Citation Nr: 22016274 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 13-09 794 DATE: March 21, 2022 ORDER Entitlement to an initial increased rating of 40 percent, but no higher, for a service-connected back disability is granted. Entitlement to an increased rating of 20 percent, but no higher, for radiculopathy of the right lower extremity associated with the service-connected back disability is granted. Entitlement to a separate rating of 20 percent, but no higher, for radiculopathy of the left lower extremity associated with the service-connected back disability is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his back disability is manifest by the functional equivalent of favorable ankylosis of the entire thoracolumbar spine. 2. The Veteran's radiculopathy of the right lower extremity was manifest by no more than moderate incomplete paralysis of the anterior crural nerve. 3. The Veteran's radiculopathy of the left lower extremity was manifest by no more than moderate incomplete paralysis of the anterior crural nerve. 4. The evidence does not show that the Veteran is unable to obtain or maintain substantial employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, for a back disability have been met. 38U.S.C. §§1155, 5107; 38C.F.R. §4.71a, Diagnostic Codes 5237-5242. 2. The criteria for entitlement to an increased rating of 20 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a; Diagnostic Code 8526. 3. The criteria for entitlement to a separate rating of 20 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a; Diagnostic Code 8526. 4. The criteria for TDIU have not been met at any time during the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 2007 to January 2010. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Increased Ratings Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. 1. Entitlement to an initial increased rating of 40 percent, but no higher, for a service-connected back disability The Veteran seeks a higher rating for his service-connected back disability. He is currently rated 20 percent. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Therefore, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38C.F.R. §4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38U.S.C. §5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38U.S.C. §5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38U.S.C. §5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the rating schedule provided for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38C.F.R. §4.25. 38C.F.R. §4.71a, Note (6). As of February 7, 2021, under the amended criteria the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses. The Veteran's service-connected back disability is currently rated under Diagnostic Codes 5237. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned 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 where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38C.F.R. §4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38C.F.R. §4.71a, General Rating Formula, Note 1. 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 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 combined range of motion of the thoracolumbar spine is 240 degrees. 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. 38C.F.R. §4.71a, General Rating Formula, Note (2); see also Plate V. Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38C.F.R. §4.71a, IVDS Formula. As an initial matter, while the Veteran has been diagnosed with IVDS, there are no treatment records that indicate he has had incapacitating episodes requiring prescribed bed rest. As a result, the Board will be evaluating the Veteran's back disability under the General Rating Formular for Diseases and Injuries of the Spine. In April 2012 the Veteran underwent a VA examination. The Veteran reported experiencing flare-ups three times a week. The VA examiner noted the Veteran's flexion ended at 90 degrees or greater with painful motion beginning at 70 degrees. The Veteran's extension was noted to be 30 degrees or greater with painful motion beginning at 25 degrees. Right and left lateral flexion was noted to be 30 degrees or greater with no painful motion noted. The VA examiner also noted guarding and/or muscle spasm was present, but it did not result in abnormal gait or spinal contour. No ankylosis of the spine was noted. In November 2019 the Veteran underwent another VA examination. The Veteran reported he experienced back spasms when he was standing and laying down. He further reported that he was unable to move during these spasms. The Veteran did not report experiencing flare-ups. All range of motion testing was normal; however, pain was noted that caused forward flexion to be 85 degrees, and extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation to all be 25 degrees. The Veteran was also noted to have muscle spasms which did not result in abnormal gait or abnormal spinal contour. No ankylosis of the spine was noted. The Veteran also underwent VA examinations in September 2020 and February 2021; however, the Board has previously found these examinations inadequate for adjudicatory purposes with no probative value and therefore they will not be discussed further. In any event, overall, they provide evidence against the claim for a higher rating. Finally, the Veteran underwent a VA examination in December 2021. The Veteran reported flare-ups that occurred daily in which he was unable to stand, sit, or walk. The Veteran's flexion was limited to 70 degrees, extension limited to 25 degrees, right and left lateral flexion limited to 30 degrees, and right and left lateral rotation was limited to 30 degrees. The VA examiner indicated that during flare-ups, the Veteran's flexion was limited to 50 degrees, extension limited to 15 degrees, right and left lateral flexion limited to 20 degrees and right and left lateral rotation limited to 20 degrees. The Veteran had guarding that did not result in abnormal gait or abnormal spinal contour. No ankylosis of the spine was noted. Based on the evidence of record, the Board finds the Veteran is entitled to a 40 percent, but no higher, rating for his service-connected back disability. The 40 percent rating is warranted because both the Veteran and the VA examiners have indicated that the Veteran has flare-ups and spasms that result in him being unable to move his spine from 0 degrees when he is standing up or lying down. See November 2019 VA Examination. Therefore, even though no ankylosis of the spine was ever noted, resolving any doubt in the Veteran's favor, the Board finds the Veteran experiences flare-ups in which he suffers the functional equivalent of favorable ankylosis of the lumbar spine which would entitle him to a 40 percent rating. A higher rating is not warranted as the VA examinations, lay statements of the Veteran, and treatment records do not indicate the Veteran has unfavorable ankylosis of the lumbar spine or the functional equivalent of such. Therefore, entitlement to an initial increased rating of 40 percent, but no higher, for a service-connected back disability is granted. 2. Entitlement to an increased rating of 20 percent, but no higher, for radiculopathy of the right lower extremity associated with the service-connected back disability 3. Entitlement to a separate rating of 20 percent, but no higher, for radiculopathy of the left lower extremity associated with the service-connected back disability The Veteran seeks a higher disability rating for his back disability. Seeking a higher rating for the Veteran's radiculopathy symptoms is part and parcel of an increased rating claim for a back disability. As reflected on the title page, the Board has assumed jurisdiction of these associated radiculopathy issues. The Veteran is currently rated 10 percent for his right lower extremity radiculopathy under diagnostic code (DC) 8526. Under Diagnostic Code 8526, mild incomplete paralysis of the femoral nerve is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; severe incomplete paralysis is rated 30 percent disabling; and complete paralysis is rated 40 percent disabling. The words "mild," "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. In November 2019, September 2020, and February 2021, the Veteran underwent VA examinations. The VA examiners noted no radiculopathy of the left lower extremity and only mild pain, paresthesias and/or dysesthesias, and numbness of the right lower extremity. The Veteran underwent a VA examination in December 2021. The VA examiner noted the Veteran had right and left lower extremity constant pain, paresthesias and/or dysesthesias, and numbness as a result of his service-connected back disability. The examiner also noted the Veteran had moderate intermittent pain in his right and left lower extremities. Based on the evidence of record, the Board finds a 20 percent rating for right and left lower extremities is warranted as the December 2021 VA examiner characterized the severity of the radiculopathy as moderate. A higher rating is not warranted as the evidence does now show that the severity of the Veteran's right and left lower extremity radiculopathy was severe in nature. Therefore, entitlement to an increased rating of 20 percent, but no higher, for radiculopathy of the right lower extremity and entitlement to a separate rating of 20 percent, but no higher, for radiculopathy of the left lower extremity is granted. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The Veteran asserts, in substance, that his service-connected disabilities prevent substantial employment. In this regard, 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 an evaluation 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. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service-connected disabilities will be disregarded if the above-stated percentage requirements are met, and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16 (a). Furthermore, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 4.16 (b). 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). It is imperative for the Veteran to understand that neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is currently service connected for the following: A back disability, rated as 40 percent disabling. Right knee strain, rated as 10 percent disabling. Radiculopathy of the right lower extremity, rated as 20 percent disabling. Radiculopathy of the left lower extremity, rated as 20 percent disabling. The Veteran's combined disability rating is 70 percent with one disability that is 40 percent disabling. Therefore, he meets the schedular criteria for TDIU. With the above laws and regulations in mind, the Veteran in his VA Form 21-8940, Increased Compensation Based on Unemployability (TDIU Claim Form), dated in July 2012, reported that he became too disabled to work due to his service-connected back in July 2012. However, VA vocational records indicate that in January 2013 the Veteran was in school to obtain an Associate's degree in Business and Accounting. In August 2015 the Veteran the Veteran began pursuing a Bachelor's degree. The Veteran graduated in June 2018 with a Bachelor's degree in Business with a major in Operations and Supply Chain Management. In December 2018 the Veteran obtained a job as a stock clerk with a company. The May 2012 VA examiner indicated the Veteran will develop back pain which interferes with his ability to work and sometimes has to miss work due to back pain (which would be expected in light of the high rating). An August 2012 VA treatment record notes that due to the Veteran's service-connected back disability, his able to work with light duty not lifting heavy objects over 25 pounds. March 2015 Record from the Social Security Administration (SSA) indicate SSA did not find the Veteran disabled and unable to work due to his back disability. These determinations are not binding on the Board, but provides some limited evidence against this claim. The November 2019 VA examiner indicated that due to the Veteran's right knee and back disability, he is not able to lift or carry moderately heavy objects. He is also limited with taking flights of stairs or walking for extended periods of time. In November 2019, an individual unemployability statement was obtained from a VA examiner. The examiner indicated that due to the Veteran's knee and lower extremity radiculopathies, the Veteran is able to perform light work. The December 2021 VA examiner indicated that the Veteran is unable to stand or walk for more than 15 minutes due to back pain and radiculopathy. He is also unable to run, jump, or drive for more than an hour due to his back pain and radiculopathy. VA treatment records note the Veteran being employed full-time in December 2020. VA requested updated employment information from the Veteran in an August 2021 correspondence, but the Veteran did not respond. Based on the evidence of record, the Board finds entitlement to a TDIU is denied. While the May 2012 VA examiner reported the Veteran's back disability interferes with his ability to work, the SSA and the August 2012, November 2019, and December 2021 VA examiners all report the Veteran can obtain and maintain employment with some limitations. In addition, the Veteran has either been in school or working throughout the record on appeal. His education only indicates an ability to work in a sedentary occupation. Therefore, entitlement to a TDIU rating due to service-connected disabilities is denied. In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as there is not an approximate balance of positive and negative evidence regarding the claim that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Boyd, 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.