Service under § 4.16(b) should address whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. The Board’s initial finding that extraschedular referral for TDIU is warranted is a factual one but is necessarily based on an evidentiary threshold that is lower than that for the ultimate decision to award an extraschedular TDIU rating. Ray v. Wilkie, 31 Vet. App. 58, 62-66 (2019). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, if the Director of Compensation denies an extraschedular TDIU rating under 38 C.F.R. § 4.16 (b), the Board then, reviewing that decision without deference and bearing in mind the benefit of the doubt standard, decides whether the veteran is unemployable by reason of his or her service-connected disabilities. Id. at 66. In other words, if, and only if, the Director of Compensation has determined that an extraschedular evaluation under § 4.16(b) is not warranted, does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. The Board cannot assign an extraschedular evaluation in the first instance under § 4.16(b), without the Director of Compensation issuing the initial decision. If the Board decides to deny entitlement to an extraschedular TDIU evaluation under § 4.16(b) after a referral to the Director of Compensation has occurred, the Board “must provide adequate reasons or basis for deviating from its earlier referral decision.” Id. at 62. At present, the Board has to make the initial determination as to whether referral to the Director of Compensation for an extraschedular TDIU rating under § 4.16(b) is warranted. After weighing the medical and lay evidence of record, the Board finds that the criteria for referral of TDIU on an extraschedular basis are met. See 38 C.F.R. § 4.16 (b). The Veteran last worked in June 2008. The Veteran has a college degree with special training as a corrections officer, law enforcement, and legal assistant. However, the Veteran reported he retired early partly due to his health. (See March 2012 Application for Increased Compensation based on Unemployability.) Additionally, multiple examiners have found the Veteran is unable to perform sedentary work (see e.g. October 2019 examination) and that his service-connected disabilities, to include his back, bilateral lower extremity radiculopathy, and headaches, prevent him from being able to sit or stand for long periods of time, or walk without resting, or concentrate and focus on tasks. (See e.g. August 2012 private opinion, March 2013, May, July, October 2019 examinations.) While the private medical opinion cited above has very limited probative value, the Board can not ignore the Veteran’s statements, and those of his spouse. The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding VA and private medical records and associate them with the claims file. In particular, any workmen’s compensation claims, Social Security claims, or any other claims for disability should be provided (if any), including any medical examination reports associated with those claims. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. (Continued on the next page)   2. Thereafter, unless the AOJ finds that a fully favorable decision can be rendered, refer the claim to the Director of Compensation and Pension Service for consideration of whether a TDIU on an extraschedular basis is warranted. 3. Thereafter, readjudicate the appeal. If the benefits sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.