Citation Nr: 21023872 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-00 418 DATE: April 21, 2021 ORDER Increased initial ratings greater than 40 percent for lumbar spine degenerative arthritis, status post L5-S1 lumbar fusion (lumbar spine disability), from July 31, 2015 to February 11, 2016, August 1, 2016 to July 15, 2018, and from February 1, 2019 onward are denied. An increased initial rating greater than 30 percent for cervical strain with degenerative arthritis (cervical spine disability) is denied. An increased initial rating greater than 20 percent for right lower extremity radiculopathy is denied. An increased initial rating greater than 20 percent for left lower extremity radiculopathy is denied. Entitlement to separate compensable ratings for neurological abnormalities associated with the service-connected cervical spine disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence of record does not demonstrate that the Veteran’s lumbar spine disability produced unfavorable ankylosis of the entire thoracolumbar spine or any incapacitating episodes during the claim period. 2. The evidence of record does not demonstrate that the Veteran’s cervical spine disability produced unfavorable ankylosis of the entire cervical spine or any incapacitating episodes during the claim period. 3. The evidence of record indicates that the Veteran’s right and left lower extremity radiculopathy is most analogous to moderate incomplete paralysis of the sciatic nerve. 4. The evidence of record does not indicate that the Veteran experienced any neurological abnormality associated with his cervical spine disability during the claim period. 5. The Veteran is in receipt of a combined 100 percent rating beginning December 14, 2016. Prior to December 14, 2016, the evidence of record does not demonstrate that the Veteran was prevented from securing or following a substantially gainful occupation because of his service-connected disabilities during the claim period. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 40 percent for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237. 2. The criteria for an initial rating greater than 30 percent for a cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237. 3. The criteria for an initial disability rating greater than 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial disability rating greater than 20 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 5. The criteria for separate compensable ratings for neurological abnormalities associated with the service-connected spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.71a, Diagnostic Code 5242-5237, Note (1). 6. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2009 to December 2012. These matters are before the Board of Veterans’ Appeals (Board) on appeal from May 2015 and October 2015 rating decisions of Department of Veterans Affairs (VA) Regional Offices. Specifically, in the May 2015 rating decision, the Boston RO granted service connection for a cervical spine disability and assigned an initial noncompensable rating effective April 30, 2014—the date of receipt of claim. Comparatively, in the October 2015 rating decision, the Hartford, Connecticut RO granted service connection for a lumbar spine disability and right lower extremity radiculopathy associated with his lumbar spine disability, assigning noncompensable and 10 percent ratings, respectively. Both ratings were assigned effective dates of July 31, 2015, the date of receipt of claim. In subsequent January 2017, April 2017, and December 2018 rating decisions, VA ROs assigned temporary total ratings for the lumbar spine due to surgery and the need for convalescence. After the expiration of each temporary total rating, VA assigned the Veteran 10 percent ratings. The Board’s decision in the instant case does not disturb any of his lumbar spine temporary total ratings. Additionally, in the December 2018 rating decision, the Veteran was awarded a separate 10 percent rating for left lower extremity radiculopathy associated with his lumbar spine disability. In January 2020, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Thereafter, in October 2020, the Board granted service connection for posttraumatic stress disorder, initial disability ratings of 40 percent for the lumbar spine, an initial 30 percent rating for the cervical spine, and initial 20 percent ratings for right and left lower extremity radiculopathy. The Board then remanded the issues of: (1) entitlement to initial disability ratings greater than 40 percent for the lumbar spine; (2) entitlement to an initial disability rating greater than 30 percent for the cervical spine; (3) entitlement to initial disability rating greater than 20 percent for the right lower extremity radiculopathy; (4) entitlement to initial disability rating greater than 20 percent for the left lower extremity radiculopathy; (5) entitlement to separate compensable ratings for neurological abnormalities associated with the cervical spine; and (6) entitlement to a TDIU for further development. The case has now returned to the Board for appellate review. In the remand portion of the October 2020 Board decision, the Board directed the Agency of Original Jurisdiction (AOJ) to (1) provide the Veteran with notice regarding how to substantiate a TDIU; (2) provide the Veteran with a VA Form 21-8940 and request that he return the completed form; and (3) complete and return release forms for any physical therapy providers referenced at the January 2020 Board hearing. The AOJ completed these tasks later in October 2020, and the Veteran did not complete and return a VA Form 21-8940 or provide any information regarding any private medical providers. Accordingly, the Board concludes that the AOJ substantially complied with the Board’s October 2020 remand and will adjudicate the issues on appeal consistent with the record as it currently exists. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Ratings 1. Lumbar and Cervical Spine Disabilities As indicated above in the Conclusions of Law section, the Board finds that the Veteran is not entitled to initial ratings greater than 40 and 30 percent for lumbar and cervical spine disabilities, respectively. Accordingly, the Board denies the Veteran’s claims. In support of this determination, the Board first notes that both of the Veteran’s spine disabilities have been assigned initial ratings pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. Spine disabilities assigned this diagnostic code may be evaluated under either the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes of the General Rating Formula for Diseases and Injuries of the Spine (general rating formula), whichever formula results in a higher rating. In this case, the Board finds the general rating formula to be more appropriate as the record does not demonstrate that the Veteran experienced any incapacitating episodes, as defined by Note (1) to the Formula for Rating IVDS, during the claim period. See 38 C.F.R. § 4.71a Regarding the Veteran’s lumbar spine disability, the next higher rating of 50 percent is assigned under the general rating formula when there is evidence of unfavorable ankylosis of the entire thoracolumbar spine. Id. Similarly, regarding the cervical spine disability, the next higher rating of 40 percent is assigned under the general rating formula when the evidence of record indicates there is unfavorable ankylosis of the entire cervical spine. Id. Note (5) to the general rating formula defines “unfavorable ankylosis” as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Id. Turning to the evidence of record, the Board notes that the Veteran was provided two VA examinations regarding his lumbar spine disability during the pendency of his claim. During both examinations—which occurred in September 2015 and August 2018—the examining medical professionals expressly indicated that Veteran did not have ankylosis of the thoracolumbar spine. Similarly, during VA examinations which occurred in March 2015 and August 2018, VA examiners also expressly indicated that the Veteran did not have ankylosis of the cervical spine. Separate from these VA examination reports of record, VA and private treatment records associated with the Veteran’s claims file do not document any findings of ankylosis during the claim period. As evidence of unfavorable ankylosis are required the assignments of the next higher disability ratings under the general rating formula, the Board finds that entitlement to initial ratings greater than 40 percent and 30 percent for the lumbar spine and cervical spine, respectively, are not warranted. See id. Accordingly, the Veteran’s claims are denied. 2. Right and Left Lower Extremity Radiculopathy As indicated above in the Conclusions of Law section, the Board finds that initial ratings greater than 20 percent for right and left lower extremity radiculopathy associated with the lumbar spine disability are not warranted in the instant case. Accordingly, the Veteran’s claims are denied. In support of this determination, the Board first notes that the Veteran’s current 20 percent ratings were assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520—representing paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 20 percent rating is assigned for moderate incomplete paralysis, a 40 percent rating is assigned for moderately severe incomplete paralysis, and a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. Lastly, a maximum 80 percent rating is assigned for complete paralysis where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or lost entirely. Within the context of applying Diagnostic Code 8520, the terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Moving to the evidence of record, the Board notes that there are several VA examination reports of record which contain findings relevant to the Veteran’s lower extremity increased rating claims. Firstly, in March 2015, the Veteran was provided a VA peripheral nerves examination. On this occasion, the examiner indicated that the Veteran displayed normal results of the lower extremities during muscle strength, reflex, and sensory testing. Similarly, while a September 2015 VA back conditions examiner remarked that the Veteran had bilateral lower extremity radiculopathy, characterized as mild and impacting the sciatic nerve roots, the Veteran displayed normal results of the lower extremities during muscle strength, reflex, sensory, and straight leg raise testing. Thereafter, in August 2018, the Veteran was provided another VA peripheral nerves examination. On this occasion, the Veteran reported lower back pain which radiated from his back into the left buttock and down the left posterior thigh to the foot. Additionally, the Veteran reported left leg and foot numbness. The Veteran displayed normal results during muscle strength testing of the lower extremities and did not display muscle atrophy. Comparatively, the Veteran displayed hypoactive reflexes of the bilateral knees and ankles and decreased sensation in tested areas of the left lower extremity only. In summarizing the Veteran’s symptoms, the examiner indicated that the Veteran experienced moderate constant pain, intermittent pain, paresthesias, and numbness of the left lower extremity only. Lastly, the examiner commented that the Veteran had moderate incomplete paralysis of the left-sided sciatic nerve. Separate from these specific VA examination reports, the Board notes that medical treatment records associated with the Veteran’s claims file document the nature and severity of the Veteran’s lower extremity radiculopathy. Specifically, a January 2016 VA emergency department note indicated that the Veteran experienced lumbar radiculopathy and noted that the Veteran displayed positive straight leg raise test results. A few months later, in April 2016, the Veteran displayed reduced strength during testing of hip extension bilaterally at a VA physical therapy consultation. These results were repeated at another VA physical therapy evaluation in October 2016. Lastly, the Board notes that, during his January 2020 Board hearing, the Veteran testified that his radicular symptoms consisted of numbness and tingling, particularly on the pads and arches of his feet. Hearing Tr. at 12-13. The Veteran elaborated that he did not experience pain, just numbness. Id. Consistent with the January 2020 testimony, the Veteran’s spouse stated in March 2020 that the Veteran experienced numbness in the left leg from the knee down. From this evidence of record, the Board concludes that the Veteran’s left and right lower extremity radiculopathy is best characterized as moderate incomplete paralysis of the sciatic nerves. Under Diagnostic Code 8520, such severity warrants the assignment of 20 percent ratings for each lower extremity. See 38 C.F.R. § 4.124a (2003). The Board declines to assign the next higher ratings of 40 percent under Diagnostic Code 8520 as the Veteran did not display diminished muscle strength, significantly abnormal reflexes, or a lack of sensation in the lower extremities during any portion of the claim period. Additionally, the Veteran did not display any muscular atrophy during the claim period. Such findings would reflect radiculopathy of a more substantial severity, warranting the assignment of higher 40 percent initial ratings under Diagnostic Code 8520. As the Veteran did not display such evidence, the Board concludes that increased initial ratings greater than 20 percent are not warranted in the instant case. In reaching this conclusion, the Board acknowledges that an October 2017 VA neurology outpatient note included a narrative that Veteran had previously experienced left foot drop as a symptom of his left lower extremity radiculopathy. The Board finds that this documentation does not support a rating greater than 20 percent for the left lower extremity as the October 2017 notation was (1) based upon the subjective report of the Veteran, and (2) inconsistent with all other subjective statements and objective testing results of record. Accordingly, the Board finds that a rating greater than 20 percent for the left lower extremity may not be assigned when considering the Veteran’s complete disability picture during the entirety of the claim period. 3. Neurological Abnormalities Associated with the Cervical Spine Disability After reviewing the evidence of record, the Board concludes that entitlement to a separate compensable rating for a neurological abnormality associated with the service-connected cervical spine disability is not warranted in the instant case. Accordingly, the Board denies the Veteran’s claim. In support of this determination, the Board first notes that, as stated previously in the October 2020 Board decision and remand, Note (1) to the general rating formula directs VA to evaluate any objective neurologic abnormalities associated with a spine disability under an appropriate diagnostic code. See 38 C.F.R. § 4.71a. Accordingly, the issue of whether the Veteran displayed any neurological abnormalities associated with his cervical spine disability was part-and-parcel of his cervical spine increased rating claim. In denying the assignment of separate compensable ratings, the Board ultimately concludes that the evidence of record does not indicate that the Veteran experiences a neurological abnormality associated with the cervical spine disability. Specifically, while the Veteran is service-connected for a disability of the left upper extremity, this disability of the brachial plexus nerve, with left-sided neck neuropathy, was caused by a unique incident in service and was service-connected by VA in a May 2015 rating decision that did not affiliate it with the cervical spine. Consistent with this position, the Board notes that no relevant VA examinations conducted during the claim period indicated that the Veteran demonstrated symptoms of a neurological complication due to the cervical spine disability. Specifically, a VA neck conditions examination completed in March 2015 expressly noted that the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. Additionally, the March 2015 VA examiner stated that the Veteran did not have any neurologic abnormalities associated with the identified cervical spine disability. Relatedly, in an August 2018 VA neck conditions examination report, the examining medical professional remarked that the noted abnormal neurological findings were “due to the brachial plexus nerve injury and not secondary to [the] cervical spine condition.” Similar to the findings noted in the August 2018 VA neck conditions examination report, VA peripheral nerve examination reports from March 2015 and August 2018 also explicitly noted that any reported or observed left upper extremity symptoms were associated with the brachial plexus nerve injury and not the cervical spine. These conclusions were confirmed in VA treatment records from March 2017, February 2017, December 2016, and August 2015. As a competent medical provider has not identified, through objective means, any neurological abnormality that is associated with the service-connected cervical spine disability, the Board finds that entitlement to a separate compensable rating is not warranted in the instant case. See 38 C.F.R. § 4.71a. Accordingly, the Veteran’s claim is denied. TDIU Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). However, VA may not take into account the individual veteran’s age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). As an initial matter, the Board notes that the Veteran is in receipt of a 100 percent schedular rating from December 14, 2016 onward. The Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities indicates that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or a combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Locklear v. Shinseki, 24 Vet. App. 311, 314 n.2 (2011) (finding entitlement to TDIU mooted from the effective date of a 100% schedular disability rating); see also Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). Accordingly, in this case, the Board will only evaluate entitlement to a TDIU for the period from April 30, 2014—the date VA received the Veteran’s claim for service connection for a cervical spine disability—until December 13, 2016. After reviewing the evidence of record, the Board concludes that a TDIU from April 30, 2014 to December 13, 2016 is not warranted as the Veteran was able to secure and follow a substantially gainful occupation during that time period. Indeed, during the January 2020 Board hearing, the Veteran testified that he stopped working full-time as an assistant project manager for a general contracting construction firm in February 2018. Hearing Tr. at 8-10. From this testimony, the Board concludes that the Veteran was successfully working full-time prior to February 2018. Additionally, VA treatment records from October 2016, October 2015, and August 2015 noted that the Veteran was still employed. Consistent with these VA treatment records, the Veteran reported in May 2014 that he was still employed and that his neck and upper extremity disabilities did not affect his ability to work in his current office setting. Accordingly, as the Veteran was able to secure and follow a substantially gainful occupation, the Board may not grant entitlement to a TDIU for the period prior to December 14, 2016. See 38 C.F.R. § 4.16. As such, the Veteran’s claim is denied. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.