Citation Nr: 21062692 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 11-22 384 DATE: October 8, 2021 ORDER Entitlement to a rating of 40 percent and no higher for degenerative disc disease of the lumbar spine is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate initial rating of 10 percent and no higher for sciatic radiculopathy of the left lower extremity from May 5, 2009 to May 5, 2013 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate initial rating of 10 percent and no higher for sciatic radiculopathy of the right lower extremity from May 5, 2009 to May 5, 2013 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating higher than 10 percent for sciatic radiculopathy of the left lower extremity from May 15, 2013 to March 5, 2020, and higher than 20 percent thereafter, is denied. Entitlement to a rating higher than 10 percent for sciatic radiculopathy of the right lower extremity from May 15, 2013 to March 5, 2020, and higher than 20 percent thereafter, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 4, 2010 is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, the Veteran experienced incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks in a 12-month period. 2. From May 5, 2009, the Veteran had mild sciatic radiculopathy of the left lower extremity. 3. From May 5, 2009, the Veteran had mild sciatic radiculopathy of the right lower extremity. 4. From May 15, 2013, to March 5, 2020, the Veteran had no more than mild sciatic radiculopathy of the left lower extremity. 5. From May 15, 2013, to March 5, 2020, the Veteran had no more than mild sciatic radiculopathy of the right lower extremity. 6. From March 5, 2020, the Veteran had no more than moderate sciatic radiculopathy of the left lower extremity. 7. From March 5, 2020, the Veteran had no more than moderate sciatic radiculopathy of the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent and no higher for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 2. From May 5, 2009, the criteria for a separate disability rating of 10 percent and no higher for sciatic radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. From May 5, 2009, the criteria for a separate disability rating of 10 percent and no higher for sciatic radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. From May 15, 2013 to March 5, 2020, the criteria for entitlement to a staged initial rating higher than 10 percent for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 5. From May 15, 2013 to March 5, 2020, the criteria for entitlement to a staged initial rating higher than 10 percent for sciatic radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 6. From May 5, 2020 the criteria for entitlement to a staged initial rating higher than 20 percent for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 7. From May 5, 2020 the criteria for entitlement to a staged initial rating higher than 20 percent for sciatic radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service from June 5, 1992 to June 23, 1992. He had an additional period of service from February 1995 to October 1997 which has been deemed dishonorable. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2010 (low back), May 2013 (neck), and May 2015 (radiculopathy) rating decisions. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2016. A transcript of that hearing is of record. An April 2016 rating decision assigned assign a separate rating of 10 percent and no higher for radiculopathy of the right lower extremity and radiculopathy of the left lower extremity effective May 15, 2013. These matters were remanded in June 2016, June 2017, and February 2020. A June 2021 rating decision granted entitlement to a TDIU from June 4, 2010, and assigned a 20 percent rating for radiculopathy of the right lower extremity and a 20 percent rating for radiculopathy of the left lower extremity, both effective March 5, 2020. This rating decision also granted service connection for the left and right knee degenerative joint disease, and those disabilities is not on appeal. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to a rating higher than 20 percent for degenerative disc disease of the lumbar spine The Veteran contends his low back symptoms should be assigned a rating higher than 20 percent. During the pendency of the Veteran's claim and appeal, the criteria for rating back disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, Codes 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with intervertebral disc syndrome (IVDS) under Code 5243 and all other intervertebral disc disabilities under 5242. As such, Code 5242 now reflects Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); Code 5243 now reflects Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses. The Veteran's degenerative disc disease with fracture of the L4 right transverse process has been rated under 38 C.F.R. § 4.71a, DC 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS 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 IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. 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. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. In a January 2010 VA examination, the examiner noted severe flare ups and IVDS in which a physician told the Veteran to stay in bed for 3-5 days about 6 times in the past year. This means the Veteran had incapacitating episodes from approximately two and a half weeks to a little more than four weeks in one 12-month period. As the Board must resolve doubt in the Veteran's favor, it will rely on the range of the estimate that is more beneficial to the Veteran, and find that his incapacitating episodes last a little more than 4 weeks in one year. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months are assigned a 40 percent rating. Therefore, the Board will assign a rating of 40 percent for the Veteran's low back disability. A rating higher than 40 percent is not warranted because there is no evidence in the record of incapacitating episodes with a total duration of 6 weeks or more at any point during the period on appeal. The February 2010, September 2016, and March 2020 VA examinations all found that the Veteran does not have ankylosis of the spine. Therefore, the criteria for a rating higher than 40 percent are not met under the General Rating Formula for Diseases and Injuries of the Spine. For the foregoing reasons, the Board finds that the Veteran is entitled to a rating of 40 percent and no higher for his lumbar spine disability. 2. Entitlement to a separate initial rating of 10 percent and no higher for sciatic radiculopathy of the left lower extremity from May 5, 2009 to May 5, 2013 3. Entitlement to a separate initial rating of 10 percent and no higher for sciatic radiculopathy of the right lower extremity from May 5, 2009 to May 5, 2013 An April 2016 rating decision assigned separate ratings of 10 percent and no higher for radiculopathy of the right lower extremity and radiculopathy of the left lower extremity effective May 15, 2013. However, the Board's review of the record indicates that the Veteran should be assigned a separate rating of 10 percent each for sciatic radiculopathy of the right and left lower extremities effective May 5, 2009. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). 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, with 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 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. When deciding an increased rating claim, the Board can consider evidence back to the date of claim, and can also look back on evidence within one year before the date of claim. 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In this case, the radiculopathy issue is part of the September 2009 claim for a higher rating for the Veteran's lower back disability. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note 1. The earliest reference to radicular symptoms within one year before the September 2009 date of claim is a May 5, 2009 VA treatment note that states the Veteran has recently developed weakness, numbness, and pain in his legs. The Veteran also reported numbness, weakness, and tingling in his legs at his January 2010 VA examination as to the lower back, and noted pain radiating into the bilateral legs described as tingling and numbness, and feeling like he walking on pins and needles. The Board will recognize these symptoms as indicative of bilateral radiculopathy of the lower extremities. However, the objective testing at the January 2010 examination shows a normal motor exam, normal muscle tone, normal sensory exam, and normal reflexes. Due to the fact that the Veteran's radicular symptoms were not detected upon objective examination, the Board finds no evidence that the Veteran's bilateral radiculopathy of the lower extremities were more than mild at this point. Therefore, the Board will assign separate ratings of 10 percent and no higher for radiculopathy of the left lower extremity and 10 percent for radiculopathy of the right lower extremity from May 5, 2009. 4. Entitlement to a rating higher than 10 percent for sciatic radiculopathy of the left lower extremity from May 15, 2013 to March 5, 2020 5. Entitlement to a rating higher than 10 percent for sciatic radiculopathy of the right lower extremity from May 15, 2013 to March 5, 2020 The Veteran has been assigned a rating of 10 percent each for radiculopathy of the left and right lower extremities from May 15, 2013 to March 5, 2020. He contends that he should be assigned a higher rating. The Board finds that a higher rating is not warranted during this time period. The September 2016 VA examination as to the back found that the Veteran had normal muscle strength and normal deep tendon reflexes for the lower extremities. There was no muscle atrophy. There was decreased sensation to light touch at the upper anterior thigh and thigh/knee bilaterally, as well as decreased sensation at the lower leg/ankle and foot/toes on the right side. The Veteran had mild constant pain, paresthesias and/or dysesthesias, and numbness bilaterally. The examiner identified sciatic radiculopathy and described the severity as mild. The Veteran's treatment records are consistent with these findings, noting radiating pain and episodic lower extremity paresthesias and weakness in May 2013. The Veteran testified in his March 2016 hearing that he can no longer stand on one leg and was losing strength, in addition to tingling in his legs such that they felt like he was walking on pins and needles or that his legs were falling asleep. The Board finds that these symptoms are best described as mild. Although the Veteran has intermittently described subjective weakness in his legs, objective testing showed full muscle strength. The severity of the Veteran's symptoms was consistently characterized as mild in the September 2016 examination. Due to the normal objective testing and the consistent characterization of the subjective symptoms as mild, the Board finds that the Veteran's radiculopathy during the period from May 15, 2013 to March 5, 2020 is best described as mild. Therefore, a rating higher than 10 percent for radiculopathy of either lower extremity is denied during this period. 6. Entitlement to a rating higher than 20 percent for sciatic radiculopathy of the left lower extremity from March 5, 2020 7. Entitlement to a rating higher than 20 percent for sciatic radiculopathy of the right lower extremity from March 5, 2020 The Veteran has been assigned a rating of 20 percent for sciatic radiculopathy of each lower extremity from March 5, 2020. He contends that he should be assigned a higher rating. The Board finds that a higher rating is not warranted. The March 5, 2020 VA examination as to peripheral nerves found that Veteran has moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness, all affected both lower extremities. The Veteran's muscle strength was normal upon testing, but his deep tendon reflexes were hypoactive in the bilateral upper and lower extremities. He had decreased sensation in the bilateral lower extremities, but no trophic changes. The examiner found moderate incomplete paralysis of the bilateral sciatic nerves. The March 2020 VA examination as to the lower back also found full strength, no muscle atrophy, hypoactive reflexes, and decreased sensation. The examiner noted moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness bilaterally. The Veteran's radiculopathy was characterized as moderate on both sides. Although the hypoactive reflexes indicate that the Veteran's symptoms are not wholly sensory, the record does not support characterizing the Veteran's radiculopathy as any more than moderate. No symptom has been described as severe, nor has the Veteran reported symptoms that are indicative of severe or moderately severe radiculopathy. For the foregoing reasons, entitlement to a rating higher than 20 percent for sciatic radiculopathy of each lower extremity from March 5, 2020, must be denied. REASONS FOR REMAND 1. Entitlement to a TDIU prior to June 4, 2010 is remanded. Prior to June 4, 2010, the Veteran's combined disability evaluation is less than the 70 percent required to meet the schedular requirements for entitlement to a TDIU under § 4.16(a). Although a veteran fails to meet the disability rating threshold under 38 C.F.R. § 4.16(a), an extraschedular disability rating for TDIU may nevertheless be warranted where the veteran is unemployable due to service-connected disabilities. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Should the Board discern a plausible basis for an extraschedular TDIU, it must refer the matter to the Director of Compensation Service for an initial decision before the Board may decide the issue. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In this regard, the Board notes that the January 2010 back examiner found that the Veteran certainly could not perform his previous job as a truck driver. The examiner found that the Veteran could perform a sedentary position in which he was allowed to get up and change his position frequently, but that this position would need to not require prolonged concentration due to the effects of the Veteran's daily pain medication. The examiner wrote that many employers would not employ the Veteran because of that pain medication. Additionally, a June 2009 decision by the Social Security Administration found that the Veteran had the residual capacity to perform sedentary work involving standing and walking for one hour and sitting for one hour in an 8-hour workday, with the remainder of the day spent lying down or reclining. Based upon this evidence, the Board finds that the evidence raises a question as to whether the Veteran was capable of obtaining and maintaining substantially gainful employment, in spite of not meeting the schedular requirement for a TDIU during that time. As the Board is prohibited from awarding an extraschedular TDIU in the first instance, a remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service. See Wages, 27 Vet. App. at 235-39. 2. Entitlement to service connection for a neck disability is remanded. The March 2020 aggravation opinion is not adequate. The examiner opined that the Veteran's degenerative arthritis of the cervical spine is not at least as likely as not aggravated beyond its natural progression by the lower back disability, in spite of the fact that the February 2020 remand specifically defined aggravation as any increase in disability. Upon remand, a new opinion should be obtained that uses the correct definition. The matters are REMANDED for the following action: 1. Refer the Veteran's claim of entitlement to a TDIU prior to June 4, 2010 to the Director of Compensation and Pension Service for consideration of entitlement to an extraschedular TDIU award. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's neck disability is at least as likely as not (50 percent or greater probability) proximately due to or aggravated by (defined as any increase in disability) his service-connected low back disability. The clinician must address the Veteran's contention that his neck disability was caused or aggravated by being hunched over due to his service-connected low back disability. The opinion offered must be supported by a complete rationale. 3. The AOJ must confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.