Citation Nr: 21021875 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-89 872A DATE: April 14, 2021 ORDER Prior to June 17, 2013, an initial compensable rating for chronic headaches is denied. From June 17, 2013, to August 15, 2018, an initial 50 percent rating for chronic headaches is granted. Prior to September 30, 2013, an initial rating higher than 10 percent for thoracolumbar spine degenerative disc disease (DDD) is denied. From September 30, 2013, to January 25, 2017, an initial 20 percent rating for thoracolumbar spine DDD is granted. From January 26, 2017, an initial 40 percent rating for thoracolumbar DDD is granted. An initial rating for right lower extremity radiculopathy higher than 10 percent from September 30, 2013, and higher than 20 percent from August 16, 2018 is denied. An initial rating for left lower extremity radiculopathy higher than 10 percent from September 30, 2013, and higher than 20 percent from August 16, 2018 is denied. A total disability rating based on individual unemployability (TDIU) from May 17, 2015 to November 16, 2016 is granted. FINDINGS OF FACT 1. Prior to June 17, 2013, the Veteran’s headaches did not manifest in characteristic prostrating attacks averaging one in 2 months over a period of several months. 2. From June 17, 2013, the Veteran’s headaches resulted in very frequent and prolonged prostrating attacks. 3. Prior to September 30, 2013, the Veteran’s thoracolumbar DDD was manifested by forward flexion of 80 degrees and combined range of motion of 230 degrees, without spasm, guarding or tenderness. 4. From September 30, 2013, to January 25, 2017, thoracolumbar DDD was limited by pain to no more than 50 degrees. 5. From January 26, 2017, thoracolumbar DDD was limited to 30 degrees, to include allowing for the effects of spinal injections. 6. Right lower extremity radiculopathy was manifested by mild incomplete paralysis of the sciatic nerve from September 30, 2013, and moderate incomplete paralysis of the sciatic and femoral nerves from August 16, 2018. 7. Left lower extremity radiculopathy was manifested by mild incomplete paralysis of the sciatic nerve from September 30, 2013, and moderate incomplete paralysis of the sciatic and femoral nerves from August 16, 2018. 8. From May 17, 2015, to November 16, 2016, the Veteran was unable to secure or maintain gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to June 17, 2013, the criteria for a compensable rating for chronic headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8100. 2. From June 17, 2013, to August 15, 2018, the criteria for a 50 percent rating for chronic headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8100. 3. Prior to September 30, 2013, an initial rating higher than 10 percent for thoracolumbar spine DDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242. 4. From September 30, 2013, to January 25, 2017, the criteria for an initial 20 percent rating for thoracolumbar spine DDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242. 5. From January 26, 2017, the criteria for an initial 40 percent rating for thoracolumbar degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242. 6. The criteria for an initial rating for right lower extremity radiculopathy higher than 10 percent from September 30, 2013, and higher than 20 percent from August 16, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DCs 8520, 8526. 7. The criteria for an initial rating for left lower extremity radiculopathy higher than 10 percent from September 30, 2013, and higher than 20 percent from August 16, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DCs 8520, 8526. 8. From May 17, 2015, to November 16, 2016, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from October 1979 to January 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision. The Veteran testified before the undersigned at a Board hearing in October 2019. Following the hearing, the Veteran submitted additional evidence in support of his claims, along with an appropriate waiver of review by the Agency of Original Jurisdiction (AOJ). As discussed below, the issues on appeal include increased ratings for the Veteran’s spine disability and associated neurologic abnormalities. He initiated his appeal of these issues prior to the implementation of the Appeals Modernization Act (AMA), which substantially changed the process for filing and appealing claims for VA benefits. Claims initiated prior to the AMA, including the current appeal, are adjudicated under the “legacy” system. This history is significant because, in February 2020, the Veteran filed a new claim for an increased rating for his spine disability and received a rating decision. He appealed that rating decision, and at present, has pending appeals for increased ratings for his spine and associated neurologic abnormalities under the AMA system. Although these AMA appeals relate to some of the issues discussed below, they are procedurally separate. 1. Chronic headaches prior to June 17, 2013 The Veteran’s headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. For the period prior to June 17, 2013, the Veteran’s migraines have occurred with less frequent attacks during the appeal period, corresponding to the criteria for a noncompensable rating under DC 8100. Private treatment records from October 2011 show the Veteran reported headaches which lasted between 15 minutes and several hours. He rarely experienced nausea, and had no photophobia or phonophobia. A January 2012 VA examination noted that headaches included nausea and light sensitivity, and that the duration of headaches was typically less than one day. The examiner specifically noted that the Veteran experienced prostrating attacks less than once every two months. Additional private records from May 2012 noted occasional mild headaches. This evidence, particularly the VA examiner’s finding of prostrating attacks less than once every two months, correspond to the criteria for a 0 percent rating under DC 8100. In making this determination, the Board has considered the lay testimony from the Veteran and his wife. They are both competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In that regard, he testified at his October 2019 hearing that his headaches have been consistently bad throughout the entire appeal period, from October 2011 through the present. However, the Board finds the contemporaneous medical records to be more probative in assessing the severity of his headaches, particularly when, as discussed below, the Veteran himself reported an increase in the severity of his condition in June 2013. 2. Chronic headaches from June 17, 2013, to August 15, 2018 From June 17, 2013, the Board finds that a 50 percent rating is warranted. Private treatment records from that date show the reported an increase in the intensity of his headaches over the last few weeks. A subsequent VA examination in September 2013 specifically noted that he experienced very frequent and prolonged prostrating attacks, including more than once per month, with the duration of his headaches lasting more than two days. These VA examination findings fit squarely within the criteria for the 50 percent rating, and based on the increase reported by the Veteran a few months earlier, the Board reasonably concludes that the Veteran met the criteria for the 50 percent rating as of that reported increase. From August 16, 2018, the Veteran is already assigned a 50 percent rating for his headaches, which is the maximum schedular rating available. 3. Thoracolumbar spine DDD prior to September 30, 2013 The Veteran’s thoracolumbar spine DDD is rated under 38 C.F.R. § 4.71a, DC 5242-5243, which is part of the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). For the period prior to January 15, 2015, a 10 percent rating is assigned. Under that formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). The Board finds that the preponderance of the evidence is against a rating higher than 10 percent prior to September 30, 2013. A January 2012 VA examination documented forward flexion of 80 degrees and combined range of motion of 230 degrees, even when accounting repetitive testing and the onset of pain. There was no localized pain, tenderness, spasm or guarding present. These findings fall squarely within the criteria for the currently assigned 10 percent rating outlined above and do not meet the criteria for a 20 percent rating (forward flexion not greater than 60 degrees, combined range of motion not greater than 120 degrees). Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. During the pendency of the appeal, the rating criteria for some musculoskeletal disabilities were updated. With respect to the General Rating Formula, these changes limited DC 5243 to instances of IVDS where there is disc herniation with compression and/or irritation of the adjacent nerve root. As noted, however, a rating under DC 5243 is not applicable in this case. 4. Thoracolumbar spine DDD from September 30, 2013, to January 25, 2017 From September 30, 2013, to January 25, 2017, a 20 percent rating is appropriate. A VA examination from September 2013 documented forward flexion limited by pain to 50 degrees, which satisfies the 20 percent rating criteria. Similarly, VA treatment records from January 2015 and August 2016 document forward flexion of 45 degrees. A higher 40 percent rating is not warranted during this period because forward flexion was not limited to 30 degrees or less, and ankylosis was not shown at any time, including the VA examination. Notably, during his October 2019 Board hearing, the Veteran testified that he received spinal injections to treat his condition, and that the ameliorative effects from these injections may have reduced the severity of his symptoms. In assigning a disability rating, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). VA treatment records from July 2013 show that the Veteran received an injection in December 2012, many months before the September 2013 VA examination. He stated at the time that the injection helped him for three to four months. Additional records show he received injections in December 2015 and March 2016, at least 5 months before the August 2016 treatment note which documented 45 degrees of forward flexion. Based on this evidence, the Board reasonably concludes that the ameliorative effects from the Veteran’s injections were not present when the relevant range of motion testing was conducted. 5. Thoracolumbar spine DDD from January 26, 2017 From January 26, 2017, the Board finds that a 40 percent rating is warranted. VA treatment records from that date document 30 degrees of forward flexion in the thoracolumbar spine, consistent with the 40 percent rating. The same finding was recorded in March 2018. An August 2018 VA examination documented 40 degrees of forward flexion with repetitive use over time and flare-ups, but this was within four months of receiving a steroid injection, and therefore it is possible that the ameliorative effects of that injection resulted in slightly improved range of motion. Resolving any doubts in the Veteran’s favor, the Board finds that discounting such effects would likely yield forward flexion limitations consistent with the 40 percent rating criteria. In addition, a February 2020 VA examination recorded flexion of 40 degrees, but did not comment on repetitive use over time. Given that such use reduced range of motion by 10 degrees in the August 2018 VA examination, the Board reasonably concludes that similar limitations would result from repetitive use over time in the February 2020 VA examination. A higher 50 percent rating is not warranted because ankylosis, and particularly unfavorable ankylosis, has not been demonstrated at any time. Finally, the Board notes that the General Rating Formula provides for separate ratings for any neurologic abnormalities associated with a spine disability. As discussed below, the Veteran has separate ratings for bilateral lower extremity radiculopathy. The Veteran also contends that he has erectile dysfunction associated with his spine DDD. However, there is no competent medical evidence of such an association. Rather, private treatment records from October 2013 show the Veteran’s report of erectile dysfunction was consistent with hypogonadism. Therefore, a separate rating is not warranted. Otherwise, the evidence does not show any other neurologic impairment, including bowel or bladder incontinence, associated with his spine disability. 6. Right lower extremity radiculopathy 7. Left lower extremity radiculopathy Because the laws and facts related to these disabilities are similar, they will be discussed together. The Veteran’s lower extremity radiculopathy disabilities are rated under DC 8520. Each has a 10 percent rating beginning on September 30, 2013, and a 20 percent rating from August 16, 2018. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 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. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). As noted above, the Veteran’s ratings begin on September 30, 2013. Prior to that date, separate ratings are not warranted. Private treatment records from October 2011 reflect a diagnosis of sciatica. Although the Veteran reported experiencing pain, examination showed normal strength, sensation, reflexes and gait. A January 2012 VA examination documented similar findings, and the examiner stated that no radiculopathy was present. The Board acknowledges that the Veteran experienced pain in his bilateral lower extremities during this time and was diagnosed with sciatica. However, given the absence of any objective findings or associated functional impairment, the Board finds that “mild incomplete paralysis” has not been shown and therefore separate ratings are not warranted during this period. From September 30, 2013, the Veteran is assigned 10 percent ratings in each leg. This is based on a VA examination from that date which noted mild paresthesias and mild numbness bilaterally. The Veteran had moderate intermittent pain in the right leg, and had mild intermittent pain and decreased sensation in the left leg. Strength, reflexes and sensation were all normal. The overall severity of radiculopathy in both legs was characterized as mild. These findings of mild paresthesias, mild numbness, and an overall mild level of severity are consistent with the current 10 percent rating for mild incomplete paralysis. Although the Veteran had moderate intermittent pain in the right leg, and objective findings of decreased sensation in the left leg, these alone are not enough to characterize either leg with an overall moderate level of incomplete paralysis required for a 20 percent rating. Additional evidence after September 2013 generally corroborates these findings. Some private treatment records from March 2015 show strength of 4/5, while others document normal strength. Reflexes were diminished but sensation was intact. VA records from January 2017 show mildly decreased strength (4+/5 to 5-/5) and decreased sensation in the right leg, and normal findings in the left leg. Private treatment records from February 2018 documented normal strength, sensation, reflexes and gait. From August 16, 2018, the Veteran has 20 percent ratings under DC 8520. This is based on a VA examination from that date which documented mild constant pain, severe intermittent pain, moderate paresthesias, and moderate numbness bilaterally. Strength was 4/5 and sensation was decreased in the lower legs and feet. The examiner assessed an overall level of moderate sciatic radiculopathy bilaterally. A February 2020 VA examination noted similar findings. Although severe intermittent pain was documented, this alone does not establish a moderately severe level of impairment given the other moderate symptoms and overall moderate assessment by the examiner. The objective findings of slightly diminished strength and sensation are also consistent with no more than a moderate level of incomplete paralysis. The August 2018 VA examination also diagnosed with bilateral moderate femoral nerve radiculopathy, and the Veteran is assigned a separate 20 percent rating for each leg under DC 8526 as of the date of the examination. This finding of “moderate” incomplete paralysis is based on the same evidence which established moderate sciatic neuropathy as discussed above, and therefore a higher rating for “severe” incomplete paralysis is not warranted. Notably, there is no evidence of femoral nerve radiculopathy in either leg prior to that date. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating/rating in excess of [X] percent for [X]. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 8. TDIU from May 17, 2015 to November 16, 2016 During the appeal period, the Veteran asserted that he was unable to work due to his service-connected disabilities. Therefore, a claim for a TDIU has been raised as part of his increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more or (2) 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). In this case, the Veteran worked full time until May 17, 2015. See September 2016 VA Form 21-8940. In addition, as of November 17, 2016, the Veteran is assigned a 100 percent schedular rating for his depressive disorder, along with special monthly compensation for additional disabilities with a combined rating of at least 60 percent. Therefore, the issue of a TDIU is moot as of that date. See Bradley v. Peake, 22 Vet. App. 280 (2008). For the remaining period on appeal, the Board finds that a TDIU is warranted. The Veteran is service-connected for chronic headaches (50 percent), thoracolumbar DDD (20 percent), right lower extremity radiculopathy (10 percent), left lower extremity radiculopathy (10 percent), left scalp scar (10 percent), tinnitus (10 percent), left eyelid scar (0 percent), and bilateral hearing loss (0 percent). Therefore, he meets the schedular criteria for a TDIU. The evidence, including the Veteran’s TDIU application, Social Security Administration (SSA) records, and information obtained from employers, shows that he has a high school level education with additional training in welding. He worked in manufacturing, welding and fabrication, and as a mechanic. Private treatment records from December 2011 show that his duties at the time included operating a forklift. In sum, his employment history is primarily physical in nature. Regarding functional impairment, there are no specific findings from the period on appeal. However, private records from December 2011 showed the Veteran was able to sit in a forklift for only about 20 minutes. The September 2013 VA examiner stated that the Veteran’s headaches were prostrating and limited any type of work when active. His spine condition created difficulty with bending, lifting, prolonged walking and prolonged standing. The August 2018 VA examination noted similar findings. Given the physical nature of the Veteran’s employment, and the functional impairment shown by the evidence, the Board finds that the Veteran was unable to secure or maintain gainful employment consistent with his education and   experience for the period in question. Therefore, a TDIU is warranted. L.M. YASUI Acting 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.