Citation Nr: 1754053	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  13-26 165	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.   Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) lumbosacral spine with herniated disc pulposus L5-S1.

2.   Entitlement to an initial rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy.

3.   Entitlement to an initial compensable rating for gastroesophageal reflux with esophagitis (GERD).


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Martha R. Luboch, Associate Counsel 

INTRODUCTION

The Veteran had active duty service from August 1992 to December 1997. 

These matters come before the Board of Veterans'' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in August 2016. A transcript of the hearing has been associated with the claims file.

The Board notes that additional evidence has been associated with the claims file since the last issuance of the statement of the case (SOC) in July 2013. However, the RO readjudicated the Veteran's claims in a July 2017 rating decision. Moreover, the Veteran provided waiver of agency of original jurisdiction (AOJ) consideration.

In the July 2017 rating decision, the RO granted service connection for left lower extremity sciatic nerve radiculopathy with a rating of 10 percent effective April 19, 2017 and continued the 20 percent rating for the Veteran's degenerative arthritis of the spine with DDD. As the Veteran is presumed to be seeking the highest possible ratings, these issues remain in appellate status.


FINDINGS OF FACT

1.   Since the effective date of service connection, the Veteran's lumbar spine disability has been manifested by flare-ups, limiting forward flexion of the thoracolumbar spine to 30 degrees or less without ankylosis.

2.   Since the effective date of service connection, the Veteran's left lower extremity radiculopathy has been manifested by mild incomplete paralysis of the sciatic nerve; no other neurologic impairment, including right lower extremity radiculopathy, has been demonstrated at any point during the appeal period.

3.   Since the effective date of service connection, the Veteran's GERD has been manifested by several symptoms including heartburn, dysphagia, reflux and regurgitation; however, his symptoms have not caused severe or considerable impairment of health. 


CONCLUSIONS OF LAW

1.   The criteria for a rating of 40 percent for degenerative disc disease (DDD) lumbosacral spine with herniated disc pulposus L5-S1 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2016).

2.   The criteria for a rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2016).

3.   The criteria for a rating of 10 percent, but not in excess thereof, for GERD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, DC 7346 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

By the August 2009 rating decision, the Veteran was granted service connection for degenerative disc disease lumbosacral spine with herniated disc pulposus L5-S1 with a rating of 20 percent, effective November 26, 2008. He is rated under 38 C.F.R. § 4.71a, DC 5242.

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. 

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. 4.59 are meant to compensate a claimant whose pain does not cause enough limitation of motion in a joint to reach a compensable level; it is not for application where., as in this case, the claimant already has a compensable level of limitation of motion.  Vilfranc v. McDonald, 28 Vet. App. 357, 361 (2017).

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  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); 

Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006).


Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). 

The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id.  at Note (2).

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. Id. at Note (5).

Alternatively, the Veteran's lumbar spine disability may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which assigns a 10 percent evaluation with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2015). An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1).

Lumbar Spine 

On VA examination in August 2009, the Veteran had flexion to 55 degrees with pain beginning at 30; extension to 30 degrees with pain beginning at 25 degrees; and bilateral lateral flexion to 20 degrees with pain beginning at 15 degrees. His sensory examination was normal. At his August 2016 Board hearing; however, the Veteran reported that he had flare ups of his lumbar spine which keep him from getting out of bed. He stated that throughout the appeal period, he has continuously experienced flare-ups but now they are more recurrent. He stated that every time he receives an epidural for his back, he is out of work for two days. Additionally, he stated that he must miss work approximately four days out of twenty a month as a result of flare-ups of the back disability.

The Veteran was most recently afforded a VA examination for his back in June 2017. He reported that he experienced flare-ups of back disability which caused "sharp stabbing pain" which causes him to be unable to walk. On examination he had flexion to 45 degrees; extension to 25 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 25 degrees. Pain was noted on forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. There was evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of motion. He was noted to have muscle spasms which did not result in abnormal gait or abnormal spinal contour. He was also noted to have instability of station, disturbance of locomotion, interference with sitting, and interference with standing. 

Here, although the ranges of motion found during examinations indicate that a 20 percent disability rating is warranted; during flare-ups forward flexion is to 30 degrees or less. Indeed, although at worst the Veteran had flexion to during examinations limited to 45 degrees, he reported flare-ups of his back disability that caused sharp pain and made it difficult to stand or walk. That level of limitation implies an inability to bend more than 30 degrees during a flare-up.  Thus, a 40 percent rating is warranted. The Veteran does not contend, nor does the evidence suggest, that any part of his spine was ankylosized at any point during the appeal and therefore, a higher rating is not warranted. 

The provisions of 38 C.F.R. §§ 4.40, 4.45 are not applicable where, the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis.  Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

At no point during the appeal has the Veteran been prescribed bedrest by a physician. As noted above, the Board does not dispute that at points the Veteran had to stay in bed because of his lower back disability. However, because these periods of rest were not prescribed by a physician, a rating for intervertebral disc syndrome based on incapacitating episodes is not warranted. Instead, as described above, the Board considered the Veteran's reports of flare-ups, to include his periods of having to stay in bed, in allowing a 40 percent rating. 

On most recent examination, the examiner found that the Veteran had radicular pain and other symptoms due to radiculopathy. Specifically, the examiner opined that the Veteran experienced mild bilateral lower extremity intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner opined that there was involvement of the sciatic nerve root of the left lower extremity and the severity of the radiculopathy was mild. The examiner opined that there was no right sided radiculopathy. Although the Veteran had symptoms, his neurological examination was normal and subjective symptoms do not alone make the diagnosis of radiculopathy. Instead, there must be abnormal examination findings.

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. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, DC 8520. 

As noted above, the Veteran was granted service connection for mild left lower extremity radiculopathy by a July 2017 rating decision. The Board finds that a 10 percent rating under Diagnostic Code 8520 is appropriate as the Veteran has only experienced mild symptoms. Specifically, he has mild constant pain, mild intermittent pain, and mild numbness. The Board finds the VA examiner's opinion that the severity of the Veteran's left lower extremity radiculopathy is mild highly probative.

In addition, as noted above, the opined that there was no right side radiculopathy. Although the Veteran had symptoms, his neurological examination was normal and subjective symptoms do not alone make the diagnosis of radiculopathy. Instead, there must be abnormal examination findings. A further review of the Veteran's private treatment records note these symptoms; however, at no point was right lower extremity radiculopathy demonstrated by objective examination. As a result, the Board finds that a separate rating for right lower extremity radiculopathy is not warranted.

Further, the evidence does not establish that the Veteran suffers from any other neurological manifestations, erectile dysfunction, or bowel and bladder conditions due to his lumbar spine disability. None of these conditions were found on VA examination or during treatment. Thus, for the above stated reasons, the Board finds that the Veteran is not entitled to separate disability ratings for neurological manifestations of his service-connected lumbar spine disability other than for his left lower extremity radiculopathy. 38 C.F.R. § 4.25.

The Veteran's back disability has not changed such as to a staged rating. Fenderson, 12 Vet. App. at 126. Additionally, while the Board has considered the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, the Board finds that these are not applicable as the Veteran is being awarded the highest possible rating based on range of motion. As discussed above, the Veteran has not alleged, nor does the evidence of record support that any portion of his spine was anklyosized at any point during the appeal period.

In sum, the preponderance of the evidence supports a disability rating of 40 percent for the orthopedic manifestations of the service-connected lumbar spine disability for the entire appeal period and a separate 10 percent rating for neurologic manifestations on the basis of left lower extremity radiculopathy, but no higher, is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


GERD

The Veteran's GERD is currently rated as noncompensable under DCs 7399-7346, which provides a 10 percent rating when there is evidence of persistently recurrent epigastric distress manifested by two or more of the following symptoms (adding the qualifier that they be symptoms of "less severity"): dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal arm or shoulder pain which is productive of considerable impairment of health. A 30 percent evaluation is assigned when those symptoms cause epigastric distress and are productive of considerable impairment of health. A 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346 (2016).

Private treatment records from June 2009 show that the Veteran was seen for dysphagia. He presented with concerns about persistent thick mucus settling in his throat for over a year. 

On VA examination in August 2009, the examiner noted that the Veteran had a history of nausea associated with GERD that occurred weekly. There was a history of esophageal distress several times a week accompanied by moderate pain. The examiner stated that the Veteran did not have a history of vomiting or dysphagia; heartburn; regurgitation; hematemesis, melena; or esophageal dilation. There were no signs of significant weight loss or malnutrition.

Private treatment records dated in September 2009 show that the Veteran had dysphagia with sore throat for one and a half years. Modified video swallow was performed and there were no acute findings.  Private treatment records dated in December 2010 show that the Veteran described having chronic symptoms for many years including chronic nausea and chronic reflux. The examiner stated "the reflux in terms of heartburn and regurgitation is well-controlled with Nexium. Over the past year he has had recurrent right upper quadrant pain that is not related to meals."  Private treatment records dated in September 2011 show that he presented with complaints of abnormal pain and diarrhea. 

At his Board hearing, the Veteran reported sub sternum pain. At times, he thought he was having a heart attack but was it was actually heart burn. He reported having regurgitation weekly. He stated his main symptoms are regurgitation and substernal pain depending on which much medication he takes. 

The evidence supports a rating of 10 percent, but not more, for GERD. Since the effective date of service connection, the Veteran has had at least experienced persistently recurrent epigastric distress with pyrosis and regurgitation accompanied by substernal pain. Although the Veteran has also reported several other symptoms; evidence does not demonstrate that these symptoms have been productive of considerable impairment of health so as to warrant a higher rating. Indeed, at his hearing, the Veteran reported that "all these symptoms are managed so if I have nausea I have medication for that. So it's managed really. It's not that they ever go away. It's just simply managed." He has not alleged, nor does the evidence indicate that his GERD has prevented him from working at any time. Additionally, the August 2009 VA examiner stated that there were no significant effects on the Veteran's usual occupation as a result of his GERD. These findings indicate that it has not caused considerable impairment of health. 

The Board has specifically considered whether the Veteran is entitled to additional "staged ratings." See Fenderson. However, the Board finds that a 10 percent rating is warranted for the entire appeal period given that the Veteran's GERD condition varies in symptomatology but has been consistently productive of at least two of the symptoms noted by the diagnostic code throughout the appeal period. The preponderance of the evidence is against a further increase, and there is no additional reasonable doubt to be resolved.

ORDER

Entitlement to a rating of 40 percent for degenerative disc disease (DDD) lumbosacral spine with herniated disc pulposus L5-S1 is granted.

Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is denied.

Entitlement to a rating of 10 percent, but no higher, for GERD is granted.



______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs