Citation Nr: 21022277 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-19 861 DATE: April 15, 2021 ORDER Entitlement to an initial evaluation in excess of 20 percent for service-connected thoracolumbar strain with degenerative disc disease of the lumbar spine (low back disability) is denied. Entitlement to an initial evaluation in excess of 10 percent for associated right lower extremity radiculopathy involving the sciatic nerve is denied. Entitlement to an initial evaluation in excess of 10 percent for associated right lower extremity radiculopathy involving the femoral nerve is denied. Entitlement to an initial evaluation in excess of 10 percent for associated left lower extremity radiculopathy involving the femoral nerve is denied. REMANDED Entitlement to increases in the “staged” ratings (50 percent prior to May 15, 2019 and 70 percent since) for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The most probative evidence is against finding that the Veteran’s low back disability has resulted in forward flexion of his thoracolumbar spine to 30 degrees or less or in ankylosis, including during periods of flare-ups or with prolonged or repetitive use of his low back. 2. He has not had more than mild radiculopathy of his lower extremities (sciatic and femoral nerves) due to his service-connected low back disability. CONCLUSION OF LAW The criteria are not met for a rating higher than 20 percent for the underlying low back disability or for ratings higher than 10 percent for the associated radiculopathy of the lower extremities. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243; 4.124a, Diagnostic Codes 8520, 8526 REASONS AND BASES FOR FINDINGS AND CONCLUSION The claims concerning the rating for the low back disability, PTSD, and for a TDIU were most recently before the Board in December 2020 and remanded back to the local Regional Office (RO) (i.e., Agency of Original jurisdiction (AOJ)) to consider additional evidence that had been obtained but not yet considered by the RO, in the first instance, and the Veteran had not waived that right. In February 2021, on remand, the RO issued a rating decision and Supplemental Statement of the Case (SSOC) readjudicating the claims but continuing to deny them. (Part and parcel to the claim for a higher rating for the low back disability is whether higher ratings also are warranted for the associated radiculopathy of the lower extremities.) Increased Ratings 1. Entitlement to a rating in excess of 20 percent for the low back disability. The Veteran’s low back disability has been evaluated as 20-percent disabling effectively since October 10, 2013 under DC 5243. No higher rating is warranted. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran’s favor. Id. § 4.3. A disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). “Staged” ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, premature or excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).   In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. Reference to the Veteran’s disability is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. According to DC 5243, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, the Veteran would be entitled to a higher rating of 40 percent if he had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks in a 12-month period. He would be entitled to an even higher rating of 60 percent if he had incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. Under instead the General Rating Formula for Disease and Injuries of the Spine, DCs 5235-5242, the following symptoms and ratings are as provided: unfavorable ankylosis of the entire spine (100 percent); unfavorable ankylosis of the entire thoracolumbar spine (50 percent); forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (40 percent); or forward flexion of the thoracolumbar spine to greater than 30 degrees but not to 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). Thus, the Veteran would be entitled to a higher rating if he had forward flexion of his thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of his entire thoracolumbar spine.   A July 2014 VA clinical record notes that the Veteran reported that his lower back pain was stable; he reported that he has occasional flare ups depending on activity level. A February 2015 record notes that he stated that he “found chiropractic services to be very effective” and was interested in retrying them. An April 2016 Disability Benefits Questionnaire (DBQ) notes that the Veteran had forward flexion from 0 to 60 degrees. Pain was noted on examination and resulted in functional loss. However, after repetitive use testing, there was no additional loss of function. The Veteran reported that he moves slower at work and that affects productivity, that bending hurts when he needs to bend at work, and that he cannot carry as much weight into the house. With regard to flare-ups, it was noted that, when it is damp outside, the pain is worse. Also, if he had a restless night, he is stiffer in the morning. On those days, he moves “a lot slower”. He had not been prescribed, or required to have, bedrest. A November 2019 DBQ indicates the Veteran continued to have forward flexion from 0 to 60 degrees. The examiner found that pain causes an additional loss of 5 degrees of forward flexion, so he had forward flexion from 0 to 55 degrees with repeated use over time and/or during a flare-up. He did not have IVDS with incapacitating episodes. Records more recently dated in 2020 reflect that the Veteran would like to try acupuncture for his chronic low back pain but has not due to COVID-19. A September 2020 DBQ notes that the Veteran reported constant pain at 7/10, dull pain in the lower back, and sometimes up to the mid-back that he can maneuver and cause a “pop” for relief. He reported occasional sharp pain of 9/10. He reported difficulty bending, twisting, running/jumping, lateral motions; he reported that he was limited to lifting /carrying no more than 15 pounds comfortably. He reported flare-ups of the back occur usually every couple of weeks and are severe, lasting for a few days. The flare-ups are precipitated by heavier lifting, carrying, pulling, pushing, longer sitting, standing, and walking, and moving too quickly. They are alleviated by rest, hot showers, and icy hot topical. He had forward flexion from 0 to 50 degrees. After repeated use over time, he had forward flexion from 0 to 40 degrees. During a flare-up, he has forward flexion from 0 to 35 degrees. He did not have required bed rest. The Veteran is not entitled to a higher rating under the Formula for Rating IVDS Based Incapacitating Episodes because the probative evidence of record does not support that he has been prescribed bed rest by a physician. If, as an example, he experiences an acute flare up of symptoms (e.g., pain, etc.) and resultantly takes to bed to try and recuperate, this is not an incapacitating episode because it is at his own election rather than on prescription of a doctor as means or modality of treatment. The Veteran also is not entitled to a higher rating under the General Rating Formula for Diseases and Injuries of the Spine because his low back disability does not manifest in forward flexion limited to 30 degrees or less or ankylosis. As discussed, he had forward flexion from 0 to 60 degrees (April 2016), from 0 to 60 degrees (November 2019), from 0 to 55 degrees during a flare-up or after repeated use over time (November 2019), from 0 to 50 degrees (September 2020), from 0 to 40 degrees after repeated use over time (September 2020), and from 0 to 35 degrees during a flare-up (September 2020). Thus, at worst, he has had forward flexion limited to 35 degrees, which does not meet the greater restriction (to 30 degrees or less) that is required for a higher 40 percent rating. Moreover, most of the time he has at least 40 degrees of forward flexion. His 20 percent rating adequately compensates him for his extent of limitation, including when considering the effect of his chronic pain on his range of motion and prolonged or repetitive activity or when his symptoms are at their worst (“flare ups”). See Mitchell v. Shinseki, 24 Vet. App. 32 (2011). Consider also that the ratings in the General Rating Formula for Diseases and Injuries of the Spine are for limitation of motion with or without symptoms such as pain, stiffness, or aching. The Board also, as required, has considered whether the Veteran is entitled to a separate rating for objective neurologic abnormalities attributable to his low back disability. 38 C.F.R. § 4.71a, DCs 5235-42, Note (1). However, he already is being separately compensated for his left and right lower extremity radiculopathy since associated with his low back disability, and the Board is assessing the appropriateness of those ratings elsewhere in this decision. The examination reports show he does not have any other neurologic abnormalities owing to his low back disability, such as bowel or bladder impairment. See April 2016, November 2019, and September 2020 DBQs. In a May 2020 rating decision, the RO granted service connection for right lower extremity radiculopathy involving the femoral nerve evaluated as 10-percent disabling from May 15, 2019, and left lower extremity radiculopathy involving the femoral nerve evaluated as 10-percent disabling from May 15, 2019. The RO also granted a separate 10 percent rating for right lower extremity radiculopathy involving the sciatic nerve evaluated as 10-percent disabling. The Board finds that higher or additional ratings are not warranted. The April 2016 DBQ reflects that the Veteran had a history of “tingling in upper legs”; it was noted to be “upper anterolateral on occasion”. Upon examination, the Veteran had 1+ (hypoactive) ankle reflexes, normal sensation in the legs, negative straight leg raising test, and normal muscle strength. He had a negative straight leg raising test. Despite the ankle reflexes and the Veteran’s reports, the examiner found that the did not have radiculopathy. Moreover, sensory deficits were not found on objective examination. The November 2019 DBQ reflects that the Veteran had normal reflexes, and a normal sensory examination. The examiner opined that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The September 2020 DBQ reflects that the Veteran had normal reflexes. He had decreased sensory findings in the right and left lower extremity. The examiner found that he had radiculopathy. It was noted that he had no constant pain, no intermittent pain, mild paresthesias and/or dysesthesias in the right lower extremity, but none on the left, and moderate numbness in the right lower extremity, but none on the left. He had decreased light touch sensation on the right in all areas, but normal in all areas for the left except for decreased in the upper anterior thigh. The examiner opined that the Veteran had bilateral involvement of the femoral nerve, and right sciatic nerve involvement. The radiculopathy was noted to be moderate on the right, and mild on the left. This evidence does not support that a higher rating is warranted for the left lower extremity radiculopathy since, at most, it is relatively mild. In addition, the earliest date upon which it can be ascertained that the Veteran met the requirement for a separate rating for radiculopathy of either lower extremity is the September 2020 DBQ. Although the 2016 DBQ notes left lower extremity deficit, the examiner found that it was not due to radiculopathy. (The Veteran is separately in receipt of service connection for ankle and knee disabilities). Moreover, he did not have symptoms in 2019 when examined; rather, he had all normal findings. With regard to the right lower extremity, the Veteran has two nerve involvements as of 2020: the femoral nerve (DC 8526) and the sciatic nerve (8520). Ratings for nerve involvement consider whether symptoms are physical or sensory. Examples of physical manifestations include, but are not limited to, muscle weakness, muscle atrophy and diminished or absent reflexes. Examples of sensory manifestations include, but are not limited to, pain (constant, intermittent or dull), numbness, paresthesias (abnormal touch sensation, burning or prickling, often in the absence of external stimulus), and dysesthesias (distortion of any sense, or unpleasant abnormal sensation produced by normal stimuli). When the rating impairment is wholly sensory, a rating commensurate with mild incomplete paralysis is reasonably assigned when symptoms are recurrent but not continuous and are not noted, when occurring, to be more than moderate. Moreover, physical manifestations do not automatically require a rating in excess of moderate incomplete paralysis. Miller v. Shulkin, 28 Vet. App. 376 (2017). Rather, wholly sensory impairment may only be rated commensurate with mild or moderate impairment. When adjudicating claims not involving wholly sensory impairment (i.e., there is a mix of physical and sensory impairments, such as decreased reflexes and numbness), a rating of mild incomplete paralysis is warranted when there are less persistent sensory deficits that affect small areas or for very minimal reflex or muscle strength impairment. A rating of moderate incomplete paralysis may be warranted when there are combinations of significant sensory changes and mild or slight muscle or reflex impairment or muscle and / or reflex impairment that has been noted by the examiner to be moderate in nature. The Board can find, based on the 2020 DBQ, that the Veteran’s symptoms were wholly sensory because he had normal reflexes, normal muscle strength, and no atrophy. The Board finds that the current 10 percent rating for each affected nerve adequately compensates him for the extent of his neurological impairment. Although the examiner found that the Veteran’s disability was moderate; the Board can reasonably find that this was due to the combined effect of two nerves, and that neither nerve was, in and of itself, moderately compromised. This finding is supported by the DBQ findings that the Veteran had normal muscle strength, no atrophy, normal reflexes, no constant pain, no intermittent pain, only mild paresthesias and/or dysesthesia on the right, only moderate numbness on the right, and decreased (but not absent) light touch testing results. For these reasons and bases, increased ratings are not warranted – either for the underlying low back disability or for the associated left and right lower extremity radiculopathy. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 2. Entitlement to increases in the “staged” ratings (50 percent prior to May 15, 2019 and 70 percent since) for PTSD is remanded. Evidence in the claims file shows the Veteran has been seen for his PTSD at a Vet Center (see September 2017 and May 2019 VA clinical records). All records from this counseling should be obtained and associated with the claims file so they may be considered. The Veteran has stated that, in 2020, he was on short-term disability from work, at least in part, due to his PTSD, and he has reported being “written up” a couple of times because of his irritability; but he did not state when this occurred or the circumstances. He therefore should be requested to provide employment records concerning any short-term disability and disciplinary action to support his claim. During a November 2020 Decision Review Officer (DRO) hearing, the Veteran’s attorney stated that the Veteran’s “friend also submitted a statement in support of his claim supporting his testimony about this and the frequency, severity, and duration of his symptoms.” But the Board does not see this statement in the claims file, and the Statement of the Case (SOC) and Supplemental SOC (SSOC) do not reference it. Thus, the Veteran should be requested to submit this statement. 3. Entitlement to a TDIU A claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for an increased rating for that disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In July 2020, the Veteran filed this TDIU claim, citing his PTSD, neck strain, and lumbar strain as disabilities precluding him from obtaining and maintaining substantially gainful employment. Consequently, this TDIU claim is “inextricably intertwined” with the issue of his entitlement to increased ratings for his PTSD since this is one of the disabilities he has cited as the reason he is unemployable. Hence, consideration of this derivative TDIU claim must be deferred pending completion of the additional development being directed concerning the claim for higher ratings for the PTSD. Accordingly, these claims are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Vet Center records from 2013 to the present for his PTSD. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile, and he has provided the required amount of information. Also, appropriately notify him and his attorney if unable to obtain these records. 2. Also ask the Veteran to provide employment records concerning all short-term and/or long-term absences from work due to disability and disciplinary action/written reprimands (or to provide authorization for VA to obtain these records). 3. As well, request the Veteran to submit the letter written by a “friend” that was referenced by the Veteran’s attorney during the November 2020 DRO hearing. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.