Citation Nr: 21009672 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 12-17 328 DATE: February 23, 2021 ORDER A rating of 40 percent, but not higher, for herniated nucleus pulposus L5-S1 with intervertebral disc syndrome (IVDS) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. A rating in excess of 10 percent for right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran’s pain and corresponding functional impairment, including during flare-ups, results in a disability analogous to limitation of flexion to 30 degrees. 2. The record reasonably shows that the combination of the Veteran’s service-connected disabilities precludes him from securing or following a substantially gainful occupation. 3. The Veteran’s low back disability is productive of neurologic impairment of the right lower extremities that results in disability analogous to mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but not higher, for lumbar paravertebral myositis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, diagnostic code (DC) 5243. 2. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. 3. The criteria for a rating in excess of 10 percent for radiculopathy in right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from June 1966 to June 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in April 2015 and November 2017 and remanded for additional development. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Back The Veteran is currently rated at 20 percent under DC 5243 from April 20, 2011 for his service-connected herniated nucleus pulposus L5-S1. The Veteran reports that a higher rating of 20 percent is warranted. Evaluations for intervertebral disc syndrome are to be performed either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Note 6. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Here because the revisions do not impact the adjudication of this issue, the Board will proceed to address this issue. Under the general rating formula for diseases and injuries of the spine, a 20 percent rating requires that the condition be manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating requires that the condition be manifested by forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Higher ratings are warranted where there is ankylosis of the entire spine. The Board finds that the Veteran's back condition more nearly approximates a 40 percent rating. Throughout the appeal, he reported daily stiffness, constant throbbing, worsening constant pain with radiating pain to his right leg made worse with prolonged standing, sitting, weather conditions, ambulating, daily activities, and forward bending. Further, he reports having flare ups of back pain, functional impairment causing him to seek medical treatment and, in some occasions, not been able to move. See BVA hearing transcript (January 2015), VA medical treatment record (October 2019 and December 2019) and see also VA medical examination (September 2020). The Veteran's medical records also show that he takes pain medication for his back disability. Id. The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In his September 2020 VA examination, the Veteran exhibited limitation of flexion ranging at 75, 70 and 65 degrees. Moreover, he suffers from IVDS and his flare ups makes the condition worse affecting his range of motion. Additionally, he also exhibited guarding, spasm, and pain with repetitive testing that decreases his mobility and flexion. See VA medical examination (September 2020). Resolving all doubt in favor of the Veteran, the Board finds that the Veteran's more nearly approximates the criteria of a 40 percent rating when considering these reports of worsening pain with activity, flare ups, functional loss, use of pain medication, and the lay and medical evidence of record. Thus, a 40 percent rating is granted. The Board also notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); However, a higher rating than 40 percent is not warranted since there is no ankylosis present and there is no evidence showing incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. TDIU The Veteran reported that he is entitled to TDIU benefits due to him not being able to secure or follow any substantial gainful occupation since he became too disabled to work on July 1996. See Veteran’s VA 21-8940 (April 2011). In support, the Veteran’s stated that he could not work due to his service-connected disabilities. See BVA Hearing transcript (January 2015). Additionally, on September 2020 a VA examiner stated that the Veteran’s service-connected back condition impact his ability to work. See VA medical examination (September 2020). The Veteran completed two years of college and no additional education. He worked as a boatswain and then as a tour guide until 2005. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. See 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system e.g. orthopedic are considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The Veteran’s service-connected disabilities satisfy the TDIU schedular criteria. Here, the Veteran has a 50 percent rating for sleep apnea effective March 2009, a 20 percent rating for herniated nucleus pulposus effective April 2011, a 10 percent rating for residual fecal incontinence effective October 2008, a 10 percent rating for right lower extremity radiculopathy effective April 2011, and non-compensable ratings for right inguinal herniorrhaphy effective July 1996, giant cell tumor effective July 1996, hemorrhoids effective February 2008 and scars of Gyneco mastectomy effective October 2009. Thus, the Veteran’s service-connected disabilities satisfy the schedular criteria set forth in 38 C.F.R. § 4.16 (a). After a thorough review of the record, the Board finds that the functional limitations imposed by the Veteran’s service-connected conditions precludes him performance of substantially gainful employment. His record clearly indicates the severity of his service-connected disabilities, including medical treatments, surgical and non-surgical procedures, medications, and physical limitations. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As the Federal Circuit made clear in Geib, “VA [is] not required to obtain a single medical opinion that address[es] the impact of all service-connected disabilities on [the veteran’s] ability to engage in substantially gainful employment.” Id. After resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the evidence supports the conclusion that the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful employment. The lay and medical evidence of record makes it at least as likely as not that the Veteran's service-connected conditions have precluded substantial gainful employment consistent with his general education and labor-intensive occupational experience. Based on the evidence, the Board, as a finder of fact, concludes that the evidence supports a finding that the functional impairment associated with the Veteran’s service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. Thus, the Board finds that the disabilities does render the Veteran unable to secure substantially gainful employment in this particular case. In light of the foregoing, the Board concludes that entitlement to TDIU is warranted. 3. Right lower extremity radiculopathy The Veteran is currently rated at 10 percent for his right lower extremity radiculopathy under DC 8520 since April 20, 2011. Under DC 8520, paralysis of sciatic nerve, an 80 percent rating for is warranted for complete paralysis; the foot dangles and drops, no active movement possible of the muscles below the knee, flexion of knee weakened or (very rarely) lost. Incomplete paralysis warrants a 60 percent rating for severe with marked muscular atrophy, a 40 percent rating if it is moderately severe, a 20 percent rating if it is moderate, and a 10 percent rating if it is mild. The Board acknowledges that the terms “mild,” “moderate,” and “severe” are not defined in the 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.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board finds that the Veteran’s right lower radiculopathy more nearly approximates a 10 percent rating. The Veteran was afforded a VA examination on September 2020 and reported intermittent pain, numbness and paresthesias radiating down his right leg. Additionally, the examiner noted mild symptoms attributable to his condition in his right leg and medical treatment. See VA medical examination (September 2020). However, the evidence on record and VA examinations do not reflect that the Veteran’s suffers from moderate or severe incomplete paralysis or complete paralysis of his sciatic nerve. Id. Additionally, the record does not indicate that the Veteran has reported that the condition has worsen. Therefore, an increase rating in excess of 10 percent is not warranted. In light of the forgoing, the Board finds that the September 2020 VA examination and the absence of medical and lay evidence suggesting moderate or severe incomplete paralysis of the sciatic nerve, to be persuasive and of the greatest probative value. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for a rating higher than 10 percent for his right lower extremity radiculopathy and therefore it must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.