Citation Nr: 21024687 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-06 401A DATE: April 23, 2021 ORDER A disability rating of 40 percent for service-connected intervertebral disc syndrome with degenerative arthritis of the spine (back disability), effective August 19, 2011, is granted. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve for the period prior to December 17, 2019 is denied. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve for the period prior to December 17, 2019 is denied. Entitlement to an initial compensable rating for erectile dysfunction is dismissed. Entitlement to a disability rating in excess of 40 percent for service-connected back disability is dismissed. Entitlement to a disability rating in excess of 40 percent for left lower extremity radiculopathy of the sciatic nerve since December 17, 2019 is dismissed. Entitlement to a disability rating in excess of 40 percent for right lower extremity radiculopathy of the sciatic nerve since December 17, 2019 is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) effective August 19, 2011 is granted. FINDINGS OF FACT 1. For the entirety of the appeal, the Veteran’s back disability was manifest by forward flexion to 30 degrees or less; unfavorable ankylosis of the entire thoracolumbar spine is not shown at any point during the period on appeal. 2. For the period prior to December 17, 2019, the Veteran’s left lower extremity radiculopathy was manifested by no worse than moderate incomplete paralysis of the sciatic nerve. 3. For the period prior to December 17, 2019, the Veteran’s right lower extremity radiculopathy was manifested by no worse than mild incomplete paralysis of the sciatic nerve. 4. In January 2021, the Board of Veterans’ Appeals (Board) received notification that the Veteran wished to withdrawal the appeal as to the issues of entitlement to: an initial compensable rating for erectile dysfunction, a disability rating in excess of 40 percent for degenerative disc disease, a disability rating in excess of 40 percent for radiculopathy of the left lower extremity, and a disability rating in excess of 40 percent for radiculopathy of the right lower extremity. 5. Throughout the appeal period, the evidence shows that the Veteran was unable to secure or follow a substantially gainful occupation consistent with his education and work experience because of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a 40 percent disability rating, but no higher, for service-connected back disability, from August 19, 2011 through December 17, 2019, have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. 2. The criteria for a disability rating in excess of 20 percent, for left lower extremity radiculopathy of the sciatic nerve have not been satisfied for the period prior to December 17, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating in excess of 10 percent, for right lower extremity radiculopathy of the sciatic nerve have not been satisfied for the period prior to December 17, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. The criteria for withdrawal of an appeal by the Veteran have been satisfied as to the issue of entitlement to an initial compensable rating for erectile dysfunction. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 5. The criteria for withdrawal of an appeal by the Veteran have been satisfied as to the issue of entitlement to a disability rating in excess of 40 percent for service-connected back disability. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 6. The criteria for withdrawal of an appeal by the Veteran have been satisfied as to the issue of entitlement to a disability rating in excess of 40 percent for left lower extremity radiculopathy of the sciatic nerve since December 17, 2019. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 7. The criteria for withdrawal of an appeal by the Veteran have been satisfied as to the issue of entitlement to a disability rating in excess of 40 percent for right lower extremity radiculopathy of the sciatic nerve since December 17, 2019. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 8. The criteria for entitlement to a TDIU since August 19, 2011 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to March 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021 a hearing was held with the undersigned. Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran’s disability is not and cannot be adequately rated under the Rating Schedule. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). This issue is on appeal from a 2011 claim for an increased rating for the back disability. In August 2012, the RO issued a rating decision which is the subject of the present appeal. 1. Back Disability prior to December 17, 2019. The Veteran is currently assigned a 10 percent disability rating for his back disability, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242, for the period from August 19, 2011 to December 17, 2019. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are 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., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12 month period. In this case, there is no competent evidence of incapacitating episodes as defined by regulation of the duration required for a higher rating. Range of motion testing was performed during a VA examination in January 2012 and showed at worst 80 degrees of flexion. However, the Veteran asserted at the recent hearing that private chiropractor records showed that his forward flexion was limited to 30 degrees or less. A copy of an August 2011 examination report does reveal that range of motion testing of the lumbar spine was conducted and forward flexion was limited to 30 degrees. Accompanying treatment records reveal that the Veteran was seen for treatment on a regular basis from 2011 to 2019 for complaints of lumbar pain. In a March 2015 letter, the Veteran’s chiropractor indicated that the Veteran’s range of motion of forward flexion of his lumbar spine has been limited to 20 to 30 degrees throughout his period of treatment. Based on these private records the Board will resolve any doubt that the Veteran’s forward flexion of the lumbar spine has been limited to 30 degrees or less throughout the appeal period. Accordingly, a 40 percent rating for the Veteran’s back disability is warranted effective from August 19, 2011, the date of claim. 38 C.F.R. § 4.71a, Spinal Formula. 2. Radiculopathy of the Lower Extremities prior to December 17, 2019. The August 2012 rating decision on appeal granted separate disability ratings for radiculopathy of the lower extremities as separate manifestations of the Veteran’s service-connected back disability. A 20 percent rating was assigned for the left lower extremity radiculopathy and a 10 percent rating was assigned for right lower extremity radiculopathy. The ratings were each increased to 40 percent effective December 17, 2019. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The Board notes that “Mild,” as relevant to a physical condition, is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed January 25, 2021). “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). In his October 2011 claim for an increased rating, the Veteran asserted that his low back disability had increased in severity. VA treatment records dated August 2011 reveal that the Veteran had complaints of low back pain which radiated into his left thigh. Decreased light touch sensation in the left leg was noted on examination. In January 2012, a VA Compensation and Pension examination of the Veteran was conducted. Muscle strength testing of the lower extremities was normal on the right and revealed slightly decreased left hip flexion and knee extension strength. Reflex examination was hypoactive for both knees. Sensory examination revealed decrease sensation of the left thigh and the right foot. Moderate numbness and paresthesia of the left lower extremity was present. The examiner indicated that the Veteran had mild radiculopathy of the right lower extremity and moderate radiculopathy of the left lower extremity. During the Veteran’s January 2021 hearing, the Veteran’s attorney asserted that the Veteran’s radiculopathy had been severe enough throughout the appeal period to warrant a 40 percent disability rating for each lower extremity back to the date of claim. However, testimony primarily focused on low back pain and the Veteran’s spinal range of motion; there were no specific assertions with respect to symptoms of radiculopathy. Moreover, the private medical records referenced were the private chiropractor records noted in the section above which did not provide any specific findings related to the Veteran’s neurologic symptoms of the lower extremities. VA treatment records dated between 2011 and 2019 do indicate that the Veteran had low back pain with radiculopathy, but again do not provide specific findings related to the severity of the symptoms. These records referenced a 2012 MRI examination report which indicated that the Veteran’s lumbar spinal stenosis was mild on the right and moderate on the left, which corresponds with the radiculopathy findings on the 2012 VA examination report. Despite the assertions made at the hearing, there is no objective evidence which contradicts the neurologic findings on the January 2012 VA Compensation and Pension examination report where the examiner indicated that there was mild incomplete paralysis of the right sciatic nerve, and moderate incomplete paralysis of the left sciatic nerve. The lay statements also do not reflect greater disability for this period. The Board acknowledges that the Veteran has been noted to use a cane. The neurologic rating criteria contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker. Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). The evidence shows the right lower extremity radiculopathy is held within limits and not extreme or excessive. The evidence shows the left lower extremity radiculopathy is limited in scope and effect, and not violent, severe, or intense. Based on the above, the Board finds that the most probative evidence of record indicates that during this period the level of impairment for the right lower extremity radiculopathy is most analogous to mild incomplete paralysis and the level of impairment for the left lower extremity radiculopathy is most analogous to moderate incomplete paralysis. Accordingly, higher disability ratings are denied. Withdrawn Issues The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In this case, at the hearing with the undersigned the Veteran withdrew his appeal as to the issues of entitlement to an initial compensable rating for erectile dysfunction and entitlement to disability ratings in excess of 40 percent for back disability, left lower extremity radiculopathy, and right lower extremity radiculopathy. The withdrawal request was discussed prior to the hearing and was acknowledged on the record. The withdrawal request was explicit, unambiguous, and done with a full understanding of the consequences. As there remain no allegations of errors of fact or law for appellate consideration regarding the issues of entitlement to an initial compensable rating for erectile dysfunction and entitlement to disability ratings in excess of 40 percent for back disability, left lower extremity radiculopathy, and right lower extremity radiculopathy, the Board does not have jurisdiction over these issues and they are dismissed. TDIU Prior to January 23, 2014 During the pendency of the appeal, the Veteran raised the issue of entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Currently, TDIU has been granted effective January 23, 2014 and a 100 percent schedular disability rating is assigned beginning December 17, 2019. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities throughout the appeal period. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). Even without considering the increased rating granted above, the Veteran met the schedular requirements for TDIU consideration throughout the appeal period as a result of his service-connected disabilities, which include left knee replacement, degenerative disc disease of the lumbar spine, bilateral lower extremity radiculopathy, rectal fissure with rectal bleeding, right carpal tunnel syndrome, and erectile dysfunction. On his applications for unemployability the Veteran reported completing two years of college. He reported he last worked full-time from 2003 to 2009 in the landscaping industry. The Veteran’s left knee was examined by VA in February 2011. He was noted to take opioids for knee pain. The Veteran reported left knee deformity, giving way, instability, pain, stiffness, incoordination, decreased speed of joint motion, daily locking episodes, constant effusions, swelling, and tenderness. Limitations were noted as follows: unable to stand for more than a few minutes; unable to walk more than a few yards. It was also noted that the Veteran used a cane constantly. The Veteran’s back was examined by VA in January 2012. The examiner indicated that the Veteran previously worked as a landscaper and electrician and because of his back disability he was unable to lift over 10 pounds, bend over, stand or sit greater than 10 to 15 minutes, and that he needs a cane or walker to walk 10 minutes at a time. Social Security Administration (SSA) records confirm that the Veteran had not engaged in substantial gainful work activity since 2009. SSA found that the Veteran was unable to perform any past relevant work due in part to his back disability, radiculopathy, and knee disability. Records from the Veteran’s private chiropractor also tend to support that he has been unemployable due to his service-connected disabilities throughout the entire appeal period. The evidence shows that the Veteran has not engaged in gainful employment since 2009. He met the schedular criteria for consideration of TDIU throughout the entire appeal period. The VA examination reports support a finding that his service-connected disabilities result in impairment that would preclude employment considering his education and prior work experience, which essentially entailed landscaping and electrical work. The Veteran has significant limitations on standing, walking, and sitting which would not allow him to work in these fields. Thus, the evidence supports a finding that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation throughout the entire appeal period. Accordingly, TDIU is granted effective August 19, 2011. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Havelka, 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.