Citation Nr: 21013935 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-38 676A DATE: March 10, 2021 ORDER Entitlement to an initial rating of 40 percent, but no higher, for lumbar spondylosis, prior to December 10, 2019, is granted. Entitlement to a rating in excess of 40 percent for lumbar spondylosis, from December 10, 2019, is denied. Entitlement to a separate initial rating of 80 percent, but no higher, for left lower extremity (LLE) radiculopathy, from October 27, 2010, is granted. Entitlement to a separate initial rating of 20 percent for right lower extremity (RLE) radiculopathy, from October 27, 2010, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to December 10, 2019, the Veteran’s lumbar spondylosis was manifested by forward flexion to 30 degrees. 2. From December 10, 2019, the Veteran’s lumbar spondylosis is not manifested by ankylosis. 3. From October 27, 2010, the Veteran’s LLE radiculopathy is manifested by complete paralysis and foot drop. 4. From October 27, 2010, the Veteran’s RLE radiculopathy is manifest by moderate symptoms. 5. The Veteran’s has a combined 100 percent disability rating. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent, but no higher, for lumbar spondylosis, prior to December 10, 2019, 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, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. The criteria for a rating in excess of 40 percent for lumbar spondylosis, from December 10, 2019, 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. 3. The criteria for a separate initial rating of 80 percent, but no higher, for LLE radiculopathy, from October 27, 2010, 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. 4. The criteria for a separate initial rating of 20 percent, but no higher, for RLE radiculopathy, from October 27, 2010, 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 8720. 5. The criteria for entitlement to TDIU have not 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 August 1979 to March 1989. The Veteran appealed a May 2012 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans’ Appeals (Board) hearing was held in October 2018. A transcript is of record. An October 2014 rating decision granted service-connection for chronic right S-1 radiculopathy at a 10 percent rating effective July 23, 2012. A March 2020 rating decision increased the Veteran’s lumbar spondylosis rating to 40 percent effective December 10, 2019 and granted service-connection for LLE radiculopathy at a 20 percent rating effective December 10, 2019. In February 2019 and May 2020, the Board remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 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 2012 VA examination report. Therefore, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is 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. The Veteran’s service-connected back condition has associated left and right lower extremity 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. Therefore, it would not be advantageous to rate the Veteran under Diagnostic Code 5243. Although the rating decision codesheets of record indicate that the Veteran’s back condition is rated under Diagnostic Code 5243, the rating decisions rated the Veteran under the General Rating Formula for Diseases and Injuries of the Spine based on limitation of forward flexion. This best compensates the Veteran’s back condition’s symptoms. 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 Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453 (November 30, 2020) (to be codified at 38 C.F.R. § 4.71a). 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 as to a higher rating. Therefore, the Board will not address them in this decision. A. Prior to December 10, 2019 The May 2012 VA examination report regarding the back noted objective painful motion beginning at 30 degrees and impact on bending, lifting, and carrying. The Veteran stated in his October 2014 VA Form 9 that he must use a cane to walk due to his back pain and that he must take breaks when walking. The July 2016 VA examination report noted constant low back pain, forward flexion to 35 degrees, regular use of a walker, impact with prolonged standing and ambulation, and necessary accommodations for periodic breaks and time off. The Veteran stated he cannot stand or sit for very long, and he rarely drives due to difficulties getting in and out of cars. See October 2018 Board hearing tr. at 3-4, 21-22. The December 2019 VA examination report noted forward flexion to 30 degrees, regular use of a cane, and impact with prolonged standing and ambulation. The Board finds that the Veteran is entitled to a 40 percent rating for the entire period on appeal prior to December 10, 2019. The Veteran’s back condition was limited to forward flexion of 30 degrees. The AOJ granted the Veteran a 40 percent rating based on the December 2019 VA examination report. However, it is likely that the Veteran had such limitation in range of motion (ROM) prior to the December 2019 VA examination. Additionally, the May 2012 VA examination report indicated that painful motion began at 30 degrees. The July 2016 VA examination report noted forward flexion to be as little as 35 degrees but did not note when painful motion began. The Veteran also required the use of assistive devices to ambulate. However, a higher rating is not warranted. The VA examination reports and other medical treatment records during the period on appeal do not note the existence of ankylosis. The Veteran and his representative do not contend that the Veteran has ankylosis. 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. B. From December 10, 2019 The December 2020 VA examination report noted that during flare-ups the Veteran is unable to walk, he has difficulty with walking, standing, sitting, bending, and dressing, he has forward flexion to 15 degrees during flare-ups, and that he constantly uses a walker. However, a higher rating is not warranted. The VA examination reports and other medical treatment records during the period on appeal do not note the existence of ankylosis. The Veteran and his representative do not contend that the Veteran has ankylosis. 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 The Board notes that the Veteran has been service-connected for left and right lower extremity radiculopathy for only part of the period on appeal. However, as noted above, objective neurologic abnormalities are to be rated separately. Medical evidence of record indicates bilateral lower extremity radicular symptoms at compensable levels, associated with the Veteran’s back condition, for the entire period on appeal. The issue of a higher initial rating for the Veteran’s service-connected back condition is on appeal. The Veteran’s back condition is service-connected from October 27, 2010. As such, the Veteran is entitled to separate ratings for both left and right lower extremity radiculopathy for the entire period on appeal from October 27, 2010. 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 May 2012 VA examination report regarding the back noted radiating pain and numbness to both hips and that the Veteran’s legs give out. A May 2012 VA examination reports regarding the nerves noted severe LLE pain and moderate LLE numbness. The July 2016 VA examination report noted mild LLE intermittent pain. The Veteran stated that the pain shooting down his legs causes him to fall, the left leg is more severe than the right, and that at times his left leg and foot would stop functioning so that he would have to swing his leg around. See October 2018 Board hearing tr. at 6-7, 15-18. The December 2019 VA examination report noted pain radiating to the legs, with the left greater than the right leg, mild left and right lower extremity intermittent pain, moderate left side radiculopathy, and mild right side radiculopathy. The December 2020 VA examination report noted shooting pain radiating to both sides of the hips, the existence of numbness, tingling, weakness, and moderate pain, paresthesias and/or dysesthesias, and numbness in the lower extremities. A. LLE Based on the evidence, the Board finds that the Veteran is entitled to an initial separate rating of 80 percent for his LLE radiculopathy symptoms from October 27, 2010. The Veteran suffers from LLE weakening and foot drop. The May 2012 VA examiner noted severe LLE radicular symptoms. Throughout the period on appeal, the Veteran has required use of a cane and walker to ambulate due to his LLE. See May 2016 VA treatment records. Medical evidence suggests LLE weakness that causes the Veteran to collapse. See June 2012 and September 2014 treatment records. Importantly, the Veteran competently stated during the October 2018 Board hearing that he had to physically pull his leg out with his hands to get out of the car, he sometimes falls down and has no function, that to get out of bed he has to roll onto the floor and crawl into his chair, and that his foot drags. See October 2018 Board hearing tr. at 4-11, 17. The Board finds the Veteran’s assertions credible. A higher rating is not warranted as this is the maximum rating. As such, a rating of 80 percent, but no higher, for LLE radiculopathy, is warranted for the entire period on appeal from October 27, 2010. B. RLE Based on the evidence, the Board finds that the Veteran is entitled to an initial separate rating of 20 percent for his RLE radiculopathy symptoms from October 27, 2010. The Veteran suffers from moderate symptoms. The December 2020 VA examiner noted moderate symptoms in the RLE and the Veteran has generally complained of pain shooting down both RLE throughout the period on appeal. However, the Veteran is not entitled to a higher rating. A higher rating would require there to be moderately severe incomplete paralysis, severe incomplete paralysis with marked muscular atrophy, or complete paralysis. The Veteran has not been found to have muscular atrophy. The Veteran and the medical evidence suggest that his LLE radicular symptoms are much more severe than his RLE. Medical evidence primarily notes greater issues with the Veterans LLE and primarily only note pain with the RLE. As such, a rating of 20 percent, but no higher, for RLE radiculopathy, is warranted for the entire period on appeal from October 27, 2010. TDIU Entitlement to TDIU has been raised during the period on appeal. The Veteran last worked in 2003 and worked with heavy equipment, in utilities, and welding and fabrication. See October 2018 Board hearing tr. at 12, 14. Pursuant to this decision, the Veteran has a combined 100 percent rating, under the bilateral factor, for the entire period on appeal. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the rating schedule indicates that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled because of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of a 100 percent disability rating does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his or her disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a Veteran has a 100 percent disability rating for a “single disability,” and TDIU for a sole disability may satisfy this requirement. See Bradley, 22 Vet. App. at 292 (analyzing 38 U.S.C. § 1114 (s)). In this case, the Veteran does not have a single disability rated at 100 percent disabling and the record indicates that the combination of the Veteran’s service-connected conditions renders him unable to work. Functional limitations noted during VA examinations and in the medical records primarily deal with limitation in ROM and the inability to perform physical activities due to both back and lower extremity pains. As a result, entitlement to TDIU based on a single, service-connected disability is denied. 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.