Citation Nr: 21010000 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-15 991 DATE: February 23, 2021 ORDER Entitlement to an initial 20 percent rating, but no higher, for lumbar degenerative disc disease and degenerative joint disease (back disability) from October 18, 2012 to September 16, 2019 is granted. Entitlement to an initial rating in excess of 20 percent for back disability from September 16, 2019 is denied. Entitlement to a separate 20 percent rating, but no higher, for right lower extremity radiculopathy from May 23, 2016 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From October 18, 2012 to September 16, 2019, when considering pain, flare-ups, and corresponding functional impairment, the Veteran’s back disability has more nearly approximated forward flexion to 35 degrees. 2. The Veteran’s back disability has not been manifested by forward flexion to 30 degrees or less, ankylosis, or incapacitating episodes of intervertebral disc syndrome (IVDS) at any point during the appeal period. 3. The Veteran’s right lower extremity radiculopathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve since May 23, 2016. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 20 percent rating, but no higher, for back disability are met from October 18, 2012 to September 16, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for entitlement to an initial rating in excess of 20 percent for back disability from September 16, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5243. 3. The criteria for entitlement to a separate 20 percent rating, but no higher, for right lower extremity radiculopathy are met from May 23, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a, DCs 8599-8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1985 to August 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims for further development in June 2018. Increased Ratings 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 represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 1. Entitlement to an initial 20 percent rating, but no higher, for back disability from October 18, 2012 to September 16, 2019 is granted. 2. Entitlement to an initial rating in excess of 20 percent for back disability from September 16, 2019 is denied. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran’s back disability is evaluated pursuant to DC 5243, which pertains to Intervertebral Disc Syndrome (IVDS) and may be rated either under the General Rating Formula for Diseases or Injuries of the Spine (General Rating Formula) or under the Formula for Rating IVDS (IVDS Formula), whichever results in a higher evaluation. Pursuant to the General Rating Formula, as relevant here, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness that does not result in abnormal gait or abnormal spinal contour; or, vertebral body fracture is present with loss of 50 percent or more of the height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is 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 warranted when forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. Id., Note (1). Unfavorable ankylosis is defined by VA regulation as a condition in which the 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 on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Id., Note (5). Fixation in the neutral position of zero degrees always represents favorable ankylosis. Id. By way of background, an October 2013 rating decision awarded service connection for a back disability and assigned a 10 percent rating, effective October 18, 2012. A June 2020 rating decision increased the rating to 20 percent, effective September 16, 2019. The appeal period before the Board is from the effective date of service connection, or October 18, 2012. As a preliminary matter, the Board notes that although the Veteran presented for a VA examination in September 2013, the most recent September 2019 VA examination is the only examination that is compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, only the September 2019 VA examination report will be utilized for evaluation of the Veteran’s back disability based on range of motion, as it is the only adequate examination of record. In this regard, the Board emphasizes that the prior non-compliant 2013 examination shows range of motion findings less favorable to the Veteran than those in the September 2019 VA examination report. Thus, there is no prejudice to the Veteran in not considering the 2013 VA examination report to rate his disability based on limitation of motion and DeLuca factors. At the September 2019 VA examination, the Veteran reported back pain and flare-ups with bending forward, carrying, lifting, pushing heaving objects, and prolonged standing and walking. Physical examination revealed forward flexion to 45 degrees, with pain, but no additional loss of motion upon repetition. Additionally, the examiner found objective evidence of localized tenderness and guarding that did not result in abnormal gait or abnormal spinal contour. The examiner indicated that pain would additionally limit the Veteran’s lumbar range of motion to 35 degrees of forward flexion with repetitive use over time and during a flare-up. There was no evidence of muscle spasms, muscle atrophy, or ankylosis. The Veteran’s regular use of a back brace was noted. Here, when considering the competent and credible reports of limited lumbar spine motion and pain during flare-ups, coupled with the examiner’s assessment of additional decrease in mobility of forward flexion to 35 degrees due to painful flare-ups, a 20 percent rating is warranted throughout the appeal period pursuant to the General Rating Formula. However, a rating in excess of 20 percent is not warranted at any point, as the evidence does not indicate forward flexion of the thoracolumbar spine to 30 degrees or less, even when considering additional functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and during a flare-up. In this regard, even when considering DeLuca factors, the Veteran retained motion in the thoracolumbar spine and any additional limitation due to pain does not more nearly approximate a finding of forward flexion to 30 degrees or less or ankylosis. Indeed, the September 2019 VA examination report showed flexion limited to no less than 35 degrees following repetitive motion and during a flare-up and no evidence of ankylosis was noted. Accordingly, a rating higher than 20 percent rating is precluded. Additionally, the Board has considered whether evaluating the Veteran’s back disability under the IVDS Formula would be more beneficial to him. However, there is no evidence of record of any incapacitating episodes as contemplated within the applicable rating criteria, let alone 4 weeks over a period of 12 months of such episodes, to allow for assignment of a 40 percent rating, and the Veteran does not contend otherwise. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Moreover, the Veteran is currently in receipt of a separate rating for right lower extremity radiculopathy associated with his back disability, which would not be available if he was rated using the IVDS Formula. Thus, an increased rating is not available under the IVDS Formula. 3. Entitlement to a separate 20 percent rating, but no higher, for right lower extremity radiculopathy from May 23, 2016 is granted. Regarding separate neurological manifestations, the Veteran has been assigned a 10 percent rating for right lower extremity radiculopathy associated with his back disability, under DCs 8599-8520, effective July 5, 2019, the date of diagnosis. See June 2020 rating decision. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. DC 8520 evaluates paralysis of the sciatic nerve, and provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, a 60 percent rating for severe incomplete paralysis with marked muscle atrophy, and a maximum 80 percent rating for complete paralysis. 38 C.F.R. § 4.124a, DC 8520. On May 23, 2016, an electrodiagnostic study showed evidence of right chronic S1 radiculopathy. See May 24, 2016 VA treatment record. To the extent left S1 radiculopathy was initially identified, the Board notes this finding was in error and a correction was issued, noting that the right lower extremity was affected. Id. There is no indication of a prior diagnosis of radiculopathy. In this regard, the Veteran denied radicular pain or other radicular symptoms at the 2013 VA examination. A May 2019 VA treatment record notes decreased sensation along the right L5 and S1 dermatome, as well as decreased right S1 reflex. A July 2019 VA treatment record confirmed a diagnosis of right chronic S1 radiculopathy and shows the Veteran’s report of back pain radiating down his right leg, as well as his denial of any changes or new symptoms since his initial May 2016 diagnosis. On VA examination in September 2019, muscle strength testing was normal with no evidence of atrophy. Reflex and sensory testing was also normal except for decreased sensation in the right lower foot/toes. The Veteran reported moderate symptoms of paresthesias and numbness in his right lower extremity. The examiner found involvement of the right sciatic nerve and characterized the severity as mild. Affording the Veteran the benefit of the doubt, these findings are demonstrative of no more than moderate incomplete paralysis of the right sciatic nerve, which is consistent with no higher than a 20 percent rating. However, this separate 20 percent rating is warranted beginning May 23, 2016, the date right lower extremity radiculopathy was first diagnosed. A rating in excess of 20 percent is not warranted at any point during the appeal period, nor is a separate rating prior to May 23, 2016 warranted, as contemporaneous examination reports and treatment records do not indicate signs or symptoms of moderately severe incomplete paralysis of the sciatic nerve in the right lower extremity, which the Board construes as somewhere between moderate (medium) and severe (extreme). The Board’s award of a 20 percent rating is based on the Veteran’s own characterization of moderate symptomatology in 2019, which the Board is finding more probative than the September 2019 VA examiner’s assessment of the severity of his condition (through application of the benefit of the doubt rule). Notably, the Veteran denied any numbness, paresthesia, and other radicular symptoms during the September 2013 VA examination and there is no other competent evidence to support a separate rating during the earlier portion of the appeal period. No other separately compensable neurological rating is warranted based on the record. REASONS FOR REMAND 4. Entitlement to a TDIU is remanded. Here, the Veteran currently does not meet the schedular criteria for a TDIU. The Court has held that the initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there is “sufficient evidence to substantiate a reasonable possibility” that a veteran is unemployable by reason of his or her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58, 66-7 (2019). While the Court has not defined the threshold of evidence sufficient to “substantiate a reasonable possibility” in this context, the Board observes that in other contexts the Court has found this to be a “low” threshold. See, e.g., Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (noting that Congress intended a low threshold by requiring a claim to be reopened unless there is no reasonable possibility of substantiating a claim). Here, the Veteran reports that he is not employed in a substantially gainful occupation due to his service-connected back disability. See August 2018 and June 2019 VA Forms 21-8940. Moreover, the September 2019 VA examiner found that the Veteran’s service-connected back and radiculopathy disabilities did not preclude him from gainful “sedentary employment which does not require lifting, pushing, pulling or carrying more than 15-20 pounds of weight, doing overhead activities, prolonged standing and prolonged sitting.” The Board is confused as to how anyone could engage in a sedentary occupation that does not involve prolonged sitting. Moreover, in a July 2016 statement, Dr. Lopez indicated that after a review of the Veteran’s records and physical examination, he was too disabled due to his back and radiculopathy disability to return to “return to any kind of work that may provide a meaningful salary.” The Board finds that, on the present record, the low threshold for an initial extraschedular referral is met. Ray, supra. Thus, referral to the Director of Compensation Service is necessary to determine if a TDIU on an extraschedular basis is warranted on remand. See Bowling v. Principi, 15 Vet. App. 1 (2001). The matter is REMANDED for the following action: Refer to the Director of the Compensation Service the issue of whether the Veteran is entitled to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) from October 18, 2012. The Director’s attention is invited to the July 2016 opinion of Dr. Lopez, estimating that the Veteran’s back disability and right lower extremity radiculopathy renders him unable to return to any kind of work that may provide a meaningful salary, as well as the September 2019 VA examiner’s opinion regarding functional impairment that seems to preclude any sedentary position requiring “prolonged sitting,” along with the Veteran’s lay statements. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.