Citation Nr: 21009777 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-01 175 DATE: February 23, 2021 ORDER Entitlement to an initial rating higher than 40 percent for the service-connected degenerative disc and joint disease, lumbar spine with fusion at L3-4 (hereafter “lumbar spine disability”) is denied. Entitlement to an initial rating higher than 10 percent prior to July 1, 2014 and 40 percent thereafter for the service-connected left lower extremity radiculopathy is denied. Entitlement to an initial rating higher than 10 percent prior to November 1, 2019 and 40 percent thereafter for the service-connected right lower extremity radiculopathy is denied. Entitlement to an initial compensable rating prior to June 28, 2019 and a rating higher than 10 percent thereafter for the service-connected back scars under Diagnostic Code 7801 is denied. Entitlement to an initial rating higher than 20 percent for the service-connected painful back scars under Diagnostic 7804 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 1, 2014 is remanded. FINDINGS OF FACT 1. The Veteran does not have ankylosis of the spine or symptoms comparable to unfavorable ankylosis. 2. The Veteran’s left lower extremity radiculopathy was mild prior to July 1, 2014 and moderately severe thereafter, without evidence of marked atrophy or foot drop. 3. The Veteran’s right lower extremity radiculopathy was mild prior to November 1, 2019 and moderately severe thereafter, without evidence of marked atrophy or foot drop. 4. The total area of the Veteran’s scars with underlying tissue damage measure 48 centimeters squared. 5. The Veteran has two scars on the back that are unstable or painful. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 40 percent for the service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for an initial rating higher than 10 percent prior to July 1, 2014 and 40 percent thereafter for the service-connected left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for an initial rating higher than 10 percent prior to November 1, 2019 and 40 percent thereafter for the service-connected right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial compensable rating prior to June 28, 2019 and an initial rating higher than 10 percent thereafter for service-connected back scars under Diagnostic Code 7801 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7801. 5. The criteria for an initial rating higher than 20 percent for service-connected painful back scars under Diagnostic Code 7804 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to May 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision. In March 2017, the Veteran had a hearing before the undersigned Veterans Law Judge. In December 2017, the Board remanded the matter for further development. The Board finds that there was substantial compliance with the instructed development and further remand is unnecessary except for the claim of entitlement to a TDIU. 1. Entitlement to an initial rating higher than 40 percent for the service-connected lumbar spine disability is denied. The Veteran seeks a higher initial rating for his service-connected lumbar spine degenerative disc and joint disease with fusion. Currently, his disability is rated at 40 percent under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, unfavorable ankylosis is 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. See id. Note (5). Initially, the Board notes that the Veteran has also received temporary total disability ratings from April 21, 2014 to July 1, 2014, June 29, 2018 to September 1, 2018, and June 25, 2019 to November 1, 2019 for surgical interventions requiring convalescence. As the Veteran was rated at 100 percent for these periods, they are not on appeal. After review of the medical and lay evidence, the Board finds that a higher rating is not warranted. The Veteran was afforded VA spine examinations in August 2010, September 2018, August 2019, and September 2020. The examinations showed, at worst flexion to 30 degrees, except in August 2019 when the Veteran’s range of motion could not be tested because he was wearing a brace post-back surgery. While the September 2018 examination also showed that the Veteran stood in 35 degrees of flexion, the examiner noted the examination was conducted only one month post-surgery. In the September 2020 examination, the Veteran had flexion from 0 to 30 degrees, extension from 0 to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. The August 2010, September 2018, August 2019, and September 2020 VA examiners also noted that the Veteran did not have ankylosis. Finally, a February 2018 VA aid and attendance examination showed that the Veteran lived independently and performed his activities of daily living. The Board also reviewed the Veteran’s private and VA treatment records, which show kyphosis but do not show ankylosis or similar symptomatology. Notably, the records showed the Veteran had normal bowel and bladder continence and normal respiratory ability, and they did not document other manifestations of unfavorable ankylosis. In light of the medical and lay evidence, the Board finds that the Veteran is not entitled to an initial rating higher than 40 percent for his back disability because the evidence shows that the Veteran does not have ankylosis of the spine or symptoms comparable to unfavorable ankylosis. Instead, the evidence shows that the Veteran maintains range of motion in his back, albeit limited. Consideration has also been given to assigning higher rating under Diagnostic Code 5243 based on incapacitating episodes rather than limitation of motion. The evidence does not show, however, that the Veteran experienced incapacitating episodes requiring medically prescribed bed rest of at least six weeks duration during any 12 month period. Accordingly, an increased rating based on incapacitating episodes is not warranted. Finally, the medical evidence does not show that the Veteran has neurological manifestations due to his back condition that would warrant a separate rating other than those abnormalities that have been service-connected already. Specifically, the Veteran has denied bladder and bowel issues, and the examinations and treatment records are negative for other neurological manifestations. 2. Entitlement to an initial rating higher than 10 percent prior to July 1, 2014 and 40 percent thereafter for the service-connected left lower extremity radiculopathy The Veteran seeks a higher initial rating for his service-connected left lower extremity radiculopathy. Currently, his disability is rated at 10 percent prior to July 1, 2014 and 40 percent thereafter under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under that diagnostic code, a 20 percent rating is warranted for incomplete moderate paralysis, a 30 percent rating is warranted for incomplete moderately severe paralysis, a 60 percent rating is warranted for incomplete severe paralysis with marked muscular atrophy, and an 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of muscles below the knee, and knee flexion is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. After review of the medical and lay evidence, the Board finds that a higher rating is not warranted for the entire appeal period. Prior to July 1, 2014, the evidence does not show that the Veteran’s left lower extremity radiculopathy was more than mild. VA treatment records from July 2009 show that the Veteran sought treatment for back pain that radiated to his left lower extremity. A straight leg raise test was negative. The Veteran underwent a VA spine examination in August 2010, which revealed normal neurologic and sensory findings, including normal vibration, position sense, pain or pinprick, and light touch, with no dysesthesias. A straight leg raise test was also negative. In March 2017, the Veteran testified that he experienced pain that radiated down his left extremity and “comes and goes.” Thus, the evidence does not support the left lower extremity radiculopathy was more than mild, or more than wholly sensory, prior to July 1, 2014. See 38 C.F.R. § 4.124a. The Board considered the evidence from April 2014, when the Veteran sought treatment for exacerbation of his back pain, including the inability to feel or move his bilateral lower extremities. April 2014 and May 2014 records show that the symptoms stemmed from an epidural abcess and improved post-surgery. Additionally, that period is covered by a temporary 100 percent disability rating for convalescence related to his surgery. Accordingly, a higher rating is not warranted based on this brief exacerbation. The Board further finds that a rating higher than 40 percent is not warranted from July 1, 2014 onward. Private treatment records, from Dr. M, show treatment for his back pain and radiculopathy from January 2015 to March 2017 and consistently note a “Gait: LIMP L FOOT.” The Veteran underwent VA spine examinations in September 2018, August 2019, and September 2020. In September 2018, the examiner noted that the Veteran had normal muscle strength and decreased sensation to fine touch for the entire left lower extremity but documented no evidence of muscle atrophy or radicular pain or other symptoms due to radiculopathy. The examiner also noted that the Veteran was only one-month past surgery. In August 2019, the Veteran demonstrated knee extension against gravity, his sensory examination was normal, mild numbness related to radiculopathy was noted, and the examiner diagnosed mild bilateral lower extremity radiculopathy. There was no evidence of muscle atrophy. The Veteran underwent a physical medicine rehabilitation consultation at VA in August 2020. A mobility evaluation revealed an ataxic gait with marked weakness of the left lower extremity. He was able to straighten his leg with almost full extension. A neurologic evaluation showed proximal left lower extremity strength was 3/5 and distal was 3+/5. The examiner noted there was “no actual foot drop;” instead, his weakness seemed to be “more due to spasticity than focal motor loss.” Muscle atrophy was noted in the left thigh and leg. He was afforded another VA spine examination in September 2020. Muscle strength testing was 5/5 for hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension, and the examiner stated there was no evidence of muscle atrophy. Sensation was decreased in the entire left lower extremity, and the examiner diagnosed the Veteran with severe radiculopathy bilaterally. In short, while some records document a “limp” left foot and muscle atrophy, other records show no evidence of muscle atrophy, and predominantly normal muscle strength. Notably, none of the evidence documented marked muscle atrophy or foot drop. The Board thus finds that the evidence does not show marked muscular atrophy, left foot drop, no active movement possible of the muscles below the knee, and flexion of the knee weakened or lost. Accordingly, a rating higher than 40 percent is not warranted and the claim is denied. 3. Entitlement to an initial rating higher than 10 percent prior to November 1, 2019 and 40 percent thereafter for the service-connected right lower extremity radiculopathy is denied. The Veteran seeks a higher initial rating for his service-connected right lower extremity radiculopathy. Currently, his disability is rated at 10 percent prior to November 1, 2019 and 40 percent thereafter under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under that diagnostic code, a 20 percent rating is warranted for incomplete moderate paralysis, a 30 percent rating is warranted for incomplete moderately severe paralysis, a 60 percent rating is warranted for incomplete severe paralysis with marked muscular atrophy, and an 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of muscles below the knee, and knee flexion is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. After review of the medical and lay evidence, the Board finds that a higher rating is not warranted for the entire appeal period. First, the evidence does not document right lower extremity radiculopathy prior to April 21, 2014. VA treatment records from July 2009 show that the Veteran sought treatment for back pain that radiated to his left lower extremity only. A straight leg raise test was negative. The Veteran underwent a VA spine examination in August 2010, which revealed normal neurologic and sensory findings, including normal vibration, position sense, pain or pinprick, and light touch, with no dysesthesias. A straight leg raise test was also negative. In March 2017, the Veteran testified that he experienced pain that radiated down his left extremity and “comes and goes.” When the undersigned Veterans Law Judge asked whether this pain was present in both legs, the Veteran stated it was “just [his] left leg.” Thus, the evidence does not support that the Veteran had right lower extremity radiculopathy prior to April 21, 2014. That is the date as of which the RO assigned the initial 10 percent rating, and the Board agrees the medical evidence prior to that date did not show right lower extremity neurological symptoms that warranted a separate rating. Further, the Board finds that the Veteran’s right lower extremity radiculopathy does not warrant a rating higher than 10 percent prior to November 1, 2019. The Veteran underwent VA spine examinations in September 2018 and August 2019. In September 2018, the examiner documented that the Veteran had normal muscle strength, no evidence of muscle atrophy, a normal sensory examination, and no radicular pain or other signs and symptoms due to radiculopathy. In August 2019, the Veteran demonstrated knee extension against gravity, his sensory examination was normal, mild numbness related to radiculopathy was noted, and the examiner diagnosed mild bilateral lower extremity radiculopathy. There was no evidence of muscle atrophy. Based on the evidence, including the Veteran’s March 2017 hearing testimony in which he denied pain on the right side, the Board finds that the Veteran’s right lower extremity radiculopathy was not more than mild prior to November 1, 2019. The Board considered the evidence from April 2014, when the Veteran sought treatment for exacerbation of his back pain, including the inability to feel or move his bilateral lower extremities. April 2014 and May 2014 records show that the symptoms stemmed from an epidural abcess and improved post-surgery. Additionally, that period is covered by a temporary 100 percent rating related to his surgery. Similarly, an August 2018 VA treatment record documents diminished right lower extremity strength and sensation one month after surgery. These symptoms manifested during a period in which a temporary total disability rating was granted for surgery and they improved. Accordingly, a higher rating is not warranted based on these brief exacerbations. Finally, the Board finds that a rating higher than 40 percent is not warranted for the right lower extremity from November 1, 2019 onward. The Veteran underwent a physical medicine rehabilitation consultation at VA in August 2020. A mobility evaluation revealed an ataxic gait with marked weakness of the left lower extremity; the right lower extremity was not mentioned. A neurologic evaluation showed areflexia in the right lower extremity, but the examiner noted there was “no actual foot drop;” instead, his weakness seemed to be “more due to spasticity than focal motor loss.” The examiner subsequently noted that the right lower extremity was partially functional. He was afforded another VA spine examination in September 2020. Muscle strength testing was 5/5 for hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension, and the examiner stated there was no evidence of muscle atrophy. Sensation was decreased in the entire right lower extremity, and the examiner diagnosed the Veteran with severe radiculopathy bilaterally. The Board thus finds that a higher rating is not warranted because the evidence does not show marked muscle atrophy or foot drop. While the August 2020 evaluation documented areflexia, the examiner noted there was no foot drop. Notably, the subsequent VA examination showed normal right lower extremity strength and no evidence of muscle atrophy. Accordingly, a rating higher than 40 percent is not warranted and the claim is denied. 4. Entitlement to an initial compensable rating prior to June 28, 2019 and a rating higher than 10 percent thereafter for the service-connected back scars under Diagnostic Code 7801 is denied. In July 2020, the RO granted service connection for scars associated with the Veteran’s April 2014 back surgery. The scars are rated at 0 percent prior to June 28, 2019 and at 10 percent thereafter under 38 C.F.R. § 4.118, Diagnostic Code 7801. Under this diagnostic code, a higher 20 percent rating is warranted for scars associated with underlying soft tissue damage that have a total area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). Post-surgery records through the February 2018 aid and attendance examination report do not show that the Veteran’s scars were painful, caused impairment, or were otherwise symptomatic. The September 2018 spine examination report documented one scar that measured 37 centimeters by 0.2 centimeters that was not painful or unstable. During the August 2019 VA spine examination, the Veteran reported that he had two scars on his trunk related to his June 2019 surgery. Due to his back brace, however, the examiner could not assess the scars. The Veteran underwent a scars examination in September 2020. The examiner documented two scars of the trunk or extremities. Scar #1 measured 40 x 1 centimeters and scar #2 measured 8 x 1 centimeters. Scar #1 was painful, unstable, and had underlying soft tissue damage. Scar #2 was painful and had underlying soft tissue damage. The approximate total area of the scars with underlying tissue damage measured 48 centimeters squared. The examiner stated there were no other pertinent findings related to the scars. After reviewing the medical and lay evidence, the Board finds that a higher rating is not warranted. Prior to the June 2019 surgery, the evidence only showed one scar that measured 37 centimeters by 0.2 centimeters, was not painful, and was not unstable. From June 2019 onward, the criteria for a higher rating under Diagnostic Code 7801 have not been met as the total area of the scars with underlying tissue damage only measure 48 centimeters squared, and the Veteran does not satisfy the criteria for a higher rating under the other scar diagnostic codes. Accordingly, the claim is denied. 5. Entitlement to an initial rating higher than 20 percent for the service-connected painful back scars under Diagnostic Code 7804 is denied. In September 2020, the RO granted service connection for scars following the Veteran’s June 2019 back surgery. The scars are rated at 20 percent under 38 C.F.R. § 4.118, Diagnostic Code 7804. Under this diagnostic code, a higher 30 percent rating is warranted for five or more scars that are unstable or painful, or three or four scars that are unstable or painful, with at least one scar being both painful and unstable. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Post-surgery records through the February 2018 aid and attendance examination report do not show that the Veteran’s scars were painful, caused impairment, or were otherwise symptomatic. The September 2018 spine examination report documented one scar that measured 37 centimeters by 0.2 centimeters that was not painful or unstable. During the August 2019 VA spine examination, the Veteran reported that he had two scars on his trunk related to his June 2019 surgery. Due to his back brace, however, the examiner could not assess the scars. The Veteran underwent a scars examination in September 2020. The examiner documented two scars of the trunk or extremities. Scar #1 measured 40 x 1 centimeters and scar #2 measured 8 x 1 centimeters. Scar #1 was painful, unstable, and had underlying soft tissue damage. Scar #2 was painful and had underlying soft tissue damage. The approximate total area of the scars with underlying tissue damaged measured 48 centimeters squared. The examiner stated there were no other pertinent findings related to the scars. After reviewing the medical and lay evidence, the Board finds that a higher rating is not warranted. The criteria for a higher rating under Diagnostic Code 7804 have not been met as the Veteran only has two scars that are unstable or painful, and the Veteran does not satisfy the criteria for a higher rating under the other scar diagnostic codes. Accordingly, the claim is denied. REASONS FOR REMAND 1. Entitlement to a TDIU prior to July 1, 2014 is remanded. The Veteran seeks entitlement to a TDIU. The RO granted entitlement to a TDIU, effective July 1, 2014, in a September 2020 rating decision. As the Veteran seeks a TDIU based on his service-connected back disability, which is currently on appeal, the September 2020 grant was only partial and the period prior to July 1, 2014 remains on appeal. The Veteran’s disability rating prior to July 1, 2014 does not meet the schedular TDIU criteria under 38 C.F.R. § 4.16(a) because his combined disability rating was 50 percent, excluding the period in which he was awarded a temporary 100 percent rating. After assessment of the medical and lay evidence, including the Veteran’s SSA disability award and employment history, the Board finds that the evidence suggests the Veteran may be entitled to an extraschedular TDIU prior to July 1, 2014. See 38 C.F.R. § 4.16(b). As the Board cannot adjudicate entitlement to a TDIU on an extraschedular basis in the first instance, referral is required. The Board therefore refers the issue of entitlement to a TDIU is referred to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: Refer the Veteran’s claim for a TDIU prior to July 1, 2014 to VA’s Director of Compensation Service for extraschedular consideration. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lavan, 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.