Citation Nr: 1745541 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 09-29 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease of the lumbar spine, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for a right lower extremity neurological disorder associated with degenerative disc disease thoracolumbar spine disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1981 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Wichita, Kansas, which increased the Veteran's service-connected lumbar spine disability to 30 percent. The Veteran's right lower extremity neurological disorder associated with degenerative disc disease thoracolumbar spine disability, has been separately evaluated as 10 percent disabling since 2002. As it is part of the lumbar spine disability, the issues on appeal have been recharacterized, above. This matter was previously before the Board in January 2014 and was remanded for further development. It has now returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The Veteran's back disability has been manifested by complaints to include pain, weakness, stiffness, and limitation of motion; however, his motion has not been limited to 30 degrees or less of forward flexion of the thoracolumbar spine, or any ankylosis of the spine. 2. The Veteran's neurological disability of the right lower extremity is manifested by symptoms of moderate incomplete paralysis of the sciatic nerve, but not by moderately severe or severe symptoms. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 30 percent for degenerative disc disease of the lumbar spine status post discectomy, L5-S1 have not been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.59, 4.71a, DC 5242 (2016). 2. The criteria for a disability evaluation of 20 percent, but no higher, for neurological disorder of the right lower extremity associated with degenerative disc disease of the lumbar spine status post discectomy, L5-S1, have been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.59, 4.124a, DC 8520 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Despite the length of time on appeal, the evidence includes few clinical records related to the Veteran's disability. The evidence reflects that the Veteran lived overseas from 2011 until July 2016; thus, he did not receive treatment at a VA facility during that time. He has not provided VA with records during that time or authorization for VA to obtain records, if any. He has also indicated that although he has been referred to pain management, he has not participated in such. The Board acknowledges that the Court of Appeals for Veterans Claims (Court) has held 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168-171 (2016). The VA examinations include testing for pain which was found not to result in function loss in 2016 and at that time there was no evidence of pain with weight-bearing. The back has no opposite undamaged joint. Thus, the Board finds that a remand under Correia would afford the Veteran no benefit and would only delay adjudication of his appeal. For these reasons, the Board finds the examinations are adequate for deciding his claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the foregoing, the Board finds that VA does not have a further duty to assist the Veteran in substantiating his claim. Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating the Spine The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, DCs 5235 - 5243, and are as follows: Unfavorable ankylosis of the entire spine (100 percent); unfavorable ankylosis of the entire thoracolumbar spine (50 percent); unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or the combined range of motion of the cervical spine not greater than 170 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 (20 percent); For forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 (10 percent). In addition, intervertebral disc syndrome may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service-connected spine disability is rated as 30 percent disabling under DC 5243 awarded in a February 2009 rating decision which noted that a higher rating of 30 percent was warranted due to pain, fatigue, weakness, and lack of endurance which caused additional limitation of function. He also has a separate rating for neurological disorder of the right lower extremity associated with the spine disability rated as 10 percent disabling under DC 8527. The Board will also consider whether a higher evaluation is warranted for the right lower extremity because the rating codes for the spine provide that associated objective neurologic abnormalities of the spine be rated separately. In an October 2008 VA Form 21-4138, the Veteran stated that his back disability is getting worse, that he is in constant pain, that he develops severe pain while doing household maintenance such as mowing the lawn, that it negatively impacts his sex life, and that he must constantly get out of his chair and stretch his back to relieve pain while he is working, which has a serious effect on his productivity. A December 2008 VA examination report reflects that the Veteran reported constant pain, back stiffness, numbness of the right leg, and increased pain with certain activities. He said that his quality of life is poor, that he had difficulty lifting things such as his son, and that his pain increases with intercourse. The Veteran also reported severe symptoms of tingling, cramping, muscle spasms, weakness, and sharp shooting and icepick sensations. The Veteran reported a 75 to 80 percent reduction in functioning during a flare-up and reported malaise, numbness, weakness, and that if his bladder is full or he is constipated, he has increased back pain. He did not have erectile dysfunction. He used a cane to walk two to three times a year. He also reported that he has been unsteady and has stumbled. The Veteran reported that he works at a sedentary civil job in which he sits, but that he must get up about every two to three hours to stretch and walk up and down the aisle. He reported missing two days of work in the last 12 months. He also reported that if he drives in a car, he must get out of the car to walk around every hour. Upon examination in December 2008, the Veteran limped on his right leg and held his right ankle in a flexed position. The Veteran had 42 to 45 degrees of flexion with pain beginning at 24 degrees. He had 7 to 10 degrees of extension with pain beginning at 6 degrees. He had 7 to 10 degrees of left lateral flexion with pain beginning at 5 degrees. He had 9 to 12 degrees of right lateral flexion with pain beginning at 8 degrees. He had bilateral 8 to 10 degrees of lateral rotation with pain beginning at 8 degrees. The examiner found that the Veteran had pain, fatigue, weakness, lack of endurance, and incoordination during range of motion. The examiner also noted that the Veteran's back was very stiff and his movements were not smooth. The Veteran reported that the weakness in his back was worse than the pain and caused additional limitation of function by 20 percent. With regard to neurological symptoms, the 2008 examination report reflects that the Veteran reported that he has radiation of pain, stiffness, and weakness to the toes of his right foot. Upon testing, the Veteran had decreased reflexes of the right ankle (1+), and slightly less strength of the right knee (4/5). He did not have atrophy. Lasegue's sign was negative. The diagnosis was right sacroiliac radiculopathy. The next month, the Veteran was seen by a private clinician. A January 2009 Tallgrass/Orthopedic & Sports Medicine record reflects that upon examination, the Veteran could forward flex and reach to within approximately six inches from the ground. He had a negative straight leg raise test bilaterally. He was nontender to palpation. He could stand on his toes and heels without difficulty. Deep tendon reflexes at the knee jerk and ankle jerk were present. The examiner found that the Veteran appeared to have full range of motion of both hips and the knees. The Veteran reported that simple activity such as riding the lawn mower can be quite "uncomfortable. He doesn't necessarily lose sleep, but it can cause repeated repositioning during the night." He reported taking over-the-counter medication for treatment. In his July 2009 VA Form 9, the Veteran questioned how the disability evaluations (percentages) were achieved in rating his disabilities. He also stated that he believed that he was entitled to a rating for severe incomplete paralysis for this right lower extremity. The Veteran also delineated each disability of his spine (e.g. stenosis, osteoarthritis, degenerative disc disease, retrolisthesis) and indicated he believed he was entitled to at least a 40 percent rating. In August 2016, the Veteran reported to a clinician that he had persistent low back pain radiating down the right leg which affects his sleep. He denied weakness, or loss of bowel or bladder function. The Veteran reported that he uses ibuprofen to treat his pain. The Veteran declined a referral to physical therapy. He was referred to pain management. An October 2016 VA examination report is also of record. It reflects that the Veteran had been referred to pain management but has not completed the referral process. Upon examination in October 2016, the Veteran had forward flexion to 80 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees. Pain was noted on forward flexion and bilateral lateral flexion but did not cause additional functional loss, even after repetitive use. The Veteran had full muscle strength of the extremities, and normal reflexes. He also had a normal sensory examination of all lower extremities, and a bilateral negative straight leg raising test. With regard to radiculopathy, he had no constant pain, had moderate intermittent right pain, had moderate right paresthesias and /or dysesthesias, and had severe numbness on the right. Overall, his severity of right lower extremity radiculopathy was found to be moderate by the examiner. He had no such symptoms on the left. He had IVDS (intervertebral disc syndrome) but it had not required bed rest prescribed by a physician in the past 12 months. He did not use any assistive device. The functional impact of his spine disability was noted to be that he must have the ability to move around and not be seated or standing still for long periods of time, and no heavy labor/lifting. The Veteran reported that he occasionally took nonsteroidal anti-inflammatory drugs for his back pain, and that after a long day at work, his back will be sore so he will lie down. The Veteran also reported that he has stopped riding a motorcycle due to his back problems and outdoor activities have decreased. The evidence as a whole is against a finding that a rating in excess of 30 percent is warranted for any period on appeal. During the appeal period, the Veteran has never been shown to have ankylosis and has had forward flexion of more than 30 degrees. As noted in December 2008, he had 42 to 45 degrees of flexion with pain beginning at 24 degrees. The Veteran reported that the weakness in his back was worse than the pain and caused additional limitation of function by 20 percent. Thus, assuming arguendo that the Veteran was competent to state such, twenty percent additional limitation of 42 degrees would be an additional eight to nine degrees of lost motion; this would still leave more than 30 degrees of forward flexion. The Board acknowledges that the Veteran had pain at 24 degrees but that pain did not prevent him from flexion to at least 42 degrees. The Board also notes that despite the clinician's statement that the Veteran's symptoms increased as the examination progressed, when performing repetitive testing, the Veteran's forward flexion was the same on the first motion as on the third motion, with less pain. In addition, the January 2009 Tallgrass/Orthopedic & Sports Medicine record, which was completed one month after the December 2008 examination, reflects that the Veteran could forward flex and reach to within approximately six inches from the ground; this is against a finding that the Veteran had only 30 degrees of flexion (See 38 C.F.R. § 4.71a, Plate V). It reflects a much greater degree of flexion. Finally, the August 2016 VA examination report reflects that the Veteran had forward flexion to 80 degrees. The Veteran is also not entitled to a rating under The Formula for Rating IVDS because there is not competent credible evidence of an incapacitating episode. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. The evidence does not support a finding of physician-prescribed bed-rest and treatment. The Board has also considered separate ratings for associated objective neurological abnormalities of his spine disability beyond the service-connected right lower extremity radiculopathy. The preponderance of the evidence is against a finding of bowel, bladder, or left lower extremity neurological abnormalities which would warrant separate ratings. (See 2008 and 2016 examination reports.) The Veteran has not averred that he has difficulty with maintaining control of his bladder or bowel, or that he has erectile dysfunction. His complaint of increased back pain with a full bladder or bowel, or while having sexual intercourse, is not synonymous with a neurologic abnormality. With regard to the right lower extremity, the Veteran is in receipt of a separate 10 percent rating under DC 8527 during the entirety of the appeal period. In a September 2005 decision, the Board found that based on the location of the muscle fasciculations in the right posterior tibial muscle group, the Board would evaluate the Veteran's neurological symptoms under DC 8725. The Board has considered other DCs, and the more recent evidence reflects that DC 8520 is for consideration, as it is the rating code which specifically applies to the sciatic nerve. Moreover, the maximum evaluation under DC 8527 is 10 percent; thus, rating under DC 8520 could potentially provide the Veteran with a higher rating and is therefore more beneficial to him. The Board finds that a rating of 20 percent, and no higher, is warranted under DC 8520 rather than the currently assigned rating under DC 8527. Under Code 8520, for paralysis of the sciatic nerve, mild incomplete paralysis warrants a 10 percent disability evaluation; moderate incomplete paralysis warrants a 20 percent disability evaluation; moderately severe incomplete paralysis warrants a 40 percent evaluation; and, severe, with marked muscular atrophy, incomplete paralysis warrants a 60 percent disability evaluation. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. The term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. Additionally, neuritis-characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The words "slight," "moderate", 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, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. VA's Adjudication Procedures Manual M21-1, Part III, Subpart iv, Chapter 4, § G(4)) defines 'mild' incomplete paralysis as demonstrating subjective symptoms or diminished sensation; 'moderate' incomplete paralysis as featuring the absence of sensation confirmed by objective findings; and 'severe' incomplete paralysis as featuring more than sensory findings (such as atrophy, weakness, and diminished reflexes). The Board notes that the VA Adjudication Procedures Manual M21-1 is not binding upon the Board. The Board, in its consideration of appeals, "is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs, but not by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 19.5; see also 38 U.S.C.A. § 7104(c). However, this does not prevent the manual, and the definitions contained therein, from serving as a benchmark when evaluating the degree of severity of neurological impairment. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence 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. As noted above, the 2008 VA examination report reflects that the Veteran had decreased reflexes of the right ankle (1+/4+), and slightly less strength of the right knee (4/5), and a diagnosis of right sacroiliac radiculopathy. He had normal right knee reflexes. The 2016 VA examination report reflects reports of right leg numbness, but normal knee and ankle reflexes. The examiner found that the Veteran's right sciatic nerve was moderately affected. The 2016 examination supports a finding of a 20 percent rating for moderate incomplete paralysis of the sciatic nerve. A higher evaluation is not warranted because there is not competent credible evidence of at least moderately severe incomplete paralysis. Based on the foregoing, and in giving the benefit of the doubt to the Veteran, the Board finds that a 20 percent rating for right lower extremity radiculopathy is warranted for the entirety of the period on appeal. The Board finds that a higher rating is not warranted for any period. The Veteran's symptoms upon examination on October 26, 2016 were wholly sensory (and included only intermittent pain); thus a maximum rating of 20 percent is applicable. 38 C.F.R. § 4.124a. In addition, the examiner found no more than moderate symptoms. Prior to that date, the Board notes that the Veteran had sensory symptoms in 2008, as well as decreased reflex of the right ankle (1+), and slightly less strength of the right knee (4/5). However, there was not foot drop or a lack of ability of motion below the knee (which would warrant an 80 percent if present). Nor was there marked muscular atrophy (which would warrant a 60 percent if present). To the contrary, there was no atrophy which is indicative that the Veteran was using the extremity. The Veteran also had normal right knee reflexes and only slightly less muscle tone, and there were no trophic changes (e.g. hair loss) noted. Moreover, the very next month after the 2008 examination, another clinician found that the Veteran had no difficulty standing on his heels or his toes. Thus, the Board finds that prior to October 26, 2016, the Veteran's symptoms did not rise to the level of "moderately severe". In June 2016, VA amended the M21-1 adjudication manual "to further clarify the intent of VA's policy," and the relevant portion of the M21-1 adjudication manual now explains: Important: This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. M21-1, Part III, subpt. iv, Ch. 4, § G(4)(b). VA's express clarification of the pertinent guidance in the revision of the adjudication manual makes it clear that the adjudication manual does not instruct an adjudicator to find that incomplete paralysis is moderately severe or severe for peripheral nerve disabilities that are manifested by sensory plus other nonsensory symptoms." In sum, the Board finds that an increased rating under DC 5243 is not warranted. The Board finds that a rating of 20 percent and no higher under DC 8520 is warranted for right lower extremity radiculopathy associated with service-connected lumbar spine disability. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, and applied it where warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the Board notes that a claim for a total rating for compensation purposes based on individual unemployability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence reflects that the Veteran has been employed during the rating period on appeal. The evidence does not suggest that the employment is less than substantial gainful employment. Thus, the issue of entitlement to a TDIU has not been reasonably raised by the record. ORDER Entitlement to an increased rating for thoracolumbar spine disability, currently evaluated as 30 percent disabling is denied. Entitlement to a rating of 20 percent and no higher for right lower extremity neurological disorder is granted, subject to the regulations and laws governing payment of monetary awards. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs