Citation Nr: 1751643 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-07 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for lumbar spine multi-level degenerative disc disease with stenosis prior to April 20, 2012, in excess of 40 percent prior to October 17, 2013, and in excess of 20 percent thereafter, to include entitlement to separate disability ratings for left and right lower extremity radiculopathy. 2. Entitlement to a disability rating in excess of 10 percent for psoriasis prior to June 19, 2012, and in excess of 60 percent thereafter. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service connected disabilities. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In February 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The record before the Board consists of electronic records in systems known as Virtual VA and the Veterans Benefits Management System. The issue of entitlement to a TDIU rating is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. Throughout the period of the claim, and resolving all reasonable doubt in favor of the Veteran, the lumbar spine multi-level degenerative disc disease with stenosis was manifested by forward flexion limited to 30 degrees, but not by ankylosis or by incapacitating episodes having a total duration of at least four weeks during a year. 2. Throughout the period of the claim, and resolving all reasonable doubt in favor of the Veteran, a left and right lower extremity radiculopathy has been present, which has more closely approximated moderately severe incomplete paralysis of the sciatic nerve than severe incomplete paralysis. 3. During his February 2017 hearing, prior to the promulgation of a decision in the appeal, the Veteran informed the Board that he desired to withdraw his appeal for entitlement to an increased rating for his psoriasis. CONCLUSIONS OF LAW 1. Throughout the period of the claim, the criteria for a 40 percent rating, but no higher, for lumbar spine multi-level degenerative disc disease with stenosis have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Diagnostic Code 5237 (2017). 2. Throughout the period of the claim, the criteria for an initial disability evaluation of 40 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2017). 3. Throughout the period of the claim, the criteria for an initial disability evaluation of 40 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for withdrawal of the appeal for entitlement to a disability rating in excess of 10 percent for psoriasis prior to June 19, 2012, and in excess of 60 percent thereafter have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran was afforded appropriate VA examinations to address the severity of his service-connected lumbar spine disability in December 2010, October 2013, and August 2015. He has not asserted, and the evidence does not show his lumbar disability has increased significantly in severity since the most recent examination. In addition, the Veteran was afforded a hearing before the undersigned Veterans Law Judge in February 2017, at which time the Veteran's representative indicated the Veteran's most recent examinations were adequate for rating purposes. Neither the Veteran nor his representative have identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected lumbar spine disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Lumbar Spine Rating On November 4, 2010 the Veteran initiated a claim for an increased rating for his service connected lumbar spine disability. At that time, the Veteran reported experiencing radiating "pain in both legs." As such, the Board will consider entitlement to separate consequentially related lower extremity disabilities resulting from his lumbar spine condition. The General Rating Formula for Diseases and Injuries of the Spine holds that for Diagnostic Codes (DCs) 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the cervical spine, forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 30 percent is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, a combined range of motion of the cervical spine that is not greater than 170 degrees, or if the spine disability is manifested by 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 criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral Disc Syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. The Veteran's service-connected lumbar spine disability is currently evaluated pursuant to DC 5237, which provides a rating for lumbar strains. As such, the service-connected spine disability at issue may be rated under the General Rating Formula for Diseases and Injuries of the Spine, to include on the basis of loss of motion, or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation. However, at the outset the Board notes the Veteran has not ever been diagnosed with IVDS, and during his February 2017 Board hearing the Veteran expressly indicated that he has not ever been prescribed bed rest by a treating physician. Therefore, a rating under DC 5243 for IVDS Based on Incapacitating Episodes is not in order. Turning to the General Rating Formula for Diseases and Injuries of the Spine, the Board again notes a 40 percent rating is warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less. A higher rating is only warranted when unfavorable ankylosis of the spine is present. In this case, the Veteran has provided three lumbar spine assessments from his primary care physician at the Bay Pines VAMC dated in April 2012, May 2014, and July 2016. The Veteran also provided two private lumbar spine assessments from Dr. H.A., a pain management specialist, in April 2014 and March 2017. Each of these assessments indicate the Veteran exhibited a lumbar spine forward flexion range of motion to no greater than 30 degrees. By contrast, the Veteran underwent VA examinations in December 2010, October 2013, and August 2015. During these examinations the Veteran's forward flexion was recorded as 75 degrees, 60 degrees, and 70 degrees respectively. However, the Board observes that the Veteran has reported experiencing frequent flare-ups of back pain, which additionally limit his range of motion throughout the claim period. During each of his VA examinations, the Veteran indicated he was not presently experiencing a flare up. As such, this may account for the variation in range of motion assessments. The Board observes that it is required that a disability rating evaluator handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. See 38 C.F.R. § 3.344. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In this case, five lumbar spine assessments chronicle the Veteran's lumbar spine forward flexion as being limited to 30 degrees or less throughout various times during the claim period; conversely, only three VA examinations show forward flexion being greater than 30 degrees. While the Veteran may experience temporary or episodic improvements of his condition, the evidence of record clearly indicates his condition has never demonstrated sustained improvement. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds a 40 percent rating is warranted throughout the entire appeal period. A rating in excess of 40 percent is simply not warranted, because the evidence of record has not shown the Veteran has experienced unfavorable ankylosis of the thoracolumbar spine at any time. Though the Board does note the April 2014 private physician did check a box on her form indicating the Veteran did exhibit unfavorable ankylosis, this finding was in contrast to the rest of her report wherein she noted various range of motion measurements. As such, the Board has afforded this finding no probative value. This is further supported by the fact that during each of the eight lumbar spine assessments noted above, the Veteran had some degree of range of motion of the lumbar spine, and as such, there simply is no evidence establishing ankylosis at any time during this appeal period. Further, during the February 2017 Board hearing, the Veteran's representative indicated the appeal would be fully satisfied if a 40 percent rating was assigned throughout the claim period. For these reasons, the Board finds a rating in excess of 40 percent is not warranted. Left and Right Lower Extremity Ratings Turning now to the issue of the Veteran's lower extremity neurological impairments, the Board notes the Veteran has been diagnosed by several clinicians with a bilateral lower extremity radiculopathy. Specifically, the December 2010 VA examiner noted a dull pain in the Veteran's lower extremity. His primary care physician specifically found the Veteran had radiculopathy secondary to his service-connected spinal impairment. Likewise, the October 2013 VA examiner diagnosed the Veteran with a sciatic radiculopathy. As such, the Board finds the evidence clearly indicates the Veteran has experienced a bilateral sciatic radiculopathy, which is consequentially related to his lumbar spine disability, throughout the period of the claim. Like his primary lumbar spine disability, the Veteran's lower extremity neurological manifestations appear to have waxed and waned over the period of the claim. Indeed, during his February 2017 Board hearing, the Veteran stated he had received numerous injections to alleviate his lower extremity manifestations; however, he observed that these treatments only provided temporary relief. A review of the Veteran's outpatient treatment notes from the Bay Pines VAMC chronicles a history of bilateral leg muscle weakness resulting from his lumbar spine disability. During the Veteran's initial December 2010 VA examination, the examiner found no evidence of atrophy, motor impairment or reflex impairment. He did note the Veteran's dull pain in the lower extremities, but did not provide an assessment of the overall severity of the Veteran's radiculopathy. In her April 2012 assessment, the Veteran's primary care physician found the Veteran exhibited a severe radiculopathy, but no evidence of atrophy was noted at that time to substantiate that finding. During the Veteran's October 2013 VA examination, the Veteran was noted to have motor and reflex deficits, but the examiner determined the Veteran's lower extremity radiculopathy was only mild in severity. During his April 2014 assessment, the clinician found the Veteran's lower extremity radiculopathy was moderate severity, and again no muscle atrophy was noted during that examination; however, the examiner did find the Veteran could neither sit nor stand for any prolonged period of time as a result of his bilateral leg pain and paresthesia. Curiously, the August 2015 VA examiner found no evidence of radiculopathy whatsoever, which appears to be rather perplexing given the Veteran's previous longstanding history of lower extremity manifestations that were noted by several other clinicians. Then in July 2016 and most recently in March 2017 the Veteran was again noted to have exhibited a moderately severe radiculopathy. Initially, the Board notes that although the December 2010 VA examiner noted a lower extremity radiculopathy, but did not provide the severity of the disability, this assessment is of only limited probative value. Additionally, since the August 2015 VA examiner found no evidence of radiculopathy, when the overwhelming evidence both before and after this examination establishes the Veteran has exhibited substantial lower extremity manifestations, the Board finds this assessment of virtually no probative value. Turning to the remaining assessments, the Board notes the Veteran has been assessed very regularly with a moderately severe lower extremity radiculopathy. Although the October 2013 VA examiner found the Veteran's lower extremity radiculopathy to be only mild, the Board notes that the rating schedule indicates that when nerve involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. See 38 C.F.R. § 4.124(a). However, as noted above, the October 2013 VA examiner found evidence of both motor and reflex impairment, clearly indicative of a greater than mild or moderate level of severity. In this case, the Board finds the Veteran has most consistently exhibited a moderately severe bilateral lower extremity radiculopathy throughout the period of the claim. Although, as noted above, there have been times of temporary improvement as a result of injections, the evidence shows these treatments provided only limited remediation of the symptoms. As such, a 40 percent rating is also warranted under 38 C.F.R. § 4.124(a), Diagnostic Code 8520 throughout the period of this appeal. The Board finds this to be the most appropriate Diagnostic Code, because the clinicians have specifically indicated the Veteran's neurological impairments result from sciatic nerve disability. However, the Board notes a greater than 40 percent rating is only warranted under this Diagnostic Code when a severe impairment of the sciatic nerve is found. This Diagnostic Code indicates a severe incomplete paralysis is present when there is "marked muscular atrophy," which has not been shown at any time during the appeal period. Therefore, the Board finds a rating in excess of 40 percent for the Veteran's left and right lower extremity radiculopathy is not warranted. The Board has also considered whether a higher or separate rating would be warranted under any other Diagnostic Code, but finds that to not be the case as the Veteran has not been diagnosed with an impairment of any other lower extremity peripheral nerve. Other Considerations VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has accordingly considered the lay evidence offered by the Veteran and others, in addition to the medical evidence cited above. The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran full competence and credibility, the evidence simply does not show entitlement to evaluations in excess of those found to be warranted above. Consideration has been given to assigning a staged rating for the disability decided herein; however, with regard to the claimed disabilities, the evidence does not suggest that the level of impairments caused by the disabilities fluctuated sufficiently during the period of this appeal, so staged ratings are not appropriate for these claims. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204(a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204(b). During his February 2017 Board hearing, the Veteran requested the issue of entitlement to a disability rating in excess of 10 percent for psoriasis prior to June 19, 2012, and in excess of 60 percent thereafter be withdrawn. Accordingly, the Board does not have jurisdiction to review this aspect of the Veteran's appeal, and the issue must be dismissed. ORDER A 40 percent rating, but no more, for lumbar spine multi-level degenerative disc disease with stenosis is granted throughout the pendency of this claim, subject to regulations governing the payment of monetary awards. A 40 percent rating, but no more, for left lower extremity radiculopathy is granted throughout the pendency of this claim, subject to regulations governing the payment of monetary awards. A 40 percent rating, but no more, for right lower extremity radiculopathy is granted throughout the pendency of this claim, subject to regulations governing the payment of monetary awards. The appeal for entitlement to a disability rating in excess of 10 percent for psoriasis prior to June 19, 2012, and in excess of 60 percent thereafter is dismissed. REMAND By way of an August 2015 rating decision, the RO denied the Veteran's claim for entitlement to a TDIU rating. In July 2016, the Veteran submitted a timely notice of disagreement as to the denial of this collateral benefit. To date, the RO has not provided the Veteran with a statement of the case (SOC) in response to this notice of disagreement. As such, the matter must be remanded for the originating agency to issue a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). On remand, relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, an SOC on the issue of entitlement to a TDIU rating should be issued to the Veteran and his representative. The Veteran should be informed of the requirements to perfect an appeal with respect to this issue. If the Veteran perfects an appeal with respect to this issue, the RO should ensure that all indicated development is completed before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs