Citation Nr: 1800385 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-09 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased disability rating for degenerative joint disease (DJD) of the lumbar spine evaluated as 10 percent disabling prior to June 29, 2011, and as 20 percent thereafter. 2. Entitlement to an effective date prior to May 8, 2014, for the grant of service connection for bilateral radiculopathy of the lower extremities. 3. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy, since May 8, 2014. 4. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy, since May 8, 2014. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 to June 1982, with subsequent active duty training in the reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified in a video conference hearing before the undersigned Veterans Law Judge (VLJ) in November 2012. A transcript of the hearing is of record. This Board previously remanded this issue to the Agency of Original Jurisdiction (AOJ) in April 2014, February 2016, and June 2017 for additional development. The case has now returned to the Board for additional appellate action. The Board notes that the Veteran's ratings for bilateral radiculopathy, and the effective date of those ratings, are part and parcel of the claim for an increased rating for a lumbar spine disability currently on appeal. Thus, the Board takes jurisdiction of such claims herein. FINDINGS OF FACT 1. Prior to March 11, 2010, the Veteran's lumbar spine disability manifested orthopedic impairment with painful limited motion with forward flexion of 45 degrees and a combined range of motion of 145 degrees without incapacitating episodes requiring bed rest prescribed by a physician 2. Since March 11, 2010, the Veteran's lumbar spine disability manifested orthopedic impairment with painful limited motion with forward flexion of 70 degrees and a combined range of motion of 175 degrees without incapacitating episodes requiring bed rest prescribed by a physician. 3. The Veteran was initially diagnosed with bilateral radiculopathy of the lower extremities in a May 8, 2014 VA examination. 4. Since May 8, 2014, the Veteran's bilateral lower extremity radiculopathy is best characterized as moderate. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for DJD of the lumbar spine prior to March 11, 2010 are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2017). 2. The criteria for an increased rating for DJD of the lumbar spine of 20 percent, but no greater, for the period from March 11, 2010 to June 29, 2011 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243. 3. The criteria for a rating in excess of 20 percent for DJD of the lumbar spine since June 29, 2011 are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243. 4. The criteria for an effective date earlier than May 8, 2014, for the grant of service connection for bilateral radiculopathy of the lower extremities have not been met. 38 U.S.C. §§ 5104(a), 5107, 5110; 38 C.F.R. §§ 3.103, 3.104(a), 3.160(d), 19.25. 5. The criteria for a rating in excess of 20 percent for right lower extremity peripheral neuropathy, since May 8, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 6. The criteria for a rating in excess of 20 percent for left lower extremity peripheral neuropathy, since May 8, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's orthopedic impairment associated with the lumbar spine disability is rated as 10 percent disabling prior to June 28, 2011, and as 20 percent disabling thereafter, under DC 5242, pertaining to degenerative arthritis of the spine and the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, DCs 5235-5243. Under the general rating formula for rating diseases and injuries of the spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent evaluation 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 evaluation is warranted for forward flexion of the thoracolumbar spine 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; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine and a maximum 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar or entire spine is fixed in flexion or extension and the ankylosis results in certain enumerated impairments. 38 C.F.R. § 4.71a, General Formula for Rating Diseases and Injuries of the Spine, Note (5). In applying these regulations VA should obtain examinations in which the examiner determines 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, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. 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. III. Degenerative Joint Disease of the Lower Back The Veteran contends that an increased rating is warranted for his service-connected low back disability as it causes severe pain and functional impairment. Service connection for a lumbar strain was awarded in a June 2005 rating decision with an initial 10 percent evaluation assigned effective August 24, 2004. The low back disability was recharacterized as DJD of the lumbar spine in the October 2009 rating decision on appeal and a 10 percent evaluation was continued. An August 2012 rating decision granted an increased 20 percent rating for his DJD of the lumbar spine effective June 29, 2011. After review of the record, the Board finds that an increased rating of 20 percent, but no greater, is warranted for the orthopedic impairment associated with the service-connected lumbar spine arthritis for the period from March 11, 2010 to June 29, 2011, but that a rating in excess of 10 percent is not warranted prior to March 11, 2010. Additionally, the Board finds that a rating in excess of 20 percent is not warranted for the period since June 29, 2011. A. Prior to March 11, 2010 For the period prior to March 11, 2010, treatment records and VA examinations establish that the Veteran's thoracolumbar range of motion most nearly approximates muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. In fact, the Veteran demonstrated forward flexion of 90 degrees during a VA contract examination conducted in April 2009, and his combined range of thoracolumbar motion was measured at 240 degrees. The examiner did indicate there was additional limitation of joint function of the spine after repetitive use due to painful motion, but stated that there was no additional limitation of motion in degree. The examiner further indicated that muscle spasm was absent, no tenderness was noted, the curvature of the spine was normal, gait was within normal limits, and that there was no ankylosis of the spine. Therefore, a rating in excess of 10 percent is not warranted prior to March 11, 2010. B. From March 11, 2010 to June 29, 2011 From March 11, 2010 to June 29, 2011, treatment records and VA examinations establish that the Veteran's lower back disability most nearly approximates abnormal kyphosis. Specifically, in a March 11, 2010 VA physical medical rehab consult note, the physician diagnosed the Veteran with mildly increased thoracic kyphosis. The physician also indicated that the Veteran's spine was straight with normal lumbar lordosis, that he had normal thoracic range of motion, and that he had normal lumbar range of motion in all planes with pain upon extension. As the record does not indicate that the Veteran exhibited ankylosis of the thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less between March 11, 2010 and June 29, 2011, an increased rating of 20 percent, but no greater, is warranted for that period. C. Since June 29, 2011 For the period since June 29, 2011, treatment records and VA examinations establish that the Veteran's thoracolumbar range of motion most nearly approximates forward flexion greater than 30 degrees but not greater than 60 degrees and a combined range of motion not greater than 120 degrees. The Veteran consistently demonstrated an initial forward flexion of 50 degrees or better during VA examinations or VA contract examinations conducted in June 2011, April 2013, May 2014, September 2016, and July 2017; and his lowest combined range of thoracolumbar motion was observed at the May 2014 examination when it was measured to 110 degrees. Additionally, the record does not indicate that the Veteran was ever found to have ankylosis of his thoracolumbar spine. As noted above, the Board must also consider the effect various functional factors-such as weakened movement, excess fatigability, incoordination, or pain have on the Veteran's service-connected disability and determine whether they result in functional impairment that most nearly approximates a higher disability rating. The Veteran has manifested some functional impairment due to his service-connected lower back disability. The June 2011 examination indicated that the Veteran had additional range of motion limitation upon repetitive testing, including a limitation of flexion of 40 degrees. The May 2014 VA examiner indicated that the Veteran's lumbar spine joint function was additionally limited by pain on movement, weakened movement, and less movement than normal after repetitive use. The July 2017 VA contract examiner indicated that pain, fatigue, weakness, lack of endurance resulted in functional loss, described as difficulty twisting to pick up or transfer objects. However, he did not indicate that there was an additional loss in range of motion with repeated use over time. Accordingly, although the medical evidence of record reflects some impairment due to various functional factors, it does not indicate additional functional limitation that most closely approximates a higher disability rating. The Veteran testified in November 2012 that his low back pain decreased his ability to bend forward and backward and that it sometimes made walking difficult. The Veteran is certainly competent to report the severity of the back pain he experiences and the effect it has on his functioning, but the Board finds that the objective medical evidence is more probative in determining the functional impairment due to the service-connected lumbar spine disability. This is especially so in light of the medical evidence distinguishing between the multiple service-connected areas of the Veteran's spine and describing the manifestations specific to each condition. The Board therefore finds that even with consideration of all relevant functional factors, the Veteran's DJD of the lower back does not most nearly approximate the criteria associated with an increased rating under the general rating formula. The Board has also considered whether a higher rating is warranted due to intervertebral disc disease. However, the Veteran's private and VA treatment records do not document a diagnosis of intervertebral disc disease related to his lower back, and Diagnostic Code 5243 is therefore applicable to the current claim. The evidence therefore establishes that the Veteran's orthopedic impairment associated with the service-connected lower back disability most nearly approximates the currently assigned 20 percent rating since June 29, 2011, and an increased rating is not warranted. IV. Bilateral Radiculopathy of the Lower Extremities A. Increased Rating As noted above, the issues of entitlement to an increased rating related to radiculopathy of the Veteran's left and right lower extremities are part and parcel of his claim for an increased rating for his service-connected lower back disability. He was granted service connection for bilateral lower extremity radiculopathy with an evaluation of 20 percent, effective May 8, 2014, in a November 2014 rating decision. Under DC 8520, relating to paralysis of the sciatic nerve, a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis of the nerve. VA examinations in May 2014 and July 2017 indicate that the Veteran's symptoms associated with his bilateral radiculopathy of the lower extremities most closely approximate moderate incomplete paralysis of the sciatic nerve. As the record does not otherwise indicate the Veteran's bilateral radiculopathy of the lower extremities most closely approximated more severe paralysis of the sciatic nerve, an increased rating is not warranted. B. Effective Date The effective date for the grant of service connection based on an original claim is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b). Although the Veteran testified at his November 2012 Board hearing that he experienced burning, numbness, and tingling in his legs for approximately three to four years prior, he was not diagnosed with bilateral radiculopathy of the lower extremities until May 2014. Further, VA examinations in April 2013 and August 2011 found that no radiculopathy related to the Veteran's lower extremities was present. As May 8, 2014 represents the date entitlement arose, the currently assigned effective date is proper. ORDER Entitlement to an increased rating for DJD of the lumbar spine in excess of 10 percent disabling prior to March 17, 2010 is denied. Entitlement to an increased rating for DJD of the lumbar spine of 20 percent, but no greater, from March 17, 2010 to June 29, 2011 is granted. Entitlement to an increased rating for DJD of the lumbar spine in excess of 20 percent disabling since June 29, 2011 is denied. Entitlement to an effective date earlier than May 8, 2014 for the grant of service connection for bilateral radiculopathy of the lower extremities is denied. Entitlement to an increased rating for left lower extremity radiculopathy in excess of 20 percent is denied. Entitlement to an increased rating for right lower extremity radiculopathy in excess of 20 percent is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs