Citation Nr: 21012509 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-39 097 ,DATE: March 4, 2021 ORDER Prior to April 10, 2014, and from August 17, 2015, a rating higher than 20 percent for lumbar spine degenerative disc disease (DDD) is denied. From April 10, 2014 to August 16, 2015, a 40 percent rating for lumbar spine DDD is granted. Prior to August 20, 2020, a separate 10 percent rating for left lower extremity radiculopathy is granted. From August 20, 2020, a 20 percent rating for left lower extremity radiculopathy is granted. Prior to August 20, 2020, a separate 10 percent rating for right lower extremity radiculopathy is granted. From August 20, 2020, a 20 percent rating for right lower extremity radiculopathy is granted. REMANDED A rating higher than 10 percent for chronic prostatitis prior to August 20, 2020, and higher than 60 percent, thereafter, is remanded. A rating higher than 10 percent for a duodenal ulcer prior to August 20, 2020, and higher than 20 percent, thereafter, is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to April 10, 2014, and from August 17, 2015, the Veteran’s lumbar spine DDD was not manifested by forward flexion of 30 degrees or less, or by favorable ankylosis of the lumbar spine. 2. From April 10, 2014 to August 16, 2015, the Veteran’s lumbar spine DDD was manifested by the onset of pain at 20 degrees of forward flexion. 3. Prior to August 20, 2020, left lower extremity radiculopathy was manifested by mild incomplete paralysis of the sciatic nerve. 4. From August 20, 2020, left lower extremity radiculopathy was manifested by moderate incomplete paralysis of the sciatic nerve. 5. Prior to August 20, 2020, right lower extremity radiculopathy was manifested by mild incomplete paralysis of the sciatic nerve. 6. From August 20, 2020, right lower extremity radiculopathy was manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to April 10, 2014, and from August 17, 2015, the criteria for a rating higher than 20 percent for lumbar spine DDD 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) 5237. 2. From April 10, 2014 to August 16, 2015, the criteria for a 40 percent rating for lumbar spine DDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. 3. Prior to August 20, 2020, the criteria for a 10 percent rating for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. From August 20, 2020, the criteria for a 20 percent rating for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 5. Prior to August 20, 2020, the criteria for a 10 percent rating for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 6. From August 20, 2020, the criteria for a 40 percent rating for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from January 1973 to March 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision. It was previously remanded by the Board in August 2018 for additional development. Increased Ratings Lumbar spine DDD prior to April 10, 2014, and from August 17, 2015 The Veteran’s lumbar spine DDD is rated under 38 C.F.R. § 4.71a, DC 5237, which is part of the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). He is currently assigned a 20 percent rating for the entire appeal period. For the reasons discussed below, a rating higher than that is not warranted prior to April 10, 2014, or after August 17, 2015. Under the General Rating Formula, a higher 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or when there is favorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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). The Board finds that the preponderance of the evidence is against a rating higher than 20 percent during this period because forward flexion was never found to be 30 degrees or less. An August 2010 VA examination documented 55 degrees of flexion without pain, which was unchanged following repetitive testing. An August 2015 VA examination noted flexion of 65 degrees without pain, again unchanged with repetitive testing. Private treatment records from October 2016 documented 51 degrees of forward flexion. Finally, an August 2020 VA examination noted at least 65 degrees of forward flexion, including consideration of the onset pain, repetitive use over time, and flare-ups. This evidence also unanimously shows that no ankylosis was present. In sum, the stated criteria for a higher 40 percent rating have not been met. In making this determination, the Board has considered the Veteran’s statements regarding his condition. Notably, in October 2015, he reported that he was in significant pain during the August 2015 VA examination, and that he took pain medication prior to the examination. However, as discussed above, flexion was still measured at 51 degrees by his private physician. Similarly, while August 2019 VA records show the Veteran reported experiencing severe low back pain, flexion was still 65 degrees during the August 2020 VA examination, even when accounting for pain and other factors. Lumbar spine DDD from April 10, 2014 to August 16, 2015 During this period, the Board finds that higher 40 percent rating for lumbar spine DDD is warranted. Specifically, the April 2014 VA examination documented forward flexion of 60 degrees, but with the onset of pain at 20 degrees. The examiner noted that the Veteran’s functional loss and impairment was due, in part, to pain on movement. Therefore, the evidence establishes that, for this period, forward flexion of the lumbar spine was limited by pain to 20 degrees, and the criteria for a 40 percent rating are met. Under the General Rating Formula, a higher 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. However, the April 2014 VA examination affirmatively shows that no ankylosis was present, let alone unfavorable ankylosis. Left lower extremity radiculopathy prior to August 20, 2020 As part of the General Rating Formula, neurologic abnormalities associated with a spine disability are to be separately rated. Indeed, the Veteran is already service-connected for left lower extremity radiculopathy, rated at 10 percent effective from May 22, 2013. For the reasons stated below, the Board finds that a 10 percent rating is warranted for the entire period prior to August 20, 2020. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. Regarding impairment of motor functions, strength fluctuated between 4/5 and 5/5 during the relevant period. In December 2009 VA records, it was 4/5. During an August 2010 VA examination, it was 5/5. In January 2012, it was 4/5. During an April 2014 VA examination, it was 4/5 everywhere in the leg except the hip, which was 5/5. Regarding sensory disturbance, the August 2010 and April 2014 VA examinations documented normal sensation on testing. The VA and private treatment records from this period also only document normal sensation. Regarding loss of reflexes, the evidence shows that left leg reflexes largely fluctuated between +1 (diminished) as seen in VA records from December 2009, January 2012 and July 2016; and 2+ (normal) as seen in VA records from September 2009 and February 2013, and VA examinations from August 2010 and August 2015. Finally, the April 2014 VA examiner noted symptoms of moderate intermittent pain and mild paresthesias and characterized the Veteran’s overall condition as mild. Based on the above, the Board finds that the disability was primarily manifested by intermittent impairment in strength and reflexes, normal sensation on testing, and was considered mild by the VA examiner. This level of impairment is most analogous to mild incomplete paralysis. Moderate incomplete paralysis was not assessed by the VA examiner. When viewed alongside the normal sensation testing, as well as the minimal, intermittent impairments in motor strength and reflexes, the Board finds that a higher 20 percent rating it not warranted. Left lower extremity radiculopathy from August 20, 2020 During this period, the Board finds that a higher 20 percent rating is warranted. The VA examination conducted on August 20, 2020, documented moderate intermittent pain, moderate paresthesias and moderate numbness. The examiner assessed the overall severity of the condition as moderate. When viewed alongside the objective findings of reduced hip strength and decreased sensation in the upper thigh, the Board finds that moderate incomplete paralysis has been established. Moderately severe incomplete paralysis was not assessed by the examiner and is not otherwise consistent with the minimal strength and sensation impairments listed above. Right lower extremity radiculopathy prior to August 20, 2020 The Veteran is already service-connected for right lower extremity radiculopathy, rated at 10 percent effective from October 6, 2016. For the reasons stated below, the Board finds that a 10 percent rating is warranted for the entire period prior to August 20, 2020. Initially, the Board notes that while April 2014 and August 2015 VA examiners stated that no right radiculopathy was present, VA records from December 2009 and the August 2010 VA examination diagnosed right radiculopathy and right sciatic pain, respectively. A June 2011 electromyography study also showed objective evidence of neuropathy. Therefore, the Board finds that right lower extremity radiculopathy was present during the entire period. Regarding impairment of motor functions, strength fluctuated between 4/5 and 5/5 during the relevant period. In December 2009 VA records, it was 4/5. During an August 2010 VA examination, it was 5/5. In January 2012, it was 4/5. During an April 2014 VA examination, it was 4/5 everywhere in the leg except the hip, which was 5/5. In August 2015 and July 2016, it was 5/5. Regarding sensory disturbance, the August 2010 and April 2014 VA examinations all documented normal sensation on testing. The VA and private treatment records from this period also only document normal sensation. Regarding loss of reflexes, the evidence shows that left leg reflexes largely fluctuated between +1 (diminished) as seen in VA records from December 2009, January 2012 and July 2016; and 2+ (normal) as seen in VA records from September 2009 and February 2013, and VA examinations from August 2010 and April 2014. Based on the above, the Board finds that the disability was primarily manifested by intermittent impairment in strength and reflexes, and normal sensation on testing. This level of impairment is most analogous to no more than mild incomplete paralysis. Moderate incomplete paralysis was not assessed by any VA examiner. When viewed alongside the normal sensation testing, as well as the minimal, intermittent impairments in motor strength and reflexes, the Board finds that a higher 20 percent rating it not warranted. Right lower extremity radiculopathy from August 20, 2020 During this period, the Board finds that a higher 20 percent rating is warranted. The VA examination conducted on August 20, 2020, documented severe intermittent pain, severe paresthesias and severe numbness. The examiner assessed the overall severity of the condition as moderate. When viewed alongside the objective findings of reduced hip strength and decreased sensation in the upper thigh, the Board finds that moderate incomplete paralysis has been established. Although the examiner noted severe symptoms such as pain and numbness, the Board finds that moderately severe incomplete paralysis was not shown. The examiner only assessed moderate impairment, which is consistent with the objective findings that strength, reflexes and sensation were largely intact, with only minimal levels of impairment shown on testing. REASONS FOR REMAND Chronic prostatitis Duodenal ulcer The Board previously remanded these two issues for additional development in October 2018. In response, the Agency of Original Jurisdiction (AOJ) promulgated an August 2020 rating decision which granted a 60 percent rating for prostatitis and a 20 percent rating for the duodenal ulcer. Both new ratings were effective from August 20, 2020. The AOJ stated each of these awards was “a full grant of the benefit sought on appeal.” This is incorrect because, for both disabilities, the AOJ did not award higher ratings prior to August 20, 2020, and did not award the maximum schedular ratings from August 20, 2020. The AOJ failed to promulgate a supplemental statement of the case (SSOC) for these issues and return them to the Board for further adjudication. Therefore, these issues must be remanded to issue the required SSOC. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the claimant is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Even when the rating percentage requirements are not met, entitlement to TDIU benefits may be nonetheless considered when a claimant is unable to secure and follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(b). A substantially complete VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories. It concludes with a series of sworn certification statements, and in endorsing it, a veteran attests to his employment status and signals understanding of the IU benefit’s incompatibility with substantially gainful work. The Veteran submitted a VA Form 21-8940 in January 1997 as part of an earlier claim. He has yet to submit one in connection with the current appeal. VA requested that the Veteran submit the form in October 2011, August 2019, and June 2020, without success. The form submitted by the Veteran in 1997 stated that he stopped working in 1996 and was attending law school part-time. However, in an August 2010 VA examination, and again in October 2016 private treatment records, the Veteran reported that he had been unemployed since 2006. The evidence currently of record does not show what kind of work the Veteran completed between 1997 and 2006, or whether completed law school. This information is highly relevant in determining whether the Veteran’s current service-connected disabilities preclude him from any gainful employment consistent with his education and prior experience. Because the increased rating claims for his prostatitis and duodenal ulcer must be remanded, the Veteran will be afforded one final opportunity to submit an updated VA Form 21-8940. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Notify him that failure to submit the form may result in the denial of his TDIU claim. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.