Citation Nr: 22016201 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-61 682 DATE: March 21, 2022 ORDER An initial 10 percent rating for lumbar strain prior to June 2, 2015, is granted. An initial rating for lumbar strain higher than 10 percent from June 2, 2015, and higher than 20 percent from November 9, 2021, is denied. Prior to June 2, 2015, and from November 9, 2021, a separate 10 percent rating for right lower extremity radiculopathy is granted. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to June 2, 2015, the Veteran had painful flare-ups of his lumbar strain. 2. From June 2, 2015, to November 8, 2021, the Veteran's lumbar strain was not manifested by forward flexion not greater than 60 degrees, combined range of motion not greater than 120 degrees, or spasm or guarding severe enough to cause abnormal gait or spinal contour. 3. From November 9, 2021, the Veteran's lumbar strain was not manifested by forward flexion of 30 degrees or less, or by ankylosis of the lumbar spine. 4. Prior to June 2, 2015, and from November 9, 2021, the Veteran had mild sciatic nerve incomplete paralysis in the right lower extremity. 5. The Veteran's service-connected disabilities did not preclude him from engaging in substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to June 2, 2015, the criteria an initial 10 percent rating for lumbar strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for an initial rating higher than 10 percent from June 2, 2015, and higher than 20 percent from November 9, 2021, for lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5237. 3. Prior to June 2, 2015, and from November 9, 2021, the criteria for a separate 10 percent rating for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, 4.124a, DC 8520. 4. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy from November 1997 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision. It was previously remanded for additional development in December 2018 and July 2021. Increased Ratings The Veteran's lumbar strain is rated under 38 C.F.R. § 4.71a, DC 5237, which is part of the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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. 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). At the outset, the Board notes that the evidence does not reflect any incapacitating episodes, and therefore consideration of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not necessary. Lumbar strain prior to June 2, 2015 Prior to June 2, 2015, the Veteran is assigned a 0 percent rating for his lumbar strain. The Board finds that a 10 percent rating is warranted. During the Veteran's July 2012 VA examination, he reported experiencing moderate to severe flare-ups after golfing or other strenuous activities. This flare-ups could last up to 3 or 4 days. This warrants at least a 10 percent rating. 38 C.F.R. § 4.59 (the intent of the rating schedule is to recognize painful joints as entitlement to at least the minimum compensable rating). A higher 20 percent rating is not warranted. Objective testing from the July 2012 VA examination noted full range of motion of the lumbar spine without the presence of pain, guarding or spasms. These findings were unchanged with repetitive testing. Indeed, the Veteran denied having daily mechanical low back pain. Therefore, the evidence shows no impairment resulting from the Veteran's lumbar strain outside of the presence of flare-ups. Because these flare-ups occurred only following specific stimuli, the criteria for a rating higher than 10 percent are not met. Cf. Voerth v. West, 13 Vet. App. 117, 12223 (1999) (holding that condition that became inflamed approximately twice a year for a few days did not require examination during flare-up). Lumbar strain from June 2, 2015 From June 2, 2015, the Veteran is assigned a 10 percent rating for his lumbar strain. This increases to 20 percent from November 9, 2021. The Board finds that higher ratings are not warranted. The Veteran underwent a VA examination on June 2, 2015. At that time, he had full range of motion of the lumbar spine. Pain was present but did not result in any additional functional loss. These findings were unchanged with repetitive testing and repetitive use over time. No guarding or spasm was present. A comparison between these findings and the above criteria show that a higher 20 percent rating is not warranted. The Veteran underwent an additional VA examination on November 9, 2021. Forward flexion was measured at 75 degrees. Pain was present but did not result in any functional loss. These findings were unchanged with repetitive testing and repetitive use over time. The Veteran denied the presence of any flare-ups, and no ankylosis was present. These findings do not correspond to the criteria for a higher 40 percent rating, which requires flexion limited to 30 degrees or the presence of favorable ankylosis. Right lower extremity radiculopathy As noted above, separate ratings are to be assigned for neurologic abnormalities associated with the Veteran's lumbar strain. 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, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. 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 July 2012 VA examination noted right lower extremity sciatic nerve radiculopathy. Objective testing showed normal strength, sensation and reflexes. The examiner noted moderate intermittent pain. The November 2021 VA examination also noted right sciatic nerve radiculopathy. Hip strength was 4/5, with otherwise normal objective findings. The examiner noted mild intermittent pain, mild paresthesias, and mild numbness. The November 2021 examiner stated that radiculopathy was an incidental finding not related to the Veteran's service-connected lumbar strain. However, no rationale was given, and the July 2012 examiner did not make such a finding. Therefore, the Board will resolve any doubts in the Veteran favor and conclude that his radiculopathy is associated with his lumbar strain. The findings from the 2012 and 2021 VA examinations are consistent with mild incomplete paralysis. The only objective impairment shown was mildly impaired (4/5) hip strength in 2021. Subjectively, the 2012 VA examiner noted moderate intermittent pain, but no numbness or paresthesias. The 2021 examiner noted mild pain, numbness and paresthesias. No atrophy or trophic changes were present. Therefore, only mild incomplete paralysis has been shown. Moreover, the June 2015 VA examination was negative for any findings related to lower extremity radiculopathy, and the Veteran denied the presence of any radicular symptoms. Therefore, the separate 10 percent rating is granted only for the period prior to June 2, 2015, and from November 9, 2021, the dates of the relevant VA examinations. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the claimant is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, it is not clear if, or when, the Veteran was unemployed during the appeal period. He submitted tax return information which showed that he earned income ranging from approximately $30,000.00 to $85,000.00 annually for the years 2012 through 2020. He has not alleged, and the evidence does not otherwise show, that his employment occurred in a sheltered environment. VA treatment records show he quit one job in May 2013 and was still unemployed as of August 2013. However, there is no further information regarding this period of unemployment, including when he resumed working. VA asked the Veteran to submit a VA Form 21-8940 TDIU application form in October 2019 and August 2021, but he did not do so. Based on the evidence of record, the Veteran was gainfully employed for almost the entire appeal period, and the evidence regarding any unemployment is incomplete. Therefore, the criteria for a TDIU have not been met. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.