Citation Nr: 21064537 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-35 242 DATE: October 20, 2021 ORDER Entitlement to a 40 percent disability rating for the service-connected low back disability for the period of April 4, 2016, to September 18, 2018, is granted. Entitlement to a disability rating in excess of 40 percent for the service-connected low back disability is denied. Entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy is denied. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted as of April 4, 2016. FINDINGS OF FACT 1. The Veteran's low back disability has more nearly approximated the limitations of motion during flare-ups of 30 degrees or less of flexion throughout the appeals period. 2. The Veteran's low back disability is not manifested by ankylosis. 3. The Veteran's right lower extremity radiculopathy has been determined to be no more than mild at any point throughout the appeals period. 4. The Veteran's left lower extremity radiculopathy has been determined to be no more than mild at any point throughout the appeals period. 5. Beginning April 4, 2016, the Veteran's service-connected disabilities of insomnia, low back disability, headaches, and radiculopathy, which are assigned a combined rating of 80 percent, render him unable to obtain and maintain substantial gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 40 percent disability rating, but no higher, for the service-connected low back disability for the period of April 4, 2016, to September 18, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243. 2. The criteria for entitlement to a disability rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243. 3. The criteria for entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy 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 entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for entitlement to TDIU were met as of April 4, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from July 1979 to July 1982 and from October 1982 to October 1984. These matters were previously before the Board in April 2019, when they were remanded for additional development and adjudication by the Agency of Original Jurisdiction (AOJ). The Board's remand instructions included obtaining copies of all VA treatment records and VA examinations. An additional VA examination was performed in July 2019. The Board finds that the remand directives were followed, and no further development is required for a decision to be rendered in this case. The Veteran applied for and was granted service connection for a low back disability in 2013. At that time, a 40 percent disability rating was applied for degenerative disc disease, spondylosis, thoracolumbar strain, and radiculopathy of the lower extremities. He applied for an increased disability rating in April 2016. In a rating decision issued in September 2016, the 40 percent disability rating previously assigned was reconfigured, with a 20 percent rating applied for degenerative disc disease, spondylosis, and thoracolumbar strain with intervertebral disc syndrome, and separate 10 percent disability ratings assigned for radiculopathy in each of the lower extremities. While the Veteran's combined disability rating remained the same, the decision characterized the outcome as a decreased rating for low back disability and increased disability ratings for left and right leg radiculopathy. The Veteran appealed for higher disability ratings for all disabilities. A subsequent rating decision issued on remand in July 2020 granted a 40 percent disability rating for the low back disability of intervertebral disc syndrome and degenerative disc disease, effective September 18, 2018. The Veteran continued his appeal of the assigned ratings. Per Third Party Correspondence received January 2020, the Veteran's representative properly withdrew his representation prior to the re-certification of this matter to the Board. 38 C.F.R. § 14.631(c). To date, the Veteran has not appointed another representative. Therefore, the Veteran is now proceeding in this matter pro se. 1. Entitlement to a disability rating in excess of 20 percent for a low back disability for the period of April 4, 2016, to September 18, 2018 2. Entitlement to a disability rating in excess of 40 percent for a low back disability Disabilities of the spine are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula). In this instance, although the Veteran has been diagnosed with IVDS, during the appeals period he has denied experiencing incapacitating episodes. As such, application of the IVDS Formula cannot benefit him and will not be discussed further. The General Rating Formula provides a 20 percent disability rating is assigned 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 disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Ratings under the General Rating Formula 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. The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a, Note (2). At the May 2016 VA examination, the Veteran reported pain with prolonged standing, sitting, or walking, and pain with bending. (See C&P Exam, 05/21/2016.) Range of motion testing showed flexion to 45 degrees, extension to 5 degrees, lateral flexion to 10 degrees bilaterally, and lateral rotation to 5 degrees bilaterally. He had objective evidence of pain on all ranges of motion, pain with weight-bearing, and tenderness to palpation over the paraspinal muscles. The examiner noted no evidence of additional limitation of motion after repetition and was unable to provide any estimation of limitation of motion during a pain flare-up. The Veteran had both guarding and muscle spasms, but these did not result in any abnormal gait or abnormal spinal contour. At the December 2018 VA examination, the Veteran again noted that his low back disability rendered him unable to engage in prolonged standing, sitting, or walking, or in any repetitive bending or heavy lifting. (See C&P Exam, 12/15/2018.) Range of motion testing showed flexion to 74 degrees, extension to 15 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. All ranges of motion were painful, and the Veteran had pain on weight-bearing as well tenderness to palpation over the thoracolumbar spine and paraspinal muscles. After three repetitions, the Veteran's range of motion had decreased to 60 degrees of flexion, 10 degrees of extension, 15 degrees of lateral flexion bilaterally, and 15 degrees of lateral rotation bilaterally. An addendum opinion in July 2019 addressed the impact of flare-ups on the Veteran's range of motion. (See C&P Exam, 07/19/2019.) The examiner estimated the Veteran's ranges of motion during a flare-up as flexion to 30 degrees, extension to 5 degrees, lateral flexion to 5 degrees bilaterally, and lateral rotation to 5 degrees bilaterally. After reviewing the evidence of record, with specific attention to the documents discussed above, the Board finds that a 40 percent disability rating is appropriate for the Veteran's low back disability for the period between April 4, 2016, and September 18, 2018. In forming this conclusion, the Board notes that the Veteran's range of motion findings in 2013 included flexion to 60 degrees with pain at 30, thereafter limited to 45 degrees of flexion on repetition. Indeed, the range of motion findings on repetition in 2013 were the same as those associated with flare-ups in the July 2019 addendum opinion. In light of the fact that the May 2021 VA examination did not include any estimation of limitation of motion during flare-ups, and the fact that the Veteran's complaints and reported symptoms remained the same between the 2016 and 2018 VA examinations, it is logical to infer that flare-ups would have produced the same effects. To that end, the Board interprets the findings at the 2016 VA examination as indicating a temporary improvement, given that the 2013 and 2018 examination findings were significantly worse. Therefore, the Veteran's disability is interpreted as more closely approximating the criteria for a 40 percent disability rating for the period between the claim for increase and the 2018 VA examination. The Board notes that the Veteran's 40 percent disability rating is based on the range of motion demonstrated during flare-ups and that ankylosis of any kind has not been shown. In a recent decision, the United States Court of Appeals for Veterans' Claims (Court) noted that when evaluating a disability under VA's General Rating Formula, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). Therefore, ankylosis can be shown via functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board acknowledges that the Veteran's symptoms during a flare-up result in increased pain. However, even considering that functional limitation during a flare-up, the Veteran's symptoms do not approximate fixation of the spine in neutral position (zero degrees), or fixation of the spine in flexion or extension. During flares the Veteran is able to move his spine. VA examinations do not reflect symptoms that approximate fixation, but rather symptoms resulting in forward flexion of the spine to 30 degrees, as well as limitation of extension, bilateral rotation, and bilateral flexion. As such, the criteria for a disability rating higher than 40 percent have not been met or more nearly approximated at any point during the appeals period. 38 C.F.R. § 4.71a. 3. Entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy 4. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy The Veteran's radiculopathy of the left and right legs is rated under Diagnostic Code 8520, which provides ratings for sciatic nerve impairment. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve, with mild incomplete paralysis rated as 10 percent disabling; moderate incomplete paralysis rated as 20 percent disabling; moderately severe incomplete paralysis rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, rated as 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. 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 equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123 will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. Id. Neuralgia, cranial or peripheral, 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. The Board notes that 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 just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. At the VA examination in May 2016, the Veteran was noted to have radiculopathy symptoms in both legs, including reduced reflexes in the feet and ankles and decreased sensation to light touch in the feet, ankles, and toes. (See C&P Exam, 05/21/2016.) He experienced mild intermittent pain bilaterally, mild paresthesias bilaterally, and mild numbness bilaterally. The examiner indicated that there was mild bilateral radiculopathy involving the sciatic nerve. At the December 2018 VA examination, the Veteran reported radiculopathy symptoms affecting his lower extremities but indicated that it was the radiculopathy in his upper extremities from his cervical spine impairment which were his primary concern. (See C&P Exam, 12/15/2018.) The Veteran had decreased sensation in his feet and ankles, as well as mild constant pain, moderate intermittent pain, moderate paresthesias, and mild numbness in both legs and feet. The examiner noted mild bilateral radiculopathy involving the sciatic nerve. After considering the evidence of record, with specific attention to the documents discussed above, the Board finds that entitlement to a disability rating in excess of 10 percent for radiculopathy in either the right or left lower extremities has not been shown. Both the 2016 and the 2018 VA examinations described the Veteran's symptoms as mild, with the symptoms involved being sensory in nature: pain, numbness, paresthesias, and decreased sensitivity. At most, under the provisions of 38 C.F.R. § 4.124, incomplete paralysis of the nerve resulting in wholly sensory symptoms, the disability would be described as moderate. In this instance, both VA examiners described the disability as mild in nature. In addition, at the 2018 VA examination, the Veteran indicated that he was much more focused on the radiculopathy symptoms affecting his upper extremities which were severe. As there is no indication that the Veteran's right and left lower extremity radiculopathy would be considered moderate in severity, entitlement to a disability rating in excess of 10 percent is not shown. 38 C.F.R. § 4.124, Diagnostic Code 8520. 5. Entitlement to TDIU prior to September 18, 2018 The Court has found that entitlement to TDIU is encompassed within any claim for a higher disability rating. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this instance, that would include the question of entitlement to TDIU prior to September 18, 2018, given that an increased disability rating has been granted as of April 4, 2016. Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, 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 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). The Veteran's combined disability rating of 80 percent, in effective as of April 4, 2016, meets the requirements of 38 C.F.R. § 4.16(a). This combined rating is derived from a 50 percent disability rating for sleep disturbance and insomnia; a 20 percent disability rating for low back disability (now increased to 40 percent); a 30 percent disability rating for headaches; and a 10 percent disability rating for each lower extremity based on incomplete paralysis. Notably, the increased rating of 40 percent assigned for low back disability does not result in an increased combined disability rating when the guidelines of the Combined Ratings Table at 38 C.F.R. § 4.25 are applied. The question before the Board, then, is whether the evidence indicates that the Veteran was unable to obtain and retain substantially gainful employment because of the symptoms of the service-connected disabilities. In November 2018, the Veteran submitted a statement asserting that he had not been able to work a full-time job since 2016 in large part due to his service-connected insomnia which prevented him from sleeping at night. (See Statement in Support, 11/02/2018.) He also asserted that his service-connected headaches and back disability made it very difficult for him to function during the day. His claim for TDIU submitted on the same date noted that he was last employed full-time in January 2016. Therefore, the Board will consider the evidence regarding the Veteran's employability as of this date. The record shows that the Veteran has worked as a flight attendant and as a massage therapist, as well as assisting with administrative property management functions. He also has a modest side business baking pastries, although his customer base is small, and he does not make a profit. He has an associate degree in culinary arts. At the December 2018 VA examination, the examiner offered the opinion that the Veteran's service-connected headaches and low back disability rendered him unable to maintain substantially gainful employment. (See C&P Exam, 12/20/2018.) Specifically, the examiner noted that when the Veteran was experiencing a headache, he had impairment of concentration and cognitive activity. In addition, his back disability resulted in impairments in his ability to engage in prolonged sitting, standing, or walking, as well as repetitive bending and heavy lifting. This opinion was the basis for the award of TDIU effective December 2018. The Board notes that the severity of the Veteran's headache disability has not changed since 2012. The Veteran's back disability has increased in severity, as noted earlier in this decision, which would support an award of TDIU from the date of the increased rating awarded herein. The symptoms of disability which the VA examiner associated with the Veteran's low back disability difficulty sitting or standing or walking for prolonged periods has been found to have been consistent throughout the appeals period. Therefore, the Board finds that entitlement to TDIU as of April 4, 2016, the date of claim for the increased disability rating, is appropriate. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.