Citation Nr: 22017163 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-23 261 DATE: March 24, 2022 ORDER Entitlement to an initial rating in excess of 10 percent prior to November 15, 2021, for a low back disability is denied. Entitlement to a rating in excess of 20 percent from November 15, 2021, for a low back disability is denied. Entitlement to an earlier effective date of April 29, 2015, for service-connected left lower extremity radiculopathy is granted. Entitlement to an earlier effective date of April 29, 2015, for service-connected right lower extremity radiculopathy is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to November 15, 2021, the Veteran's low back disability was not shown to be manifested by forward flexion limited to 60 degrees or less, and there was no evidence of ankylosis or guarding resulting in abnormal gait or posture; intervertebral disc syndrome (IVDS) was not shown. 2. From November 15, 2021, the Veteran's low back disability is shown to be manifested by forward flexion greater than 30 degrees, but not greater than 60 degrees. Ankylosis of the thoracolumbar spine was not shown. IVDS is not shown. 3. The earliest manifestation of left and right lower extremity radiculopathy was April 29, 2015. 4. The Veteran's service-connected disabilities are not shown to result in functional impairment that precludes him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to November 15, 2021, the criteria for an initial rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (Codes) 5238, 5242. 2. From November 15, 2021, the criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Codes 5238, 5242. 3. The criteria for an earlier effective date of April 29, 2015, for the grant of service connection for left lower extremity radiculopathy are met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 4. The criteria for an earlier effective date of April 29, 2015, for the grant of service connection for left lower extremity radiculopathy are met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 5. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1980 to November 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, a video conference hearing was held before the undersigned; a transcript is in the record. In August 2021, the matter of a rating in excess of 10 percent for a low back disability was remanded for additional development. The Veteran underwent a back examination on November 15, 2021. A January 2022 rating decision increased the rating to 20 percent effective November 15, 2021. The issue has been amended to reflect the increase assigned. Neurological complications associated with the Veteran's service-connected low back disability are considered part of his increased rating claim for his service-connected low back disability. Accordingly, the issues have been modified to reflect consideration of earlier effective dates for service-connected right and left lower extremity radiculopathy. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a relative equal balance of evidence for and against a claim, reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Revisions were made to certain regulations governing ratings for musculoskeletal disabilities, effective February 7, 2021. As the Veteran's appeal was pending at the time of this revision, from that date, he is entitled to a rating under the old or the new criteria, whichever are more favorable. Under Code 5238 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula), a 10 percent rating is warranted when 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 when 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 40 percent rating is warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or with 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. Note (1) to the General Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a. IVDS is rated based on incapacitating episodes under Code 5243. This Code was revised on February 7, 2021. Prior to February 7, 2021, Code 5243 provided that a 10 percent rating was warranted with incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A 20 percent rating was warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating was warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent rating was warranted with incapacitating episodes having a total duration of at least six weeks during the past twelve months. The amendment effective February 7, 2021, kept the general steps for rating under Code 5243 but further required that the diagnostic code 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 disc diagnoses. April 2015 imaging showed degenerative changes in the distal lumbar spine without acute pathology. A May 7, 2015, physical therapy and rehabilitation consultation notes a history of DJD/chronic back pain with a history of transforaminal epidural injections at the L5 and S1 levels, TFE injections at the S1 level, blocks of the bilateral L3, L4 medial branches, the bilateral L5 Dorsal root ganglia after failed responses to conservative therapies to treat axial discogenic pain and radiculopathy. A May 26, 2015, physical therapy record notes possible L5/S1 radiculopathy. A June 15, 2015, physical therapy record notes the Veteran was seen for DJD and chronic low back pain. The Veteran reported pain radiating down the right buttocks with pain and numbness in the area. However, the Veteran's neurological examination (including S1 dermatomes/myotomes/reflexes) were completely intact. A June 17, 2015, physical therapy record notes possible L5/S1 radiculopathy. A June 24, 2015, physical therapy record notes possible L5/S1 radiculopathy. A July 1, 2015, physical therapy record notes mechanical low back pain, degenerative disc disease (DJD), possible L5/S1 radiculopathy, and possible spinal canal stenosis. The Veteran reported pain as 8/10. On July 29, 2015, back conditions examination, the diagnosis was degenerative arthritis of the spine. Flare-ups were not reported. The Veteran reported constant pain and stated that if he stood for more than 10 or 15 minutes he had to sit, was unable to pick up more than fifteen pounds, and is unable to take long walks. Range of motion was abnormal with forward flexion to 70 degrees, extension, right and left lateral flexion, and right and left lateral rotation each to 30 degrees. Pain was noted on examination but was not shown to contribute to functional loss. Pain was not shown on weight bearing. Sensory examination was normal. Radiculopathy pain was not shown. Ankylosis of the spine was not shown. Additional neurologic abnormalities were not shown. IVDS was not shown. An August 6, 2015, physical therapy record notes mechanical low back pain, DJD, possible L5/S1 radiculopathy, and possible spinal canal stenosis. Rehabilitation goals were noted as improve core/back strength and lower limb flexibility, decrease pain. The Veteran reported pain of 6/10 with prolonged walking/sitting. A June 2017 emergency department record notes the Veteran was seen with lower back pain for five days. Examination showed no vertebral tenderness and pain with flexion to 60 degrees with extending beyond vertical. A December 2017 lumber spine MRI showed mild to moderate arthritis and disc bulges. A January 2018 treatment record notes the Veteran was seen with low back pain. No urine or bowel incontinence shown. A history of bilateral radiculopathy was noted. At the May 2021 video conference hearing, the Veteran testified that he received physical therapy for his back. He testified that the Veteran continues with stretches to help his back. He testified that he experienced issues with range of motion, and pain on motion. He testified that his back is painful all day and cannot sit or stand for too long. On November 2021 back conditions examination, the diagnoses were degenerative arthritis, degenerative disc disease other than IVDS, spinal stenosis, status post L5/S1 microdiscectomy, and L4/5 and L5/S1 bilateral lumbar radiculopathy. The Veteran reported flare-ups occurring three times a month and lasting about one day. The Veteran described flare-ups as sharp pain across the low back with stiffness and shooting down the lower extremities. Range of motion was abnormal with forward flexion to 70 degrees, extension, and right and left lateral flexion each to 20 degrees, and right and left lateral rotation each to 30 degrees. Estimated range of motion after repeated use over time and during a flare-up was forward flexion to 50 degrees, extension to 10 degrees, right and left lateral flexion each to 15 degrees, and right and left lateral rotation each to 20 degrees. Localized tenderness, guarding or muscle spasm of the lumbar spine was not shown. Ankylosis was not shown. Additional neurologic abnormalities (other than radiculopathy) were not shown. IVDS was not shown. The functional impact was noted as the Veteran was unable to carry out any task requiring movement of the low back and cannot that he cannot drive long distances. The record does not show any neurological manifestations (other than bilateral radiculopathy for which the Veteran is service connected) related to his low back disability. The record does not show a diagnosis of IVDS. Accordingly, consideration of rating as IVDS (Code 5243) under either the old or new criteria is not warranted 1. Entitlement to a rating in excess of 10 percent prior to November 15, 2021, for a low back disability. Prior to November 15, 2021, the Veteran's low back disability is rated 10 percent based on combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, and painful motion. There is no evidence that forward flexion of the Veteran's lumbar spine was limited to 60 degrees or less, or that combined range of motion was 120 degrees or less, or that there was muscle spasm or guarding resulting in abnormal gait or abnormal contour. The degree of impairment shown, and the Veteran's testimony/statements concerning pain and functional loss do not reflect impairment of a severity that exceeds what is contemplated by the criteria for the 10 percent rating assigned. Accordingly, a rating in excess of 10 percent for the low back disability was not warranted prior to November 15, 2021. 2. Entitlement to a rating in excess of 20 percent from November 15, 2021, for a low back disability. From November 15, 2021, the Veteran's low back disability is rated 20 percent based on forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. The Veteran's combined range of motion was greater than 120 degrees, but not greater than 235 degrees. Painful motion was shown. The Veteran's examination and treatment records do not show that symptoms of the Veteran's low back disability included forward flexion of the thoracolumbar spine limited to 30 degrees or less, or ankylosis of the entire thoracolumbar spine (the criteria which would warrant the next higher, 40 percent, rating). Consequently, a rating in excess of 20 percent is not warranted under the General Formula criteria. 3. 4. Entitlement to an earlier effective date of April 29, 2015, for service-connected left lower extremity radiculopathy and an earlier effective date of April 29, 2015, for service-connected right lower extremity radiculopathy. Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As previously addressed, the Veteran's complaints of left and right lower extremity radiculopathy are part and parcel of his increased rating claim for his service-connected low back disability. Here, the Veteran submitted an initial increased rating claim for his service-connected low back disability and the period under consideration extends to the date the Veteran was assigned service connection for his low back disability (April 29, 2015). As noted above, the July 2015 back conditions examination did not show any radiculopathy pain. However, treatment records show the Veteran had complaints of radiculopathy pain even prior to April 29, 2015. Here, the Veteran's claim of service connection for a low back disability was received on April 29, 2015 (and entitlement to service connection for a low back disability has been assigned since this date). As noted above, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. It is reasonably shown that the Veteran has experienced radiculopathy symptoms prior to April 29, 2015. Accordingly, an earlier effective date of April 29, 2015 (the effective date of service connection for a low back disability has been assigned), for service connection for left and right lower extremity radiculopathy is warranted. The Board does not assign the appropriate rating from this date as that is the responsibility of the agency of the original jurisdiction in the first instance. 5. Entitlement to TDIU. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result 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. Relevant to this claim is that for purposes of entitlement to a TDIU rating, disabilities resulting from a common etiology, disabilities of one or both lower extremities, and disabilities affecting a single body system (e.g., orthopedic) are considered as one disability. 38 C.F.R. § 4.16 (a). The Veteran is service connected for a low back disability, right and left lower extremity radiculopathy (secondary to the service-connected low back disability), and a scar (associated with the service-connected low back disability). The Veteran is currently rated a combined 10 percent total prior to November 15, 2021, and a combined 40 percent total from that date. He reported completing three years of high school education at the time of his Army enlistment. On July 2015 back conditions examination, the clinician noted the Veteran was not able to do heavy lifting due to his back condition. At the May 2021 video conference hearing the Veteran testified that he could sit for maybe 40 minutes but could not stand for that long. He testified that he cannot work anymore because he cannot do much and testified that he has had a heart attack and surgery on his kidney, back, and shoulder. The Veteran testified that he had been employed as a housekeeper at VA as well as a truck driver. He testified that he ended his employment as a truck driver because he had a heart attack while driving. He testified that he was unable to drive his personal car. On November 2021 back conditions examination, the clinician noted the Veteran back condition precluded him from carrying out tasks involving his back during flare-ups, and that he cannot drive long distances due to his back. However, starting in January 2016, VA social worker records refer to the Veteran's participation in compensated work therapy at VA. In August 2020, a VA clinician noted the Veteran's report that he ceased driving a truck after his heart attack but had recuperated and would like to return to his job as a housekeeper. In January 2022, a VA outpatient clinician noted the Veteran's request for a medical clearance to return to work. The Veteran's service-connected disabilities do not meet the schedular criteria for TDIU. See 38 C.F.R. § 4.16 (a). Additionally, there is nothing in the record to suggest that the Veteran's service-connected disabilities alone precluded participation in substantially gainful employment. Notably, at the May 2021 video conference the Veteran testified that his employment as a truck driver ended due to a heart attack while driving (a condition which is not service connected). Notwithstanding his hearing testimony of an inability to do anything including driving and use of public transportation, there is evidence that when not recovering from impairment due to non-service-connected disabilities, he does seek a return to his job as a housekeeper indicating that he is able to perform those employment duties consistent with his education and work experience. Therefore, referral for consideration of a TDIU on an extraschedular basis is not warranted. (continued next page) Having reviewed the evidence of record and finding that the requirements for establishing entitlement to TDIU have not been met, the appeal in this matter must be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.