Citation Nr: 21073989 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 14-08 871 DATE: December 13, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy prior to June 17, 2021 is denied. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to June 17, 2021 is denied. Entitlement to an increased rating from 20 to 40 percent for left lower extremity radiculopathy for the period beginning June 17, 2021, is granted. Entitlement to an increased rating from 20 to 40 percent for right lower extremity radiculopathy for the period beginning June 17, 2021, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis for the period prior to May 18, 2021, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period beginning May 18, 2021, is granted. REMANDED Entitlement to a rating in excess of 10 percent for lumbar strain, status post discectomy, during the period prior to April 2, 2018, in excess of 20 percent for the period from April 2, 2018, to May 18, 2021, and in excess of 40 percent for the period after May 18, 2021, is remanded. FINDINGS OF FACT 1. The Veteran's left lower extremity radiculopathy was manifested by no more than mild incomplete paralysis during the period prior to June 17, 2021. 2. The Veteran's right lower extremity radiculopathy was manifested by no more than mild incomplete paralysis during the period prior to June 17, 2021. 3. The Veteran's left lower extremity radiculopathy was manifested by no more than moderately severe incomplete paralysis during the period beginning June 17, 2021. 4. The Veteran's right lower extremity radiculopathy was manifested by no more than moderately severe incomplete paralysis during the period beginning June 17, 2021. 5. The preponderance of the evidence is against a finding that the Veteran was unable to secure or follow any form of substantially gainful employment due to his service-connected disabilities during the period prior to May 18, 2021. 6. The evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude gainful employment consistent with his education and occupational experience during the period beginning May 18, 2021. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy during the period prior to June 17, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for a disability rating in excess of 10 percent for right lower extremity radiculopathy during the period prior to June 17, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating of 40 percent for left lower extremity radiculopathy during the period beginning June 17, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for a disability rating of 40 percent for right lower extremity radiculopathy during the period beginning June 17, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for an extraschedular TDIU during the period prior to June 17, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 6. The criteria for a TDIU during the period beginning June 17, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1973 to August 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in September 2015. A transcript of the hearing is associated with the Veteran's claims folder. This case was previously before the Board in April 2021, June 2020, and October 2018, on which occasions the claims were remanded. 1. Entitlement to an initial increased rating from 10 to 20 percent for left lower extremity radiculopathy. 2. Entitlement to an initial increased rating from 10 to 20 percent for right lower extremity radiculopathy. The Veteran contends that he is entitled to an initial rating in excess of 10 percent for bilateral lower extremity radiculopathy. He is currently in receipt of bilateral 10 percent ratings for radiculopathy in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, 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 foot dangle and drop, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" 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 the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Veteran's radiculopathy was evaluated during an April 2012 VA thoracolumbar spine examination. The examination revealed mild intermittent pain and mild paresthesias of the left lower extremity. No radicular symptoms were noted in the right extremity. Reflexes were normal in the left lower extremity, but reflexes in the right knee were hypoactive at 1+. Sensation in the left thigh and lower leg were decreased. Sensation in the right lower extremity were normal. Strength was normal in the left lower extremity, but reduced strength was noted in right hip flexion and right knee extension, both at 4/5. (4/24/2012, VA Examination, p. 10-12). The Veteran was afforded another VA spine examination in April 2018. This examination revealed mild intermittent pain, moderate paresthesias, and mild numbness. No radicular symptoms were noted in the right extremity. Reflexes were normal bilaterally. Sensation was decreased in the left upper thigh and lower leg. In the right leg sensation was decreased in the right upper thigh. Strength was normal bilaterally. (4/10/2018, C&P Exam, p. 6-7). In November 2020 the Veteran was again afforded a VA examination. This examination revealed mild intermittent pain, mild paresthesias, and mild numbness. No radicular symptoms were noted in the right extremity. Reflexes were hypoactive at 1+ in the knee bilaterally. Sensation was decreased in the lower leg and foot bilaterally. Strength was reduced bilaterally to 4/5 in great toe extension. (11/9/2020, C&P Exam, p. 7-8). Based on the above, the Board finds that the disability is primarily manifested by mild intermittent pain, mild paresthesias, mild numbness, hypoactive reflexes, decreased sensation, and slightly reduced strength. There was no evidence of muscle atrophy or foot drop. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. In conclusion, the Board finds that the weight of the evidence is against a higher rating for bilateral lower extremity radiculopathy during the period in question. 3. Entitlement to an increased rating from 20 to 40 percent for left lower extremity radiculopathy for the period beginning June 17, 2021. 4. Entitlement to an increased rating from 20 to 40 percent for right lower extremity radiculopathy for the period beginning June 17, 2021. As noted in the preceding section, the Veteran is currently in receipt of bilateral 10 percent ratings for radiculopathy in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board finds that the preponderance of the evidence supports a 40 percent rating for bilateral lower extremity radiculopathy, effective June 17, 2021. In this regard, the Veteran was afforded a VA examination in June 2021. This examination revealed bilateral severe constant pain, bilateral moderate intermittent pain, bilateral moderate paresthesias, and bilateral severe numbness. Reflexes and sensation were normal bilaterally. Strength was reduced to 4/5 bilaterally in hip flexion, knee extension, ankle flexion, ankle dorsiflexion, and great toe extension. (6/17/2021, C&P Exam, p. 9-11). Based on the above, the Board finds that as of June 17, 2021, the Veteran's disabilities were primarily manifested by severe constant pain, moderate intermittent pain, moderate paresthesias, severe numbness, and reduced strength. There was no evidence of muscle atrophy or foot drop. The Board thus finds that the level of impairment is most analogous to moderately severe incomplete paralysis. In conclusion, the Board finds that the preponderance of the evidence supports a 40 percent rating for bilateral lower extremity radiculopathy. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis for the period prior to May 18, 2021. Based on a review of the record, the Board finds that the Veteran's service-connected lumbar strain, status post discectomy, and bilateral lower extremity radiculopathy did not render him unable to secure and follow a substantially gainful occupation during the period prior to May 18, 2021. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When the Veteran's service-connected disabilities fail to meet the applicable percentage standards enunciated in § 4.16(a), an extra-schedular TDIU is for consideration if there is at least suggestion he is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). The Veteran was employed as of April 2017 as a part time sales associate at a convenience store, earning slightly over $10,000 for the year. (4/22/2017, VA 21-4192, p. 1). In an August 2020 correspondence, the Veteran indicated that he is currently not working, but did not provide information regarding when or why he stopped working at the convenience store. In the Board's June 2020 decision, the undersigned Veterans Law Judge noted that the Veteran's complete employment history was not of record and remanded the claim so he could be afforded the opportunity to provide his full employment history. In August 2020 the RO sent the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit. The Veteran returned the requested forms without filling them out, instead merely indicating that he has previously submitted the requested forms. (8/26/2020, VA 21-4192, p. 1). Service connection is in effect for lumbar strain, status post discectomy, (10 percent from May 17, 2011, 20 percent from April 2, 2018, and 40 percent from May 18, 2021), left lower extremity radiculopathy (20 percent from May 17, 2011, and 40 percent from June 17, 2021), right lower extremity radiculopathy (20 percent from March 5, 2013, and 40 percent from June 17, 2021), and lumbar scar (zero percent from May 17, 2011). His combined rating was 20 percent from May 17, 2011, 30 percent from March 5, 2013, 40 percent from April 2, 2021, 50 percent from May 18, 2021, and 80 percent from June 17, 2021. For the period prior to May 18, 2021, the Veteran did not meet the threshold percentage criteria for a TDIU under 38 C.F.R. § 4.16(a). However, as there was a suggestion that the Veteran was unable to work due to his service-connected disabilities, the Board referred the claim to VA's Director of Compensation Service. In a July 2021 advisory opinion, the Director found that entitlement to an extraschedular TDIU was not warranted. (7/2/2021, VA Memo, p. 1-2). While the Board is required to obtain the Director's decision before awarding extra-schedular TDIU benefits, the Board is not bound by the Director's decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015); 38 C.F.R. § 4.16(b). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran is entitled to a TDIU. The Board notes that the Veteran is in receipt of Social Security Disability. The Social Security Administration (SSA) found that the Veteran is disabled due to diabetes mellitus and affective disorders as of March 2012. (8/6/2020, SSA-831, p. 2). The Veteran is not service connected for these disabilities; therefore the Board may not consider the impact these disabilities have on the Veteran's ability to secure employment. The Board must consider whether the Veteran's service-connected disabilities alone render him unable to secure and follow a substantially gainful occupation. Prior to May 18, 2021, the Veteran's lumbar strain and bilateral lower extremity radiculopathy reduced his ability to perform occupational task that require bending, stooping, pushing, pulling, carrying, and lifting. (4/10/2018, C&P Exam, p. 10). These limitations prevented him from working in fields that require high levels of physical activity. (9/4/2019, C&P Exam, p. 11). However, as previously noted, the Veteran was employed as a part-time sales associate during the period in question. As a sales associate he worked directly with customers, handled cash transactions, and was responsible for restocking products and performing inventory control. (4/22/2017, VA 21-4192, p. 1). The Board acknowledges that his salary for the year was below the poverty threshold but this was based on his part-time hours, and there is no showing that the lack of full time employment was due to service-connected disability. Based on a review of the evidence, the Board finds that the Veteran was not prevented from securing or following a substantially gainful occupation as a result of his service-connected disabilities prior to May 18, 2021. While the evidence of record indicates that the Veteran could not perform occupational tasks that require a high degree of physical labor, the record indicates that he was able to work with customers and handle cash transactions. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for TDIU were not met prior to May 18, 2021. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period beginning May 18, 2021. As noted in the preceding section, the Veteran did not meet the threshold percentage criteria for a TDIU under 38 C.F.R. § 4.16(a) during the period prior to May 18, 2021. However, as of May 18, 2021, the Veteran met the threshold criteria for a TDIU as set forth under 38 C.F.R. § 4.16(a)(2), which states that disabilities resulting from common etiology or a single accident will be considered as one disability for the purpose of determining whether the Veteran has a disability ratable at 60 percent or more. In this case, the Board finds that the Veteran's lumbar strain and bilateral lower extremity radiculopathy resulted from a common etiology. Therefore, the Veteran meets the threshold criteria for the period beginning May 18, 2021. The Board must now determine if the Veteran's service-connected disabilities precluded substantially gainful employment during the period beginning May 18, 2021. In June 2021 the Veteran underwent a VA lumbar spine examination. The examiner indicated that during flare-ups the Veteran is unable to sit, stand, bend, or lift objects greater than ten pounds. The examiner indicated that during flare-ups the Veteran's spine is immobile, capable of zero degrees of flexion. (6/17/2021, C&P Exam, p. 3, 7). Based on the aforementioned, the evidence is deemed to be at least in equipoise as to whether the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities for the period beginning May 18, 2021. In this regard, the Veteran experiences frequent and severe flare-ups of pain that render him immobile. Accordingly, a TDIU is warranted beginning May 18, 2021. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for lumbar strain, status post discectomy, during the period prior to April 2, 2018, in excess of 20 percent for the period from April 2, 2018, to May 18, 2021, and in excess of 40 percent for the period after May 18, 2021, is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In a recent decision, the United States Court of Appeals for Veterans' Claims (Court) noted that when evaluating a disability under VA's General Rating Formula, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Therefore, ankylosis can be shown via functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Ankylosis is defined as the "immobility and consolidation" of a joint due to disease, injury, or surgical procedure. Chavis, 34 Vet. App. at 13. See also Steadman's Medical Dictionary 95 (28th ed. 2006) ("Stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint."); Churchill's Illustrated Medical Dictionary 91 (1989) ("A stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention."). In a June 2021 VA back examination a VA examiner estimated that the Veteran's range of motion during flare-ups was 0 degrees flexion, suggesting a degree of immobilization consistent with ankylosis. However, the examiner did not indicate whether the Veteran's immobilization during flare-ups is the functional equivalent of unfavorable or favorable ankylosis. The Board finds that an addendum opinion regarding whether the Veteran's immobilization during flare-ups is the functional equivalent of ankylosis is needed. The VA examiner should opine on whether the June 2021 range of motion findings shows the functional equivalent of favorable, unfavorable, or extremely unfavorable ankylosis. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from August 2021 to the present. 2. Obtain an addendum opinion from the June 2021 VA examiner, if possible, on whether the June 2021 range of motion findings shows the functional equivalent of favorable, unfavorable, or extremely unfavorable ankylosis. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.