Citation Nr: 21024340 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-22 633A DATE: April 22, 2021 ORDER A rating higher than 20 percent for a thoracolumbar spine disability is denied. A rating higher than 10 percent for right lower extremity radiculopathy is denied. A rating higher than 10 percent for left lower extremity radiculopathy is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s thoracolumbar spine disability does not limit forward flexion to 30 degrees or less, or result in ankylosis of the spine; he has not experienced incapacitating episodes of intervertebral disc syndrome totalling at least 4 weeks over a 12-month period. 2. The Veteran experiences no more than mild incomplete paralysis of the right sciatic nerve. 3. The Veteran experiences no more than mild incomplete paralysis of the left sciatic nerve. 4. Resolving all reasonable doubt in his favor, the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a. 2. The criteria for a rating higher than 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating higher than 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1995 to January 2000, and from February 2002 to March 2002. In July 2019, the Court of Appeals for Veterans Claims granted a joint motion to remand his claim for an increased rating for a thoracolumbar spine disability to the Board of Veterans’ Appeals (Board). The Board in turn remanded the case to the agency of original jurisdiction (AOJ) in April 2020. The AOJ substantially complied with the Board’s remand instructions, and the claims are ready for further review. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating for Thoracolumbar Spine Disability The Veteran seeks a rating higher than 20 percent for his service-connected low back disability. After careful review, the Board finds that an increased rating is not warranted. Disability evaluations are determined by the application of VA’s Schedule of Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. VA must evaluate all of the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in a higher evaluation. See 38 C.F.R. § 4.71a. Although VA recently amended portions of the rating schedule for musculoskeletal disabilities, these changes do not affect the rating criteria for this case. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Under the General Formula, a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id., General Formula at Note 1. For VA purposes, “unfavorable ankylosis” means that 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., General Formula at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider functional loss caused by pain or other factors that could occur during flare-ups or after repeated use which may not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.45, VA must also consider less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Under 38 C.F.R. § 4.59, painful motion associated with joint or periarticular pathology typically warrants at least the minimum compensable rating for the affected joint. Id. at 36; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. An “incapacitating episode” is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., at Note 1. In April 2020, the Board remanded for a new examination of the Veteran’s back. VA examiners assessed the severity of his disability in September 2020 and January 2021. At the September 2020 examination, the Veteran reported that his disability had worsened. He stated that back pain impacts his ability to walk long distances, sit or stand for long periods, ride bikes, and maintain employment. His reported symptoms included constant pain, intermittent numbness and tingling in the bilateral lower extremities, intermittent locking of the back, and intermittent muscle spasms. Treatment included Ibuprofen 800mg three times a day, plus Tramadol as needed. He reported flare-ups of significant pain, impacting his ability to sleep; these flare-ups reportedly occurred three times a week and lasted less than 24 hours. The Veteran’s range of motion was from 0 to 70 degrees on forward flexion, 0 to 20 degrees on extension, 0 to 20 degrees on right lateral flexion, 0 to 20 degrees on left lateral flexion, 0 to 25 degrees on right lateral rotation, and 0 to 25 degrees on left lateral rotation, with pain in every direction. There was no additional loss after three repetitions. The 2020 examiner indicated that pain, fatigue, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare-ups. There was no evidence of ankylosis of the spine. There was no indication that the Veteran had experienced any incapacitating episodes of IVDS over the past 12 months. At the January 2021 examination, the Veteran reported an increased in pain over the past 18 months. He described his pain as intermittent, and noted it was worse with walking, sitting, and driving. He denied having any other specific flare-ups. He also denied any radiculopathy symptoms. The Veteran’s range of motion was from 0 to 40 degrees on forward flexion, 0 to 10 degrees on extension, 0 to 20 degrees on right lateral flexion, 0 to 20 degrees on left lateral flexion, 0 to 30 degrees on right lateral rotation, and 0 to 30 degrees on left lateral rotation, with pain on forward flexion and extension. There was no additional loss after three repetitions. The 2021 examiner estimated an additional 5-degree loss in forward flexion, due to pain, with repeated use over a period of time—i.e., 0 to 35 degrees. As with the previous examination, there was no evidence of ankylosis of the spine, or of incapacitating episodes of IVDS over the past 12 months. The 2021 examiner commented that the pain the Veteran experiences during periods of rest or non-movement does not cause additional functional loss. The Veteran has not submitted any evidence, lay or medical, that his low back disability limits forward flexion to 30 degrees or less, or results in ankylosis of the spine. Nor has he submitted any evidence that he experienced incapacitating episodes of IVDS totalling at least 4 weeks over a 12-month period. The Board finds no such evidence in his medical records or elsewhere in the claims file. This is the case even when considering the Veteran’s competent, credible lay statements regarding increased pain during flare-ups or with repeated use over a period of time. Accordingly, the preponderance of evidence is against a rating higher than 20 percent under either the General Formula or the Formula for Rating IVDS Based on Incapacitating Episodes. There is no reasonable doubt to resolve in the Veteran’s favor in this instance. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal is denied. Associated Radiculopathy On remand, the AOJ granted separate 10 percent ratings for right lower extremity and left lower extremity radiculopathy associated with the Veteran’s low back disability. See October 2020 rating decision. The Board finds that a rating higher than 10 percent is not warranted for either extremity. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. A maximum 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible for muscles below the knee, and flexion of the knee is weakened or lost. 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis of the nerve. When incomplete paralysis is wholly sensory, the rating should be for the mild, or at most, moderate degree. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” See also Miller v. Shulkin, 28 Vet. App. 376, 380 (2017) (non-sensory manifestations are not necessarily rated at a higher level). VA regulations provide that ratings for peripheral neurological disorders are assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. The Board must also consider loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. As noted above, the Veteran reported bilateral radiculopathy symptoms at the September 2020 examination. According to the examination report, he had moderate paresthesias and/or dysesthesias and moderate numbness in both lower extremities; he had no other signs or symptoms of radiculopathy. Deep tendon reflex testing revealed hypoactive reflexes of the knees. With the exception of decreased sensation in the left lower leg/ankle, his sensory examination was normal. Muscle strength testing was also normal, with no evidence of muscular atrophy. Overall, the 2020 examiner characterized the level of severity of radiculopathy as “mild” for both lower extremities. The Veteran denied having any symptoms of radiculopathy at the January 2021 examination. Deep tendon reflex testing revealed hypoactive reflexes of the knees and ankles. However, the 2021 examiner explained that these decreased reflexes were due to bilateral lower extremity edema, which is caused by the Veteran’s hypertension. The sensory examination and muscle strength testing were normal, and straight leg raising tests were negative for both lower extremities as well. The Veteran’s reported symptoms and the examiners’ clinical findings support, at most, a 10 percent rating for radiculopathy for each lower extremity. The Board finds no other evidence in the record, lay or medical, to support an increased rating for either extremity under Diagnostic Code 8520 anywhere in the record. In sum, the preponderance of evidence is against finding that the Veteran experiences more than mild incomplete paralysis of the sciatic nerve. Gilbert, 1 Vet. App. at 53. A rating higher than 10 percent for right lower extremity radiculopathy is denied. A rating higher than 10 percent for left lower extremity radiculopathy is likewise denied. TDIU The Veteran asserts that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board finds that the record supports the award of a TDIU. VA will grant a TDIU when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience due to his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there must be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Substantially gainful employment is employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). The central question is whether the Veteran’s “service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Non-service-connected disabilities and advancing age are not considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For VA purposes, marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). A claimant can establish marginal employment either by demonstrating an earned annual income less than the poverty threshold established by the U.S. Census Bureau or on a facts-found basis. Id.; Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Marginal employment on a facts-found basis includes, but is not limited to, employment in a protected environment when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a); see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). In this case, the Veteran meets the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). For the entire period on appeal, his combined disability rating has been at least 70 percent. Currently, that combined rating is 90 percent. In addition to the low back disability and bilateral lower extremity radiculopathy discussed above, his service-connected disabilities include the following: depressive disorder (rated at 50 percent); a left shoulder disability (20 percent); tinnitus (10 percent); lateral dorsal cutaneous neuritis (10 percent); a right knee disability (10 percent); a left knee disability (10 percent); a painful scar on the left ankle (10 percent); a left ankle disability (10 percent); a right ankle disability (noncompensable); and other noncompensable scars on both ankles. To date, the Veteran has not submitted a completed VA Form 21-8940. Nevertheless, the Board finds sufficient information about the Veteran’s employment and education history on file to decide the claim. VA treatment records reflect that he has been either unemployed, or employed only parttime as a construction worker, contractor, or driver throughout the period on appeal. These records also show that he graduated high school and has a degree in culinary arts. At one point, he studied to become a sign language interpreter but he never completed the program. The Veteran has repeatedly stated that various service-connected disabilities impact his ability to maintain employment. Multiple VA examinations and other medical records over the years support this contention. At a February 2010 orthopedic examination, the Veteran reported that he was self-employed as a tile installer, but only working parttime due to his knee and shoulder problems. The 2010 examiner noted that the bilateral knee and left shoulder disabilities caused “significant” occupational effects—namely, problems lifting and carrying objects and pain—plus, decreased pay due to limited hours. By September 2010, the Veteran reported that he was no longer able to work in tiling due to these and other service-connected disabilities. See VA Form 9; Statement in Support of Claim. Mental health treatment records from May and June 2010 show that the Veteran was reportedly unable to use his culinary arts degree “because he can’t stand on his feet all the time” due to his ankle problems. He reported that construction work brought in only a few hundred dollars per week. At a December 2016 mental health examination, the Veteran reported that he was working parttime as a driver for a construction company. The 2016 examiner indicated that his service-connected psychiatric symptoms included difficulty in adapting to stressful circumstances, including work or a work like setting, which caused an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. A May 2017 examiner determined that the Veteran’s service-connected shoulder pain limits his ability to drive and perform overhead activities. The same examiner noted that bilateral knee pain also limits his ability to drive for long periods of time or install tiling, which requires kneeling. Likewise, his low back disability limits bending, lifting, and sitting or driving for prolonged periods. Overall, the 2017 examiner concluded that the Veteran would be precluded from work involving bending or prolonged standing or sitting due to service-connected disabilities. However, the examiner noted that he is “capable of sedentary work if he would be free to take breaks and change position.” More recently, the September 2020 and January 2021 examiners both indicated that the Veteran’s low back symptoms impact his ability to sit and stand. Additionally, the 2021 examiner found that the disability causes problems with walking and driving. Ultimately, the question of unemployability is a legal determination, rather than a medical one. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). The examinations above reasonably show that service-connected disabilities prevent the Veteran from working fulltime in construction, as a driver, or in any other capacity in which he has experience or training. Given his unstable work history, which has primarily involved physical labor since service, and his limited education, the Board finds it unlikely that he would be capable of maintaining substantially gainful employment in either a physical or sedentary setting. Accordingly, resolving any reasonable doubt in the Veteran’s favor, the Board finds that he is unable to secure or follow substantially gainful employment due to various service-connected disabilities. Gilbert, 1 Vet. App. at 53. A TDIU is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.