Citation Nr: 21075185
Decision Date: 12/17/21	Archive Date: 12/17/21

DOCKET NO. 13-31 626
DATE: December 17, 2021

ORDER

Entitlement to a rating in excess of 20 percent for lumbar spine disability prior to March 30, 2021 is denied. 

Entitlement to a rating in excess of 40 percent for lumbar spine disability from March 30, 2021 is denied.

Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity (RLE) is denied. 

Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity (LLE) is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from March 30, 2021 is granted. 

REMANDED

Entitlement to TDIU prior to March 30, 2021 is remanded.

FINDINGS OF FACT

1. Prior to March 30, 2021, the preponderance of the evidence is against a finding that the Veteran's lumbar spine disability was manifested by favorable or unfavorable ankylosis, or forward flexion of 30 degrees or less. 

2. From March 30, 2021, the preponderance of the evidence is against a finding that the Veteran's lumbar spine disability was manifested by unfavorable ankylosis. 

3. For the entire appeal period, the preponderance of the evidence is against a finding that the Veteran's radiculopathy of the RLE was manifested by moderately severe symptoms. 

4. For the entire appeal period, the preponderance of the evidence is against a finding that the Veteran's radiculopathy of the LLE was manifested by moderately severe symptoms. 

5. From March 30, 2021, the Veteran was unable to obtain substantial gainful employment due to his lumbar spine disabilities. 

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for lumbar spine disability prior to March 30, 2021, have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242.

2. The criteria for a rating in excess of 40 percent for lumbar spine disability from March 30, 2021, have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5242.

3. The criteria for a rating in excess of 20 percent for radiculopathy of the RLE have not been met. See 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520.

4. The criteria for a rating in excess of 20 percent for radiculopathy of the LLE have not been met. See 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520.

5. The criteria for TDIU from March 30, 2021, have been met. See 38 U.S.C. § 501; 38 C.F.R. § 4.16 (a). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the Air Force from October 1969 to October 1973. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that denied an increased rating for the Veteran's service-connected lumbar spine disability. During the pendency of the appeal, in October 2013, the RO granted a 20 percent rating for his service-connected lumbar spine disability effective October 28, 2011 (date of claim) and in April 2021, the RO granted a 40 percent rating for his service-connected lumbar spine disability effective March 30, 2021. The appeals are continued. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Additionally, the Veteran was granted a 20 percent rating for each lower extremity effective October 28, 2011 (date of claim).  Id.  

The Board remanded these matters in June 2015, July 2020, and most recently in August 2021. The Board finds that there has been substantial compliance with the Board remand instructions and these matters are ripe for adjudication. 

INCREASED RATING FOR LUMBAR SPINE 

Spine disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined.38C.F.R. §4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides for the following ratings, in pertinent part: 20 percent: 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. 40 percent: Forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 50 percent: Unfavorable ankylosis of the entire thoracolumbar spine. 100 percent: Unfavorable ankylosis of the entire spine.

38C.F.R. §4.71a, General Rating Formula for Diseases and Injuries of the Spine. "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and 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. A rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021).

The Formula for Rating IVDS Based on Incapacitating Episodes rates lumbar spine disabilities as follows, in pertinent part: 20 percent: Incapacitating episodes having a total duration of at least two weeks but fewer than four weeks during the past 12 months. 40 percent: Incapacitating episodes having a total duration of at least four weeks but fewer than six weeks during the past 12 months. 60 percent: Incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. §4.71a, DC 5243.

An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. This revision did not, however, change the General Rating Formula for Diseases and Injuries of the Spine, nor did it change the Formula for Rating IVDS Based on Incapacitating Episodes. 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). Therefore, the revised criteria effective February 7, 2021, are not applicable in this case and the Board will not consider them.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on ROM testing. See 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 

In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 requires that VA examinations (VAX) include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint. Further, in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Court held that an examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

In addition to consideration of the orthopedic manifestations of the low back disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1).

1. Entitlement to a rating in excess of 20 percent for lumbar spine disability prior to March 30, 2021. 

The Veteran seeks an increase rating. He was afforded a VAX in November 2012. He reported flare-ups when he stands too long, walks too much, and moves anything heavy. His initial ROM on forward flexion was 70 degrees and there was objective evidence of pain at 70 degrees. His extension was 20 degrees and there was objective evidence of pain at 20 degrees. His right lateral flexion (RLF) was 30 degrees or greater and there was no objective evidence of painful motion. His left lateral flexion (LLF) was 25 degrees and there was objective evidence of painful motion at 25 degrees. His right lateral rotation (RLR) was 30 degrees or greater and there was no objective evidence of painful motion. His left lateral rotation (LLR) was 30 degrees or greater and there was no objective evidence of painful motion. 

ROM after repetitive use testing was as follows: forward flexion was 70 degrees, extension was 20 degrees, RLF was 30 degrees or greater, LLF was 25 degrees, RLR was 25 degrees, and LLR was 30 degrees or greater. 

Functional loss was described as less movement than normal and painful movement. He had localized tenderness or pain on palpation for joints and/or soft tissue of the lumbar spine. He did not have muscle spasms, guarding, or muscle atrophy. His leg raise testing was negative. He denied reports of radiculopathy. He did not have any other neurologic abnormalities or findings related to his lumbar spine. He was found to have IVDS with no incapacitating episodes. 

The Veteran's lumbar spine disability affected his ability to work as lifting bothered his lower back. He worked full time, had no restrictions, or lost time. 

In an April 2017 VAX, the Veteran reported flare-ups described as constantly and nagging dull but occasionally stabbing pain. Initial ROM for forward flexion was 70 degrees, extension was 10 degrees, RLF was 20, LLF was 20 degrees, RLR was 30 degrees, and LLR was 30 degrees. ROM did not contribute to functional loss. Pain was noted that did not result in or cause functional loss. Pain was noted on forward flexion and extension. There was no pain with weight bearing. He had objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the spine. He was able to perform repetitive use testing with at least three repetitions and there was no loss of function or ROM. 

The VA examiner refused to speculate as to whether pain weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or with flare-ups. The VAX was not conducted during a flareup. 

The Veteran did not have guarding, muscle spasms, muscle atrophy, or ankylosis. He had mild RLE radiculopathy and moderate LLE radiculopathy. He did not have any other neurologic abnormalities or findings related to the lumbar spine disability. He did not use any assistive devices as a normal mode of locomotion. There was no thoracic vertebral fracture with loss of 50 percent or more height. 

The Veteran did not have IVDS. His lumbar spine disability impacted his ability to work as he could not do heavy lifting or labor. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally served by an amputation with prosthesis.

An May 2017 addendum opinion was provided that noted he did not have pain on passive ROM and non-weight bearing. 

Although, the Veteran has complained of more severely disabling problems, the Board finds that the assigned 20 percent rating adequately represents his degree of impairment for this period on appeal. In the instant case, his lumbar spine disability was not productive of forward flexion of 30 degrees, or less, or favorable ankylosis. To the contrary, throughout this portion of the appeal, the Veteran showed forward flexion to 70 degrees, and medical treatment records do not otherwise demonstrate a restriction of forward flexion to 30 degrees or fewer. As a result, a rating in excess of 20 percent is not warranted under the applicable General Rating Criteria. 

With greater ratings unavailable based on the General Rating Formula for Diseases and Injuries of the Spine, the Board will next consider whether greater ratings are warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, DC 5243. Here, despite the Veteran being diagnosed with IVDS on November 2012 VAX, the examination report is negative for a finding of incapacitating episodes requiring bedrest. Additionally, treatment medical records contemporaneous to the examination do not support the presence of incapacitating episodes associated with medically prescribed bedrest. Furthermore, the remainder of medical evidence, including VA examination and treatment records, is negative for findings of IVDS with incapacitating episodes requiring bedrest. Given the above, an increased rating is not warranted under the applicable rating criteria. Beyond the Veteran's already service-connected radiculopathies, discussed below, the record is negative for other neurologic abnormalities associated with his lumbar spine disability such as to warrant separate ratings. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1).

In rendering the above determinations, the Board has considered the Veteran's functional loss due to factors such as pain, weakened movement, excess fatigability, and incoordination that cause additional disability beyond that which is reflected on range of motion measurements. 38C.F.R. §§4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board accepts the Veteran's competent and credible assertions that his service-connected back disability causes him to experience pain. In that regard, the Veteran's existing rating has been assigned based in part on those assertions. However, the rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, a greater rating is not warranted based on functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.

The Board has also considered the effects of flare-ups on the Veteran's functioning. Sharp v. Shulkin, 29 Vet. App. 26 (2017);Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Such flare-ups must be quantifiable and result in a limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of a sufficient length to establish a greater severity of overall impairment, rather than a brief snapshot in time. The Board's above analysis considers the Veteran's reports of the nature and extent of his flare-ups and finds that these reports do not warrant greater ratings than those currently assigned.

That said, the Board acknowledges that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with ROM measurements of the opposite undamaged joint. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board also acknowledges the holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), addressing 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional ROM loss due to pain on use or during flare-ups"  In light of these requirements, the Board has, in rendering the above determinations, carefully considered whether the pre-March 2021 VAXs complied with Correia and Sharp. Significantly, however, to the extent that pre-March 2021 VAX findings of record relative to the lumbar spine are not completely in compliance with Correia and/or Sharp, the Board finds that remand for additional VAX or medical opinion would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In that regard, any retrospective opinion would merely impose an additional burden on VA with no benefit flowing to the Veteran. Furthermore, per a September 2021 VA medical opinion, the evidence of record does not demonstrate any worsening of the Veteran's lumbar spine disorder prior to March 30, 2021, the effective date of his current 40 percent rating.  

In concluding, the Board recognizes that the Veteran is competent to report symptoms of his lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability nor to diagnose additional or secondary disabilities. Such competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. 

In summary, the Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Thus, the preponderance of the evidence is against a rating in excess of 20 percent prior to March 30, 2021, and the benefit-of-the doubt standard of proof does not apply. See 38 U.S.C. § 5107 (b).

2. Entitlement to a rating in excess of 40 percent for lumbar spine disability from March 30, 2021.

In March 2021, the Veteran was afforded a VAX. He reported flare-ups described as difficulty walking. Initial ROM was as follows: forward flexion of 30 degrees, extension of 25 degrees, RLF of 20 degrees, LLF of 20 degrees, RLR of 20 degrees, and LLR of 20 degrees. Pain was noted on forward flexion, extension, RLF, LLF, RLR, and LLR. Passive ROM was same as Active ROM/Initial ROM. Pain was the same as on passive ROM as Active ROM/ Initial ROM. Pain was noted on weight bearing. There was no evidence of crepitus or objective localized tenderness or pain on palpation of the joint or associated soft tissue. 

The Veteran was able to perform repetitive use testing with at least three repetitions. There was additional loss of function or ROM after three repetitions as follows: Forward flexions was 25 degrees, extension was 20 degrees, RLF was 25 degrees, LLF was 20 degrees, RLR was 20 degrees, and LLR was 20 degrees.  

The Veteran had pain and weakness with repeated use over time. His ROM after repeated use over time is as follows: forward flexion was 20 degrees, extension was 15 degrees, RLF was 20 degrees, LLF was 15 degrees, RLR was 15 degrees, and LLR was 15 degrees. 

The VAX was not conducted during a flare-up. Pain significantly limited his functional ability with flare-ups. His ROM during flare-ups was as follows: forward flexion was 15 degrees, extension was 10 degrees, RLF was 15 degrees, LLF was 10 degrees, RLR was 10 degrees, and LLR was 10 degrees. 

The Veteran did not have localized tenderness, guarding, muscle spasms, muscle atrophy, or ankylosis. Straight leg raising test results were negative. RLE radiculopathy was mild and LLE radiculopathy was moderate. He did not have any other neurologic abnormalities or findings related to his lumbar spine disability. He did not have IVDS. 

The Veteran utilized a cane occasionally. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally served by an amputation with prosthesis. His lumbar spine disability impacted his ability to perform occupational task as he was forced to retire early due to his physical limitations and pain. His job required a lot of lifting and standing, which became more difficult with worsening pain. 

Turning to analysis, although the Veteran has complained of more severely disabling problems, the Board finds that the assigned 40 percent rating adequately represents his degree of impairment for this period on appeal. As stated, a rating more than 40 percent under the General Rating Formula for Diseases and Injuries of the Spine requires the presence of unfavorable ankylosis of the entire thoracolumbar spine. Though the Veteran has experienced painful movement throughout the appeal, he has consistently maintained a range of motion of the thoracolumbar spine, even during repetitive movement and flare-ups. 

Moreover, even were the Board to find that the Veteran's spine was essentially stuck in a fixed position, the record does not support that he experienced symptoms associated with unfavorable ankylosis. As discussed above, such symptoms include 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. Given the above, the combined evidence of record dose not support the presence of unfavorable ankylosis, or symptomatology equivalent to such a finding, sufficient to warrant a rating in excess of 40 percent.  

As to the Formula for Rating IVDS Based on Incapacitating Episodes, the record during this period on appeal does not reflect diagnosis for IVDS. To the contrary, the March 2021 examiner specifically opined against diagnosis. The Board affords this VAX substantial probative weight and there is no competent evidence to the contrary. As stated, a rating in excess of 40 percent requires not only IVDS diagnosis, but also the presence of incapacitating episodes with bedrest and treatment prescribed by a physician. See 38C.F.R. §4.71a, DC 5243. Increase rating is not warranted on this basis. Beyond the Veteran's already service-connected radiculopathies, discussed below, the record is negative for other neurologic abnormalities associated with his lumbar spine disability such as to warrant separate ratings. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1).

In rendering the above determinations, the Board has considered the Veteran's functional loss due to factors such as pain, weakened movement, excess fatigability, and incoordination that cause additional disability beyond that which is reflected on range of motion measurements. 38C.F.R. §§4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Again, the Board accepts the Veteran's competent and credible assertions that his service-connected back disability causes him to experience pain and his 40 percent rating is, in part assigned, based on these assertions. However, the rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, a greater rating is not warranted based on functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.

The Board has considered the effects of flare-ups on the Veteran's functioning. Sharp v. Shulkin, 29 Vet. App. 26 (2017);Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Such flare-ups must be quantifiable and result in a limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of a sufficient length to establish a greater severity of overall impairment, rather than a brief snapshot in time. The Board's above analysis considers the Veteran's reports of the nature and extent of his flare-ups and finds that these reports do not warrant greater ratings than those currently assigned. Of note, even with flare the Veteran's ROM was estimated to remain well above that required for an increase rating.

Finally, the Board again acknowledges that the Veteran is competent to report symptoms of his lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability nor to diagnose additional or secondary disabilities. Such competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. 

In summary, the Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Thus, the preponderance of the evidence is against a rating in excess of 40 percent from March 30, 2021 and the benefit-of-the doubt standard of proof does not apply. See 38 U.S.C. § 5107 (b).

INCREASED RATING FOR ASSOCIATED NEUROLOGICAL IMPAIRMENTS 

Under DC 8520, a 20 percent is warranted for moderate incomplete paralysis; 40 percent is warranted for moderately severe incomplete paralysis; 60 percent is warranted for severe incomplete paralysis with marked muscular atrophy; and 80 percent is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee and flexion of knee weakened or (very rarely) lost. See 38 C.F.R. § 4.124a.

Terms such as "mild", "moderate", and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. §4.6.

3. Entitlement to a rating in excess of 20 percent for radiculopathy of the RLE. 

4. Entitlement to a rating in excess of 20 percent for radiculopathy of the LLE.

The Veteran seeks increase ratings. He is in receipt of separate 20 percent ratings under DC 8520 for his bilateral lower extremity radiculopathies from October 28, 2011 forward. 

Turning to the record, a November 2012 VAX was negative for diagnosis of radiculopathy or reports by the Veteran of the condition. The VAX also contained normal sensory and reflex examination results. Muscle strength testing was normal except for left hip flexion and left knee extension which were only decreased to 4/5. 

Thereafter, an April 2017 VAX for the back reflects that the Veteran reported radicular pain. For the RLE he had mild intermittent pain, paresthesias and/or dysesthesias, and numbness. For the LLE he had moderate numbness along with mild intermittent pain and paresthesias and/or dysesthesias. The severity of the radiculopathy was deemed to be mild for the RLE and moderate for the LLE. The nerve root involved was the sciatic nerve. Muscle strength testing was normal, knee reflexes were normal, but ankle reflexes were present, but hypoactive. Sensory examination was normal, except for decreased bilateral foot/toe sensation. An adjoining April 2017 VAX for the peripheral nerves confirmed the above. The examiner again noted that the Veteran's RLE had mild intermittent pain, paresthesias and/or dysesthesias, and numbness whereas the LLE had moderate numbness along with mild intermittent pain and paresthesias and/or dysesthesias. The severity of the radiculopathy was deemed to be mild for the RLE and moderate for the LLE. The nerve root involved was the sciatic nerve. The 2017 examiner indicated that the Veteran's decreased sensation in the feet caused him to suffer from tripping/falling such that he should not work on ladders or high up.

A March 2021 VAX for the back reflects that the Veteran reported radicular pain. For the RLE he had mild paresthesias and/or dysesthesias and numbness. For the LLE he had moderate numbness and paresthesias and/or dysesthesias. The nerve root involved was the sciatic nerve. Muscle strength testing was normal, except for bilateral hip flexion decreasing to 4/5. Sensory examination reflected decreased, but present, sensation bilaterally in the lower legs/ankle/foot/toes. Reflexes were normal.

After careful review of all the evidence of record, the Board finds that a rating in excess of 20 percent, for either lower extremity, is not warranted as the record reflects that the Veteran's symptoms were mild to moderate. Moderate symptoms are consistent with a 20 percent rating. As stated, ratings in excess of 20 percent require a finding of at least moderately severe incomplete paralysis of the sciatic nerve. No examiner has found the Veteran's disabilities result in symptoms of such severity. To the contrary, VA examiners have found the Veteran's disabilities result in only mild to moderate symptoms. Consistent with this finding, the Board observes that the Veteran has largely maintained normal or only mildly impaired muscle strength, sensation, and reflexes in the lower extremities. Moreover, although the Veteran's decreased sensation in the feet was noted on 2017 examination to make him prone to tripping/falling, the examiner nevertheless considered his disabilities mild to moderate in severity.  Finally, the Veteran's medical records do not support a finding that the Veteran suffered from moderately severe incomplete paralysis of the sciatic nerve at any time. Increase rating is not warranted.

In rendering the above determinations, the Board acknowledges that the Veteran is competent to report symptoms associated with his lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability nor to diagnose additional or secondary disabilities. Such competent evidence concerning the nature and extent of the Veteran's radiculopathy of the lower extremities has been provided by several VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated.

The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Thus, the preponderance of the evidence is against a rating in excess of 20 percent, for either lower extremity disability, and the benefit-of-the doubt standard of proof does not apply. See 38 U.S.C. § 5107 (b).

TDIU  

Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, to qualify for individual unemployability, there must 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. See 38 C.F.R. § 4.16 (a).

VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16.

The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).

In Faust v. West, 13 Vet. App. 342 (2000), the Court held that where the claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, "actual employability" for the purposes of 38 C.F.R. § 3.343 (c)(1). The term "substantially gainful occupation" is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual's annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual's earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. See 38 C.F.R. § 4.16 (a).

5. Entitlement to TDIU from March 30, 2021.

The Veteran asserts that his service-connected disabilities render him unemployable. Specifically, he contends that due to the physical limitations associated with his service-connected disabilities he was forced to retire early. In that regard, the Veteran indicates he wanted to continue working, but voluntarily separated from his employment at the request of his employer due to his impairments. See March 2017 VA 21-4192 and October 2017 Lay Statements. 

The Veteran meets the schedular requirements for TDIU pursuant to 38 C.F.R. § 4.16 (a) from March 30, 2021. From March 30, 2021, he is in receipt of a 40 percent rating for his lumbar spine disability, 20 percent for RLE radiculopathy, and 20 percent for LLE radiculopathy. As these disabilities result from a common etiology, they are considered one disability ratable at 60 percent. Accordingly, the Veteran meets the schedule requirements for TDIU effective March 30, 2021, and entitlement from this period is addressed herein. Entitlement to TDIU prior to March 30, 2021, is addressed in the remand portion of this decision.

What remains is ascertaining whether the Veteran's disabilities were, in combination, so severe as to render him unemployable. Following consideration of the record, entitlement to a TDIU is warranted from March 30, 2021. 

As to employment, from December 2005 to January 2014, 8 years, the Veteran worked as a truck parts deliveryman. See March 2017 VA 21-4192. Per the record, the Veteran's position was dependent upon his ability to consistently engage in heavy lifting, bending, and physical labor.  As to education, records indicate the Veteran began, but did not complete, more than two years college.

As to medical evidence, an April 2017 VA nerves examiner opined that the Veteran's radiculopathies, alone, greatly impacted his functional abilities. Specifically, his radiculopathies manifested in decreased sensation to the feet that that rendered him in consistent danger of tripping and/or falling. The examiner specified that the Veteran's symptomatology was consistently hazardous to the point of him being precluded from working on ladders or high up. Thereafter, a March 2021 VA examiner indicated that the Veteran had to retire early as his lumbar spine associated physical limitations and pain impacted his ability to perform occupational tasks. The examiner explained that his previous form of gainful employment, required heavy lifting and prolonged standing which became too difficult to maintain as his back pain worsened. Examination report also noted that the Veteran, at times, has difficulty sitting and uses a cane when experiencing increased pain or imbalance. 

Beyond the above, the Veteran's private care provider, Dr. M.G., D.O., repeatedly indicated in an August 2011 report that his lumbar spine impairments would eventually render him unemployable. In that regard, Dr. G. first clarified that the Veteran's ability to remain gainfully employed was dependent upon him securing and maintaining "manual labor jobs." Dr. G. then confirmed that his spine impairments were overtime becoming too severe to continue to engage in physically demanding employment. In that regard, Dr. G. indicated that the Veteran was already having difficulty maintaining his then, current employment, as a deliveryman  as it was extremely labor-intensive position. Dr. G. then explained the progressive nature of his condition and indicated that eventually he would not be able to obtain gainful employment in his skillset. In so doing, Dr. G. emphasized that the Veteran had already lost income because he was unable to apply for more physically demanding positions with better pay.  Dr. G. predicated these findings on physical examination of the Veteran, interview, and consideration of diagnostic testing. 

In light of the Veteran's employment history, educational attainment, and the obviously considerable functional limitations imposed by his combined service-connected disabilities, the Board finds that the criteria for TDIU are satisfied. In brief, the Veteran's work experience consists essentially of being a delivery driver and heavy lifter. Per the record, the Veteran's disabilities when working together preclude his ability to perform physically demanding work, or even light tasks such as protracted bending, lifting, carrying, or standing. Moreover, records document his disabilities impair his ability to sit for prolonged periods and decrease sensation in the feet. These combined impairments make reobtaining the Veteran's physical demanding former position impracticable. They also generally preclude obtaining work as a manual laborer, which, per Dr. G., is his best means of obtaining substantially gainful employment. In that regard, the record is devoid of information indicating that the Veteran has transferrable skills which would afford him equally substantially gainful employment, notwithstanding his physical impairments.

Given the Veteran's limited employment and educational background, non-transferable work skills, and the combined findings of the VA examiners and Dr. G., the Board finds that the combined functional impact of his service-connected lumbar spine and bilateral lower extremity radiculopathies effectively prevents him from obtaining or maintaining substantially gainful employment in any occupation for which he would be reasonably qualified. See 38 C.F.R. § 4.16(b). The Board finds it significant that Dr. G.'s discussion of the eventual progression of his condition is supported by current findings by VA examiners. The Board also finds that the Veteran's chronic pain associated with his disabilities, and his documented difficulties with standing, sitting, walking, and sensation generally are significant factors in determining his ability to maintain substantially gainful employment.  Thus, based on the above, and after resolving all doubt in the Veteran's favor, the Board finds that TDIU is warranted from March 30, 2021. 

REASONS FOR REMAND

6. Entitlement to TDIU prior to March 30, 2021.

For the period prior to March 30, 2021, a remand is required. As stated, section 4.16 (a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more 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. Id.

Where, as here, a Veteran does not meet the percentage requirements, but there is evidence that the Veteran is unable to obtain or maintain substantially gainful employment, the claim for TDIU will be referred to the Director of VA's Compensation and Pension Service. See 38 C.F.R. § 4.16 (b). If the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first ensure that the TDIU claim is referred to the Director of Compensation and Pension for adjudication. See Bowling v. Principi, 15 Vet. App. 1 (2001); see also Christensen v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 1907 (explaining that the 2018 amendment to 38 C.F.R. § 3.321 (b) did not alter the requirement that the Board refer a claim for an extraschedular TDIU to the Director of Compensation Service in the first instance).

The Board finds that referral of the claim to the Director of VA's Compensation and Pension Service is warranted. In the instant case, the evidence of record raises the reasonable possibility that the Veteran could not work due to symptomatology associated with his service-connected disabilities prior to March 30, 2021.  As stated, the Veteran has been unemployed since January 2014.  He asserts his unemployability was due to no longer being able to engage in manual labor because of his service-connected disability impairments. That said, Dr. G., in August 2011, strongly indicated that the Veteran's lumbar spine impairments would over time render him unemployable as he would not be able to engage in his skillset which required manual labor. In April 2017, a VA examiner indicated the Veteran's lumbar spine disability impacted his ability to work as he was unable to do heavy lifting, heavy labor, or bending down. This combined evidence is sufficient to suggest that the Veteran was unable to secure and follow substantially gainful employment based on his service-connected disabilities prior to March 30, 2021. Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service.

The matters are REMANDED for the following action:

Refer the Veteran's claim for TDIU prior to March 30, 2021 to VA's Director of Compensation Service for extraschedular consideration. Include a copy of this remand, Dr. M.G., D.O.'s August 2011 report, as well as a full statement as to the Veteran's service-connected disabilities, employment history, education and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). All documentation from this entity must be added to the claims file.

 

 

 J. L. BURROUGHS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Smith, 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.