Citation Nr: 21075584 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-04 960 DATE: December 20, 2021 ORDER Entitlement to a rating in excess of 20 percent for lumbar disc bulge and spondylolisthesis is denied. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is denied. For the period starting November 16, 2016 and ending February 21, 2021, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's back disability is characterized by pain and flexion limited to 60 degrees, at worst. 2. The Veteran's left lower extremity radiculopathy is of a moderate severity. 3. Since November 16, 2016, the Veteran has been service connected with several disabilities collectively rated at 70 percent. His service-connected disabilities preclude him from securing and following substantially gainful employment that is consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for lumbar disc bulge and spondylolisthesis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5239 (2020). 2. The criteria for entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.120, 4.124a, Diagnostic Code 8626 (2020). 3. For the period starting November 16, 2016 and ending February 21, 2021, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2006 to November 2006, and he received the National Defense Service Medal and Army Service Ribbon. In November 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Veteran's claim was previously before the Board in September 2021 at which time it was remanded to allow the agency of original jurisdiction to consider new, relevant evidence and readjudicate the claims. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. In this case, the record raises the issue of TDIU; thus, the Board has characterized the issues on appeal as to include a claim for entitlement to TDIU. Increased Rating for Lumbar Disc Bulge and Spondylolisthesis The Veteran's back disability is currently evaluated as 20 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5239. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Disabilities of the spine are rated in accordance with the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Turning to the evidence, the Veteran first underwent a VA examination in June 2014. See June 2014 VA Examination, pp. 1-9. The Veteran reported progressive lower back pain and flare-ups of pain when bending over. Initial range of motion testing showed forward flexion to 70 degrees, extension to 30, right lateral flexion to 20, left lateral flexion to 20, right lateral rotation to 20, and left lateral rotation to 20. The Veteran was able to perform repetitive-use testing with three repetitions and no loss of function or range of motion. The examiner indicated that contributing factors of the Veteran's disability included less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion, lack of endurance, and interference with sitting, standing, and weightbearing. The examiner also observed midline and bilateral paraspinal tenderness in the lumbar area. The Veteran underwent a second VA examination in July 2016. See July 2016 VA Examination, pp. 1-8. At this time, the Veteran complained of worsened pain that is aggravated by prolonged walking and standing and that is worse in the morning. The Veteran further indicated that he was unable to perform heavy lifting. On initial range of motion testing, the Veteran's forward flexion was to 90 degrees, extension to 30, right lateral flexion to 30, left lateral flexion to 30, right lateral rotation to 30, and left lateral rotation to 30. There was pain noted on all motions, but the examiner indicated that the pain did not cause functional loss. There was also evidence of pain with weightbearing and pain to palpation in the mid-lumbar region of the back. The Veteran was able to perform repetitive use testing with at least three repetitions and loss of function or range of motion. The examiner was unable to say the extent to which range of motion is lost following repeated use over time or during flare-ups. However, the examiner indicated that the Veteran had muscle spasms and localized tenderness that resulted in an abnormal gait. Additional factors contributing to the Veteran's disability included interference with sitting and standing. In April 2019, the Veteran underwent another VA examination. See April 2019 VA Examination, pp. 1-10. He continued to complain of worsening back pain that interfered with his job duties. He further complained of flare-ups caused by weather changes, prolonged sitting, prolonged standing, prolonged walking, lifting, bending, twisting, climbing stairs, and standing up from sitting on low surfaces. On initial range of motion testing, the Veteran's forward flexion was to 70 degrees, extension to 20, right lateral flexion to 20, left lateral flexion to 20, right lateral rotation to 30, and left lateral rotation to 30. There was pain noted on all motions but the pain did not cause functional loss. There was no evidence of pain with weightbearing but there was localized tenderness on the lower lumbar paraspinal muscles. The Veteran was able to perform repetitive use testing with at least three repetitions and no loss of function or range of motion. The examiner did not offer an opinion on functional loss or loss of range of motion following repeated use over time or during flare-ups. The Veteran's muscle spasms and guarding caused the Veteran to walk with a limp. Most recently, the Veteran underwent a VA examination in May 2021. See May 2021 VA Examination, pp. 1-16. The Veteran reported pain and flare-ups occurring once per week and lasting a day. The flare-ups are characterized by intensified pain and are precipitated by prolonged sitting and standing. The Veteran described the functional impairment resulting from his disability as difficulty tolerating prolonged sitting or standing. On initial range of motion testing, the Veteran's forward flexion was to 70 degrees, extension to 10, right lateral flexion to 10, left lateral flexion to 30, right lateral rotation to 25, and left lateral rotation to 25. There was pain on forward flexion and extension, but such pain did not cause functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss of function or range of motion. Based on the procured evidence, the examiner estimated that pain significantly limited functional ability with repeated use over time. The examiner estimated that the Veteran's range of motion following repeated use over time would be as follows: forward flexion to 65 degrees, extension to 10, right lateral flexion to 10, left lateral flexion to 30, right lateral rotation to 25, and left lateral rotation to 25. Similarly, the examiner indicated that pain significantly limited functional ability during flare-ups and estimate the Veteran's range of motion as follows: forward flexion to 60, extension to 10, right lateral flexion to 10, left lateral flexion to 30, right lateral rotation to 25, and left lateral rotation to 25. The examiner noted the Veteran's muscle spasms but indicated that the did not result in an abnormal gait or spinal contour. Additional factors of the disability included interference with standing and disturbance of locomotion. There was no ankylosis or other neurologic abnormalities and the Veteran reported the occasional use of a back belt. Treatment records from this time show that the Veteran complained of back pain and decreased range of motion that impacted the Veteran's ability to tolerate physical activity and caused an altered gait. See April 2021 SSA Records, p. 16; October 2020 VAMC, p. 18; May 2020 CAPRI, pp. 165, 231, 380, 429, 472; May 2016 Private Treatment Records, p. 2; March 2016 Private Treatment Records, pp. 16-17; December 2015 Private Treatment Records, p. 7; December 2015 Private Treatment Records, pp. 13, 15, 19, 21; December 2015 Private Treatment Records, p. 11; December 2015 Private Treatment Records, p. 6; November 2015 Private Treatment Records, p. 9; August 2013 Private Treatment Records, p. 1. During the November 2020 hearing, the Veteran testified about his symptoms, including painful movement for the whole range of motion. See November 2020 Hearing Transcript, pp. 3-8. In a November 2015 statement, the Veteran again described being in constant pain and physical limitations caused by his back disability. See November 2015 Statement in Support of Claim, pp. 1-2. After careful consideration, the Board finds that the evidence preponderates against a finding of entitlement to a rating in excess of 20 percent. To warrant a higher rating, the evidence must show forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The evidence does not show this level of impairment but instead shows that the Veteran's disability has been characterized by pain and forward flexion limited to 60 degrees during flare-ups. The Board acknowledges that the Veteran experiences pain for the whole range of back motion but notes that the applicable regulations and rating criteria contemplate painful motion. As such, the Veteran's functional impairment does not approximate the disability picture contemplated the 40 percent rating and the Board finds that an increased rating is not warranted. Increased Rating for Left Lower Extremity Radiculopathy The Veteran's left lower extremity radiculopathy has been rated as 20 percent disabling under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8626. Under DC 8626, a 20 percent rating is assigned for moderate incomplete paralysis of the femoral nerve; a 30 percent rating is assigned for severe paralysis; and, a 40 percent rating is assigned for complete paralysis affecting the quadriceps extensor muscles. The term "incomplete paralysis" indicates 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. § 4.124a, Diseases of the Peripheral Nerves. Turning to the evidence, the Veteran underwent a VA examination in June 2014. See June 2014 VA Examination, pp. 5-7. The Veteran exhibited normal muscle strength and normal deep tendon reflexes. The Veteran had decreased sensation to light touch in his left foot and toes but otherwise exhibited normal sensation to light touch. The examiner noted that the Veteran had moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness. The examiner characterized the Veteran's disability as moderate in severity. The Veteran underwent a second VA examination in July 2016. See July 2016 VA Examination, pp. 1-6. The Veteran had moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness. He exhibited normal muscle strength, deep tendon reflexes, and sensation to light on touch. The examiner characterized the Veteran's disability as moderately severe. In April 2019, the Veteran underwent another VA examination. See April 2019 VA Examination, pp. 1-8. The Veteran reported continued pain, numbness and tingling that was progressively worsening. He further endorsed mild intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness. The Veteran had normal muscle strength, normal deep tendon reflexes, and normal sensation to light touch. The examiner characterized the Veteran's disability as mild to moderate. Most recently, the Veteran underwent an examination in May 2021. See May 2021 VA Examination, pp. 9-11. At the time, the Veteran exhibited normal muscle strength, normal deep tendon reflexes and normal sensation to light touch. The Veteran had moderate intermittent pain, moderates paresthesias/dysesthesias, and moderate numbness. Treatment records show that the Veteran complained of radiating pain and numbness in the left lower extremity. See April 2021 SSA Records, p. 16; October 2020 VAMC, p. 18; May 2020 CAPRI, p. 231; May 2016 Private Treatment Records, p. 2; March 2016 Private Treatment Records, pp. 16-17; December 2015 Private Treatment Records, p. 7; December 2015 Private Treatment Records, p. 11. The Veteran also testified to experiencing pain and numbness at the November 2020 hearing. See November 2020 Hearing Transcript, p. 3. The Board finds that the evidence preponderates against a finding of entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy. To warrant a higher rating, the evidence must show severe incomplete paralysis of the femoral nerve. The evidence fails to demonstrate this degree of severity but instead shows moderate impairment characterized by moderate intermittent pain, moderate numbness, and moderate paresthesias/dysesthesias. This level of impairment is contemplated by the current 20 percent rating; accordingly, a rating in excess of 20 percent for left lower extremity radiculopathy is not warranted. TDIU from November 15, 2016 to February 21, 2021 Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Prior to February 22, 2021, the Veteran met the schedular rating requirements for a TDIU, see 38 C.F.R. § 4.16(a), as he had multiple service-connected disabilities ratable at a combined 70 percent or more with one disability ratable at 40 percent or more. The remaining (and dispositive) question is whether the Veteran's service-connected disabilities render him incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Turning to the evidence, the Veteran last worked fulltime in November 2016 and last worked in any capacity in December 2018. See February 2021 Application for Increased Compensation Based on Unemployability, pp 2-5. The Veteran's post-service occupational history consists of work installing satellites, cable, and internet. The Veteran received an equivalent of a high school diploma but has no other formal education. Between November 16, 2016 and February 21, 2021, the Veteran was service connected for unspecified bipolar and related disorder, lumbar disc bulge and spondylolisthesis, and left lower extremity radiculopathy. As explained above, the Veteran's back disability and left lower extremity radiculopathy limited the Veteran's ability to perform physical activity requiring bending, prolonged sitting, prolonged standing, prolonged walking, lifting, and twisting. The Veteran's unspecified bipolar and related disorder caused depressed mood, anxiety, irritability (including in a work setting), angry outbursts, chronic sleep impairment, and suicidal ideation See November 2015 Statement in Support of Claim, pp 1-2; December 2015 Private Treatment Records, pp. 6-8, 14-15; December 2015 Private Treatment Records, p. 22; April 2019 CAPRI, pp. 7-11. At the November 2020 hearing, the Veteran testified about how his back disability has interfered with his ability to perform his past job duties and his ability to secure employment. See November 2020 Hearing Transcript, pp. 4-7. (Continued on the next page) The Board finds that the impact of the Veteran's service-connected disabilities made it impossible for him to secure and maintain substantially gainful employment. The Veteran's work history consists of work that would require him to perform physical tasks and to work with others. His psychiatric and physical disabilities significantly impeded his past work and would likely interfere with his ability to perform any work for which he may be qualified. The Veteran does not have any other specialized education, training or other experience that suggests he may be able to secure gainful employment outside of his past work experience. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran was unable to maintain a substantially gainful occupation as a result of his service-connected disabilities between November 16, 2016 and February 21, 2021. Accordingly, an award of TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W.V. Walker, 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.