Citation Nr: 21065597
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 13-21 041A
DATE: October 26, 2021

ORDER

From May 20, 2009, to February 10, 2013, entitlement to an initial rating in excess of 40 percent for degenerative disc disease with spondylolisthesis is denied.

From February 11, 2013, to April 12, 2021, entitlement to a rating of 40 percent, but no greater, for degenerative disc disease with spondylolisthesis is granted.

From April 13, 2021, entitlement to a rating in excess of 40 percent for degenerative disc disease with spondylolisthesis is denied.

From May 20, 2009, to December 10, 2013, entitlement to an initial rating of 40 percent, but no greater, for right lower extremity radiculopathy is granted.

From December 11, 2013, entitlement to a rating of 40 percent, but no greater, for right lower extremity radiculopathy is granted.

From May 20, 2009, to December 10, 2013, entitlement to an initial rating of 20 percent, but no greater, for left lower extremity radiculopathy is granted.

From December 11, 2013, entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is denied.

From May 20, 2009, entitlement to a total disability rating due to individual unemployability is granted.

FINDINGS OF FACT

1. From May 20, 2009, to February 10, 2013, the Veteran's degenerative disc disease with spondylolisthesis is characterized by limitation of motion of 30 degrees or less during flareups but no ankylosis.

2. From February 11, 2013, to April 12, 2021, the Veteran's degenerative disc disease with spondylolisthesis is characterized by limitation of motion of 30 degrees or less during flareups but not ankylosis.

3. From April 13, 2021, the Veteran's degenerative disc disease with spondylolisthesis is characterized by limitation of motion of 30 degrees or less during flareups but not ankylosis.

4. From May 20, 2009, to December 10, 2013, the Veteran's right lower extremity radiculopathy is characterized by moderately severe, incomplete paralysis of the sciatic nerve.

5. From December 11, 2013, the Veteran's right lower extremity radiculopathy is characterized by moderately severe, incomplete paralysis of the sciatic nerve.

6. From May 20, 2009, to December 10, 2013, the Veteran's left lower extremity radiculopathy is characterized by moderate, incomplete paralysis of the sciatic nerve.

7. From December 11, 2013, the Veteran's left lower extremity radiculopathy is characterized by moderate, incomplete paralysis of the sciatic nerve.

8. From May 20, 2009, the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.

CONCLUSIONS OF LAW

1. From May 20, 2009, to February 10, 2013, the criteria for an initial disability rating in excess of 40 percent for degenerative disc disease with spondylolisthesis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5238-5239.

2. From February 11, 2013, to April 12, 2021, the criteria for a disability rating of 40 percent, but no greater, for degenerative disc disease with spondylolisthesis have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5238-5239.

3. From April 13, 2021, the criteria for a disability rating in excess of 40 percent for degenerative disc disease with spondylolisthesis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5238-5239.

4. From May 20, 2009, to December 10, 2013, the criteria for an initial disability rating of 40 percent, but no greater, for right lower extremity radiculopathy have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8520.

5. From December 11, 2013, the criteria for a disability rating of 40 percent, but no greater, for right lower extremity radiculopathy have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8520.

6. From May 20, 2009, to December 10, 2013, the criteria for an initial disability rating of 20 percent, but no greater, for left lower extremity radiculopathy have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8520.

7. From December 11, 2013, the criteria for a disability rating in excess of 20 percent for left lower extremity radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8520.

8. From May 20, 2009, the criteria for entitlement to a TDIU have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran has active service from July 1968 to November 1968.  

This matter is on appeal from September 2010 (back), April 2017 (radiculopathy), and February 2019 (TDIU) rating decisions.  

In April 2018, a hearing was held before the undersigned Veterans Law Judge.  

The Veteran's claims were previously remanded in June 2018 and March 2021.

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Back Rating Criteria

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).  

VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran.  In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation.  If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change.  The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.  

VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal.  See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).  Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

For rating criteria pertaining to diseases of the spine, only two Diagnostic Codes  5242 and 5243  were amended in the regulations that went into effect on February 7, 2021.  

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  38 C.F.R. § 4.71a.  Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  Id.  

Under the prior regulations, Diagnostic Code 5242 provides compensation for degenerative arthritis (also 5003).  38 C.F.R. § 4.71a.  

Effective February 7, 2021, Diagnostic Code 5242 provides compensation for degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (also, see either Diagnostic Code 5003 or 5010).  38 C.F.R. § 4.71a.  

Under the prior regulations, Diagnostic Code 5243 provides compensation for intervertebral disc syndrome.  38 C.F.R. § 4.71a.  

Effective February 7, 2021, Diagnostic Code 5243 still provides compensation for intervertebral disc syndrome.  38 C.F.R. § 4.71a.  Under the new regulations, this code is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root.  Id.  Diagnostic Code 5242 is to be assigned for all other disc diagnoses.  Id.

The General Rating Formula for Diseases and Injuries of the Spine was not changed under the new regulations.  A 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, 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.  38 C.F.R. § 4.71a.  A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, 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.  Id.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  Id.  A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine.  Id.  

The requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up.  Chavis v. McDonough, 34 Vet. App. 1, 2324 (2021).

Evaluations for intervertebral disc syndrome are to be performed either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.  38 C.F.R. § 4.71a, Note 6.  Neither provision was changed under the new regulations.  Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  38 C.F.R. § 4.71a.  A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  Id.  A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  Id.  A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  Id.

For painful motion with any form of arthritis, the Veteran is entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  The same is true for painful motion in non-arthritis contexts when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria.  DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  Such inquiry is not to be limited to muscles or nerves.  Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  DeLuca, 8 Vet. App. at 207.  

By itself, pain throughout a joint's range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59.  A VA examination must address the frequency, duration, characteristics, severity, and/or functional loss during flare-ups, based on all the evidence of record, including statements from the Veteran.  Sharp v. Shulkin, 29 Vet. App. 26, 3435 (2017).

Former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction.  The Federal Circuit has upheld the validity of this regulation.  Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339, 1349 (Fed. Cir. 2003).  As such, the Board will proceed to adjudicate the Veteran's claim.

Back Evidence

On May 20, 2009, the Veteran filed a claim of service connection for a back disorder.  In February 2013, the RO granted this claim.  The Veteran is now rated at 40 percent from May 20, 2009, at 20 percent from February 11, 2013, and at 40 percent from April 13, 2021, all ratings under Diagnostic Code 5238-5239.  Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed.  38 C.F.R. § 3.400(o).

A February 2010 private medical record indicates flexion of 50 degrees.  

An August 2010 VA back examination was conducted once month after back fusion surgery.  The examiner indicates forward flexion of 25 degrees.  The Veteran uses a walker.  There has been "[n]o incapacitation in the past year."  

In a February 2013 VA back examination, the Veteran denies flareups.  Forward flexion is 60 degrees.  The Veteran can perform repetitive-use testing with three repetitions but flexion is reduced to 55 degrees and functional loss is reflected by less movement than normal, pain, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing.  Muscle strength, senses, and reflexes are normal.  The Veteran has IVDS but no incapacitating episodes requiring bed rest over the past 12 months.  The Veteran regularly uses a brace and cane.  The Veteran is "limited to light sedentary work" because of his back disorder.  

A September 2014 private medical letter from Dr. R.H. states that the Veteran has "a rigid, fixed back with limitation of rotation, flexion anteriorly, flexion laterally, and posterior extension."  Further, the Veteran "experiences pain with anterior flexion at approximately 40 [degrees]."  

A January 2015 private medical letter states that the Veteran "suffers from unfavorable ankylosis."  Further, "[a]s a result of his spinal impairment, [the Veteran] is limited to lifting or carrying no more than five pounds" and "would most likely miss work two to three times a month due to his spinal impairment or treatment."  

The December 2015 VA back examination describes flareups characterized by "daily pain across his lower back that occurs whenever he is on his feet, with bending, lifting, climbing or with prolonged sitting, standing, walking or driving."  He experiences functional loss characterized by "decreased [range of motion]."  Forward flexion is 0 to 60 degrees.  The Veteran can perform repetitive-use testing with three repetitions, after which forward flexion is limited to 0 to 50 degrees.  The same loss in range of motion is present after repetitive-use and during flareups.  The examiner indicates "[l]ess movement than normal due to ankylosis, adhesions, etc." manifested by "[d]isturbance of locomotion" and "[i]nterference with standing."  Muscle strength is normal.  Reflexes are decreased for the ankles.  Senses are normal for the left upper thigh and left thigh/knee, but decreased for the right upper thigh, right thigh/knee, both legs/ankles, and feet/toes on the right and left.  The examiner checks a separate box to indicate that there is no ankylosis.  The Veteran regularly uses a cane and occasionally uses a walker.  His back disorder "would prevent him from doing physical work" but not "sedentary work as long as he did not have to sit for prolonged continuous periods without changing position."

In an April 2019 VA back examination, the Veteran "reports daily chronic low back pain that increases with prolonged standing, walking, repetitive bending or lifting."  Forward flexion is 0 to 70.  The Veteran can perform repetitive-use testing with three repetitions and no accompanying loss of function or range of motion after three repetitions.  The examiner indicates "[l]ess movement than normal due to ankylosis, adhesions, etc." manifested by "[d]isturbance of locomotion [and] [i]nterference with standing."  Muscle strength, reflexes, and senses are normal.  The examiner checks a separate box to indicate that there is no ankylosis.  The Veteran has IVDS but there have been no incapacitating episodes.  The Veteran regularly uses a cane.  "The veteran's service connected low back condition would impair his ability for physical work requiring prolonged standing, repetitive bending, walking or lifting."

In the April 2021 VA back examination, the Veteran describes "burning and stabbing in his hips" with ambulation.  "He requires use of a cane for ambulation" and "has hired a lawn service" since "[h]e can no longer take care of his lawn."  He uses ibuprofen and "[c]an't bend, lift, [or] reach high places."  Forward flexion is 0 to 40 degrees.  The Veteran can perform repetitive-use testing with three repetitions and no accompanying functional loss or loss in range of motion.  During flareups and with repetitive use over time, the "Veteran estimates a 50% reduction in his [range of motion]," to 20 degrees, with additional functional loss manifested by pain and lack of endurance.  These flareups occur "[o]nce or twice weekly," during which time the Veteran "will just go and lay down."  Muscle strength and senses are normal.  Reflexes are hypoactive.  Because of his back disorder, the Veteran is "[r]estricted in physically strenuous activity but ambulatory and able to carry out work of a sedentary nature, e.g., office work."

Back Analysis

1. From May 20, 2009, to February 10, 2013, entitlement to an initial rating in excess of 40 percent for degenerative disc disease with spondylolisthesis is denied

2. From February 11, 2013, to April 12, 2021, entitlement to an initial rating of 40 percent, but no greater, for degenerative disc disease with spondylolisthesis is granted

3. From April 13, 2021, entitlement to a rating in excess of 40 percent for degenerative disc disease with spondylolisthesis is denied

During the April 2018 hearing, the Veteran indicated that a rating of 40 percent from May 20, 2009, would satisfy his appeal.

From May 20, 2009, the Board finds that evidence supports an initial rating of 40 percent.  

The Court has characterized ankylosis as "immobility and consolidation of a joint due to disease, injury or surgical procedure."  See Cullen v. Shinseki, 24 Vet. App. 74, 87 n.3 (2010) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (31st ed. 2007)).  In light of this definition, an apparent contradiction in the above-cited evidence is the reference to ankylosis and spinal mobility in the same record.  For example, the September 2014 private medical letter indicates "unfavorable ankylosis" while noting only limitation of motion (not immobility) and "anterior flexion at approximately 40 [degrees]."  The January 2015 private medical letter indicates "unfavorable ankylosis," but that this would result in the Veteran only "miss[ing] work two to three times a month due to his spinal impairment or treatment."  Likewise, the December 2015 and April 2019 VA back examinations contain specific findings of no ankylosis, but also reference "[l]ess movement than normal due to ankylosis, adhesions, etc." with forward flexion of 60 and 70 degrees, respectively.  

Giving the Veteran the benefit of the doubt, the Board will interpret these findings to be consistent with range of motion of 30 degrees or less during flareups, which supports a rating of 40 percent for the period on appeal.  This evidence is consistent with the most recent April 2021 VA examination, the only one which contains the Veteran's testimony about limitation of motion during flareups.  Per that examination, the Veteran's range of motion is 20 degrees during flareups.  The Board will assume that the references to ankylosis refer to periods of very limited range motion and assign the Veteran a rating of 40 percent based on this loss of range of motion during flareups.   

The preponderance of the evidence is against a rating in excess of 40 percent based on the existence of functional ankylosis during flareups.  Rather, the evidence suggests that the Veteran's flareups characterized by limitation of motion and pain but not immobility.  In the April 2018 hearing testimony, when asked if he is ever "unable to get out of bed the entire day," the Veteran responded as follows:  "Yes, I, there's someday, I just the reason I get out, in fact I keep a urinal by my bed.  So I don't have to go all the way to the bathroom, because some days it's just too hard to get move [sic], it just aches and it gets tight and it just hurts."  Importantly, the Veteran references not "go[ing] all the way to the bathroom" and it being "hard to get move [sic]"; he does claim to be immobile.  

He later summarized such symptoms as follows: "What happens is just [sic] get so painful that I can't sit, if I'm sitting, I can't sit anymore, if I'm walking I get home as soon as I can, I just go lie down because it the only [sic] that relieves the pain."  Taken together, the evidence suggests that lying down is required to relieve the intense back pain accompanying flareups.  Lying down is not a response to spinal immobility, as reflected by the fact that during flareups it is "hard to move," but the Veteran can still "get home as soon as [he] can" to lie down.  Consistent with this, the April 2021 VA back examination describes flareup symptoms as limitation of motion (not immobility) with additional functional loss manifested by pain and lack of endurance, during which time the Veteran "will just go and lay down."  In light of these statements from the Veteran, the Board finds that preponderance of the evidence is against the existence of functional ankylosis during flareups so as to support a rating in excess of 40 percent.  

The preponderance of the evidence is also against a rating in excess of 40 percent based on the existence of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine.  For VA compensation purposes, unfavorable ankylosis is 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.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id.  

There is no evidence or argument that the Veteran's entire lumbar spine is "fixed in flexion or extension" or "in a neutral position."  The evidence of flexion of at least 20 degrees during flareups further weighs against such a finding.  There is also no evidence of ankylosis of the cervical spine or of the any of the symptoms articulated above.  For these reasons, the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's back disorder.  

Radiculopathy Rating Criteria

Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve.  38 C.F.R. § 4.124a.  Under that code, a 10 percent rating is provided for mild, incomplete paralysis.  Id.  A 20 percent rating is provided for moderate, incomplete paralysis.  Id.  A 40 percent rating is provided for moderately severe, incomplete paralysis.  Id.  A 60 percent rating is provided for severe, incomplete paralysis with muscular atrophy.  Id.  An 80 percent rating is provided for complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement is possible for muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  Id.

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.  38 C.F.R. § 4.124a.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id.  The ratings for the peripheral nerves are for unilateral involvement.  Id.

The words "slight," "mild," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.

Radiculopathy Evidence

In April 2017, the RO granted service connection for right lower extremity radiculopathy from December 11, 2013, at an initial rating of 20 percent under Diagnostic Code 8620.  Also in that decision, the RO granted service connection for left lower extremity radiculopathy from December 14, 2015, at an initial rating of 20 percent under Diagnostic Code 8620.

The Board has jurisdiction to consider the proper rating for radiculopathy as part of an appeal of an increased rating for a low back disability rating.  Chavis v. McDonough, 34 Vet. App. 1, 33 (2021) ("VA's consideration of ... neurologic manifestations as part of the claim seeking higher compensation for the lumbar spine disability is ... consistent with VA's duty to sympathetically read pro se pleadings.").  As service connection for radiculopathy was granted as part of an increased rating appeal for the Veteran's low back disorder, the Board shall consider the period on appeal as extending back to May 20, 2009.

A May 2009 VA medical record indicates right S1 radiculopathy.  

A July 2009 private medical record describes "severe right lower extremity pain with standing and walking" with "numbness and tingling."  

A July 2009 private electrodiagnostic report indicates right lower extremity radiculopathy only.  

A July 2009 VA medical record indicates "right L5 radiculopathy to foot."  He further describes cramping and with "numbness and tingling in the top of his right foot."  The record also indicates that the Veteran was able to play golf after using a TENS unit.  

A July 2009 private medical letter describes "right thigh pain" that "runs down the posture aspect of the right buttock and leg causing numbness and tingling and pins and needle sensation aggravated by prolonged sitting, standing, [and] walking ...."  This record further indicates "right L5-S1 radiculopathy."  

A January 2010 private medical record describes "some radiation into his right thigh and post calf" that is characterized by "sharp discomfort."  

A February 2010 private medical letter indicates "severe lower back pain with radiculopathy in his right lower extremity."  

A February 2010 private medical record describes low back pain "and right sided buttocks and right anterior thigh pain."  

In a February 19, 2010 private medical record, the Veteran "notes that his right lower extremity pain has increased over the past few days" due to "an increase in walking" and "a very hard time with any amount of standing."  

In a March 2010 private medical record, the Veteran "notes that he continues to feel a lot of pain that travels into his right buttocks region and can get so bad that he has to sit down."  

In a March 2010 private medical record, the Veteran notes low back pain "that travels into the front of his right anterior thigh."  

In a March 2010 private medical record, the Veteran describes how "[h]is right foot has gone numb a few times since [his] last visit."  

A May 2010 private medical record states that the Veteran "complains of severe pain radiating from his buttock down the posterior aspect of his legs and the lateral aspect of the three toes."

A June 2010 private medical record indicates "[lower back pain] into R > L leg."  

An August 2010 VA back examination indicates that the Veteran "occasionally gets some right leg pain ...."  

A July 2011 private medical letter indicates "severe lower back pain with radiculopathy into his right lower extremity."  

In the February 2013 VA back examination, the Veteran describes "some radicular pain in the right leg."  Notwithstanding, the examiner concludes that the Veteran does not have radiculopathy.  

An October 16, 2013 private medical record checks boxes to indicate that the Veteran has right lower extremity radiculopathy of overall "moderate" severity.  Left lower extremity radiculopathy is not indicated.  

A September 5, 2014 private medical letter from Dr. R.H. indicates lower extremity pain that "radiates into both lower extremities, but particularly so on the left side."     

A January 2015 private medical record indicates "moderate radiculopathy in the right lower extremity and mild radiculopathy in the left lower extremity."  

The December 2015 VA back examination indicates radiculopathy.  The right side displays overall moderate severity with severe intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness.  The left side displays overall mild severity with severe intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness.  There is no constant pain for either side.  

In the April 2013 hearing, the Veteran describes flareups with tingling and swelling after extended periods of walking, after which the Veteran needs to sit down until the symptoms go away.  The Veteran argues that his symptoms have been the same for the entire period on appeal.  

The April 2019 VA back examination indicates radiculopathy.  For the right lower extremity, overall severity is moderate with mild constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness.  For the left lower extremity, overall severity is moderate with mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness.  

In an August 2019 VA medical opinion, an examiner concludes that as of June 22, 2010, "[i]t would be more likely than not that this veteran had [bilateral] radiculopathy at the time of this examination and would have been likely been considered moderate to severe in nature during this time period."  

The April 2021 VA back examination indicates that there is right lower extremity radiculopathy but no left lower extremity radiculopathy.  For the right lower extremity, overall severity is not indicated.  There is no constant pain, no mild intermittent pain, no paresthesias and/or dysesthesias, and no numbness.

RLE Radiculopathy Analysis

4. From May 20, 2009, to December 10, 2013, entitlement to an initial rating of 40 percent, but no greater, for right lower extremity radiculopathy is granted

5. From December 11, 2013, entitlement to a rating of 40 percent, but no greater, for right lower extremity radiculopathy is granted

During the April 2018 hearing, the Veteran indicated that a rating of 20 percent from May 20, 2009, would satisfy his appeal for right lower extremity radiculopathy.  

For the right lower extremity, the evidence supports an initial rating of 40 percent for the period on appeal.  On the day that the Veteran filed his claim, a VA medical record indicated right lower extremity radiculopathy.  In July 2009, his symptoms were first characterized as "severe" and exacerbated "with standing and walking."  In March 2010, there is the first report of the Veteran having "to sit down" because of an exacerbation of radicular pain in the right lower extremity.  Consistent with the evidence of such flareups, the December 2015 VA back examination indicates severe intermittent pain associated with the right lower extremity.  In the April 2018 hearing transcript, the Veteran states that he still experiences these episodes, which have been present for the entire period on appeal.  

This evidence of difficulty walking associated with right lower extremity radiculopathy is consistent with moderately severe, incomplete paralysis of the sciatic nerve.  Difficulty walking is clearly a symptom that is more than "wholly sensory."  Such symptoms support an initial rating of 40 percent for the period on appeal.  

The preponderance of the evidence is against a rating in excess of 40 percent.  There is no evidence of muscular atrophy or complete paralysis with no active movement possible of muscles below the knee.  Rather, the Veteran can still move his right leg to walk, albeit for only for short periods due to pain.  For these reasons, the preponderance of the evidence is against a rating in excess of 40 percent based on the existence of severe, incomplete paralysis with muscle atrophy or complete paralysis.  

LLE Radiculopathy Analysis

6. From May 20, 2009, to December 10, 2013, entitlement to an initial rating of 20 percent, but no greater, for left lower extremity radiculopathy

7. From December 11, 2013, entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy

During the April 2018 hearing, the Veteran indicated that a rating of 20 percent from May 20, 2009, would satisfy his appeal for left lower extremity radiculopathy.

For left lower extremity radiculopathy, the evidence is consistent with an initial rating of 20 percent.  A May 2010 private medical record indicates "severe pain radiating" into the bilateral lower extremities.  A June 2010 private medical record references back pain radiating into the lower extremities, with pain on the right side greater than on the left.  An August 2019 VA medical examiner reviewed this evidence and concluded that "[i]t would be more likely than not that this veteran had [bilateral] radiculopathy at the time of this examination and would have been likely been considered moderate to severe in nature during this time period."  This evidence supports the existence of moderate, incomplete paralysis so as to support an initial rating of at least 20 percent.  

The preponderance of the evidence is against an initial rating in excess of 20 percent because the evidence supports a finding that symptoms associated with the left lower extremity are wholly sensory.  Importantly, for the period on appeal there is no specific reference to functional loss that is specific to left lower extremity radiculopathy alone.  By contrast, there are numerous other records referencing difficulty walking due to right lower extremity radiculopathy.  In light of the abundant evidence of functional loss associated with the right leg, the absence of symptoms relating to the left lower extremity is noteworthy.  This absence of analogous records describing functional loss relating to left lower extremity radiculopathy gives rise to a legitimate negative inference that there is no significant functional loss associated with the left lower extremity.  AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013).  Rather, in considering the evidence as a whole, the Board finds that the severe, apparently intermittent pain associated with the left lower extremity is wholly sensory and does not by itself impact the Veteran's ability to walk.  Since these symptoms are wholly sensory, a rating in excess of 20 percent is not available.  

In reaching this conclusion, the Board has considered the April 2018 hearing testimony.  However, in addressing the Veteran's symptoms, the attorney only took testimony specific to the right leg ("Okay, so let's talk about your right lower extremity.").  Further, in describing his symptoms, the Veteran only references the pain, numbness, tingling, and functional loss in his right leg.  The Veteran makes no specific reference to current or prior symptoms that are specific to his left leg alone.  The Veteran is considered competent to testify regarding functional loss associated with left lower extremity radiculopathy because such symptoms are within the knowledge and personal observations of lay witnesses.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  But the April 2018 hearing transcript does not articulate functional loss specific to left leg radiculopathy, and therefore does not support the existence of symptoms regarding functional loss that are not wholly sensory.  

For these reasons, the preponderance of the evidence is against an initial rating in excess of 20 percent for left lower extremity radiculopathy.  

TDIU

An award of TDIU "does not require proving 100 percent unemployability."  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  Rather, an award of TDIU requires that the claimant show an inability "to secure and follow a substantially gainful occupation by reason of service-connected disabilities."  38 C.F.R. § 4.16(b).  When making this determination, "the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (internal citations and quotations omitted).  Additionally, the Board "must take into account the individual veteran's education, training, and work history" but "may not consider [nonservice]-connected disabilities or advancing age."  Id. (internal citations omitted).

The phrase "substantially gainful employment" has an economic component and a non-economic component.  Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  "The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person."  Id. 

The noneconomic component goes to the veteran's individualized ability to secure and follow substantially gainful employment.  Ray, 31 Vet. App. at 73.  Attention must be given to the following:

	the veteran's history, education, skill, and training;

	whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy).  Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, and auditory and visual limitations;

	whether the veteran has the mental ability to perform the activities required by the occupation at issue.  Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.

Id.  These factors do not constitute a checklist; rather, "discussion of any factor is only necessary if the evidence raises it."  Id.  

When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  A claim for a TDIU is a claim for an increased rating.  Dalton v. Nicholson, 21 Vet. App. 23, 3132 (2007).  The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof."  38 U.S.C. § § 5110(a).  This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1).  

An exception to that rule regarding increased ratings applies to circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation.  If an increase in disability occurred one year prior to the claim, the increase is effective as of the date the increase is "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim.  If the increase occurred after the date of claim, the effective date is the date of increase.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Dalton, 21 Vet. App. at 3132.

VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a).  The same is true for disabilities resulting from common etiology or a single accident.  

TDIU Evidence

The Veteran has been awarded TDIU from November 1, 2013.  He asserts that he has been unable to work due to a combination of his low back and right knee impairment and seeks an earlier effective date or this award.  

The Veteran was last employed in November 2002, many years prior to this appeal, and thus the earliest available effective date is May 20, 2009, based on the filing date of this claim.   

The Veteran meets the schedular criteria for TDIU for the period on appeal.  From May 20, 2009, to March 17, 2011, the disorders for which service connection is established are degenerative disc disease with spondylolisthesis at 40 percent, right lower extremity radiculopathy at 40 percent, left lower extremity radiculopathy at 20 percent, and right knee strain at 10 percent.  These values give a combined disability rating of 80 percent.  For this period, the Veteran meets the schedular criteria for TDIU.  

From March 18, 2011, to September 11, 2012, the disorders for which service connection is established are degenerative disc disease with spondylolisthesis at 40 percent, right lower extremity radiculopathy at 40 percent, left lower extremity radiculopathy at 20 percent, and right knee strain at 20 percent.  With the bilateral factor, the Veteran's radiculopathy disorders have a combined rating of 57 percent.  These values give a combined disability rating of 80 percent.  For this period, the Veteran meets the schedular criteria for TDIU.

From September 12, 2012, to October 31, 2013, the Veteran has a combined rating of 100 percent due to convalescence.  38 C.F.R. § 4.30.  

In a May 2009 VA medical record, the Veteran indicates that he last worked full time in 2002, last worked part time in 2003 as a "greens keeper," and is receiving SSA disability benefits.  

An August 2010 VA back examination states that the Veteran "[c]annot function physically or [perform] any work at this time" and "has been disabled for 10 to 12 years."  

In his January 2012 TDIU application, the Veteran indicates that he last worked in 2002.  His education consists of two years of basic college courses.  

In a May 2012 VA general examination, the Veteran explains "that he retired at age 50 due to his back and knees and receives SSD."  He further states that he "work[ed] at manufacturing jobs after the military and at a golf course."  The examiner concludes that the Veteran is not precluded from sedentary work.  

Per the February 2013 VA back examination, the Veteran is "limited to light sedentary work" because of his back disorder.

In the April 2018 hearing, the Veteran states that he has two years of college but no degree.  He last worked in 2002 as a greens keeper at a golf course.  He "took the job because [he] could ride in a golf cart and [he] was trying to see just what [his] body would allow [him] to do."  The Veteran states that he cannot work because of his back disorder and right knee disorder.  His two other major jobs between 1968 and 2002 were in manufacturing.  

A September 2014 private medical letter from Dr. R.H. states that the Veteran "most recently [did] work as a green keeper which did involve a significant amount of lifting and bending, but ultimately he had to stop that type of work."  

The January 2016 VA scars examination indicates that the Veteran's scars do not impact his ability to work.  

In a July 2019 statement, the Veteran indicates that he did not work from May 20, 2009 to December 14, 2015, because of issue with his back disorder and right knee disorder.  He further states that he could not "hold any kind of job that required any substa[ntial] sitting, standing, lifting or being on a ladder ...."  He also experiences difficulties "driving a car for any length of time."

TDIU Analysis

8. From May 20, 2009, entitlement to a total disability rating due to individual unemployability

The Board finds that the Veteran's service-connected disorders alone render him physically unable to work.  Since leaving service, the Veteran only worked in manufacturing and landscaping.  His last landscaping position involved minimal physical activity, in that per his hearing testimony he primarily rode around in a golf cart.  But it does not appear that he could return to that occupation, in light of the consistent evidence that he experiences difficulty driving and pain increases in his back and right leg pain when sitting for extended time periods.  

As a finder of fact, the Board concludes that the Veteran's work history, education, and difficulties sitting render him unable to engage in substantially gainful employment that is sedentary in nature.  As described, he has worked in non-sedentary positions for his entire adult life.  He has two years of basic college but no degree, making a desk job unlikely.  Further, his service-connected disorders have worsened to the point that he could no longer return to his one primarily sedentary work position at the golf course due to likely difficulties driving.  

For these reasons and in light of the evidence, the Board finds that the Veteran's service-connected disorders alone render him unable to engage in substantially gainful occupation.  From May 20, 2009, entitlement to TDIU is warranted.    

 

 

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Cannon, Brian

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.