Citation Nr: 21028428 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-33 671 DATE: May 11, 2021 ORDER From January 1, 2012, to December 2, 2019, rating in excess of 20 percent for a lumbar spine disability is denied. Since December 2, 2019, a rating in excess of 40 percent for the lumbar spine disability is denied. Prior to December 2, 2019, a compensable rating for radiculopathy of the right lower extremity is denied. Prior to December 2, 2019, a compensable rating for radiculopathy of the left lower extremity is denied. Since December 2, 2019, a rating in excess of 20 percent for the radiculopathy of the right lower extremity is denied. Since December 2, 2019, a rating in excess of 20 percent for the radiculopathy of the left lower extremity is denied. A total disability rating based on individual unemployability (TDIU) is granted. Special monthly compensation (SMC) at the housebound rate is granted. FINDINGS OF FACT 1. From January 1, 2012, to December 2, 2019, the Veteran's lumbar spine disability was manifested by forward flexion of the thoracolumbar spine to greater than 30 degrees but not to greater than 60 degrees. 2. Since December 2, 2019, the Veteran's lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less. 3. Prior to December 2, 2019, examination of the Veteran's lower extremities showed normal neurological findings. 4. Since December 2, 2019, the Veteran's radiculopathy of the right and left lower extremities has been manifested by moderate impairment of the sciatic nerve. 5. The Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. 6. A TDIU is being granted especially based on the Veteran's service-connected posttraumatic stress disorder (PTSD), cervical and lumbar spine disabilities and related neurological deficits and headaches, and he has other service-connected disability independently ratable as 60-percent disabling or more. CONCLUSIONS OF LAW 1. From January 1, 2012, to December 2, 2019, the criteria for a rating in excess of 20 percent for the lumbar spine disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5243. 2. Since December 2, 2019, the criteria for a rating in excess of 40 percent for the lumbar spine disability have not been met. Id. 3. Prior to December 2, 2019, the criteria for a compensable rating for the associated left and right lower extremity radiculopathy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, DC 8520. 4. Since December 2, 2019, the criteria for a rating in excess of 20 percent for the associated left and right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, DC 8520. 5. The criteria for a TDIU are met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 6. The criteria for SMC at the housebound rate are met. 38 U.S.C. §§ 1155, 5107, 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1983 to December 1992, from June 2004 to August 2004, from October 2005 to December 2005, from July 2006 to September 2006, from February 2008 to April 2008, from February 2009 to May 2009, and from November 2009 to December 2011. Because the rating criteria direct that the symptoms of a lumbar spine disability include separate ratings for any associated neurological manifestations such as for radiculopathy of the lower extremities and since, to this end, the Veteran has been awarded separate ratings for this additional neurological impairment, in this appeal the Board is considering not only the propriety of the ratings for his underlying low back disability but also the additional ratings for the associated bilateral (left and right) lower extremity radiculopathy. 38 C.F.R. § 4.71a, DCs 5235-42, Note (1). See also Chavis v. McDonough, No. 18-2928 (April 16, 2021). 1. From January 1, 2012, to December 2, 2019, rating in excess of 20 percent for the lumbar spine disability is denied. 2. Since December 2, 2019, a rating in excess of 40 percent for the lumbar spine disability is denied. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, hyphenated DC 5010-5243. DC 5010 concerns arthritis due to trauma, i.e., post-traumatic arthritis, and instructs to rate it as degenerative arthritis under DC 5003. DC 5010 and, on referral, DC 5003 do not provide for a rating higher than 20 percent, and DC 5003, in turn, indicates to rate the arthritis on the basis of the extent it causes limitation of motion of the part of the body effected. Therefore, here, since the low back (thoracolumbar spine, meaning thoracic and lumbar spine), this implicates DC 5242. Although the Veteran's disability, instead, is rated pursuant to DC 5243, so under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, the Board nonetheless will consider whether a higher rating is warranted instead under the General Rating Formula for Diseases and Injuries of the Spine, which includes DC 5242. Moreover, the changes to the criteria for rating musculoskeletal disabilities that recently took effect as of February 7, 2021, during the pendency of this appeal, now in certain circumstances allow for rating IVDS under DC 5242, not just exclusively under DC 5243. According to the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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. A 20 percent rating is warranted 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, 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, General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 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. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Also, as already alluded to, according to Note (1) in the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). 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; 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."). The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that, for the period from January 1, 2012, to December 2, 2019, the preponderance of the evidence is against a rating in excess of 20 percent for the lumbar spine disability based on incapacitating episodes. The same is the case for the succeeding period since December 2, 2019, when the Veteran's rating was increased to 40 percent. Specifically, the evidence does not demonstrate incapacitating episodes, in other words bedrest prescribed by a physician for the number of weeks each year that are required. If, instead, the Veteran took to bed because of feeling he needed to rest and recuperate, that was at his own election rather than on prescription of a physician so not an incapacitating episode. For the period from January 1, 2012, to December 2, 2019, the preponderance of the evidence also is against a rating in excess of 20 percent for under the General Rating Formula for Diseases and Injuries of the Spine. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of his entire thoracolumbar spine. Specifically, limitation of motion of his lumbar spine was not limited to 30 degrees or less during his February 2014 VA examination or according to his VA treatment records dated prior to and since that examination and prior to December 2, 2019, when his rating was increased. For the succeeding period since December 2, 2019, the preponderance of the evidence is against a rating greater than 40 percent. The December 2019 VA examination showed limitation of motion to 30 degrees or less, as required for the higher 40 percent rating, but did not show evidence of unfavorable ankylosis of the entire thoracolumbar spine to warrant an even higher 50 percent rating (see Note (5) in the General Rating Formula) or symptoms akin to that, even during a flare-up, which, in turn, could be considered the functional equivalent of ankylosis. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). Even when considering additional functional loss due to pain or during flare-up, higher ratings are not warranted. The December 2019 VA examination was during a flare, so the more severe symptoms shown were accounted for when increasing the rating from 20 to 40 percent. Prior to that examination, the treatment records and other relevant evidence including lay evidence, did not show this more restricted ranges of motion. 3. Prior to December 2, 2019, a compensable rating for the radiculopathy of the right lower extremity is denied. 4. Prior to December 2, 2019, a compensable rating for the radiculopathy of the left lower extremity is denied. 5. Since December 2, 2019, a rating in excess of 20 percent for the radiculopathy of the right lower extremity is denied. 6. Since December 2, 2019, a rating in excess of 20 percent for the radiculopathy of the left lower extremity is denied. Turning now to the associated bilateral (left and right) lower extremity radiculopathy owing to the low back disability, paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. 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, when the foot dangles and drops, there is no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80-percent disabling. These descriptive words "mild," "moderate," "moderately severe" and "severe" as used in this DC are not defined in the Rating Schedule. But regulations provide that ratings for peripheral neurological disorders are to be assigned based 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). The maximum rating that may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R § 4.123. Currently, the Veteran is in receipt of 20 percent ratings for the radiculopathy of his right and left lower extremities since December 2, 2019. The Board finds that, prior to December 2, 2019, compensable ratings (meaning ratings higher than 0 percent) for the Veteran's right and left lower extremity radiculopathy are not warranted. In so finding, the Board notes that there are multiple notes in the VA and private treatment records dated during this earlier period noting "sciatica", and in December 2012 the Veteran reported occasional radiating pain from his low back to his buttocks. However, on February 2014 VA examination, he conversely denied experiencing any neurological symptom referable to either lower extremity, and no such deficit was found on examination. This finding is consistent with the remaining records, despite the notation of "sciatica". Rather, the records consistently note his denial of neurological symptoms in his lower extremities, with normal physical examination findings. Thus, despite that notation very generally of "sciatica", physical examination and statements from the Veteran, himself, do not tend to show he had neurological manifestations referable to his lower extremities prior to December 2, 2019 owing to his low back disability. Accordingly, the Board finds that a compensable rating for either lower extremity for this earlier period of time is not warranted. Since December 2, 2019, a rating in excess of 20 percent is not warranted for this lower extremity neurological impairment, as the disability is primarily manifested by sensory disturbance and some loss of muscle tone and reflexes. The Board also finds that the most probative evidence of record is against finding that the disability is manifested by impairment of motor functions, trophic changes, or more than mild loss of muscle strength and loss of reflexes. While sensory examination was decreased, it was not absent. The December 2019 VA examiner assessed the Veteran's radiculopathy as moderate, bilaterally, so in each lower extremity. The Board thus finds that the level of impairment shown is most analogous to moderate incomplete paralysis of the sciatic nerve and accordingly most commensurate with the 20 percent rating the Veteran has had for each lower extremity effectively since December 2, 2019. The Board has considered all other potentially applicable DCs, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service connected and rated proportionate to the extent of impairment shown. Therefore, a separate or higher rating under a different DC is not warranted. 7. A TDIU is granted. 8. SMC at the housebound rate also is granted. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. 4.15. When considering the bilateral factor, the Veteran has had a combined 100 percent schedular rating for his service-connected disabilities effectively since October 1, 2015. He also has been receiving SMC for longer effectively since January 1, 2012 but based on loss of use of a creative organ according to 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) because of his erectile dysfunction. The Court has recognized that a 100 percent schedular disability rating means 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 due to a particular service-connected disability or 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 Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). The Veteran's award of a total (i.e., 100 percent) schedular rating was assigned based on the combination of all his service-connected disabilities and no single disability is rated as 100-percent disabling. But in this decision the Board is granting a TDIU, so a de facto total rating. According to 38 U.S.C. § 1114(s)(1), when a Veteran has a service-connected disability rated as total and has additional service-connected disability independently ratable at 60 percent or more, he is entitled to SMC (in this instance meaning a type of SMC that he is not receiving). The Court has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. Id. (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Here, the Veteran's service-connected disabilities meet the rating requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). Since January 1, 2012, he has had a 90 percent combined rating for these disabilities, and since October 1, 2015 he has had a schedular 100 percent combined rating. He has not, however, been receiving SMC based on the need for aid and attendance (A&A) or on account of being housebound (HB); thus, consideration of entitlement to a TDIU is not moot. And, in this regard, the Board finds that a TDIU is warranted and that, because of this grant, he is also entitled to an award of SMC at the HB rate. Specifically, the record reflects that the Veteran's PTSD and migraine headaches are the predominant disabilities that prevent substantially gainful employment. This was concluded by the November 2017 private residual functional capacity evaluation and was also earlier indicated during September 2014 VA examinations finding these disabilities caused significant functional impairment. The Veteran has not been employed since retiring from the military, and these disabilities significantly impact his ability to re-enter the workforce and obtain and maintain substantially gainful employment. See Ray v. Wilkie, 31 Vet. App. 58 (2019). When additionally considering the Veteran's other service-connected disabilities, including his obstructive sleep apnea, rated as 30-percent disabling until February 13, 2014, and as 50-percent disabling since, his hemorrhoids, rated as 20- percent disabling, his acid reflux, rated as 10-percent disabling, and his pseudofolliculitis barbae, rated as 10-percent disabling, there is additional service-connected disability independently ratable at 60 percent or more, meaning apart from the 100 percent rating or TDIU. See C.F.R. 4.25. These additional disabilities, at the very least, bring him to the 60 percent independently ratable calculation, and it is also debatable that his shoulder disabilities contribute or prevent employability given the type of work for which he is trained. Thus, the independently ratable calculation could be even greater. Therefore, he meets the criteria set forth in 38 C.F.R. § 3.350(i) for the award of SMC at the HB rate. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.