Citation Nr: 21073219 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-10 679 DATE: December 7, 2021 ORDER Effective April 8, 2019, a rating of 40 percent for a back disability is granted. Entitlement to a rating in excess of 20 percent for left lower extremity lumbar radiculopathy is denied. Entitlement to a rating in excess of 20 percent for right lower extremity lumbar radiculopathy is denied. Effective April 8, 2019, a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to a TDIU prior to April 8, 2019, is remanded. FINDINGS OF FACT 1. Since April 8, 2019, considering the Veteran's pain and corresponding functional impairment, including during flare-ups, his chronic lumbosacral strain with degenerative arthritis is productive of disability analogous to limitation of motion to 30 degrees or less of forward flexion; the preponderance of the evidence shows that the disability is not manifested by the functional equivalent of ankylosis, including during flare-ups. 2. The Veteran's left lower extremity lumbar radiculopathy has been productive of moderate incomplete paralysis of the sciatic nerve. 3. The Veteran's right lower extremity lumbar radiculopathy has been productive of moderate incomplete paralysis of the sciatic nerve. 4. It is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Since April 8, 2019, the criteria for a 40 percent rating for a back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a rating in excess of 20 percent for left lower extremity lumbar radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.124a. DC 8520. 3. The criteria for a rating in excess of 20 percent for right lower extremity lumbar radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.124a. DC 8520. 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1964 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2021. This case was previously remanded by the Board in a July 2021 decision for further development. In July 2021, the Board granted entitlement to a 20 percent rating for Veteran's back disability and respective 20 percent ratings for Veteran's bilateral lower extremity lumbar radiculopathy. The claims were also remanded to assess the current nature, extent, and severity of the disabilities. In a September 2021 rating decision, the increased rating to 20 percent for Veteran's back disability was implemented, with an effective date of April 8, 2019, the earliest date the 20 percent rating was supported by the evidence of record. For Veteran's bilateral lower extremity lumbar radiculopathy, the increase to 20 percent ratings were made effective throughout the appeal period with effective dates of April 28, 2016. See September 2021 Rating Decision. 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. In this regard, the Board observes that 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. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 1. Effective April 8, 2019, a 40 percent rating for a back disability The Veteran contends that he is entitled to a rating in excess of 20 percent for his service-connected back disability. The Veteran's back disability has been rated 20 percent disabling since April 8, 2019, pursuant to DC 5242. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is 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. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Board finds that a rating of 40 percent is warranted for the Veteran's back disability since April 8, 2019. In the April 2019 VA Back examination, the Veteran's was diagnosed with lumbosacral strain with degenerative arthritis and intervertebral disc syndrome (IVDS) and reported functional loss of the back with flare-ups that were severe with sharp pain radiating to the left leg leaving him debilitated and made worse when lifting heavy objects and relieved by Tylenol. Upon range of motion testing, the Veteran's forward flexion was limited to 60 degrees, no pain was noted on exam and there was no objective evidence of localized tenderness or pain on palpation of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing without additional loss of function or range of motion. The Veteran was examined immediately after repetitive use over time and functional ability was not deemed to be significantly limited. The examination was not conducted during a flare-up; however, the examiner estimated range of motion during a flare-ups as forward flexion limited to 50 degrees. No muscle atrophy or ankylosis were noted. The Veteran had IVDS but did not require bed rest or treatment in the past 12 months. The Veteran did not require any assistive devices for his back. At the June 2021 Board hearing, the Veteran highlighted that his back condition had worsened. The Veteran was afforded a post-remand VA examination for his back in July 2021. The Veteran reported continued pain, stiffness and limited range of motion with continued use of Tylenol for pain management and steroid injections as treatment. The Veteran reported flare-ups that occur spontaneously depending on activities and can be severe, lasting 3-4 days; flare-ups are precipitated by prolonged standing or heavy lifting and are alleviated by pain medication, therapy, and ice. Range of motion testing revealed that the Veteran had forward flexion limited to 60 degrees upon active and passive motions. There was no evidence of crepitus and no evidence of localized tenderness or pain on palpation of the thoracolumbar spine. Upon repetitive-use testing, there was no additional loss of function or range of motion. Upon examination immediately after repeated use overtime, pain, fatigability, weakness, lack of endurance or incoordination did not significantly limit functional ability. The examination was not conducted during a flare-up; however, the VA examiner stated pain, weakness and lack of endurance significantly limited functional ability and listed range of motion during flare-ups as flexion limited to 55 degrees. The Veteran did not have guarding or muscle spasms of the back. No ankylosis was noted. The Veteran has IVDS, but no episodes of acute signs and symptoms that required bed rest and treatment in the past 12 months. The Veteran did not require any assistive devices for his back. Because the VA examinations note the Veteran's reports of severe flare-ups, estimate range of motion to be limited to 50 degrees of forward flexion with flare-ups, and acknowledge Veteran's steroid injection treatment, use of pain medication and significant limit on function ability due to his back disability, the Board finds that the Veteran's back disability more nearly approximates the criteria for a 40 percent rating when considering this report of pain and limited functional ability with flare-ups. The evidence, however, shows that the Veteran does not have ankylosis of the entire thoracolumbar spine or the entire spine. Moreover, the preponderance of the evidence shows that his back disability is not productive of functional equivalent of ankylosis during flare-ups. See Chavis v. McDonough, 34 Vet. App. 1 (2021). As such, a rating of 40 percent, and no more, is warranted from April 8, 2019. Moreover, the Veteran does not contend, and the evidence does not show that his back disability has been manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. As such, the preponderance of the evidence is against a rating in excess of 40 percent. 2. Entitlement to a rating in excess of 20 percent for left lower extremity lumbar radiculopathy 3. Entitlement to a rating in excess of 20 percent for right lower extremity lumbar radiculopathy The Veteran currently receives a 20 percent rating for his left and right lower extremity lumbar radiculopathy, pursuant to DC 8520. The Veteran experienced mild right lower extremity pain, paresthesias and/or dysesthesias, and numbness while experiencing moderate left lower extremity pain, paresthesias and/or dysesthesias and numbness. The March 2018 VA examiner concluded that the Veteran has mild right lower extremity incomplete paralysis and mild left lower extremity incomplete paralysis. Further, in the April 2019 VA back examination, the Veteran's left and right lower extremity radiculopathy were rated as "mild." The Board remanded the matters for a new VA examination to determine the current nature and severity of the Veteran's radiculopathy in July 2021 as Veteran testified at his June 2021 hearing that the bilateral lower extremity radiculopathy had worsened. See July 2021 BVA Decision. DC 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve in either lower extremity; a 20 percent rating for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy; and a maximum 80 percent rating for complete paralysis of the sciatic nerve that is characterized by a foot that dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee that is weakened or lost. 38 C.F.R. § 4.124a defines the term "incomplete paralysis" as indicating a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.123 provides that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124 provides that neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. The words "slight," "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. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Subsequent to the Board's remand, the Veteran was afforded a VA back examination in July 2021. The Veteran was noted to have mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in both lower extremities. There was involvement of the sciatic nerve in both lower extremities. No other signs or symptoms of radiculopathy were noted. Here, the Board finds that a higher rating in excess of 20 percent is not warranted for Veteran's left and right lower extremity lumbar radiculopathy as the medical evidence from the VA examinations of record show that the manifestations of the Veteran's radiculopathy have been wholly sensory, and "moderate" in nature at best. Therefore, the left and right lower extremity radiculopathy have resulted in no more than moderate incomplete paralysis of the sciatic nerve. A higher rating under DC 8520 is not warranted because moderately severe incomplete paralysis and severe incomplete paralysis of the sciatic nerve were not shown. Thus, a rating in excess of 20 percent for left and right lower extremity lumbar radiculopathy is not warranted under DC 8520. 4. Entitlement to a total disability rating due to individual unemployability (TDIU) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. 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, and reaching, as well as auditory and visual limitations; and 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. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran testified at his June 2021 Board hearing that his service-connected disabilities resulted in an ability to obtain and maintain unemployment. The issue of entitlement to a TDIU was raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and the claim was remanded as it was inextricably intertwined with the increased rating claims on appeal. The Veteran filed the VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability in May 2021, indicating that he had a high school education, no other special education or training, last worked as a program officer full-time until April 2015, when he became too disabled to work. The Veteran listed his service-connected back disability as the sole disability that prevented him from securing or following any substantially gainful occupation. The Veteran did not provide details on his employment history and noted he did not leave his last job due to his disability. He added his back flare-ups caused him to miss work three or four times a year. The Veteran's current service-connected disabilities are chronic lumbosacral strain with degenerative arthritis (rated as 40 percent), right lower extremity lumbar radiculopathy (rated as 20 percent), left lower extremity lumbar radiculopathy (rated as 20 percent), right lower extremity femoral radiculopathy (rated as 10 percent), left lower extremity femoral radiculopathy (rated as 10 percent), and tinnitus (rated as 10 percent). The combined disability rating is 70 percent on April 8, 2019. The Veteran therefore satisfies the schedular requirements for TDIU entitlement under 38 C.F.R. § 4.16(a). In the VA back examination from September 2016, the examiner opined the Veteran's low back conditions preclude physical, but not sedentary employment. In the March 2018 VA peripheral nerves examination, the examiner concluded that the Veteran's lower extremity radiculopathy decreased his ability to bend more, or lift more than light-medium weight, kneel or climb more than occasionally. In the April 2019 VA back examination, the examiner noted that Veteran is unable to lift objects heavier than 20 lbs., stand for a long time, walk a long distance or pull and push heavy objects. Most recently, in the VA back examination from July 2021, the examiner opined that Veteran's back condition does impact his current employment status in that Veteran has reduced efficiency at work due to difficulty with light lifting, limited standing, bending, pushing or pulling. The evidence of record suggests that while Veteran's service-connected back and lower extremity radiculopathy conditions impact his ability to work, and the worsening of these disabilities further prevent him from securing or following substantially gainful occupation. In light of the foregoing, the Board finds that the most probative evidence of record shows that the Veteran's lower back and associated lower extremity radiculopathy disabilities collectively preclude him from securing and maintaining substantially gainful employment, given the severity and deterioration of his back condition and in light of Veteran's history, education, skill, work experience and training. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). The Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports that the Veteran's service-connected disabilities prevents him from securing or following substantially gainful employment. As the Veteran meets the requirements under 38 C.F.R. § 4.16(a), is not currently working, and the evidence supports that the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment, the Board finds that entitlement to a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to a TDIU prior to April 8, 2019 is remanded. As Veteran has stated through his VA Form 21-8940, he has not been substantially and gainfully employed since April 2015, primarily due to his service-connected back disability. He also indicated that this condition rendered him unemployable as his flareups would force him to miss work for several days at a time through the year. Pursuant to Ray, entitlement to an extraschedular TDIU must be referred to the Director, Compensation Service for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. See Snider v. McDonough, Vet. App., No. 19-6707, 2021 U.S. App. Vet. Claims LEXIS 2050 (Nov. 19, 2021). As the Veteran does not meet the schedular requirements for TDIU prior to April 8, 2019, and the Veteran has asserted and the evidence suggests that he was unable to work prior to that date because of his service-connected disabilities, whether to grant TDIU must first be assessed by the Director, Compensation Service. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: After giving the Veteran an opportunity to submit evidence in support of his claim for TDIU prior to April 8, 2019, refer the claim for a TDIU to the Director, Compensation Service, for the time period on appeal prior to April 8, 2019. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.