Citation Nr: 21066756 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-27 701 DATE: November 2, 2021 ORDER An initial rating in excess of 20 percent for a lumbar spine disability is denied. An initial rating of 20 percent, but no higher, for radiculopathy of the right lower extremity is granted. REMANDED Entitlement to service connection for Hepatitis C is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), including on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The evidence fails to show flexion of the lumbar spine limited to 30 degrees or less, ankylosis, or incapacitating episodes. 2. Throughout the rating period on appeal, the Veteran's right lower extremity radiculopathy has been manifested by moderate, incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for an initial rating of 20 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.120, 4.123, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1966 to September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for Hepatitis C, granted service connection for lumbar spine degenerative disc disease L2-S1 with lumbar disc herniation at L3-S1, post laminectomy (lumbar spine disability) and assigned a 20 percent disability rating, and granted service connection for right lower extremity radiculopathy and assigned a 10 percent rating, effective October 3, 2012, respectively. These matters were last before the Board in April 2021, at which time they were remanded for additional evidentiary development. While in remand status, in August 2021 rating decisions, the RO granted service connection for hypothyroidism and posttraumatic stress disorder (PTSD). Thus, these issues are no longer in appellate status. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, VA examinations in August 2013, November 2019, and July 2021 indicate that the Veteran's lumbar spine and radiculopathy disabilities impact his ability to work. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) ("[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU.") 1. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disabilities of the lumbar spine are rated under section 4.71a for the musculoskeletal system. The Veteran's lumbar spine disability is rated 20 percent disabling, effective October 3, 2012, under Diagnostic Code (DC) 5242, which applies the General Rating Formula for the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula for the Spine, a 20 percent evaluation is warranted where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Alternatively, a lumbar spine disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a 20 percent evaluation requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires treatment and bed rest prescribed by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). Moreover, per revisions to the rating schedule made effective February 7, 2021, Diagnostic Code 5243 is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign Diagnostic Code 5242 for all other disc diagnoses. The revisions did not alter the General Rating Formula for diseases and injuries of the spine and have no material consequence on the facts of this case. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In the present case, the Veteran underwent a VA examination in August 2013, at which time he was assessed with lumbar spine degenerative disc disease at L2-S1 and lumbar disc herniation at L3- S1. Range of motion findings revealed flexion to 65 degrees with pain. After repetitive use testing, flexion ended at 45 degrees. Physical examination revealed tenderness to palpation over the entire lumbar spine and paraspinal muscles. He was not assessed with IVDS of the thoracolumbar spine at that time. The Veteran's private treatment records reveal complaints of pain, reduced range of motion, and trouble bending. The Veteran was afforded a VA examination in November 2019, at which time he was assessed with degenerative disc disease of the lumbar spine, status post laminectomy with fusion, with residual pain. Range of motion testing revealed forward flexion to 60 degrees. There was no additional loss of function or range of motion after repetitive use testing. There was no ankylosis of the spine. The examiner assessed the Veteran with IVDS of the thoracolumbar spine but indicated he did not require bed rest and treatment by a physician in the past 12 months. The Veteran ambulated with a cane. Pain was noted with weight-bearing and passive range of motion. There was no pain when in non-weight bearing status. Flare-ups were denied. Lastly, the Veteran underwent a VA examination in July 2021. Active range of motion revealed forward flexion to 60 degrees. Passive range of motion revealed forward flexion to 60 degrees. There was evidence of pain in active and passive range of motion. There was no additional loss of function or range of motion loss after repetitive use testing. The Veteran reported flare-ups of pain. During a flare-up, the Veteran's forward flexion ended at 45 degrees. There was no ankylosis of the spine. The examiner assessed the Veteran with IVDS of the thoracolumbar spine but indicated that he did not require bed rest and treatment by a physician in the past 12 months. After a review of the evidence, the Board finds that a rating in excess of 20 percent is not warranted throughout the rating period on appeal for the Veteran's lumbar spine disability. In this regard, the evidence reveals that the Veteran's forward flexion ended at 45 degrees, at its worst. There is no evidence that the Veteran had flexion of the thoracolumbar spine limited to 30 degrees or less. Moreover, there is no evidence that the Veteran had ankylosis of the spine. Lastly, there is no evidence of intervertebral disc syndrome with incapacitating episodes of at least four weeks within a 12-month period to warrant a 40 percent rating or higher under 38 C.F.R. § 4.71a, DC 5243. In sum, with flexion beyond 30 degrees, no ankylosis, and no incapacitating episodes, a rating in excess of 20 percent for the Veteran's lumbar spine disability is not warranted. See 38 C.F.R. § 4.71a. 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity In the present case, the Veteran has been assigned a 10 percent rating, effective October 3, 2012, for radiculopathy of his right lower extremity. Pursuant to Diagnostic Code 8520, a maximum 80 percent rating is assigned for 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. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; and a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A note to 38 C.F.R. § 4.124a states that the term "incomplete paralysis," where involving peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When peripheral nerve 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 bilateral, combine with application of the bilateral factor. The words "mild," "moderate," and "severe" are not defined in the above rating criteria. 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. Turning to the evidence of record, the Veteran underwent a VA examination in August 2013, at which time he was assessed with right lower extremity radiculopathy. His pain was noted as moderate and numbness as mild. The examiner indicated that he had mild radiculopathy. The Veteran was afforded a VA examination in November 2019. His right lower extremity radiculopathy had moderate pain and mild paresthesias and/or dysesthesias and numbness. The examiner noted that he had mild, incomplete paralysis of the sciatic nerve. A simultaneous VA examination of the lumbar spine was performed, where the examiner indicated the Veteran's radiculopathy was moderate. Lastly, the Veteran underwent a VA examination in July 2021, at which time the examiner assessed him with moderate radiculopathy of the right lower extremity. He indicated that he had moderate pain and paresthesias. Moreover, he characterized his sciatic nerve damage as moderate, incomplete paralysis. The Veteran's private treatment records reveal his ongoing complaints of right leg pain. After a review of the evidence, the Board finds that a rating of 20 percent, but no higher, is warranted throughout the rating period on appeal for the Veteran's right lower extremity radiculopathy. In this regard, the August 2013 VA examination noted that the Veteran had moderate pain. Moreover, the November 2019 and July 2021 VA examiners indicated that the Veteran's radiculopathy was moderate in overall severity. Although the Veteran complained of pain, numbness, and paresthesias throughout the rating period on appeal, there is no indication or evidence that the Veteran had moderately severe, incomplete paralysis, of his sciatic nerve to warrant a still-higher rating. Accordingly, the Board finds that a rating of 20 percent is warranted throughout the rating period on appeal for the Veteran's right lower extremity radiculopathy. REASONS FOR REMAND 1. Entitlement to service connection for Hepatitis C is remanded. Throughout the rating period on appeal, the Veteran has been assessed with Hepatitis C and asserts it was incurred in service, including due to his conceded Agent Orange exposure. The Veteran submitted a statement in November 2013 and indicated that he developed Hepatitis C after stepping on a sharp object in Vietnam or due to use of illegal substances in Vietnam. The Veteran submitted a December 2015 letter from W.S., M.D. Dr. W.S. indicated that he had been the Veteran's treating healthcare provider since June 1983. He reviewed his service-treatment records and concluded that the Veteran continued to suffer from Hepatitis C secondary to a blood transfusion that he received while in the military. Pursuant to the Board's remand instructions, a VA examination was performed in June 2021. The examiner indicated that medical literature did not reveal that exposure to Agent Orange caused Hepatitis C. The examiner indicated that the etiology of Hepatitis C is multifactorial and the major risk factors included blood transfusions. The examiner was asked to review Dr. W.S.'s statement but indicated that she was an independent medical provider and could not comment on the provider's statement. After a review of the evidence, the Board finds that the June 2021 opinion is insufficient to determine the present claim. In this regard, Dr. W.S. has asserted that the Veteran underwent a blood transfusion in service. However, the June 2021 examiner failed to acknowledge or discuss this statement. Given the procedural history and the complexity of this matter, the Board finds that a medical opinion by an infectious disease specialist is warranted on remand. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). In the present case, VA examinations in August 2013, November 2019, and July 2021 indicate that the Veteran's lumbar spine and radiculopathy disabilities impact his ability to work. A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. Lastly, the Board notes that from July 12, 2021, the Veteran meets the schedular requirements for entitlement to a TDIU. However, the Veteran's combined disability rating prior to this date is less than 70 percent. Thus, he does not meet the threshold requirement for a TDIU. Nevertheless, VA's policy is to rate totally disabled all veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Accordingly, the Board finds that this matter should be referred for extraschedular consideration for the period prior to July 12, 2021. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from June 2021 to the present. 2. Forward the claims file, including a copy of this remand, to an infectious disease specialist to determine the etiology of the Veteran's Hepatitis C. The claims file, including a copy of this remand, must be reviewed and such review should be noted in the examination report. A VA examination is only necessary if deemed so by the examiner. The examiner should respond to the following: Is it at least as likely as not (probability of at least 50 percent) that the Veteran's Hepatitis C was incurred in and/or otherwise etiologically related to his period of active service, including his conceded exposure to Agent Orange? The examiner must discuss Dr. W.S.'s December 2015 statement indicating that the Veteran underwent a blood transfusion in service and the Veteran's November 2013 statement that he developed Hepatitis C after stepping on a sharp object or due to illegal substances in Vietnam. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 3. Provide the Veteran with notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with a VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that he supply the requisite information 4. Thereafter, refer the claim for a TDIU to the Director, Compensation Service for the period prior to July 12, 2021, and notify the Veteran of such action. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.