Citation Nr: 21040675 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 10-19 442 DATE: July 6, 2021 ORDER An initial rating in excess of 10 percent prior to June 23, 2015 and 20 percent from June 23, 2015 to October 21, 2019 for a back disability is denied. An initial rating of 40 percent from October 21, 2019 for a back disability is granted. An initial rating of 20 percent for right lower extremity radiculopathy is granted. An initial rating of 20 percent for left lower extremity radiculopathy is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to June 23, 2015, the Veteran's back disability was not manifested by forward flexion greater than 30 degrees but not greater than 60 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. From June 23, 2015 to October 21, 2019, the Veteran's back disability was not manifested by forward flexion of less than 30 degrees or ankylosis. 2. From October 21, 2019, the Veteran's back disability was not manifested by any type of ankylosis. 3. Resolving all doubt in favor of the Veteran, the Veteran's right leg radiculopathy is manifest by moderate symptoms. 4. Resolving all doubt in favor of the Veteran, the Veteran's left leg radiculopathy is manifest by moderate symptoms. 5. The Veteran's service-connected disabilities render him unable to secure and maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to June 23, 2015 and 20 percent until October 21, 2019 for a back disability are not met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.97, Diagnostic Code (DC) 5239. 2. The criteria for a rating of 40 percent, but no higher, from October 21, 2019 for a back disability are met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.85, 4.97, Diagnostic Code (DC) 5239. 3. The criteria for a rating of 20 percent for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.124a, DC 8520. 4. The criteria for a rating of 20 percent for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.124a, DC 8520. 5. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1984 to March 1987. The Veteran had a hearing before a Veterans Law Judge in June 2016 and another hearing before the undersigned Veterans Law Judge in June 2019. Transcripts of both hearing have been associated with the file. These matters were previously before the Board and were remanded for further development in February 2020. The development has been accomplished and the matters are again before the Board. REFFERAL In his June 2019 hearing, the Veteran raised the claim of entitlement to service connection for a neck disability. A Regional Office (RO) has not yet adjudicated this claim and it is not before the Board. Therefore, the claim is REFERED for adjudicated by an RO. Increased Rating Claims Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In his June 2016 hearing, the Veteran said his daily pain scale is between a five and six. The Veteran reported flare ups when his pain would be a 10 out of a 10 and his range of motion was non-existent. The Veteran also reported back spasms and sensations into his legs and that his back limited his daily living and that he had to go to the emergency room due to his back. In his June 2019 hearing, the Veteran said his radiculopathy had flare ups, he used a TENS unit, sometimes took medication, and sometimes would have to lie down. The Veteran said that if he couldn't get up, his spouse had to bring him something to urinate in. The Veteran also reported that he sometimes couldn't walk because of his radiculopathy, that he had trouble sitting, and that because of his back and radiculopathy, his spouse had to take care of things around the home, that he often had to lie on the couch and sometimes, would take brief walks outside to loosen up. Back Disability The Veteran contends that his back disability is worse than his current disability rating of 10 percent prior to June 23, 2015 and 20 percent disabling thereafter. The Veteran's back is currently rated under DC 5239. In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, 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 if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note (1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Also of relevance is DC 5243. The Formula for Rating Intervertebral Disc Syndrome provides a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In April 2009 the Veteran had a back examination. The Veteran's file was later reviewed in order to offer the opinion as to etiology. The Veteran reported significant pain, had daily back spasms, had trouble bending, and took medications for pain. The examiner reported the Veteran had tenderness but the remainder of the examination was normal. The Veteran's forward flexion was to 90 degrees. The Veteran had an examination for his back in July 2015 in which the examiner saw the Veteran in person and reviewed his file. The Veteran reported flare ups of his back condition and functional loss due to pain on movement and decreased physical activity due to pain. The Veteran's forward flexion was to 40 degrees with abnormal range of motion contributing to functional loss. After repetitive use testing, there was no additional loss of range of motion. The Veteran reported pain on weight-bearing and non-weight-bearing with moderate localized tenderness and guarding that led to abnormal spinal contour. The Veteran also had less movement than normal along with pain with pain, weakness, and fatigability leading to further functional loss, leading his range of motion to decrease five degrees to 35 degrees of forward flexion. The examiner reported the Veteran did not have muscle atrophy or ankylosis. The examiner opined the Veteran did not have IVDS but did occasionally use a cane. A May 2018 examiner reported the Veteran did have IVDS but did not indicate a severity. The Veteran submitted a private back examination in October 2019. This examiner did not review the Veteran's file. The Veteran reported flare ups that resulted in loss of range of motion and limitations of ability to sit, stand, and walk. The Veteran reported spending up to two days lying down. The examiner reported the Veteran's forward flexion was limited to 10 degrees with functional loss with the Veteran able to perform repetitive use testing that did not result in further loss of range of motion. The Veteran had muscle spasm or guarding that led to abnormal spinal contour and functional loss in the form of less movement that normal, weakened movement, pain on movement, deformity, and atrophy due to disuse. The Veteran had marked limitation of motion in all planes of motion and had muscle atrophy. The examiner reported the Veteran had unfavorable ankylosis of the entire thoracolumbar spine. The examiner reported the Veteran had IVDS which led to incapacitating episodes that had a total duration of at least six weeks in the past 12 months which could result in two weeks of bedrest. The examiner reported the Veteran had arthritis diagnosed via imaging. In compliance with the Board remand, the Veteran had another examination for his back disability in August 2020 in which the examiner saw the Veteran in person and reviewed his record. The Veteran reported his condition had worsened and had flare ups weekly for two days and had to rest in bed. The Veteran also reported functional loss which led to an inability to get up, walk, or stand to do any work. The examiner found the Veteran's forward flexion was to 45 degrees with pain noted on examination that caused functional loss with moderate localized tenderness and pain on weight bearing. After repetitive use testing, there was no additional loss of range of motion, but pain, weakness, fatigability, and incoordination did lead to functional loss with repeated use over time, reducing the Veteran's forward motion of 35 degrees, which was the same as during a flare up. The examiner also reported the Veteran had guarding that resulted in abnormal gait or abnormal spinal contour. The Veteran did not have ankylosis in his back or IVDS and did not use assistive devices. The Veteran's record shows he has a long history of being treated for back pain and that his back disability often led to spasms and difficulty walking. (See e.g. June 2006, April, August 2008, October 2009, March 2012, March 2013, December 2014, May, July 2015, February 202, February, May 2021 treatment records.) In February 2020, the Veteran's forward flexion was found to be to 25 degrees with pain. As discussed above, the evidence of the severity of the Veteran's back varies greatly. Prior to June 23, 2015, the Board finds a higher rating in excess of 10 percent is not warranted. While the Veteran's treatment records show he was seen consistently for back pain, the records, including his examination, do not show his flexion was so limited as to warrant a higher evaluation or that he had muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. From June 23, 2015, the Board notes that one examination from October 2019 indicates the Veteran warrants a higher rating based on limitation of flexion and ankylosis of his spine. However, the Board places less probative value on this examination, in particular the finding of ankylosis, than the other examinations of record because the examiner did not review the Veteran's file. Additionally, this one finding of ankylosis is not consistent with any of the Veteran's other medical records indicating he did not suffer from ankylosis. The August 2020 examiner did not find the Veteran suffered from decreased range of motion such as to warrant a higher than 20 percent evaluation and also did not note the Veteran suffered from ankylosis. However, this must also be weighed against the range of motion measurements found in the October 2019 examination as well as the February 2020 medical record indicating the Veteran's flexion was limited to 25 degrees. Therefore, the Board finds that from October 21, 2019, the Veteran is entitled to a higher 40 percent rating based on his limitation of forward flexion being to 30 degrees or less. The Board has granted the benefit of the doubt to the Veteran and has granted an effective date from October 21, 2019 rather than the later date in February 2020 as October 21, 2019 is the first date is factually discernable the Veteran's forward flexion was limited to less than 30 degrees. Bilateral Lower Extremity Radiculopathy The Veteran contends his bilateral lower extremity radiculopathy is worse than indicated by his 10 percent rating for each extremity. The Veteran's radiculopathy is rated under DC 8520. The Veteran's left leg radiculopathy is currently rated under DC 8520. Under these guidelines, complete paralysis of the sciatic nerve, manifested by symptoms including that the foot dangles and drops, no active movement of the muscles below the knee, flexion of the knee weakened or lost, is rated as 80 percent disabling. Incomplete paralysis of the sciatic nerve which is severe, with marked muscular atrophy, is rated as 60 percent disabling. Moderately severe incomplete paralysis of the sciatic nerve is rated as 40 percent disabling. Moderate incomplete paralysis of the sciatic nerve is rated as 20 percent disabling. Mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The term "incomplete paralysis," with this and other peripheral nerve injuries, 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 should be for the mild, or at most, the moderate degree of impairment. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings are combined with application of the bilateral factor. 38 C.F.R. § 4.124a. A July 2015 examiner opined the Veteran did not have radiculopathy in either lower extremity. The Veteran had an examination for his nerves in January 2017 in which the examiner saw the Veteran in person, reviewed his file, and noted a diagnosis of bilateral lower extremity radiculopathy. The Veteran used a TENS unit and did physical therapy that helped his condition. The examiner noted the Veteran's symptoms included mild intermittent pain and mild numbness and opined the Veteran's radiculopathy was manifested by mild incomplete paralysis in both lower extremities. The Veteran had another examination for his nerves in May 2018. The examiner reported the Veteran had severe constant pain and moderate paresthesia and numbness in his lower extremities. The examiner reported the Veteran's sciatic nerves both had moderately severe incomplete paralysis. A private October 2019 examiner reported the Veteran had signs and symptoms of radiculopathy with mild incomplete paralysis in his right lower extremity and moderate incomplete paralysis in his left lower extremity. At this examination, the Veteran reported throbbing pain in his back and pain radiating into his legs. The Veteran reported he could only sit for about 15 minutes, stand for about 15 to 20 minutes, and walk 1/4 mile with frequent breaks. The Veteran also reported activities of daily living limitations as he required help driving and trouble getting up to go the bathroom. Regarding his lower extremity radiculopathy, the August 2020 examiner opined the Veteran did not have lower extremity radiculopathy. The examiner reported there was no evidence to support impingement on the nerve roots which called "for reconsideration of the original diagnosis." The examiner reported the latest and most recent imaging findings did not support a diagnosis of bilateral lower extremity radiculopathy. The Veteran's treatment records indicate he has been seen for symptoms of radiculopathy. In August 2008, the Veteran seen for sharp back pain with tingling and numbness into legs during flare ups. However, the Veteran was not diagnosed with radiculopathy. In December 2008, the Veteran was noted to have back pain but with no radiation. A March 2013 treatment record noted the Veteran had occasional radicular symptoms in his left leg. At different examinations and treatment records, the Veteran has been found to not have radiculopathy, have mild radiculopathy, and moderately severe radiculopathy. The Board finds that when taken together as a whole, including the Veteran's subjective complaints of shooting pain down his legs, that the Veteran's radiculopathy as a whole warrants a 20 percent rating due to moderate incomplete paralysis in both lower extremities. The Board finds this appropriate as it considers all of the varying evidence as to the severity of the Veteran's condition as the evidence varies widely. Neither the Veteran nor his representative has not identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding all the claims above, the Board acknowledges the Veteran's statements and his spouse's statements that his claimed disabilities constantly bother him, causing him pain and discomfort, and that he believes they are all worse than indicated by his assigned ratings. The Board also recognizes the Veteran continues to seek medical treatment for many of these conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered the Veteran's statements and has weighed them against the medical evidence as discussed above. The Board has also weighed the medical evidence of record and has found some records more probative than others as discussed above. While the Veteran's service connected disabilities clearly bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings and the ratings cited above, the only question is the degree. Clearly, the Board agrees with the Veteran that his disabilities have gotten worse and are serious; hence, the Board has granted increased ratings and, as noted below, has also granted a TDIU below. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). TDIU Claim The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more 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. See 38 C.F.R. § 4.16(a) (2016). The Veteran's combined disability rating is 60 percent with his left upper extremity radiculopathy rated as 30 percent disabling. The Veteran is also service connected for the following: A back disability, rated as 10 percent disabling prior to June 23, 2015 and 20 percent from June 23, 2015 to October 21, 2019, and 40 percent thereafter, Bilateral lower extremity radiculopathy, each rated as 20 percent disabling, and Tinnitus, rated as 10 percent disabling. Thus, due to the grants in this decision, the Veteran now meets the schedular requirements for a TDIU. In his June 2016 hearing, the Veteran reported he was not working because of his multiple appointments due to his back. The Veteran said he had tried applying for work, but he hasn't been able to get a job because of his physical limitations. The Veteran said he was unable to stand for long periods of time or sit for long periods of time. The Veteran reported his supervisor at the IRS told him he was missing too many days of work due to his appointments and pain. In the past, the Veteran reported working in law enforcement, detail protection, was a file clerk. The Veteran said he has some college credits but did not get a certificate or degree. In his June 2019 hearing, the Veteran said back pain prescription medication caused GI problems and drowsiness. The Veteran reported he last worked in 2008 or 2009. The Veteran had a job with the IRS but due to all his VA appointments, he couldn't continue to work. The Veteran has experience working as a mail clerk, in a warehouse as a driver, with different federal agencies, as a correctional officer, and as an investigator. The Veteran has some college credits. The Veteran reported he lost previous jobs because he could not pass the physical tests. (See April 2008 treatment record, June 2015 Application, July 2015 examination.) In May 2015, the Veteran said his back spasms wouldn't allow him to perform simple tasks or operate heavy machinery. The Veteran said no one would hire him because he could not pass medical examinations for jobs requiring light or moderate lifting. The Veteran also said he had been hospitalized due to his condition. A July 2015 examiner opined the Veteran's back led to functional impairment in that he was limited in performing strenuous activities such as running, jumping, and lifting heavy weights or repetitive activities that required bending or twisting. In August 2015, an examiner opined the Veteran would be able to perform sedentary functions such as sitting. However, the Veteran would have problems listening or triage of information due to his tinnitus. January 2017 and May 2018 examiners opined the Veteran's lower extremity radiculopathy did not impact his ability to work. An October 2019 private examiner reported the Veteran's back and radiculopathy led to functional impairment in that the Veteran was limited in ability to bend, twist, lift, carry, climb stairs, and walk distances. This examiner opined the Veteran was unable to work due to his back and radiculopathy. The August 2020 examiner found the Veteran's back did impact his ability to work in that the Veteran reported he was unable to get up and walk or stand up or do any work. The Board finds that the Veteran's disabilities, when taken as a whole, prevent him from being gainfully employed. The Veteran's back and radiculopathy has made physical work impossible, as he has stated several times that he is unable to pass physical tests necessary to perform such jobs. The Veteran's tinnitus, back, and radiculopathy also lead to problems sitting, talking on the phone, or even having jobs in quiet environments that would require long periods of sitting, standing, or walking. Therefore, the Board finds a TDIU is warranted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.