Citation Nr: 21023532 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 10-34 185 DATE: April 20, 2021 ORDER A rating in excess of 10 percent from prior to June 30, 2014 for degenerative disc disease (DDD) of the lumbar spine is denied. A rating in excess of 20 percent from June 30, 2014 for DDD of the lumbar spine is denied. An initial rating in excess of 10 percent for right lower extremity (RLE) radiculopathy is denied. A rating of 20 percent from March 6, 2018 for left lower extremity (LLE) radiculopathy is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran had active duty from July 1979 to July 1982. 2. A low back disability has been manifested by subjective complaints of pain; objective findings include restricted range of motion, pain, as well as guarding as of June 30, 2014. 3. RLE radiculopathy has been manifested by objective evidence of mild incomplete paralysis. 4. LLE radiculopathy prior to March 6, 2018 was manifested by subjective complaints of pain and objective evidence of mild incomplete paralysis; from March 6, 2018 LLE radiculopathy was measured by objective measurements of moderate pain. 5. The Veteran’s service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to June 30, 2014 for DDD of the lumbar spine have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5235-5243 (2020). 2. The criteria for a rating in excess of 20 percent from June 30, 2014, for DDD of the lumbar spine have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, DCs 5003, 5235-5243 (2020); 38 C.F.R. § 4.71a DCs 5003, 5235-5243 (2021). 3. The criteria for an initial rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.25, 4.26, 4.124a, DC 8520 (2020). 4. The criteria for a rating of 20 percent from March 6, 2018 for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.25, 4.26, 4.124a, DCs 8520, 8526 (2020). 5. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1110, 1131, 1521, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal was previously before the Board in May 2018 when it was remanded for additional development. The Regional Office (RO) substantially complied with the prior remand request. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran previously had a hearing before a Veterans Law Judge who has since retired. He was sent a letter in which he was offered a new hearing but did not respond. Thus, there is no bar to proceeding with the appeal. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Lumbar Spine Prior to June 30, 2014, the Veteran’s low back disability was rated at 10 percent under DC 5243 for degenerative disc disease. A rating in excess of 10 percent will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (20 percent); • combined range of motion of the thoracolumbar spine not greater than 120 degrees (20 percent); • muscle spasms or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent); or, • incapacitating episodes of IVDS having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); As there was no X-ray evidence of degenerative arthritis for this time period, a higher rating due to incapacitating exacerbations of major or minor joints is not applicable for rating purposes. Turning to the evidence, a rating in excess of 10 percent prior to June 2014 for limitation of motion is not supported by the evidence. A March 2010 VA examiner diagnosed the Veteran with degenerative disc disease. The Veteran reported back pain occurring several times per month, which kept him from concentrating and from socializing, but that he had normal range of motion. VA medical records during this period show complaints of pain, but no measurements reflect range of motion restrictions sufficient for a higher rating. In December 2009, he complained of muscle stiffness in his neck and back. June 2012 VA medical records show that he injured his clavicle, but two weeks later VA medical records show he had full range of motion in his back. September 2013 VA medical records show that his back range of motion was within normal limits. VA medical records prior to the June 30, 2014 VA examination continue to show chronic intermittent back pain. As for muscle spasms or guarding, the March 2010 VA examiner found that the Veteran had a normal gait, with no pain on palpation. He had flareups which were treated with OTC pain medication and keeping his feet up. December 2009 VA medical records show muscle stiffness in the neck and back, and in December 2013 he complained of low back pain, left sided neck pain and mild stiffness. May 2014 VA medical records show voluntary guarding related to lower abdominal pain, rather than due to lumber spine pain. As such, a higher rating for muscle spasms or guarding is not supported by the evidence. Neither the March 2010 VA examiner nor any VA treating physicians have found any incapacitating episodes of IVDS at any point during this period. The March 2010 VA examiner did not diagnose the Veteran with IVDS. As such, a rating in excess of 10 percent prior to June 30, 2014 is not supported by the medical evidence. As of June 30, 2014, the Veteran was rated at 20 percent under DC 5242 for degenerative arthritis of the lumbar spine. A rating in excess of 20 percent will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine 30 degrees or less (40 percent); • favorable ankylosis of the entire thoracolumbar spine (40 percent); or, • incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). Although the Veteran had confirmed arthritis of the lumbar spine during this period, the highest allowable rating is 20 percent, which had already been awarded for this period. As of February 7, 2021, the regulations governing rating of musculoskeletal disabilities has been updated. From the date of implementation forward, utilizing either the old or new code, whichever rating is more favorable, is appropriate. However, given the Veteran’s diagnoses of degenerative arthritis and IVDS, the evidence that would precipitate a higher rating is unchanged under the new diagnostic codes. Turning again to the evidence, forward flexion has not been shown as sufficiently impaired to warrant a higher rating. A June 2014 VA examiner found that forward flexion was limited to 80 degrees with pain, and could not estimate any additional loss of range of motion during flareups because it would be mere speculation. Specifically, the examiner noted that there was no conceptual or empirical basis for making such determination without directly observing function under those conditions. However, in September 2016, VA medical records show he had full range of motion in his back, to include flexion. A January 2017 VA examiner again found his flexion limited to 80 degrees, with pain causing functional loss for forward flexion, but without additional loss of range of motion from repetitive use over time. The examiner could not estimate further ROM with flareups without speculation because the response was dose dependent. A March 2018 VA examiner measured the Veteran’s forward flexion as limited to 70 degrees with pain, with no additional loss of motion after repetitive use, and the examination was consistent with reports of additional pain and lack of endurance with additional loss of use over time, although the examiner said it was insufficient to make an estimate accurately of additional loss of motion over time. The examiner made the same assessment regarding flareups. There were no further measurements of restriction of forward flexion in the record. As such, a higher rating for limitation of flexion is not supported by the medical evidence. Similarly, each VA examiner of record has found no evidence of ankylosis. A review of VA and SSA medical records similarly fail to show any instance of ankylosis of the lumbar spine. As such, a higher rating due to ankylosis is not warranted by the medical evidence. As to IVDS, a June 2014 VA examiner did diagnose the Veteran with IVDS. Next, a January 2017 addendum to the January 2017 VA examination confirmed a diagnosis of IVDS but did not find that there were any acute signs or symptoms due to IVDS that required bed rest prescribed by and treatment by a physician in the prior twelve months. Finally, a March 2018 VA examiner said that he did have a diagnosis of IVDS, and the Veteran indicated that he was placed on restricted bed rest for his back during a behavioral health hospitalization for a number of days. This is not shown in the record. Additionally, even if accurate and this was physician ordered bed rest for an incapacitating episode of IVDS, the Veteran reported it was for a few days, rather than the four to six weeks required for a higher rating. As such, a higher rating for IVDS is not warranted by the evidence. Radiculopathy The Veteran is rated at 10 percent for RLE radiculopathy and LLE radiculopathy. For LLE radiculopathy, he was rated under DC 8526 from June 30, 2014 to March 6, 2018 and then DC 8520 thereafter. He has been exclusively rated under DC 8520 for RLE since March 6, 2018, the effective date of service connection. As the evidence for both is similar, they will be analyzed together. To warrant a higher rating, the evidence must show: • moderate incomplete paralysis of the femoral nerve (20 percent under DC 8526); • severe incomplete paralysis of the femoral nerve (30 percent under DC 8526); • moderate incomplete paralysis of the sciatic nerve (20 percent under DC 8520); or, • moderately severe incomplete paralysis of the sciatic nerve (40 percent under DC 8520). Turning to the evidence, a June 2014 VA examiner found that the Veteran had patella reflex symptoms, and mild left nerve root involvement of the femoral nerve. No symptoms of RLE radiculopathy were noted. A January 2017 VA examiner found there was decreased sensation to light touch on the left lower leg/ankle and feet/toes, absent any left knee reflex, and mild numbness of the left lower extremity, assessed as mild radiculopathy of the left femoral nerve. Again, no RLE radiculopathy symptoms were observed. The March 2018 VA examiner did find radiculopathy in both the left and right lower extremities. Hypoactive reflexes were observed in the bilateral ankles, as well as absent sensory for bilateral lower leg/ankle. The examiner noted mild paresthesias/dysesthesias and numbness bilaterally, and moderate intermittent pain in the left lower extremity. The examiner assessed this collectively as mild radiculopathy of the sciatic nerve bilaterally. A review of VA, private, and SSA medical records fails to show that any medical professional assessed a moderate or higher level of incomplete paralysis of the femoral or sciatic nerve. At no point has any medical professional indicated that the Veteran’s RLE radiculopathy was moderate, nor that any symptoms associated with RLE radiculopathy were of moderate security. As such, the medical evidence does not warrant a higher rating for RLE radiculopathy. However, the March 2018 examiner did find LLE radiculopathy resulted in moderate intermittent pain. Although the examiner assessed his overall symptomatology as only mild, as his intermittent pain was determined to be moderate, and resolving all reasonable doubt in his favor, moderate incomplete paralysis of the sciatic nerve under DC 8520 for LLE radiculopathy and a 20 percent rating from the date of the examination is warranted by the evidence. With regard to all claims, the Board has also considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to their appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s back and radiculopathy disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners had the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords their medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, other than the partial increase for LLE radiculopathy, the benefit of the doubt rule is not applicable, and the other appeals are denied. TDIU Turning to the relevant laws and regulations, a TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service connected for the following disabilities: degenerative disc disease of the lumbar spine from June 17, 2009 to June 30, 2014, recharacterized as degenerative arthritis of the lumbar spine and increased to 20 percent from June 30, 2014; 10 percent for left lower extremity radiculopathy from June 30, 2014 to March 6, 2018, and as of this decision, 20 percent thereafter; and for right lower extremity radiculopathy at 10 percent from March 6, 2018. The combined rating is 10 percent from June 17, 2009, 30 percent from June 30, 2014, and 50 percent from March 6, 2018. As such, at no point during the appeal period has the Veteran’s total combined rating reached the schedular threshold for TDIU under 38 C.F.R. § 4.16(a). However, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for a TDIU, the case may be referred to the Director, Compensation Service (Director) for consideration of assignment of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board lacks the power to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The central inquiry is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As noted above, a March 2010 VA examiner found the functional impact of his back pain would keep him from concentrating and socializing. The June 2014 VA examiner found his back and radicular disabilities caused functional loss of less movement than normal with pain on movement, interference with sitting, standing and/or weight bearing, and lack of endurance and stiffness. At the time, he was still working and needed to take daily pain medication. The January 2017 VA examiner found the functional loss caused by his disabilities were that he would not try to reach, turn, twist, and that he had trouble bending over, with lots of pain and bad cramps. He stated he wore a back brace and was in pain after twenty minutes of driving. The March 2018 VA examiner found the functional impact of his back and radiculopathy disabilities would be expected to result in some limitation and discomfort, but his X-rays were mild and essentially unchanged from 2010, not showing a worsening underlying process. SSA records show the Veteran filed for disability, however his primary disabilities evaluated were cervical spine and psychiatric disorders, neither for which he is currently service connected. The evidence does not show frequent missed time or hospitalization during the appeal period due to his service-connected disabilities. Additionally, there is also no definitive evidence that shows that he was let go from, or unable to obtain substantially gainful employment during the appeal period due to his service-connected back or radicular disabilities, although he missed multiple days of a work assignment in March 2014 due to back pain. The inquiry in a TDIU claim is not whether the Veteran was gainfully employed during the appeal period, but instead whether he was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. As relayed above, he has not reported sufficient functional impact from his service-connected disabilities to warrant extraschedular consideration. As such, referral to the Director is not warranted, and the appeal for a TDIU is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). M. YACOUB Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.