Citation Nr: 21028932 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-27 582A DATE: May 12, 2021 ORDER Entitlement to service connection for a liver disability is denied. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is denied. Entitlement to an initial rating in excess of 10 percent for right lower extremity (RLE) radiculopathy is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of evidence is against the finding that the Veteran has a current liver disability. 2. The Veteran's back disability was manifested by flexion limited to, at worst, 65 degrees and painful motion. 3. The Veteran's service-connected lumbar radiculopathy of the RLE is no more than mild in severity. 4. The Veteran does not meet the schedular criteria for assignment of a TDIU, and his service-connected disabilities do not render him unable to secure and follow substantially gainful occupation CONCLUSIONS OF LAW 1. The criteria for service connection for a liver disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to a disability evaluation greater than 20 percent for lumbar spine disability prior to September 18, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 3. The criteria for an initial rating in excess of 10 percent for radiculopathy of the RLE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1992 to January 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2020, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. Service Connection Liver Disability The Veteran asserts that he has a liver disability that was caused by active service. Specifically, he asserts that this disability is directly related to the medication taken to treat his service-connected lumbar spine disability. The Board finds, however, that the competent medical evidence of record does not demonstrate that the Veteran current suffers from a liver disability or did have such a disability at any point contemporaneous to the claim. As such, without a current disability, the Veteran's claim for service connection must be denied. A December 2010 VA treatment record shows that an ultrasound of the Veteran's abdomen revealed mildly diffuse increased echogenicity of the liver. However, not diagnosis regarding an actual live condition was diagnosed. To this end, the Board also notes that such record was also outside the claims period. Since December 2010, the Board notes that the treatment records have not only shown no evidence of a diagnosis of a live disability, but the Veteran has consistently reported no issues regarding any live conditions contemporaneous to treatment. In September 2020 the Veteran was afforded a VA examination to assess the nature of his claimed liver disability. During the examination the Veteran was noted to deny any current liver disease. He stated that he was found to have elevated liver tests by PCP and diagnosed with fatty liver 2010. Prior to the examination, the Veteran was told he has no fatty liver or liver disease. The Board acknowledges that a medical opinion has not been obtained in response to the Veteran's claim of entitlement to service connection for a liver disability. However, there is no indication from the record that the Veteran has a diagnosed liver disability, let alone one that may be related to his active service or service-connected lumbar spine disability. As such, a VA medical opinion is not necessary in this case as the evidence currently of record is sufficient to decide the claim on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). There is no indication from the record that the Veteran has a diagnosed liver disability. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the finding of a current disability, entitlement to service connection for a liver disability must be denied. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Back Disability All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Degenerative arthritis of the spine and spondylolisthesis or segmental instability are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is 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. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. A 20 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, 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 30 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. 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). The Veteran has also been diagnosed with lower extremity radiculopathy. VA regulations provide that any associated objective neurologic abnormalities are to be evaluated separately under the appropriate diagnostic code. See 38 C.F.R. § 4.71a Note (1). In this case, the Veteran's radiculopathy has been rated under DCs 8520, for paralysis of the sciatic nerve. Under DC 8520, an 80 percent disability rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as "a degree of lost or impaired function substantially less than the type picture for complete paralysis given." A 60 percent disability rating is assigned for severe, incomplete paralysis, with marked muscular atrophy. A 40 percent disability rating is assigned for moderately severe, incomplete paralysis. A 20 percent disability rating is assigned for moderate, incomplete paralysis. A 10 percent disability rating is assigned for mild, incomplete paralysis. 38 C.F.R. § 4.124a. The Veteran asserts that he is entitled to higher ratings for his back disability because the severity of his symptoms is worse than contemplated by the currently assigned ratings. At a June 2011 VA examination, the Veteran reported being diagnosed with ankylosing spondylitis, lumbar spine. He reported dealing with his disability since November 1994. The Veteran indicated that he is unable to walk due to his back disability. He reported experiencing stiffness, fatigue, decreased motion, numbness, and weakness in his legs and feet. The Veteran reported that in relation to his back disability, he does not experience spasms and paresthesia. Upon physical examination, thoracolumbar spine range of motion (ROM) measurements were all normal. Passive ROM measurements were not conducted. The examination revealed no evidence of radiating pain on movement. Muscle spasms were absent. There was no tenderness noted. There was no guarding of movement. The examination did not reveal any weakness. Muscle tone was normal. Musculature was normal. There was negative straight leg raising on both sides. Lasegue's sign was negative. There was no atrophy present in the limbs. There was no ankylosis of the thoracolumbar spine. At a May 2016 VA examination, the Veteran reported difficulty with bending and prolonged positions, frequent flareups requiring emergency room visits, and sharp pains down left leg with low back pain. Upon physical examination thoracolumbar spine ROM measurements were as follows: flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 20 degrees each. Passive ROM measurements were not conducted. There was pain on the end range of forward flexion. There was objective pain on non-weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive testing and there was no additional limitation of motion following repetition. There was guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal and there was no muscle atrophy. Deep tendon reflexes and sensation were normal. Straight leg testing was positive on the right side and negative on the left side. There was no ankylosis of the spine. The Veteran was found to have Intervertebral disc syndrome (IVDS) of the lumbar spine that required bed rest prescribed by a physician and treatment by a physician for IVDS in the 12 months prior to his examination. The Veteran did not use any assistive devices as a normal mode of locomotion. At a September 2019 VA examination, the Veteran reported flare-ups of the back occur couple time per month. The flare-ups are mild and last less than a day. They are precipitated by exertion and alleviated by rest. Upon physical examination thoracolumbar spine ROM measurements were all normal, however no results of passive range of motion testing for the lumbar spine were provided. Pain was noted on examination but did not cause a functional loss. The Veteran was able to perform repetitive testing and there was no additional limitation of motion following repetition. Muscle strength testing was normal and there was no muscle atrophy. Deep tendon reflexes and sensation were normal. Straight leg testing was positive on the right side and negative on the left side. There was no ankylosis of the spine. The Veteran was found to have IVDS of the lumbar spine, but it did not require bed rest prescribed by a physician and treatment by a physician for IVDS in the 12 months prior to his examination. The Veteran did not use any assistive devices as a normal mode of locomotion. At a September 2020 VA examination, the Veteran reported constant pain and stiffness in the lower back, throbbing, on the left side more than the right side, difficulty with physical activities, carrying his child, mowing his lawn, yardwork; needing to limit prolonged walking up to one mile, and no longer being able to run. He reported flare-ups that occur monthly and are described as increased sharp, burning, severe, pain in the lower back with radiation down either leg. He noted that when his flare-ups are more severe has difficulty with activities of daily living like grooming and bathing. Upon physical examination thoracolumbar spine ROM measurements were as follows: flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 20 degrees each. Pain was noted on forward flexion but did not cause a functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive testing and there was no additional limitation of motion following repetition. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal and there was no muscle atrophy. Deep tendon reflexes and sensation were normal. Straight leg testing was negative on both sides. There was no ankylosis of the spine. The Veteran was found to have IVDS of the lumbar spine, but it did not require bed rest prescribed by a physician and treatment by a physician for IVDS in the 12 months prior to his examination. The Veteran did not use any assistive devices as a normal mode of locomotion. The criteria for a disability rating in excess of 20 percent. As noted above, in order to warrant the next-higher 40 percent rating under the General Rating Formula, the Veteran must demonstrate forward flexion limited to 15 degrees or, ankylosis. Such was not shown during the relevant time period by either the VA examinations, or the private/VA treatment records. To this end, VA examinations during this period showed that, at worse, the Veteran's back disability was only limited to 60 degrees of forward flexion, and a combined range of motion of 160. A close review of the contemporaneous VA/private records reveals no additional evidence of a worse objective range of motion for this time period. The Board additionally notes that in making this finding that the Board has considered the Veteran's claim for flare-ups, and those functional loss claimed by the Veteran. To this end, the Veteran's claim was remanded by the Board to acquire a VA examination the explicitly spoke to the Veteran's functional loss in terms of range of motion during flare-ups or after repeated use. The September 2020 VA examination noted that there was no further loss of range of motion were noted upon repeat motion testing, or due to flare-ups. As such, the Board finds that the VA examination remain adequate in assessing the Veteran's functional abilities, and as they remain in excess of those criteria for a higher rating, the preponderance of evidence remains against the claim. A higher rating is also not warranted under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. At no time during the relevant period did the Veteran experience incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability is not warranted based on the lack of physician-prescribed incapacitating episodes as set forth under DC 5243. The Board has also considered whether a higher rating is warranted on the basis of functional loss due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Based upon the results from the VA examinations of record, the Veteran's range of motion was not decreased to the level of a compensable rating, however, evidence of painful motion that resulted in additional functional loss is the basis for his compensable rating. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. As noted previously, the Veteran's service-connected back disability was evaluated under 38 C.F.R. § 4.71a, DC 5242. Under DC 5003 (degenerative arthritis), if the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. 38 C.F.R. § 4.71a. Here, the Veteran has a compensable rating due to limitation of motion, so DC 5003 is inapplicable. As such, the Veteran is rated under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his service-connected back disability was worse than contemplated by the 20 percent disability rating. However, the objective clinical findings do not support his assertions for the reasons stated above. The preponderance of the evidence is against the Veteran's claim and an increased rating in excess of 20 percent for a back disability must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Increased Rating Lumbar Radiculopathy of the RLE The Veteran has asserted that he should have a higher rating for his leg disability as his symptoms are worse than those contemplated by the currently assigned rating. At a July 2019 VA examination, the Veteran was found to have no signs or symptoms of radiculopathy in his RLE. At a September 2019 VA examination, the Veteran was found to have mild radiculopathy in his RLE. Upon examination, mild paresthesias and/or dysesthesias, mild intermittent pain, and mild numbness in the RLE were noted. At a September 2020 VA examination, the Veteran was found to have moderate radiculopathy in his RLE which involved the sciatic nerve. Upon examination, there was moderate intermittent pain in the RLE. There were no other signs of radiculopathy noted during the examination. A review of the record shows that the Veteran receives treatment for various disabilities at the VA Medical Center and from private treatment providers for various disabilities, to include his leg disability. A review of the treatment records does not show that the Veteran has symptoms of his leg disability that are worse than those reported in the various VA examination reports of record. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve, 20 percent for moderate incomplete paralysis, 40 percent for moderately severe incomplete paralysis, 60 percent for severe incomplete paralysis, and 80 percent for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Based on the foregoing, the Board finds that the Veteran's disability picture more closely approximates the criteria for a 10 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Although the Veteran reported radiculopathy symptoms, those symptoms have never been found to be more than mild in severity upon medical examination. Therefore, the Board finds that the overall functional impairment resulting from the Veteran's service-connected radiculopathy of the lower extremities is no more than mild in severity. Overall, based on the totality of the evidence, the Board finds that the Veteran's disability picture more closely approximates the criteria for 10 percent ratings. Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to an initial rating in excess of 10 percent for lumbar radiculopathy of the RLE is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert, 1 Vet. App. At 49. Entitlement to a TDIU The Veteran maintains that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned where the Veteran has a single service-connected disability that is rated as 60 percent disabling or more; or when there are two or more disabilities, at least one disability is rated at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16 (a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. A total disability rating may also be assigned on an extra-schedular basis, under the procedures set forth in 38 C.F.R. § 4.16 (b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Factors to be considered are the Veteran's education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran's advancing age. 38 C.F.R. § 3.341 (a); see also 38 C.F.R. § 4.19 (2017) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran is service connected for radiculopathy of the left (40 percent) and right (10 percent) sciatic nerve, a back disability (20 percent), allergic rhinitis (0 percent), and right arm scars (0 percent). His combined schedular rating is 60 percent. As his entire 60 percent combined rating is based on his back disability, and those associated radiculopathy of the bilateral lower extremities, the Board must find that the Veteran does meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16 (a). Therefore, moving to the merits of the claims, the Board notes that in order to establish entitlement to TDIU benefits, there must be impairment so severe that a claimant cannot follow a substantially gainful occupation. 38 C.F.R. § 3.340. 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). Therefore, the issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the evidence of record indicates that the Veteran is currently still employed. A review of the record reveals a March 2015 VA treatment note, were it was noted that the Veteran worked full time in technology for Department of Defense. To this end, the Veteran's most recent VA examination for his back in 2020, the examiner noted that the Veteran reported that he worked fill time, in a mostly sedentary job, with no evidence of excessive absenteeism during the year. The Board notes that there is no evidence that such employment is considered shelter, or not otherwise gainful employment, as contemplated by VA law. Consequently, as the Veteran remains gainfully employed, any inquired for a TDIU is precluded; and the Veteran's claim must be denied. (Continued on the next page) Based upon the foregoing, the Board finds that the preponderance of the evidence is against the claim. The evidence does not demonstrate that the Veteran's service-connected disabilities alone, when considered in association with his educational attainment and occupational background, render him unable to secure or follow a substantially gainful occupation. As such, the evidence shows that the Veteran is still employed, gainfully, entitlement to TDIU is thus not established. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.