Citation Nr: 21009876 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 20-11 730 DATE: February 23, 2021 ORDER Entitlement to an increased rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine is denied. Entitlement to a separate 40 percent rating, but no higher, for right leg sciatic radiculopathy is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s DDD of the lumbar spine is not manifested by ankylosis. 2. The Veteran’s right sciatic radiculopathy is manifested by moderately severe symptoms. 3. For the entire appeal period, the Veteran is not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 40 percent for DDD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. The criteria for a separate rating of 40 percent, but no higher, for right leg sciatic radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8520. 3. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to December 1986. The Veteran appeals a February 2019 rating decision by the Agency of Original Jurisdiction (AOJ). A June 2019 rating decision continued the Veteran’s 40 percent rating for his back condition and granted service-connection for right leg sciatic radiculopathy, associated with the Veteran’s back condition, at 10 percent disabling effective April 22, 2019. An October 2020 rating decision granted and initial rating of 20 percent for right leg sciatic radiculopathy effective November 14, 2018. The Board notes the Veteran submitted a VA Form 20-0996 in May 2020 seeking Higher-Level Review regarding an earlier effective date and increased rating for both the Veteran’s DDD of the lumbar spine and right leg sciatic radiculopathy. However, the Veteran and his representative were notified in June 2020 correspondence that their VA Form 20-0996 was rejected since an appeal was already pending. No disagreement was made. As such, the Veteran’s appeal will continue in the legacy system. Increased Rating When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). 1. Back All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. If the Veteran has Intervertebral Disc Syndrome (IVDS), the Veteran may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ultimately, the Veteran’s disability rating will depend on which diagnostic code results in the higher evaluation. Here, the Veteran has had IVDS. See May 2019 VA examination report. Therefore, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not applicable. The pertinent criteria under the General Rating Formula for Diseases and Injuries of the Spine are as follows: Unfavorable ankylosis of the entire spine - 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine - 30 percent disabling. 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 - 20 percent disabling. Importantly, VA is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5242, Note (1). Here, the Veteran does not have objective neurologic abnormalities that rise to compensable levels. As noted above, the Veteran’s service-connected back condition has associated right leg sciatic radiculopathy. The Board will address radiculopathy below. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5243, Note (2). Under the IVDS Formula a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for 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 incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of evaluations under Diagnostic Code 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. Although the Veteran has had IVDS, the Veteran has not had any episodes that required bed rest prescribed by a physician in the last 12 months. Therefore, it would not be advantageous to rate the Veteran under Diagnostic Code 5243. The Board notes that pursuant to Note (1) of the General Formula, VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1). Determining whether separate ratings should be awarded for objective neurological complications is part and parcel of an increased rating claim for a lumbar spine disability. The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the new regulations do not impact the Veteran’s ratings. Therefore, the Board will not address them in this decision. The December 2018 and May 2019 VA examination reports did not find the Veteran to have ankylosis. Medical treatment records during the appellate period do not note the existence of ankylosis. The Veteran and his representative do not contend that the Veteran actually has ankylosis. The Board notes the VA examinations of record during the appellate period do not provide range of motion measurements during flare-ups or elicit sufficient information to allow the Board to assess functional limitations during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2019). However, remanding for a new VA examination would not aid the Veteran in establishing a higher rating for his service-connected back condition since a finding of ankylosis is required. Overall, a higher than 40 percent rating for the Veteran’s back condition would require a finding of ankylosis. However, the medical evidence of record has not found the Veteran to have ankylosis. Therefore, a higher than 40 percent rating is not warranted. 2. Radiculopathy Right lower extremity radiculopathy is evaluated under Diagnostic Code 8520. Mild incomplete paralysis warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Descriptive words such as “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve 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. The December 2018 and May 2019 VA examination reports noted moderate right lower extremity radiculopathy symptoms in constant and intermittent pain, paresthesias, and numbness. The Board notes the VA examination reports do not have an option to mark moderately severe symptoms. The VA examination reports also noted the Veteran used a brace, cane, and walker. Importantly, the Veteran competently stated in December 2020 correspondence that he struggles to kneel because he cannot feel his right leg due to his radiculopathy, that he is only able to walk about 15 feet at a time with the help of a walking stick, that he must wear his right knee brace and use a walker when he leaves the house, and that he has fallen several times a month due to how unstable his back and right leg are. The Board finds the Veteran’s assertions credible. Based on the evidence, the Board finds that the Veteran is entitled to an initial separate disability rating of 40 percent throughout the appellate period for his right leg sciatic radiculopathy symptoms. The Veteran suffers from moderately severe symptoms with severe functional limitations. A higher rating would require there to be severe incomplete paralysis with marked muscular atrophy or complete paralysis. However, the Veteran has not been found to have either condition. As such, a rating of 40 percent, but no higher, for right leg sciatic radiculopathy, is warranted for the entire appellate period. TDIU Pursuant to this decision, the Veteran is service-connected for two disabilities both rated at 40 percent disabling for the entire appellate period. The Veteran’s service-connected radiculopathy is associated with his service-connected back condition. Therefore, the Veteran’s two service-connected disabilities combine to 60 percent and are recognized as a single disability for TDIU purposes. As such, the Veteran has met the criteria for TDIU for the entire appellate period. The Board notes entitlement to TDIU was raised in the January 2020 notice of disagreement (NOD). The Veteran claims entitlement to TDIU based on both his service-connected back and right leg radiculopathy conditions. See September 2020 VA Form 8940. Therefore, entitlement to TDIU dates to the date of the Veteran’s increased rating claim regarding his back condition. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The Veteran’s VA Form 21-526EZ was received on November 14, 2018. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, 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 that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran last worked in 2015. See September 2020 VA Form 21-8940. The Veteran previously worked managing janitorial services, delivering mail, as a truck driver, and tried to open his own spring water business. Id. The Veteran has some post high school training and some college but did not complete a program. Id. As indicated above, the Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis for the entire period on appeal. Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. The December 2018 VA examination report noted the Veteran can hardly move during flare-ups and that he has problems with lifting and carrying. The May 2019 VA examination report noted the Veteran stays off his feet during flare-ups, he cannot lift more then 5-10 pounds, bend to lift or reach from below the waist, stand in one place or walk for more than 10 minutes, or sit for more than 20 minutes. Vocational consultant E.C. provided an opinion finding that the Veteran’s “service-connected lumbar spine condition and associated right lower extremity radiculopathy have at least as likely as not resulted in his inability to secure or follow a substantially gainful occupation, to include unskilled sedentary employment since at least August 2015 and continuing to the present.” E.C. provided a detailed history, reviewed and referenced information of record, and provided a thorough and adequate rationale. The Board finds E.C.’s opinion probative. The Veteran provided a detailed summary of how his service-connected conditions impact his work and limits his performance and capabilities. See September 2020 Veteran statement. The Veteran stated he is unable to perform heavy lifting and physical labor, his pain impacts his ability to concentrate, he needs to take frequent breaks, he is unable to sit for long periods, he requires assistive devices to walk, and he needs assistance getting dressed. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran’s work history consists of part-time employment that required either prolonged standing, sitting, or heavy lifting. However, medical evidence indicates that the Veteran is unable to stand or sit for prolonged periods. Additionally, the Veteran cannot lift more than 5-10 pounds. The Veteran also stated that his pain impacts his concentration and he must take frequent breaks. Given these functional limitations, the Veteran would be unable to perform in any driving or physical labor position. The Veteran would also be unable to perform adequately in an administrative setting that required long periods of sitting and concentration. The Veteran also requires the use of assistive devices. The Veteran does not have education or experience in another field or industry that would allow him to nurse his pains as needed. As such, the Board finds the Veteran credible as to his functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran’s service-connected disabilities, in combination, at least as likely as not prevent him from obtaining and maintaining substantially gainful employment for the entire appellate period. Accordingly, resolving all doubt in the Veteran’s favor, the criteria for TDIU have been met, the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.