Citation Nr: 21024825 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 12-19 835 DATE: April 26, 2021 ORDER Prior to May 14, 2012, entitlement to a rating higher than 20 percent for degenerative changes of L5-S1 with spondylosis of the lumbar spine is denied. Beginning June 1, 2007, a separate 10 percent rating for right lumbar radiculopathy is granted. Beginning December 1, 2010, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the rating period on appeal prior to May 14, 2012, the Veteran’s degenerative changes of L5-S1 with spondylosis of the lumbar spine more nearly approximates forward flexion of the thoracolumbar spine to 50 degrees at worst, without evidence of favorable ankylosis of the entire thoracolumbar spine. 2. Beginning June 1, 2007, the lumbar spine disability resulted in neurological impairment of the right lower extremity that was analogous to mild incomplete paralysis of the sciatic nerve. 3. The evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities prevent him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the rating period on appeal prior to May 14, 2012, the criteria for a rating higher than 20 percent for the Veteran’s degenerative changes of L5-S1 with spondylosis of the lumbar spine disability are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. Beginning June 1, 2007, the criteria for a separate 10 percent rating for right lumbar radiculopathy are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from May 1967 to May 1970, and again from July 1974 to July 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board has provided detailed historical recitations in its previous remand orders. Given the extremely lengthy historical nature of this case, they are incorporated by reference at this time. The Board recently remanded the matter in October 2020, for a retrospective medical opinion with respect to the medical records that have since been associated with the Veteran’s claim file and, in particular, to clarify the range of motion findings from October 2005 and November 2007 medical treatment records. The matter has returned to the Board for further appellate review. Increased Rating – Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbar Spine – Rating Criteria 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 [or 4.73] criteria.”). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for 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. 38 C.F.R. § 4.71a. A 20 percent rating is provided for 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Intervertebral disc syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined as 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. Id. at Note (1). On February 7, 2021, amendments to the schedule for rating disabilities of the musculoskeletal system, including DC 5242 for degenerative arthritis and DC 5243 for IVDS, went into effect. See 85 Fed. Reg. 76460 (November 30, 2020). The amendment to DC 5242 clarifies that the rating criteria is to be applied for other than IVDS. The amendment to DC 5243 for IVDS specifies that it is to be applied only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Id. Lumbar Spine – Rating Analysis In his March 2005 increased rating claim, the Veteran asserted that his lumbar spine disability has worsened in severity and that on a pain scale of 1 to 10 (10 being the highest), he experiences a level 6 pain daily. The Veteran was afforded a VA back examination in May 2005. The Veteran reported back pain that was described as 5 to 6 out of 10 in severity. He also complained of stiffness in his back with prolonged sitting and standing. Upon examination, forward flexion of the spine was to 90 degrees; extension to 25 degrees; left lateral flexion to 15 degrees; right lateral flexion to 10 degrees; and, lateral rotation to 30 degrees, bilaterally. There was tenderness to palpation of the lumbar spine from L3 down to the sacrum. Straight leg raising was painful in the left lower extremity. There was no decrease in the range of motion or joint function additionally limited by pain, fatigue, weakness, or lack of endurance after repetitive use testing. In an October 2005 VA Physical Therapy Outpatient Consultation Note, the Veteran stated that he used the treadmill for 10 minutes every other day. Functional limitations were noted as difficulty going up and down a ladder. Objective examination revealed range of motion for flexion limited to 75 percent, and extension limited to 75 percent of normal functioning. Right lateral flexion was indicated as within normal limits and left lateral flexion was limited to 75 percent of normal functioning. Similarly, a November 2007 VA Pain Management Clinic Note also revealed that the Veteran’s lumbar spine range of motion was limited especially with forward flexion only to 75 percent of normal functioning. In June 2007, the Veteran underwent an additional VA examination, at which time the examiner confirmed diagnoses of moderate lumbar spondylosis throughout the lumbosacral area with advanced severe spondylosis at L5-S1.2 and degenerative disc disease noted throughout the lumbar spine with previous MRI showing herniated nucleus pulposus at L5-S1, on the left. The Veteran reported that he has stiffness and pain that radiates down his left buttocks to the left knee. He rated his pain as 6 to 8 out of 10 in severity, and that with flare-ups, the pain increased to 10 but without additional functional impairment. The Veteran also reported that he had numbness and weakness in the back and that he used a back brace. He estimated that he could walk up to a 1/4 mile before needing a break. He stated that he is unsteady but had no falls and that he could feed, groom, bathe, use the toilet, dress/ undress independently, and lost no time from work due to his lumbar spine disability. Upon examination, the back was tender, muscles were normal with no muscle spasm. Range of motion of the lumbar spine revealed forward flexion to 50 degrees; extension to 10 degrees; right lateral flexion/rotation to 20 degrees; left lateral flexion/rotation to 30 degrees. Sensory examination was decreased in both lower extremities. Following the Board’s October 2020 remand, the Veteran was afforded a VA examination in January 2021. Regarding the 2007 records, the examiner stated, “I would opine that the report from November 2007, that the Veteran's range of motion as measured at these points in time was that the impairment in his range of motion was equal to 75 percent of normal functioning.” Upon review, the Board finds that the criteria for a rating greater than 20 percent for the service-connected lumbar spine disability are not met or approximated at any point during the pendency of the appeal prior to May 14, 2012. Specifically, even taking into consideration the Veteran’s competent and credible reports of flare-ups and functional loss after repetitive use over time, limitation of flexion to 30 degrees is still not met or approximated. Forward flexion was to 50 degrees at worst during the appeal period and even considering flare-ups and repeated use over time (with an estimated 5 degree reduction as noted by the 2021 VA examiner), forward flexion will result in 45 degrees flexion at worst, prior to May 14, 2012. Additionally, the January 2021 examiner clarified that the rage of motion reports from the November 2007 examination was equal to 75 percent of normal. Normal forward flexion of the spine is to 90 degrees. Thus, 75 percent of 90 degrees would be approximately 67.5 degrees, which does not approximate the criteria for a rating higher than 20 percent. The Board concludes that the currently assigned 20 percent rating already contemplates the additional loss due to pain and other DeLuca factors after repetitive use and/or during flareups. See 38 C.F.R. §§ 4.40, 4.45. A higher rating under the General Rating Formula is not warranted. A rating higher than 20 percent is also not warranted under the IVDS Formula. Initially, the first indication of a diagnosis of IVDS was not shown until the May 2012 examination report. Additionally, while acknowledging the Veteran’s competent reports of flare ups of back pain, previous surgeries, and incapacitating episodes, there is no evidence of him experiencing any incapacitating episodes of IVDS as defined by VA regulation. Indeed, incapacitating episodes are defined by VA as those episodes for which bedrest is prescribed by a physician. Here, there is no evidence of incapacitating episodes, let alone episodes of IVDS of at least four weeks but less than six weeks during the past 12 months for the appeal period prior to May 14, 2012, to warrant a higher rating. While there is evidence of disc herniation, which satisfies the threshold requirement for application of DC 5243 under the 2021 amended rating criteria, the record does not demonstrate that bed rest was prescribed by a physician due to incapacitating episodes. Therefore, on this record the Board finds that there is no basis for a higher rating under DC 5243 at any time during the rating period. In sum, there is no basis to support a rating higher than 20 percent for the Veteran’s lumbar spine disability prior to May 14, 2012 under either the General Rating Formula or the IVDS formula. Associated Neurological Impairment In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (1). Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” See Spellers v. Wilkie, 30 Vet. App. 157 (2018). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Here, the Veteran is in receipt of a 10 percent rating for left lumbar radiculopathy. On review, neither the Veteran nor the medical evidence suggest that the left lumbar radiculopathy is worse than the currently assigned 10 percent rating for mild incomplete paralysis of the sciatic nerve. However, on review, the Board finds that beginning June 1, 2007, a separate 10 percent rating for right lumbar radiculopathy is also warranted. Notably, during the June 2007 VA examination, sensory examination of the right lower extremity was abnormal. In this regard, a rating higher than 10 percent is not warranted as there is no evidence of moderate incomplete paralysis of the sciatic nerve. Entitlement to a TDIU In a November 2017 rating decision, the RO granted entitlement to a TDIU, effective May 14, 2012, the date the Veteran met the disability percentage requirements for unemployability set forth in 38 C.F.R. § 4.16(a). However, given the Board’s decision herein, the Veteran meets the schedular criteria for a TDIU beginning June 1, 2007. On review, the Board finds that entitlement to a TDIU is warranted beginning December 1, 2010, the date following his last day of full-time employment. TDIU is granted where a Veteran’s service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 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). The Veteran’s August 2010 Form 21-8940 application indicates the Veteran completed two (2) years of college education and has worked primarily as a correctional officer. The Veteran also stated that he was unable to work due to his PTSD. He reported that he last worked/became too disabled to work in November 2010. In a September 2009 Psychological Consult, the Veteran’s psychologist stated that, the Veteran’s problems with memory and concentration interfere with his ability to learn new tasks; and that his hyperirritability and hypervigilance severely compromised his ability to initiate or sustain work relationships. The psychologist further stated that due to the severity and chronicity of the Veteran’s PTSD symptoms his prognosis for recovery is poor; and that he considers the Veteran to be totally and permanently disabled. See September 2009 Third Party Correspondence. In April 2010, a VA psychologist discounted the September 2009 report as “rather extreme” and remarked that the Veteran “…does seem to describe some degree of anxiety at work though this examiner judges this to be well within normal limits given the fact that he works as a corrections officer in a dangerous environment and would be appropriate to have some anxiety or vigilance there. The anxiety that he does have at work is not impeding him”. See April 2010 VA Examination. In a June 2010 correspondence, the Veteran’s private psychologist stated that she saw the Veteran for an initial psychological evaluation on August 14, 2009 and that he has been in treatment with her since that time. The psychologist indicated her current evaluation and treatment summary of the Veteran as follows: “sleep still poor-wakes up sweaty-hard time going back to sleep; often thinks of time he almost shot fellow soldier; thinks about friend who was killed; back pain worse-getting shots; cannot stand for long periods of time; cannot lie on his back; easily irritated; having more memory and concentration problems; consider him to be permanently disabled.” See June 2010 Third Party Correspondence. At a January 2010 Psychological Consult, it was noted that the Veteran reported numerous behavior patterns consistent with PTSD such as irritability, social withdrawal, nightmares, night sweats, difficulty with concentration and focus and sleep problems. See Medical Treatment Record - Government Facility. At the May 2012 VA Back examination, the examiner concluded that the lumbar spine disability does not render the Veteran unable to secure and maintain substantially gainful sedentary or physical employment, excluding prolonged sitting, heavy lifting, or repetitive bending. See May 2012 VA Examination. Here, considering the Veteran’s occupational and educational background along with the above-mentioned evidence, which is at least in equipoise regarding whether his inability to work is impacted by his service-connected disabilities, the Board finds that he would not be able to maintain any type of employment that is consistent with his educational background and work experience. In Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” to have two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). (Continued on the next page)   Indeed, the evidence suggests that the Veteran’s lumbar spine disability prevents any employment that requires physical labor. Moreover, the Veteran’s psychiatric disorder resulted in lack of concentration, which was required in his field of work. In other words, considering the Veteran’s only work experience as a correctional officer with the fact that he has limited education without subsequent training in any other field, it would be plausible to conclude that he would not be able to maintain gainful occupation in another field given his physical and psychiatric disabilities, for the appeal period under review. Therefore, entitlement to a TDIU is warranted. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.