Citation Nr: 21066387 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 18-00 311A DATE: October 29, 2021 ORDER A rating in excess of 20 percent for the Veteran's service-connected lumbar spine degenerative arthritis (back condition) is denied. A rating in excess of 20 percent for right lower extremity radiculopathy is denied. A rating in excess of 20 percent for left lower extremity radiculopathy is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The probative evidence of record, including several medical examinations, does not support a finding that the Veteran's forward flexion of the thoracolumbar spine was limited to 30 degrees or less, even when factoring in flare-ups and repetitive use over time. Additionally, the evidence of record does not support a finding that the Veteran had ankylosis of the thoracolumbar spine, nor did he experience any incapacitating episodes due to his Intervertebral Disc Syndrome (IVDS). 2. The probative evidence of record, including several medical examinations, support a finding that the Veteran only had moderate incomplete paralysis of the bilateral lower extremities. 3. The probative evidence of record, including several medical examinations and the Veteran's own statements, support a finding that the Veteran would be able to obtain sedentary employment during the period on appeal. Additionally, the record indicates that the Veteran is currently employed. CONCLUSIONS OF LAW 1. The criteria have not been met for a disability rating in excess of 20 percent for a service-connected back condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code (DC) 5235-5243. 2. The criteria have not been met for a disability rating in excess of 20 percent for a service-connected right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.71a, 4.124a, DC 5242-5243, 8520. 3. The criteria have not been met for a disability rating in excess of 20 percent for a service-connected left lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.71a, 4.124a, DC 5242-5243, 8520. 4. The criteria have been met for a TDIU rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1963 to November 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was before the Board in September 2019 and March 2021 and was remanded for further development. Increased Rating 1. A rating in excess of 20 percent for the Veteran's service-connected back condition is denied. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's service-connected back and neck conditions are currently rated under DC 5235-5243. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. 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. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, for 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 rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. Id. at Note (2). 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. Id. All measured ranges of motion are to be rounded to the nearest five degrees. Id. at Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Evaluations for IVDS 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. 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. Factual Background The Veteran submitted a January 2016 disability benefits questionnaire (DBQ) during which the conducting physician diagnosed degenerative arthritis of the spine. On physical examination, range of motion tests found limitation of flexion to 45 degrees, extension was limited to 20 degrees, right lateral flexion was limited to 25 degrees, left lateral function was limited to 30 degrees, right and left lateral rotation were limited to 30 degrees. Pain was noted on examination and did not result in functional loss. There was no evidence of pain with weight bearing nor evidence of tenderness or pain on palpation. Repetitive testing yielded no change in motion. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time but that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner opined that pain, weakness, fatigability, or incoordination from repetitive use over time would not limit function of the Veteran's back. The examiner did not indicate whether the examination was taking place during a flare-up. The examiner noted muscle spasm and guarding in the back which resulted in abnormal gait or abnormal spinal contour. There was no ankylosis of the spine. Although the Veteran had IVDS, the examiner noted no incapacitating episodes in the prior 12 months. The Veteran submitted a November 2019 DBQ during which range of motion tests found limitation of flexion to 70 degrees and extension and right and left lateral rotation and flexion to 10 degrees each. Repetitive testing yielded no change in motion. The conducting physician indicated that the Veteran was not being examined immediately after repetitive use over time or during a flare-up but that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and/or a flare-up. The examiner opined that pain, weakness, fatigability, or incoordination from repetitive use over time or during a flare-up would not limit function of the Veteran's back. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Although the Veteran had IVDS, the examiner noted no incapacitating episodes in the prior 12 months. There was no evidence of pain on passive range of motion testing or evidence of pain on non-weight bearing. There was no ankylosis of the spine. The Veteran was afforded a June 2021 VA examination during which range of motion tests found limitation of flexion to 55 degrees, extension was limited to 20 degrees, and right and left lateral rotation and flexion to 30 degrees each. The Veteran reported daily moderately severe flare-ups during which he cannot walk far or lift anything heavy. Passive range of motion testing was performed which resulted in the same range of motion as active. Repetitive testing yielded no change in motion. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time or during a flare-up but that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and/or a flare-up. The examiner opined that pain, weakness, fatigability, or incoordination from repetitive use over time or during a flare-up would not limit function of the Veteran's back. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Although the Veteran had IVDS, the examiner noted no incapacitating episodes in the prior 12 months. There was no evidence of pain on passive range of motion testing or evidence of pain on non-weight bearing. There was no ankylosis of the spine. Analysis The Board finds that the evidence of record during the period on appeal does not support a finding that the Veteran's forward flexion of the thoracolumbar spine was limited to 30 degrees or less, even when factoring in the Veteran's flare-ups and repetitive use over time. Additionally, the evidence of record does not support a finding that the Veteran had ankylosis of the thoracolumbar spine. The Board also finds that the evidence of record indicates that the Veteran did not experience any incapacitating episodes due to his IVDS. As such, the Board finds a rating in excess of 20 percent for the Veteran's service-connected back condition is not warranted. 2. A rating in excess of 20 percent for right lower extremity radiculopathy is denied. 3. A rating in excess of 20 percent for left lower extremity radiculopathy is denied. Legal Criteria Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. The Veteran has been assigned a rating for his left lower extremity radiculopathy under DC 8520. 38 C.F.R. § 4.124a. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis and a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve, and a 60 percent rating is applicable if the incomplete paralysis is severe with marked muscle atrophy. Id. An 80 percent rating is available for complete paralysis evidenced by the foot dangling and dropping, no possible active movement below the knee, and weakened or lost flexion of the knee. Id. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board notes that words such as mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Factual Background The Veteran submitted a January 2016 DBQ during which the conducting physician indicated that the Veteran had mild constant pain and moderate intermittent pain, paresthesias/ dysesthesias, and numbness of the bilateral lower extremities due to radiculopathy. The Veteran submitted a November 2019 DBQ during which the conducting physician indicated that the Veteran had no constant pain, paresthesias and/or dysesthesias of the bilateral lower extremities and no numbness or intermittent pain of the left lower extremity. The physician indicated that the Veteran had severe intermittent pain of the right lower extremity and mild numbness of the right lower extremity. The examiner indicated that the Veteran had only mild radiculopathy of the right lower extremity. The Veteran was afforded a June 2021 VA examination during which he reported that walking for 50 yards will cause him to develop cramping on both hips which radiate to the buttocks down to the feet. The conducting physician indicated that the Veteran did not display any constant pain, paresthesias and/or dysesthesias and only mild intermittent pain and numbness of the bilateral lower extremities. The physician further indicated that the Veteran did not have any other signs or symptoms of radiculopathy. Analysis There is no indication of record that the Veteran has more than moderate paralysis, or a complete paralysis of the sciatic nerve. Although the November 2019 physician indicated that the Veteran had severe intermittent pain in the right lower extremity, they also opined that the Veteran only had mild radiculopathy of the right lower extremity. Furthermore, the most recent June 2021 VA examination indicates that the Veteran only had mild intermittent pain of the right lower extremity. The evidence reflects the Veteran has only moderate paralysis of the sciatic nerve. As the preponderance of the evidence is against an increased rating, there is no doubt to be resolved, and the claim therefore must be denied. 38 U.S.C. § 5107(b). 4. A TDIU rating is denied. Legal Criteria It is the established policy of VA that all Veterans who are unable to obtain and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray, 31 Vet. App. 58 (2019). In assessing the Veteran's ability to obtain and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added.) Eligibility The Veteran therefore does not meet the criteria for a TDIU on a schedular basis, as he does not have a single disability rated at 60 percent or a combined rating of 70 percent. However, the Veteran reported in his application for increased compensation based on unemployability that, due to his service-connected conditions, he was unable to gain employment, which raises the issue of eligibility for a TDIU rating on an extraschedular basis. See 38 C.F.R. § 4.16 (b). Factual Basis The Veteran reported on his TDIU application that he worked as a satellite television installer from September 2010 to September 1, 2015 when his service-connected disabilities prevented him from working. The Veteran also reported that he earned a bachelor's degree in 1988. The Veteran reported on his 21-4192 form that he resigned because he no longer could perform physical requirements of his job due to disability. The physical requirements of his job included carrying and positioning ladders, digging, squatting, running cable and carrying 50-pound bags of concrete. The conducting physician explained at an October 2010 VA examination that the Veteran's back condition limits his bending, twisting, and lifting and that he is unable to sit, stand or walk for prolonged periods. The Veteran reported at an August 2012 medical treatment that he cannot walk or stand for longer than 15 minutes and that the longer he spends on his feed, the more the pain grows. The Veteran explained that sitting is the only way to relieve his pain and that if he continues walking, his right foot gives out. The Veteran reported that it is not possible to perform sustained work requiring him to be on his feet and that he cannot carry weight for distances over 50 feet. The Veteran submitted a January 2016 DBQ during which the conducting physician opined that the Veteran's service-connected bilateral lower extremity radiculopathy impacts his ability to walk, stand, and carry a load. The conducting physician opined at a November 2019 VA examination that the Veteran's back condition would prevent him from obtaining physical employment requiring repetitive bending and lifting of heavy objects. However, the physician opined that sedentary employment would not be impacted. The Veteran submitted a June 2021 DBQ during which the conducting physician indicated that the Veteran is currently working in insurance sales. The physician opined that the Veteran's service-connected disabilities would cause the Veteran to have difficulty performing activities involving walking for extended periods of times, and difficulty bending forward and lifting heavy items weighing greater than 35 pounds. The physician opined that the Veteran can perform other sedentary or like tasks. Analysis The probative evidence of record including the Veteran's competent and credible statements along with the medical examinations indicate that the Veteran would not be able to obtain employment requiring physical activity. What remains for consideration is whether the Veteran can obtain sedentary employment. In a January 2020 decision, the Court noted that VA has not explicitly defined the meaning of "sedentary employment" and held that, until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Withers v. Wilkie, No. 16-1543 (Vet. App. Aug. 10, 2018) at 11. This is of relevance here, given the reference by the VA examiner to the Veteran's capacity for "sedentary work." Here, the probative evidence of record does not support a finding that the Veteran would not be able to obtain sedentary employment, meaning that he is capable of securing and following a substantially gainful occupation provided that it does not involve walking for extended periods of times, or repetitive bending and lifting of objects weighing more than 35 pounds. While the Veteran is unable to walk for extended periods due to pain in his lower back and extremities, the record indicates that sitting relieves his pain. The Veteran's TDIU application indicates that he received a bachelor's degree in 1988. Finally, the Board finds that the Veteran is capable of obtaining sedentary employment because the June 2021 DBQ indicates that the Veteran is currently employed as an insurance salesman. Further, there is no indication in the record that his current employment as an insurance salesman constitutes marginal employment. (Continued on the next page) Accordingly, the Veteran's claim for a TDIU rating must be denied. DAVID M. GRATZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.