Citation Nr: 1800395 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-17 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability. 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the lower left extremity. 3. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the lower right extremity. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel INTRODUCTION The Veteran had active military service from March 1974 to October 1974 and from August 1980 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the New Orleans, Louisiana Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2015, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. This case was previously before the Board in June 2017. At that time, the Board remanded the Veteran's claims for increased rating for a back disability and increased rating for radiculopathy of the lower left extremity for further development. A third issue, entitlement to a total disability rating due to individual unemployability (TDIU) was also remanded at that time, but was subsequently granted at the RO level and is no longer on appeal. On remand, the RO also granted the Veteran a 10 percent disability rating for radiculopathy of the lower right extremity, related to her lumbar spine disability. That issue was subsequently included in the supplemental statement of the case (SSOC) and will be discussed in this decision as well. FINDINGS OF FACT 1. Throughout the course of the appeal, even contemplating functional limitation due to pain, weakness, stiffness, fatigability, lack of endurance, and repetitive motion etc., forward flexion of the Veteran's lumbar spine was not shown to be functionally limited to 30 degrees or less, and ankylosis of the spine was not shown. 2. The Veteran has not been shown to have had bed rest prescribed by a physician. 3. The Veteran's left and right lower extremity radiculopathies have been characterized by mild incomplete paralysis of the sciatic nerve; moderate, moderately severe, or worse, incomplete paralysis has not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5242 (2017). 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 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided, and the Veteran has not alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, adjudication of her claim at this time is warranted. Under 38 U.S.C. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate her claim. All service treatment records, VA treatment records, and private medical treatment records identified by the Veteran have been obtained. Furthermore, the Veteran testified at a Board hearing and a transcript of the hearing is of record. The Veteran was also provided with several VA examinations and medical opinions (the reports of which are associated with the claims file) and the Veteran has not objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In an October 2007 rating decision, the Veteran was granted service connection for a lumbar spine disability and assigned a 20 percent rating under Diagnostic Code 5242, with an effective date of November 20, 2006, the date her claim was received. The Veteran never perfected an appeal on the initial rating for her lumbar spine disability. In March 2011, the Veteran filed a claim for an increased rating for her lumbar spine disability. A June 2013 rating decision continued the 20 percent rating for the Veteran's lumbar spine. The Veteran submitted a statement in June 2013 saying that her back symptoms had worsened since her last VA examination. Subsequent to a new VA examination, a January 2014 rating decision granted the Veteran a 10 percent rating under Diagnostic Code 8520 for radiculopathy of her lower left extremity, as related to her lumbar spine disability, effective June 12, 2013, the date her claim for an increased rating was received. This rating decision also continued the 20 percent rating for the Veteran's lumbar spine disability under Diagnostic Codes 5010 and 5243. Pursuant to a Board remand, the Veteran was provided another VA spine examination in July 2017. At that time, the Veteran was shown to also have radiculopathy of her lower right extremity. Accordingly, the RO granted her a 10 percent rating for her right lower extremity radiculopathy under Diagnostic Code 8520, effective July 19, 2017, the date of the VA examination where she was first shown to have right lower extremity radiculopathy. The RO also continued the Veteran's 20 percent rating for her lumbar spine and 10 percent rating for her left lower extremity radiculopathy. The Veteran asserts that she is entitled to higher ratings for her lumbar spine disability and associated lower extremity radiculopathies. Lumbar Spine Disability VA regulations dictate that a back disability is to be rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week, but less than two weeks, during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. Id. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (emphasis added). The evidence of record does not show that the Veteran has been prescribed bed rest to treat incapacitating episodes of IVDS during the course of her appeal. In the May 2011 VA examination report, the examiner noted that the Veteran had narrowing of the intervertebral disc space in her lumbar spine. However, the VA examiner did not diagnose IVDS or conclude that the Veteran had any bed rest in the past year ordered by a physician. The August 2013 VA examiner diagnosed the Veteran with IVDS, but noted that the Veteran had not experienced any incapacitating episodes over the past 12 months due to IVDS. At the July 2017 VA examination, the examiner stated that the Veteran had IVDS, but specifically concluded that the Veteran had not experienced any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician in the previous 12 months. As such, while the Veteran may have been diagnosed with IVDS, the prescription of bed rest is a foundational requirement for a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, here, a rating based on IVDS is not supported by the evidence of record and the Veteran's lumbar spine disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is 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 30 degrees or less or 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Furthermore, fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242, Note (5). At a May 2011 VA examination, the Veteran reported having moderate pain daily around her beltline which did not radiate. The examiner reported that there was no ankylosis of the Veteran's thoracolumbar spine. Furthermore, range of motion measurements were as follows: flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The examiner noted that there was no objective evidence of pain on active range of motion testing or following repetitive motion testing. However, no additional limitation was found after three repetitions of range of motion. At an August 2013 VA examination, the Veteran reported occurrences of radiation down the left leg, but primarily lower back pain. The Veteran did not report that flare-ups impacted the function of her thoracolumbar spine. Range of motion measurements were as follows: flexion to 60 degrees at which point painful motion began, extension to 10 degrees, at which point painful motion began, right lateral flexion to 10 degrees, at which point painful motion began, left lateral flexion to 10 degrees, at which point painful motion began, right lateral rotation to 20 degrees, at which point painful motion began, and left lateral rotation to 20 degrees, at which point painful motion began. Repetitive-use range of motion measurements were also taken after three repetitions. After repetitive-use, range of motion measurements were as follows: flexion to 60 degrees, extension to 10 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The examiner stated that the Veteran had functional loss, functional impairment, and/or additional limitation of range of motion after repetitive use due to pain on motion. At a July 2017 VA examination, the Veteran reported having flare-ups of her thoracolumbar spine every three to four months. During a flare up, the Veteran reported that her back would go out and she would be out for three weeks and had difficulty getting around because of pain. She stated that she could barely walk because she was unable to lift her feet. She rated her back pain during a flare-up as an 8 or 9 out of 10. During flare-ups, the Veteran stated that she could not bend over, stand, or sit and lies in bed for about 30 minutes. On examination, range of motion measurements were as follows: flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Pain was noted on examination, but the examiner stated that it did not result in additional functional loss. The examiner noted there was evidence of pain with weight bearing. The examiner noted that the Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. The examiner stated that the Veteran did not have ankylosis of the spine. The examiner also stated that the Veteran's back and left leg radiculopathy conditions were mild in severity and that the current level of her disabilities remained the same. VA treatment records show that the Veteran sought treatment for low back pain throughout the course of the appeal and consistently reported pain in her lower back. However, no range of motion measurements appear to have been taken at these appointments and the records do not show the Veteran ever having had ankylosis of the spine. At no time during the appeal period did the Veteran demonstrate flexion of the thoracolumbar spine of 30 degrees or less. Even though her treatment records did not contain range of motion measurements, they gave no indication that the Veteran's lumbar spine symptomatology was ever worse than what was reflected in the VA examination reports of record. Additionally, the Board finds that the Veteran never exhibited ankylosis of the spine. Based on the foregoing, the Board finds that the Veteran did not meet the schedular rating criteria for a rating in excess of 20 percent for a lumbar spine disability. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. The weight of the evidence indicates that the Veteran's lumbar spine disability has not been so functionally limited as to warrant a rating in excess of 20 percent. For example, in May 2011, the examiner noted that there was no objective evidence of pain on active range of motion testing or following repetitive motion testing. On repetitive testing, no additional limitation was found after three repetitions of range of motion. In August 2013, the VA examiner noted that the Veteran exhibited pain on flexion beginning at 60 degrees. Although the examiner stated that the Veteran had functional loss, functional impairment, and/or additional limitation of range of motion after repetitive use due to pain on motion, pain was not shown to reduce flexion to 30 degrees or less. In July 2017, the VA examiner stated that pain was noted on examination, but it did not result in additional functional loss. The examiner also noted that the Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. As such, while the Veteran clearly experiences pain on range of motion, the pain has not been shown to effectively limit the forward flexion in her back to 30 degrees or less. Here, as described, the weight of the probative evidence of record fails to demonstrate that the Veteran is entitled to a disability rating in excess of 20 percent for a lumbar spine disability. As such, entitlement to a disability rating in excess of 20 percent for a lumbar spine disability is denied. Lower Extremity Radiculopathy Both the Veteran's left and right lower extremity radiculopathies are currently rated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides for a 10 percent disability rating for mild incomplete paralysis of the sciatic nerve, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis with the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost. At the August 2013 VA examination, the examiner diagnosed the Veteran with left sciatic neuropathy and found that the Veteran had symptoms due to radiculopathy in her left lower extremity only. The symptoms manifested as paresthesias and/or dysesthesias of mild severity. The examiner found that the nerve roots involved were the sciatic nerve. The Veteran's right lower extremity was not affected by radiculopathy. Sensory testing was normal on all extremities on both sides. At the July 2017 VA examination, the examiner found that the Veteran had radicular pain or symptoms due to radiculopathy in both her right and left lower extremities. The symptoms manifested in both extremities as intermittent pain of mild severity, paresthesias and/or dysesthesias of mild severity, and numbness of mild severity. The examiner found that the nerve roots involved were the sciatic nerve. Sensory testing revealed that the Veteran had decreased sensation to light touch in both her right and left legs, ankles, feet, and toes. Upon review, the Board finds that a disability rating in excess of 10 percent for left or right lower extremity radiculopathy cannot be granted. Here, the Veteran's neurologic impairments in both the left and right lower extremities were noted to be no more than mild, and a 10 percent disability rating is the highest rating available under the Diagnostic Codes for mild impairment. To this end, as a lay person, the Veteran is competent to report what comes to her through her senses, but she lacks the medical training and expertise to provide a complex medical opinion as to the degree of severity of a medical condition, as such may involve considerations that are beyond just the perception of symptoms themselves. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board does not wish to minimize the impairment caused by the Veteran's neurologic pain in her left and right lower extremities, but the fact remains that symptoms beyond pain are generally required for a neurologic rating in excess of 10 percent. Specifically, VA regulations direct that when neurologic impairment is wholly sensory, a mild, or at most moderate rating is to be assigned. Here, the Veteran's neurologic symptomatology appears to be wholly sensory in nature. There was no atrophy found in either lower extremity. Accordingly, the Board finds that disability ratings in excess of 10 percent for left and right lower extremity radiculopathies are not warranted. In reaching these conclusions with respect to all of the claims on appeal, the Board has considered the assertions of the Veteran as to her symptomatology and the severity of her conditions, but, to the extent the Veteran believes that she is entitled to higher ratings than assigned herein, the Board concludes that the findings during medical evaluations are more probative than are the lay statements. Furthermore, the assertions of the Veteran regarding the severity of her disabilities are generally consistent with the ratings currently assigned and with the findings on VA examinations. As such, the Board has considered the assertions of the Veteran, but has also relied heavily on VA examinations, which duly considered the Veteran's subjective symptoms and do not show limitation of function approximating the criteria for higher ratings. ORDER A rating in excess of 20 percent for a lumbar spine disability is denied. A rating in excess of 10 percent for radiculopathy of the lower left extremity is denied. A rating in excess of 10 percent for radiculopathy of the lower right extremity is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs