Citation Nr: 22007751 Decision Date: 02/10/22 Archive Date: 02/10/22 DOCKET NO. 13-33 600 DATE: February 10, 2022 ORDER A disability rating in excess of 20 percent for service-connected herniated nucleus pulposus L5-S1 and disk bulge L4-L5 with chronic back pain (back disability) is denied. REMANDED Entitlement to a disability rating in excess of 10 percent prior to January 6, 2021 and 20 percent as of January 6, 2021 for radiculopathy of the left lower extremity, sciatic nerve (previously external popliteal nerve) is remanded. Entitlement to an initial rating in excess of 20 percent from January 6, 2021 for left lower extremity radiculopathy, femoral nerve is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is remanded. FINDING OF FACT Even when considering functional impairment due to factors such as pain, weakness, fatigability, incoordination, or pain on movement, flare up, or repetitive use over time, the Veteran's service-connected back disability did not manifest in forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine or require bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for a back disability have been not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1991 to March 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 Regional Office (RO) rating decision. In that rating decision, the RO denied a disability rating in excess of 20 percent for a back disability and denied a disability rating in excess of 10 percent for radiculopathy of the left lower extremity. In May 2014, the Veteran testified at a video conference Board hearing before a Veterans Law Judge (VLJ). A transcript of the testimony is associated with the claims file. At the May 2014 Board hearing, the Veteran's representative raised the matter of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In June 2015, the Board remanded the case to the RO for further development and adjudicative action. In April 2021, the Board sent a letter to the Veteran, which explained that the VLJ who presided over his hearing was no longer employed by the Board and offered the Veteran a hearing before a different VLJ; otherwise, the case would be reassigned. He was instructed that if he did not respond to this letter within 30 days, the Board would assume that he did not wish to have another hearing before a VLJ currently employed by the Board. To date, the Veteran has not responded to the letter. In a January 2021 rating decision, the RO granted a separate 20 percent rating for radiculopathy of the femoral nerve of the left lower extremity effective January 6, 2021. The RO also granted a higher, 20 percent rating for radiculopathy of the sciatic nerve of the left lower extremity effective January 6, 2021. However, as the Veteran has not expressed satisfaction with the higher ratings or the effective dates, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In its July 2021 remand, the Board instructed the RO to obtain authorization from the Veteran for all non-VA treatment authorized by VA through Choice First, Veteran's Choice, and/or Community Care programs from 2011 to the present. The RO requested such authorization in an August 2021 letter. In September 2021, the Veteran provided authorization for treatment by Dr. E., which was obtained and associated with the record in September 2021. In light of the foregoing, the Board finds that the RO substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243, for intervertebral disc syndrome (IVDS). DC 5243 directs that the disability be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS formula), whichever method results in a higher rating. The IVDS formula requires the evidence to show "incapacitating episodes," and a particular percentage is assigned based on a total duration of such episodes of one week or greater over a twelve-month period. The next higher, 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. DC 5243. The "incapacitating episode" refers to a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. 38 C.F.R. § 4.71a, DC 5243, Note 1. Under the General Formula, 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 rating is warranted for unfavorable ankylosis of the entire spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." 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. 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 Veteran is seeking a disability rating in excess of 20 percent for his back disability. He asserted that his back disability was more severe than reflected by his assigned disability rating. Initially, the Board notes that this appeal originates from a February 2012 claim for increased rating. At a November 2012 VA back examination, the Veteran reported he could not stand long and that bending over to tie shoes could hurt. He had been steadily gaining weight and was in the morbidly obese category. Range of motion (ROM) testing revealed forward flexion to 75 degrees, with pain at endpoint. Combined ROM was 190 degrees. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or ROM. Contributing factors of disability included less movement than normal, pain on movement, and obese abdomen. There was no ankylosis. The Veteran had IVDS of the thoracolumbar spine, but no incapacitating episodes over the previous 12 months. A July 2013 private chiropractic examination revealed forward flexion to 90 degrees. At the June 2014 Board hearing, the Veteran reported trouble with sitting, standing, walking, and bending. He reported that he could stand for about two to three minutes before his back started to hurt. He could walk 50 yards. He reported undergoing gastric bypass surgery the previous week. At an October 2016 VA chiropractic consultation, the Veteran complained of pain in the low back, rated as a 4 to 5 out of 10. About two times a year, he experienced exacerbation of low back pain typically provoked by shoveling. The examiner noted that flexion was "moderately restricted and palliative;" however, specific ROM was not documented. An August 2017 private treatment record noted that the Veteran's low back pain was constant to moderate to severe in intensity. He used ibuprofen as needed. Prolonged standing and walking aggravated his back. His VA physician recommended continuous acupuncture. On physical examination, there was tenderness on L4-S2. Lumbar flexion was limited to 45 degrees. At a January 2021 VA back examination, the Veteran reported a constant dull aching pain in his lower back, acute sharp pain with physical activity, constant stiffness, and back spasms. He rated daily pain as a 7.5 out of 10 and flare-ups as a 9 out of 10. The Veteran performed home stretching and had lost 102 pounds in the last 5 years to help reduce his back pain. He reported that flare-ups occurred twice daily, were severe, and lasted 15 minutes. They were precipitated by bending down to tie his shoe, or walking/standing for prolonged periods of time. Regarding functional impact, the Veteran reported that he was unable to maintain a consistent exercise routine and could run any longer. He also could not ride dirt bikes and had difficulty being intimate with his wife. He worked in peer support for the VA and struggled walking throughout the day with veterans. On physical examination, ROM testing revealed forward flexion to 70 degrees, with pain noted on rest/non-movement. Combined ROM was 190 degrees. There was also evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or ROM. The examiner noted that the Veteran was being examined immediately after repetitive use over time and during a flare-up, and opined that pain would significantly limit functional ability with repeated use over a period of time in these situations; however, forward flexion would not be additionally reduced. There was no ankylosis. The Veteran had IVDS of the thoracolumbar spine, but he had no episodes requiring bed rest prescribed by a physician in the past 12 months. The examiner noted that back passive ROM testing was not performed as it was not medically appropriate because of mechanical limitations of examiner. Based on the foregoing, the Board finds that the criteria for a 40 percent rating are not more nearly met or approximated. In order to meet the criteria for a disability rating in excess of 20 percent, the Veteran needed to manifest forward flexion limited to 30 degrees of less; ankylosis; or incapacitating episodes due to IVDS having a total duration of at least four weeks but less than six weeks during the past 12 months. Here, although the Veteran has been diagnosed with IVDS, the medical evidence does not reflect any incapacitating episodes in a 12 month period. The Veteran's forward flexion has ranged from 45 to 90 degrees, and there has never been any ankylosis of the spine. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, and pain characterized as severe at times. However, the evidence does not suggest that the degree of additional limitation would result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Indeed, the January 2021 VA examination was conducted during a flare-up and after repeated use. While the Veteran, as a layperson, is competent to report the symptoms he has experienced, he has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability for his lumbar spine disability according to the rating criteria, which is a medically complex determination that cannot be based on lay observation alone. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, the criteria for a rating in excess of 20 percent for a back disability have not been met, and the claim must be denied. REASONS FOR REMAND Regarding the Veteran's increased rating claims for left lower extremity radiculopathy, the record contains three VA examination reports addressing the Veteran's left lower extremity radiculopathy. At an April 2012 VA examination, the examiner diagnosed mild left incomplete paralysis of the external popliteal nerve and external cutaneous nerve of the thigh. At a November 2012 VA examination, the examiner diagnosed left lower extremity neuropathy but found no evidence of radiculopathy. At a January 2021 VA examination, the examiner diagnosed radiculopathy of the sciatic and femoral nerves. Medical evidence between April 2012 and January 2021 suggests additional nerve involvement. For example, October 2016 private chiropractic treatment records note left anterior and lateral thigh, low back and buttocks. Treatment consisted of neuro mobilization of the left lower extremity along the femoral nerve. However, service connection is only in effect for sciatic nerve involvement throughout the appeal. Service connection for femoral nerve involvement was not granted until the date of the January 2021 VA examination. Therefore, the Board finds that a remand for an examination that specifies which nerves have been affected by the service-connected left lower extremity is warranted. Such an examination must include a retrospective opinion which addresses the medical evidence of record since April 2012. Regarding the Veteran's claim for a TDIU, his combined disability rating is 30 percent since April 21, 2010 and 50 percent since January 6, 2021. Therefore, he does not meet the schedular criteria for entitlement to a TDIU. See 38 C.F.R. § 4.16(a). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16(b). Submission to the Director of Compensation and Pension Service (Director) for extraschedular consideration is warranted in all cases of 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). 38 C.F.R. § 4.16(b). In this case, a November 2013 opinion from a private physician stated that the Veteran was disabled due to his back disability. In February 2014, the Social Security Administration (SSA) granted disability benefits based on the Veteran's back and radiculopathy disabilities, as well as other nonservice-connected disabilities. The record suggests that the Veteran has been unemployed at various points throughout the appeal. The Board finds such evidence warrants a referral to the Director for extraschedular consideration pursuant to 4.16(b). The Board notes that its June 2015 Remand directed the RO to send the Veteran a notice letter and application regarding his claim for entitlement to a TDIU. The record does not contain a copy of such notice letter and application; therefore, it is unclear as to whether the RO complied with the Board's Remand directives. Because a complete picture of the Veteran's employment history would be helpful to the Director in determining entitlement to a TDIU on an extraschedular basis, such documents should be sent to the Veteran prior to referring the claim to the Director. The matters are REMANDED for the following action: 1. Send the Veteran a notice letter and application (VA Form 21-8940) regarding his claim of entitlement to a TDIU. 2. Schedule the Veteran for a neurological examination to determine the nature of any left lower extremity radiculopathy. After completing any tests indicated, the examiner must note which nerves are affected by radiculopathy, and the severity. The examiner must also review the entire record and determine whether radiculopathy of the femoral nerve (or of any other nerve) was present prior to January 2021. 3. After all available evidence has been associated with the record, refer the Veteran's claim for a TDIU to the Director, Compensation and Pension Service, for consideration of TDIU on an extraschedular basis. 4. Then, readjudicate the claims for left lower extremity radiculopathy and TDIU. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the appeal to the Board. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.