Citation Nr: 21022430 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-06 965 DATE: April 15, 2021 ORDER Entitlement to an increased evaluation of 40 percent for low back injury prior to November 20, 2008, is granted. Entitlement to an increased evaluation of 20 percent for radiculopathy of the left lower extremity prior to May 19, 2011, and of 40 percent thereafter is granted. Entitlement to an increased evaluation of 20 percent for radiculopathy of the right lower extremity prior to May 19, 2011, and of 40 percent thereafter is granted. Special monthly compensation (SMC) at the “s” rate is granted from November 18, 2016. FINDINGS OF FACT 1. Prior to November 20, 2008, the Veteran’s low back disability was manifested by painful limitation of motion with forward flexion, at worst to 10 degrees, but without unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS) with incapacitating episodes lasting at least 6 weeks. 2. Prior to May 19, 2011, the Veteran had moderate sciatic nerve radiculopathy of the left lower extremity. 3. From May 19, 2011, the Veteran had moderately severe sciatic radiculopathy of the left lower extremity. 4. Prior to May 19, 2011, the Veteran had moderate sciatic nerve radiculopathy of the right lower extremity. 5. From May 19, 2011, the Veteran had moderately severe sciatic radiculopathy of the right lower extremity. 6. As the evidence indicates the Veteran is unemployable due to the effect of his service-connected back disability from November 18, 2016, the Veteran is entitled to special monthly compensation (SMC) at the housebound level. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent for low back disability prior to November 20, 2008, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for a disability rating of 20 percent prior to May 19, 2011, and of 40 percent thereafter, for the left lower extremity sciatic radiculopathy, have been met. 38 U.S.C. §§ 1155, 107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating of 20 percent prior to May 19, 2011, and of 40 percent thereafter, for the right lower extremity sciatic radiculopathy, have been met. 38 U.S.C. §§ 1155, 107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. The criteria are met for SMC(s) from November 18, 2016. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i); Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1965 to July 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, a Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. In a January 2020 decision, the Board denied, amongst other issues, the Veteran’s application for entitlement to an increased evaluation higher than 20 percent for residuals of a low back injury prior to November 20, 2008, an evaluation higher than 10 percent for radiculopathy of the left lower extremity prior to May 19, 2011, and higher than 20 percent thereafter, and an evaluation higher than 10 percent for radiculopathy of the right lower extremity prior to May 19, 2011, and higher than 20 percent thereafter. In October 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s denial and remanded the above referenced issues to the Board pursuant to a joint motion for partial remand (JMPR). 1. Entitlement to an increased evaluation higher than 20 percent for low back injury prior to November 20, 2008 Lumbar spine disabilities are rated based on limitation of motion, with evaluations assigned under the General Rating Formula for Diseases and Injuries of the Spine. A note following the schedule criteria indicates that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Diagnostic Codes 5235-5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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 evaluation is warranted for disability of the thoracolumbar spine when there is 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. An evaluation higher of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca, supra. The intent of the schedule is to recognize painful motion with joint or peri-articular 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. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’ in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The Veteran is in receipt of a 20 percent rating prior to November 11, 2008, under Diagnostic Codes 5235-5243. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A July 2007 VA examination report notes the Veteran’s complaints of low back pain. He stated the pain is in the lumbar region of his spine, that radiates to his legs bilaterally. He described flare-ups as occurring with physical activities, with the pain increasing to a 9. There were no known alleviating factors. He avoided pain medications. He reported unsteadiness and a recent fall because of the unsteadiness. The pain was constant, ranging from a 4 out of 10 on the pain scale, to 8 out of 10. The examiner noted the Veteran’s lumbar range of motion (ROM) as follows: forward flexion at 60 degrees, extension at 20 degrees, right and left lateral flexion at 20 degrees, right and left lateral rotation at 20 degrees, limited by pain and stiffness in the lumbar spine. There was no additional limitation in the range of motion on repetitive testing due to weakness or fatigue or lack of endurance or incoordination. Straight leg raise test was positive in both lower extremities. There was some tenderness to palpitation over the lower lumbar vertebrae. There was no evidence of paraspinal muscle spasms. There was decreased muscle strength at 4/5 in the right lower extremity proximal muscle groups, 4+/5 left lower extremity proximal muscle groups. The diagnoses were listed as lumbar degenerative disc disease moderate in severity with disc bulge and mild bilateral radiculopathy. At a March 2008 examination of the low back, the Veterans range of motion was severely reduced with flexion being limited to about 10 degrees. Prior to November 11, 2008, the record shows that the Veteran’s flexion on exam was found to be, at worst, to 10 degrees. At the March 2008 examination his flexion was limited to 10 degrees, accordingly, entitlement to a 40 percent evaluation is warranted. During the 2007 examination, he complained of back pain, and described flare-ups occurring with physical activities. He had tenderness to palpation over the lumbar spine. His range of motion was reduced, but there was no indication of ankylosis. These findings are consistent with a 40 percent rating. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the motion found by the VA examiners, and VA medical providers, the Board finds that that the Veteran does not have ankylosis of the thoracolumbar spine. As such, an evaluation in excess of 40 percent is not warranted. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca, supra. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. To be entitled to the next higher evaluation of 50 percent, there must be ankylosis of the entire thoracolumbar spine, of which there is no evidence. The next higher evaluation is not warranted. Higher evaluations are also available for IVDS; however, the Veteran was not prescribed bed rest by a clinician. Note (1) of 38 C.F.R. § 4.71a also instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Separate ratings have already been assigned for bilateral lower extremity radiculopathy, which is discussed below. There is no evidence of incontinence of bowel or bladder due to his lumbar spine disability. As such, the record does not show any other neurological abnormalities associated with the Veteran’s lumbar spine. Accordingly, a separate rating for a neurological disability is not warranted. The Board finds the Veteran is competent to report on symptoms. This competent and credible lay evidence; however, is outweighed by competent and credible medical evidence that evaluates the actual nature of his disability based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. Accordingly, entitlement to an evaluation of 40 percent and no higher, prior to November 11, 2008, is warranted. 2. Entitlement to an increased evaluation higher than 10 percent for radiculopathy of the left lower extremity prior to May 19, 2011, and higher than 20 percent thereafter 3. Entitlement to an increased evaluation higher than 10 percent for radiculopathy of the right lower extremity prior to May 19, 2011, and higher than 20 percent thereafter The Veteran’s service-connected radiculopathy of the left lower extremity and of the right lower extremity are rated under Diagnostic Code 8520, which governs paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted if the incomplete paralysis is severe with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis evidenced by the foot dangling and dropping, no possible active movement below the knee, and weakened or lost flexion of the knee. 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 given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. An introductory note to the rating schedule for diseases of the peripheral nerves indicates that where the involvement is wholly sensory, the rating should be for the mild, or at most moderate, degree. 38 C.F.R. § 4.124a. The Board notes that words such as mild, moderate, and severe as used in the various diagnostic codes are not defined in the rating schedule. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Veteran contends that the radiculopathy in each lower extremity deserve higher ratings. The RO assigned a 10 percent disability rating for his radiculopathy of each lower extremity, effective January 26, 2005, and a 20 percent disabling rating in each, with an effective date of May 19, 2011. A July 2007 electromyographic examination showed a diagnosis of mild bilateral radiculopathy, left greater than right. The Veteran reported unsteadiness and a recent fall because of the unsteadiness. The examiner noted decreased muscle strength at 4/5 in the right lower extremity proximal muscle groups and at 4+/5 in the left lower extremity proximal muscle groups. The diagnoses were listed as lumbar degenerative disc disease, moderate in severity, with disc bulge and mild bilateral radiculopathy. A January 2009 VA back examination documented abnormal lower extremity reflexes of 0. Straight leg raise test was positive in the lower extremities bilaterally. Lower extremity motor function and sensory function was described as abnormal, with neuralgia involving the sciatic nerve. A November 2009 VA physical medicine rehab consultation note shows a diagnosis of mild, chronic bilateral radiculopathy. A December 2009 VA pain medicine consult note shows a diagnosis of chronic bilateral radiculopathy. A September 2010 back examination documented diminished bilateral lower extremity reflexes of 1+. The Veteran reported pain in his low back extending to his legs. Pain, stiffness, and weakness was described as moderate. He stated the pain and stiffness was constant, and weakness occurred weekly. He reported numbness and weakness. The examiner said the Veteran had less muscle strength than normal in the left lower extremity. A November 2010 examination showed the Veteran reported some falls as a result of numbness in his left leg. At the November 2011 examination, radiculopathy of the bilateral lower extremities was shown. There was intermittent moderate pain. There was no indication of constant pain, paresthesias, and/or dysesthesias or numbness. The severity of the radiculopathy of both sides was described as moderate. The incomplete paralysis of both was described as mild. At an April 2013 VA orthotics consult documented the Veteran had bilateral foot drop. An October 2013 private electrical stimulation evaluation form documented foot drop. This evidence supports a higher rating or moderately severe disability under DC 8520. A March 2015 back examination noted severe intermittent pain of the left lower extremity and severe paresthesias and/or dysesthesias of the left lower extremity. A September 2015 private consultation indicated motor strength showed generalized weakness, 4/5 strength throughout all motor groups in the lower extremities. Straight leg raise testing was negative. A March 2017 treatment record noted the Veteran had falls due to lower extremity weakness. A September 2017 record noted the Veteran complained of chronic pain in his legs and that he had frequent falls. Upon examination in September 2019, he reported low back pain that shoots down his legs. He was unable to perform the straight leg raising test. Radicular pain or symptoms due to radiculopathy were noted. The nerve roots involved were listed as L4/L5/S1/S2/S3 on both sides, with the severity described as moderate for the right side and mild for the left. Intermittent pain listed as moderate for the right side and mild for the left side. Paresthesias and or dysesthesias and numbness listed as mild for the right side. Prior to May 2011, the most probative evidence of record shows the Veteran’s radicular symptoms were moderate in nature. The increased rating is supported by the evidence of record. At the January 2009 examination he had abnormal lower reflexes of 0. At the September 2010 examination he had less muscle strength than normal in the left lower extremity, and diminished bilateral lower reflexes of 1+. A November 2010 treatment record showed the Veteran had some falls as a result of numbness in his left leg. Overall, this evidence of decreased muscle strength, numbness that resulted in falls, and diminished reflexes, supports an increased rating that reflects moderate impairment. The Board finds that as of May 2011, an increased rating of 40 percent for the Veteran’s bilateral lower extremity radiculopathy is warranted. This increased rating is supported by the evidence of record. An April 2013 VA orthotics prosthetic consult noted the Veteran was evaluated for bilateral foot drop. And the VA EMG consult in April 2013 documented bilateral foot drop. Later at the October 2014 private electrical stimulation evaluation it was documented he had foot drop. He reported at the March 2015 examination severe intermittent paint and severe paresthesias and or dysesthesias of the left lower extremity. At the September 2017 examination he had complaints of chronic pain in his legs and frequent falls. Because the Veteran has reported severe pain and paresthesia, as well as foot drop, and frequent falls, a 40 percent evaluation for moderately severe radiculopathy better approximates his overall disability picture. To receive an increased rating of 60 percent, the evidence must show symptoms equivalent to severe incomplete paralysis of the affected nerves. Marked muscle atrophy is listed as a symptom associated with the 60 percent rating. See 38 C.F.R. § 4.124a, DC 8620. The Board notes that the Veteran’s treatment records, and examination reports do not show any degree of muscle atrophy. The Board also finds that the evidence does not show the presence of another symptom equivalent in severity to marked muscle atrophy to allow the assignment of a 60 percent rating. Overall, this evidence supports an increased rating that reflects moderately severe impairment. The totality of the evidence (including the Veteran’s competent and credible reports of significant pain and functional limitations and the examination reports and other medical evidence) does not show that his bilateral lower extremity radiculopathy is equivalent to severe incomplete paralysis with marked muscle atrophy, an increased rating of 40 percent, but no higher, is warranted from May 19, 2011. 4. Entitlement to SMC(s) from November 18, 2016. The Board observes that VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim” and remanding, pursuant to VA’s duty to maximize benefits, for VA to determine whether the Veteran’s posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. The Court has held that although a TDIU may satisfy the “rated as total” element of section 1114(s), a TDIU based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of “a service-connected disability” because that requirement must be met by a single disability. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. at 250. In this case the Veteran is in receipt of an award of TDIU effective November 18, 2016. During the May 2017 hearing, the Veteran and his wife provided material testimony regarding the Veteran’s inability to obtain and sustain substantially gainful employment due to his service-connected disabilities, primarily his back disability. Since November 2016, the Veteran’s service-connected disabilities include: residuals of low back injury with lumbar degenerative disc disease, rated at 40 percent, bilateral hearing loss, rated at 40 percent, posttraumatic stress disorder rated at 30 percent, radiculopathy of right lower extremity rated at 40 percent, radiculopathy of left lower extremity rated at 40 percent, tinnitus rated at 10 percent, scar, right side of neck, residual biopsy rated at 0 percent, scar, left hand, residual laceration rated at 0 percent. His combined rating is 90 percent. The Veteran has provided competent evidence to show that his former full-time employment as a commercial driver license examiner required hours of remaining in a seated position driving school buses, dump trucks and tractor trailers and how the pain associated with his service-connected low back injury and his service-connected radiculopathy impacted his ability to perform his work duties. In this case the Board finds the Veteran is unemployable based solely due to his low back disability. The Veteran is service-connected for a low back disability, hearing loss, PTSD, bilateral lower extremity radiculopathy, tinnitus, scar on his neck, and a scar on his left hand. Since November 18, 2016, his low back disability is rated as 40 percent disabling, plus he has separate, 40 percent ratings in each lower extremity for radiculopathy due to his back disability. This is considered one disability for TDIU purposes. See 38 C.F.R. § 4.16(a). In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114(s). The Board finds that although his low back disability is not at 100 percent, for SMC purposes this disability satisfied the requirement of a “service-connected disability rated as total.” See Buie and Bradley, supra. From November 18, 2016, the Veteran is also in receipt of a 40 percent evaluation for his hearing loss, 30 percent for PTSD, tinnitus rated at 10 percent, scar, right side of neck, residual biopsy rated at 0 percent, scar, left hand, residual laceration rated at 0 percent—the combined rating is more than 60 percent. From November 18, 2016, because the Veteran is in receipt of additional service-connected disabilities that are independently rated at least 60 percent, the criteria for SMC at the housebound rate have been met. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.