Citation Nr: 1720107 Decision Date: 06/06/17 Archive Date: 06/21/17 DOCKET NO. 10-35 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for a lumbar spine disability prior to January 8, 2014, and an evaluation in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and her Significant Other ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran served in the Oklahoma National Guard from January 2004 to September 2014, with active duty from February 2004 to November 2004 and from October 2007 to November 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, in which the RO granted service connection for a lumbar spine disability, assigning a 10 percent evaluation effective November 22, 2008. In July 2015, the Veteran and her partner testified at a hearing before a Veterans Law Judge (VLJ) that is no longer available to make a decision on her appeal. The Veteran did not respond to an April 2016 notice that notified her of the right to appear at a new Board hearing before a VLJ who will decide her claim. The Board assumes, therefore, that she does not want another hearing. The Veteran additionally testified before a Decision Review Officer in October 2012. Transcripts of both proceedings have been associated with the claims file. The Board remanded the Veteran's claim for additional evidentiary development in August 2015. Following the Board's remand, the Agency of Original Jurisdiction (AOJ) increased the disability rating to 20 percent effective January 8, 2014. The Board again remanded the matter for an additional VA examination in August 2016. (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. From November 22, 2008, to January 8, 2014, the Veteran's lumbar spine disability manifested with forward flexion to approximately 80 degrees when considering pain on motion. 2. Since January 8, 2014, the Veteran's lumbar spine disability manifested with approximately 30 degrees, or less, of forward flexion when considering pain on motion. 3. Since October 26, 2016, the Veteran experienced mild radiculopathy of the right lower extremity associated with impingement to the Veteran's sciatic nerve due to her lumbar spine disability. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of 10 percent for a lumbar spine disability prior to January 8, 2014, have not been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 3.102 , 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5237 (2003). 2. The criteria for a rating in excess of 20 percent for a lumbar spine disability since January 8, 2014 have been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2014); 38 C.F.R. §§ 3.102 , 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5010-5237 (2016). 3. Since October 26, 2016, the criteria for the assignment of a separate 10 percent rating for radiculopathy of the right lower extremity associated with the Veteran's lumbar spine disability have been met. U.S.C.A. §§ 1155, 5103A (West 2014); 38 C.F.R. § 4.124a, DC 8520 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA Notice VA has complied with the duty to assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also finds that the October 2016 remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). II. Increased Rating Claims A. Applicable Law and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2016). Conditions of the spine are evaluated using one combined rating schedule. Effective September 26, 2003, the General Rating Formula for Diseases and Injuries of the Spine, rated spinal conditions with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: 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 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. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, effective September 23, 2002, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for 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. For the purposes of evaluating IVDS, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of their normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); See also 38 C.F.R. §§ 4.1, 4.2 (2016). As such, the Board has considered all of the evidence of record. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. B. Prior to January 8, 2014: The Veteran contends that she is entitled to an initial evaluation in excess of 10 percent for her lumbar strain prior to January 8, 2014. After a thorough review of the records, including lay statements, the Board concludes that an initial rating in excess of 10 percent is not warranted for that time. The Veteran's medical records reflect a consistent history of complaints of lower back pain since the beginning of her claim. In April 2009, it was noted that the Veteran experienced intermittent back pain. In January 2010, a medical note indicated that the Veteran had full range of motion without pain. In March 2011, records reflect that the Veteran experienced episodic back pain. In February 2012, medical records show "ok" range of motion, and a non-tender back. In September 2012 Social Security records, range of motion is assessed at 45, though there is no indication of how that estimation was made. In November 2012, the Veteran stated that her low back was feeling good. In December 2012, physical therapy records indicate that her back problem resolved after two treatments. In a March 2009 VA examination, the Veteran was diagnosed with spondylosis of the lumbar and thoracic spine with a lumbar strain. The examiner found no evidence of radiating pain on movement or muscle spasm. There was tenderness noted on examination of the lumbar. There was a negative straight leg raising test. Forward flexion was to 90 degrees. Joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There was no indication of IVDS. There was objective indication of painful range of motion in the overall diagnosis. In a December 2012 VA examination, the examiner noted the previous diagnosis of lumbar/thoracic spondylosis with a lumbar strain as unchanged. Flare ups were noted on the examination, and the Veteran stated that it did not take much to cause further pain, including activities such as bending over and doing sit-ups. Flare ups caused limited mobility, especially in turning and bending. Forward flexion was measured to 85 degrees with objective evidence of painful motion at 80 degrees. No additional loss was found after repetitive use testing. The Veteran's functional loss was noted as: less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. Her functional impact was assessed as limited work potential due to trouble lifting and bending due to pain. She did not have guarding or muscle spasms of the lumbar region. All muscle strength testing, reflexes, and sensory assessments were normal. The Veteran did not have radicular pain or other signs of radiculopathy. There was also no indication of IVDS. In adjudicating a claim, the Board must assess the competence and credibility of the evidence, to include statements made by the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). While the Veteran is competent to provide testimony to establish the occurrence of medical symptoms, she is not medically qualified to prove a matter requiring medical expertise. Barr, 21 Vet. App. at 307-08. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker, 10 Vet. App. at 74. The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan , 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. While the Veteran is certainly competent to speak to the severity of symptoms associated with her lumbar spine disability, the credible medical evidence of record indicates that, in this period, the Veteran's disability manifested primarily with pain on motion with no significant loss of range of motion. Medical records in this time indicate intermitted or episode symptoms, and most of the range of motion assessments indicate little to no loss of objective motion. The measurement done for Social Security purposes does not state the device used to measure range of motion, and with results so deviant from the rest of the medical evidence, the Board assigns this measurement limited probative weight as it appears to be an outlier. The vast majority of the medical records assess little to no loss of range of motion, and only transient or intermittent pain on motion. As such, the Board assigns a higher probative weight to that competent, credible evidence of record. Resolving all reasonable doubt in favor of the Veteran, the maximum evaluation to which she is entitled for this period is 10 percent for characteristic pain on motion. She would not be entitled to the higher rating of 20 percent as she did not demonstrate 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. The Board has also considered a rating to encompass functional loss due to weakness, fatigability, or incoordination of a joint. The evidence of record does not indicate the presence of these factors attributable to the Veteran's lumbar strain in this time period. As the medical evidence of record rules out IVDS as a diagnosis in this time frame, it is inappropriate to consider a rating under this code. The Board places more probative weight on the medical evidence of record establishing that the Veteran's symptoms warranted an initial 10 percent evaluation. As the probative, credible evidence of record weighs against a finding of an increased initial evaluation, the benefit of the doubt doctrine does not apply. The RO appropriately assigned a 10 percent rating for pain. See e.g., Burton v. Shinseki, 25 Vet. App. 1 (2011), DeLuca v. Brown, 8 Vet. App. 202 (1995). As pain and the other DeLuca factors do not prevent the Veteran from flexing to 30 degrees or less, a rating in excess of 10 percent must be denied. C. Since January 8, 2014 The Veteran contends that she is entitled to a rating in excess of 20 percent since January 8, 2014. After a thorough review of the evidence, including lay statements, the Board concludes that she is entitled to a rating of 40 percent, but no higher, to compensate for documented functional loss due to pain. In a January 2014 VA examination, the Veteran's lumbar spine disability progressed, and she was diagnosed with degenerative joint disease of the lumbar spine. Flare ups were indicated on the examination. Forward flexion was to 60 degrees, but only 30 degrees when considering objective evidence of pain. Repetitive use testing was attempted, but the Veteran was unable to perform a full 3 range of motion excursions for lumbar flexion. There was no further explanation provided. The Veteran's functional loss was manifested by: less movement than normal, weakened movement, excess fatigability, pain on movement, and a lack of endurance. She had tenderness in musculature in the lumbar spine region. While the Veteran had muscle spasms, they did not result in an abnormal gait or spinal contour. There was no guarding of the thoracolumbar spine. Muscle strength testing was normal. The reflex and sensory exams were normal, and the Veteran did not demonstrate signs of radicular pain. The progression of this condition had an increased functional impact, and she could no longer do jobs requiring heavy and repetitive lifting, which were easy in the past. In July 2015, the Veteran testified before a VLJ regarding the severity of her back condition. She and her partner attested to the Veteran's condition rending her immobile or incapacitated during flare ups, which were brought on by even simple tasks such as bending to put on her shoes, or making the bed. These flare ups required rest before she was able to be on her feet again. In an October 2015 VA examination, the examiner continued the Veteran's diagnosis of degenerative arthritis of the spine, and included muscle spasms of the lumbar spine. The Veteran reported flare ups that felt like her muscles were pulled tight, causing a significant burning sensation. The impact was noted as a reduced speed of walking. The Veteran's forward flexion was 50 degrees with no notation of where objective evidence of pain began. The examiner noted a functional loss in that the Veteran was slow to move with a self-limiting range of motion and extreme guarding. There was no indication of pain with weight-bearing, but there was tenderness in the lumbar region of moderate severity. There was no additional loss of function after repetitive use. However, the examiner was unable to properly explain, without resorting to speculation, whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time. The examiner could similarly not opine as to the impact of flare ups because the Veteran was not examined during a flare up. There was guarding resulting in an abnormal gait, as well as muscle spasms. Muscle strength and reflexes were normal, and there was no evidence of radicular symptoms. No IVDS was noted on the examination. The Veteran's functional impact included reduced endurance for lifting, bending, and pushing that required rest after just a few minutes of doing those activities. When sedentary, it was noted that the Veteran had to change positions frequently. This examination was considered inadequate for adjudicative purposes as it did not address the additional limitation caused by the DeLuca factors are flare ups. An additional examination was ordered to remedy that omission. In an October 2016 VA examination, the Veteran was diagnosed with degenerative disc disease of the lumbar spine with IVDS of the right sciatic nerve. This change represented a progression of the previous diagnosis. Flare ups were noted that caused a significant amount of pain and stiffness that made it difficult to bend or move, and limited lifting weight, getting up and down, and prolonged sitting. Forward flexion was to 45 degrees with pain noted on the examination that caused functional loss. There was no evidence of pain with weight-bearing. Repetitive use testing yielded no additional loss of function or range of motion. Pain, weakness, fatigability or incoordination were noted to significantly limit functional ability with repeated use over a period of time, but the assessment could not be measured in range of motion, nor could the impact of flare ups on range of motion and function. The examiner asked the Veteran to assess additional loss of range of motion during flare ups, to which she stated that her range and function were cut in half, or represented a loss of approximately 10 to 20 degrees of forward flexion. The examiner opined that it was at least as likely as not that there was some degree of additional loss of range of motion due to those factors. The Veteran had localized tenderness, but no muscle spasms or guarding. Additional factors such as less movement than normal, disturbance of locomotion, interference with sitting and standing, and limits to bending and lifting contributed to the overall impact of her disability. Muscle strength and reflex assessments were normal. However, there was decreased sensation on the right left from the thigh to the toes. There was also a positive straight leg raising test on the right side. The Veteran was assessed with mild intermittent pain and paresthesias and/or dysesthesias of the right lower extremity, indicating involvement of the sciatic nerve. The Veteran was also diagnosed with IVDS, but with no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician within the previous year. In adjudicating a claim, the Board must assess the competence and credibility of the evidence, to include statements made by the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board also has a duty to assess the credibility and weight given to evidence. Madden, 125 F.3d at 1481; Wensch, 15 Vet. App. at 367. While the Veteran is competent to provide testimony to establish the occurrence of medical symptoms, she is not medically qualified to prove a matter requiring medical expertise. Barr, 21 Vet. App. at 307-08. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker, 10 Vet. App. at 74. The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. At the outset, the Veteran's assessed range of motion would indicate a 20 percent rating under rating schedule. The Board finds, however, that the next higher rating of 20 percent is warranted on the basis of functional loss due to excess weakness, pain on movement, disturbance of locomotion, lack of endurance, and frequent flare-ups causing additional disability beyond that reflected on range of motion measurements. See DeLuca, 8 Vet. App. 202; see also 38 C.F.R. §§ 4.40, 4.45. In this time period, the Veteran's range of motion was assessed at 45 to 50 degrees without considering pain. However, when asked to estimate the additional impact of flare ups, the Veteran's statements indicated a loss of 10 to 20 degrees in forward flexion. Giving the benefit of the doubt to the Veteran, the Board concludes that the Veteran loses approximately 20 degrees of forward flexion due to pain during flare ups. When considering pain, therefore, the Veteran's forward flexion is approximately 25 to 30 degrees, warranting a continued 40 percent rating. Under the revised code, the next highest rating, 50 percent, is only available for unfavorable ankylosis of the entire thoracolumbar spine. The Veteran has not been diagnosed with any ankylosis, nor do her symptoms rise to that level of incapacitation such as to warrant a 50 percent rating. While the Veteran was diagnosed with IVDS, a rating under this diagnostic code will not increase the Veteran's overall rating. Her IVDS did not manifest in incapacitating episodes that required bedrest as prescribed by a physician within the previous year. As such, a rating under this code will not increase the Veteran's evaluation. In reconciling the lay and medical evidence of record, the Board finds that, when resolving reasonable doubt in the Veteran's favor, her lumbar spine disability is manifested by symptoms, including functional loss, that more nearly approximate the criteria for a 40 percent rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. C. Radiculopathy since October 26, 2016 Upon the most recent VA examination in October 2016, the Veteran demonstrated mild symptomatology associated with right lower extremity radiculopathy. Under the General Rating Formula for Diseases and Injuries to the Spine, Note 1, separate ratings must be assigned for associated objective neurologic abnormalities under the appropriate diagnostic code. In the October 2016 examination, objective evidence of mild symptomatology due to impingement of the sciatic nerve was noted. Specifically, the Veteran experienced decreased sensation in the right lower extremity, and had a positive straight leg test on the right side. The Veteran had mild intermittent pain, paresthesias and/or dysesthesias, and numbness on the right side. Testing indicated involvement of the sciatic nerve causing symptoms on the right side. Overall, the Veteran was assessed with mild radiculopathy of the right lower extremity. Diagnostic Code 8520 of 38 C.F.R. § 4.124a provides that mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and moderately severe incomplete paralysis is rated 40 percent disabling. The terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board finds that the Veteran is entitled to a 10 percent rating for radiculopathy of the right lower extremity given the objective medical evidence from the October 2016 examination. A moderate rating is not warranted as the overall symptomatology of the radiculopathy does not rise to that level in any of the objective testing. Thus, in this decision, the Board assigns a 10 percent rating for radiculopathy of the right lower extremity effective October 26, 2016, the date of the VA treatment record indicating the new onset of radicular symptoms. (CONTINUED ON NEXT PAGE) ORDER 1. Entitlement to an initial evaluation in excess of 10 percent for a lumbar spine disability is denied. 2. Entitlement to a rating of 40 percent for a lumbar spine disability since January 8, 2014 is granted. 3. Entitlement to a 10 percent rating for radiculopathy of the right lower extremity due to the Veteran's lumbar spine disability is granted. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs