Citation Nr: 21005381 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-32 375A DATE: February 1, 2021 ORDER A rating in excess of 40 percent for lumbar spine disc herniation and degenerative joint disease is denied. A rating in excess of 20 percent for left lower extremity lumbar radiculopathy is denied. A rating in excess of 20 percent for right lower extremity lumbar radiculopathy is denied. Compensation for total disability based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The evidence does not show unfavorable ankylosis of the entire thoracolumbar spine or symptom presentation analogous to unfavorable ankylosis. 2. The weight of the evidence is against finding moderately severe or severe impairment from left and right lower extremity lumbar radiculopathy. 3. The evidence shows the Veteran’s service-connected disabilities prevented him from performing the physical acts required for employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbar spine disc herniation and degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 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; 38 C.F.R. §§ 4.1, 4.3, 4.7, 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; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 4. The criteria for compensation for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1979 to June 1984. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. A rating in excess of 40 percent for lumbar spine disc herniation and degenerative joint disease (low back) The Veteran contends he is entitled to higher ratings for his low back disability because of increased pain and functional limitation. The Veteran’s low back disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the 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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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 range-of-motion testing. 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). 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s low back disability. See 38 C.F.R. § 4.71a, DC 5243. The Board notes that as the Veteran receives separate ratings for his low back and his lower extremities, he is better served by those separate ratings, which allow for the possibility of a combined rating greater than 60 percent, than he would be for a single rating based on incapacitating episodes under the Formula for Rating IVDS Based on Incapacitating Episodes. Moreover, the evidence does not show he has incapacitating episodes having a total duration of at least six weeks during a 12-month period. The June 2012 VA examiner found the Veteran experienced one week of incapacitating episodes in the prior 12 months, the February 2015 examiner indicated the Veteran would have required bedrest for four weeks in the prior 12-month period, and the October 2019 examiner found he did not have incapacitating episodes. Treatment records do not show incapacitating episodes for six weeks during a 12-month period. Accordingly, the evidence does not show the Veteran’s low back disability resulted in incapacitating episodes for at least six weeks in a 12-month period, and he could not receive a rating in excess of 40 percent. Under the General Rating Formula, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine to warrant a rating in excess of 40 percent. The Board acknowledges the Veteran’s lay reports of symptoms and functional loss due to pain, including limitations in walking more than short distances and with prolonged standing and sitting. The Veteran has also submitted private MRI reports showing that his spine condition has worsened. Nevertheless, the medical evidence does not show that the Veteran has unfavorable ankylosis. The VA examiner in October 2019 specifically indicated the Veteran did not have ankylosis, and private and VA treatment records also do not show diagnosis of ankylosis. The Board has considered whether the impairment from the Veteran’s back condition is analogous to unfavorable ankylosis. However, the Veteran’s symptoms do not more nearly approximate the entire thoracolumbar spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. Instead, the examiners documented that the Veteran was able to move and bend his back, and he had greater function than that of a fixed position. Accordingly, the evidence does not show unfavorable ankylosis, or analogous impairment, to warrant a rating in excess of 40 percent for the low back disability. The General Rating Formula directs that any objective neurological abnormalities associated with spine disabilities, including, but not limited to, bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. Id. at Note 1. The Veteran is already service connected for lower extremity radiculopathy, which is discussed below. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his low back disability. The examiners found no evidence of other neurologic abnormalities, and the Veteran has not reported such. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for his low back disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. A rating in excess of 20 percent for left lower extremity lumbar radiculopathy 3. A rating in excess of 20 percent for right lower extremity lumbar radiculopathy The Veteran contends he should be assigned higher ratings because of the constant pain, numbness, and impairment from his lower extremities. The Veteran’s lower extremity radiculopathy has been rated under Diagnostic Code 8520 for incomplete neuritis of the sciatic nerve. Diagnostic Code 8520 provides for a 10 percent rating for mild incomplete neuritis, a 20 percent rating for moderate incomplete neuritis, a 40 percent rating for moderately severe incomplete neuritis, and a 60 percent rating for severe incomplete neuritis with marked muscular atrophy. 38 C.F.R. § 4.124a. After reviewing the evidence, the Board finds the criteria for ratings in excess of 20 percent for left and right lower extremity radiculopathy have not been met. See 38 C.F.R. § 4.124a, DC 8520. The evidence shows moderate impairment, rather than moderately severe or severe impairment from the lower extremity radiculopathy. The March 2013 and October 2019 examiners identified the sciatic nerve as being the nerve associated with the Veteran’s radiculopathy. The June 2012 examiner evaluated the lower extremities and recorded full strength, no atrophy, hypoactive reflexes at the knees, absent reflexes at the ankles, normal sensation on the upper legs, decreased sensation at the lower legs and feet, moderate constant pain, and severe numbness. The March 2013 examiner recorded full strength at the hips, knees, and ankles; slightly reduced strength at the great toes; no muscle atrophy; normal reflexes at the knees and absent reflexes at the ankles; normal sensation at upper legs and decreased at lower legs and feet; moderate constant and intermittent pain, moderate paresthesias/ dysesthesias, and severe numbness. The February 2015 examiner noted that the Veteran experienced weakened movement and disturbance of locomotion due to the peripheral nerve injury. The examiner recorded normal strength at the hips, knees, and ankles; slightly reduced strength at the great toes; absent reflexes at knees and ankles; sensation as normal at the upper legs, decreased at the right lower leg and both feet, and absent at the left lower leg; no constant pain, moderate intermittent pain, moderate paresthesias/dysesthesias, and severe numbness. In a September 2019 letter, Dr. M.M. described the Veteran as having developed sensory loss and mild lower extremity weakness. The October 2019 examiner recorded full strength at hips, knees, and ankle plantar flexion with slightly reduced strength on ankle dorsiflexion and great toe extension; no muscle atrophy; normal reflexes at the knees and ankles; normal upper leg sensation and decreased sensation at lower legs and feet; no constant pain, mild intermittent pain, moderate paresthesias/ dysesthesias, and moderate numbness. All the VA examiners classified the overall condition as moderate. The Board finds the examiners’ classifications of the Veteran’s disability as moderate, highly probative as they stem from the examiners’ experience assessing these types of disability presentations. This classification carries further weight due to the fact that it was consistently made by multiple medical professionals. Additionally, objective testing did not reveal symptoms, such as significant reduced strength or marked muscular atrophy, which could evidence moderately severe or severe disability presentation. Although examiners recorded reduced strength in the great toes and plantar dorsiflexion, the Veteran never had strength assessed as less than four or five out of five. This is also consistent with Dr. M.M.’s description of weakness in the lower extremities as mild. Moreover, the Veteran’s symptoms largely affected his lower legs; his upper legs maintained normal sensation and full strength. As such, the weight of the evidence supports a finding of moderate impairment, and ratings in excess of 20 percent for the Veteran’s bilateral lower extremity radiculopathy are not warranted. 4. Compensation for TDIU The Veteran contends that his service-connected low back and radiculopathy disabilities prevent him from working. A claim for TDIU is, therefore, considered part of his appeal for increased ratings for his back. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service connected for his low back and radiculopathy disabilities. His combined disability rating is 60 percent, which satisfies the threshold requirements for disabilities with common etiology. See 38 C.F.R. § 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). See Rice, 22 Vet. App. at 452 (noting that, while “the rating schedule is based on the ‘average impairment in earning capacity caused by a disability,’... entitlement to TDIU is based on an individual’s particular circumstance”). The criteria for compensation based on TDIU have been met. See 38 C.F.R. § 4.16. In his application for TDIU, the Veteran reported working as a customs inspector and custom border protection officer from shortly after service to December 30, 2012. He reported one year of college and police training. In July 2012 correspondence, the Veteran described his job responsibilities as physically straining and requiring a lot of walking and standing to search and inspect cargo. He also reported subsequent job duties that required significant periods of sitting for computer work. As noted above, the Veteran reported his back and radiculopathy disabilities resulted in increased pain and required rest or change in position with prolonged standing, walking, and sitting. In statements to VA, the Veteran’s co-workers reported observing him experience pain at work and that the pain impaired his ability to complete job tasks. The March 2013 VA examiner opined that the Veteran was unable to find and secure a job based on the back examination and specifically, that the neurologic condition associated with the back disability limited the Veteran’s capacity to work in any type of job. The examiner in February 2015 wrote that he agreed with the March 2013 opinion that the Veteran met the criteria for individual unemployability due to his service-connected lumbar conditions. The June 2012 and October 2019 examiners found there was no impact from the Veteran’s low back disabilities on his ability to work without explanation and despite notations of functional impairment on examination. The Board finds the evidence is at least in equipoise between the positive opinions and lay statements and the negative opinions on employability. After resolving debt in his favor, the Board finds the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected low back and radiculopathy disabilities. TDIU compensation is warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong 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.