Citation Nr: 21072309 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-32 214 DATE: December 2, 2021 ORDER A disability rating greater than 40 percent for chronic lumbar strain with degenerative changes is denied. A disability rating greater than 10 percent for left lower extremity radiculopathy is denied. A disability rating greater than 10 percent for right lower extremity radiculopathy is denied. REMAND A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's lumbar spine disability is not manifested by ankylosis of the thoracolumbar spine. 2. The Veteran's left lower extremity sciatic nerve radiculopathy is not manifested by moderate incomplete paralysis. 3. The Veteran's right lower extremity sciatic nerve radiculopathy is not manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for lumbar strain with degenerative disc disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a disability rating greater than 10 percent for left leg radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, DC 8520. 3. The criteria for a disability rating greater than 10 percent for right leg radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Air Force from July 1971 to April 1974. The Veteran died in April 2018. His surviving spouse timely filed a request for substitution and is now the Appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision. The Appellant filed a request for substitution in January 2019. In April 2020, the Appellant's request for substitution was granted and the Board now has jurisdiction over the claim. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Chronic Lumbar Strain The Veteran was in receipt of a 40 percent rating for his chronic lumbar strain. The Appellant contends that the Veteran was entitled to an increased rating. DC 5242 is part of the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating under that formula is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating under that formula is assigned when forward flexion of the lumbar spine is 30 degrees or less, or when there is favorable ankylosis. Generally, ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). Higher ratings of 50 percent or 100 percent require unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, respectively. In this case, a rating higher than 40 percent rating is not warranted. A November 2013 VA examination documented forward flexion of 40 degrees, even when accounting for pain and repetitive testing. DeLuca v. Brown, 8 Vet. App. 202 (1995). The examiner found that the Veteran's forward flexion of the lumbar spine would be limited to 40 degrees, an inability to stand up straight, and interference with sitting, standing and/or weight-bearing during flare-ups. There was no finding of ankylosis. The above findings illustrate that a rating greater than 40 percent is not warranted under DC 5242. Here, in order to obtain a rating greater than 40 percent there needs to be a showing of ankylosis of the spine. The record is silent for any showing of ankylosis. Therefore, the Veteran's present 40 percent rating is proper. In making the above determinations, the Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holding in DeLuca. Further, the Board notes that the General Rating Formula contemplates separate ratings for neurologic abnormalities. However, the Veteran is in receipt of service connection for radiculopathy of the left and right lower extremity secondary to his lumbar spine disorder. Otherwise, consistent with several prior VA examinations of record, the November 2013 VA examination noted no neurologic abnormalities or findings related to a thoracolumbar spine condition. In addition, there is no indication that the Veteran experiences incapacitating episodes as defined in 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). While the Appellant may believe that the Veteran has experienced incapacitating episodes, she is not competent to provide a diagnosis in this case. The issue is medically complex, and he has not shown the specialized medical education or knowledge to diagnose incapacitating episodes of the thoracolumbar spine. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, a rating under that formula is not warranted. Lower Extremity Radiculopathy The Veteran was assigned a 10 percent rating for both right and left radiculopathy of the sciatic nerve under 38 C.F.R. § 4.124a, DC 8520. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The terms "moderate" and "moderately severe" are not defined in the VA Schedule for Rating Disabilities, and the use of such terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of the level of paralysis present. All evidence must be evaluated in arriving at a decision regarding an increased rating. A November 2013 VA examination found mild incomplete paralysis of both the right and left lower extremities, consistent with the Veteran's 10 percent rating. Further, the examiner noted the Veteran's reflex exam and sensory exam was normal. Additionally, there were no noted trophic changes. Therefore, the Board finds that a disability rating of 10 percent for right and left lower extremity sciatic nerve radiculopathy is proper. The record is silent for any evidence that the Veteran experienced moderate radiculopathy of either the right or left side. REASONS FOR REMAND TDIU The Board finds that the issue of a TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service-connected for chronic lumbar strain, and right and left lower extremity radiculopathy. His combined rating during the appeal period is 50 percent, and therefore he did not meet the schedular criteria for a TDIU. Nevertheless, a TDIU may still be available on an extraschedular basis if the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). In that regard, the evidence shows the Veteran's occupational history consists of working in IT with the Department of Defense. There is competent medical evidence from private medical records submitted by the Veteran showing pain described as throbbing, unbearable, stabbing, shooting, and burning. Further, these symptoms are aggravated by prolonged standing and prolonged sitting. Based on this evidence, the issue of entitlement to an extraschedular TDIU has been reasonably raised by the record, and therefore the Veteran's claim for TDIU is being remanded and referred to VA's Director of Compensation Service for extraschedular consideration. (Continued on the next page) The matter is REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.