Citation Nr: 1800444 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-13 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial evaluation in excess of 10 percent prior to March 23, 2017, and in excess of 20 percent since March 23, 2017, for right L5/S1 herniated disc status post right-sided hemi laminectomy at L5/S1. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from November 2000 to June 2010. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in December 2016. This matter was originally on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2016, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. The rating at issue was increased for part of the appeal period as set out on the title page. A separate rating for radiculopathy into the right lower extremity has also been assigned, and is not otherwise at issue in this appeal. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. Prior to March 23, 2017, the Veteran's service-connected lumbar spine disability, right L5/S1 herniated disc status post right-sided hemi laminectomy at L5/S1, was not productive of forward flexion of the thoracolumbar spine limited to 60 degrees or less; or, the combined range of motion of the thoracolumbar spine limited to 120 degrees or less; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, abnormal kyphosis, incapacitating episodes, or left lower extremity radiculopathy. 2. Since March 23, 2017, the Veteran's service-connected lumbar spine disability has not been productive of forward flexion limited to 30 degrees or less, ankylosis, incapacitating episodes, or left lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent prior to March 23, 2017, for service-connected lumbar spine disability were not met. 38 U.S.C. §1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2017). 2. The criteria for an evaluation in excess of 20 percent since March 23, 2017, for service-connected lumbar spine disability have not been met. 38 U.S.C. §1155; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters Pursuant to the Board's December 2016 Remand, the Appeals Management Center (AMC) obtained outstanding treatment records, provided the Veteran with a VA examination to determine the severity of his service-connected spine disabilities, readjudicated the claim, issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's December 2016 Remand. Stegall v. West, 11 Vet. App. 268 (1998). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for residuals, herniated nucleus pulposus, L4-L5, post-operative with scar. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected lumbar spine disability has been rated as 10 percent disabling prior to March 23, 2017 and as 20 percent disabling since March 23, 2017 pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242, for degenerative arthritis of the spine. The rating criteria for diseases and injuries of the spine are contained in 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (for, respectively, vertebral fracture or dislocation; sacroiliac injury and weakness; lumbosacral or cervical strain; spinal stenosis; spondylolisthesis or segmental instability; ankylosing spondylitis; spinal fusion; degenerative arthritis of the spine; and intervertebral disc syndrome). As the Board's primary disability is intervertebral disc syndrome, the Board finds that most appropriate diagnostic code at this time is Diagnostic Code 5243 for intervertebral disc syndrome. In pertinent part, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following apply: 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 warrants a 10 percent rating. 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 warrants a 20 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. 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):(See also Plate V.) 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. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, a 10 percent rating is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. Note(1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note(2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The Board notes that service connection has been established for a midline laminectomy scar rated as zero percent disabling effective June 30, 2010 and right lower extremity radiculopathy rated as 10 percent disabling effective March 23, 2017. As the Veteran has not disagreed with these determinations, the Board will not address symptoms associated with radiculopathy of the right lower extremity or laminectomy scar and will restrict its analysis to the manifestations of the Veteran's service-connected lumbar spine disability to include any other neurological symptoms other than right lower extremity radiculopathy. Thus, in order for a higher evaluation to be warranted for the Veteran's service-connected lumbar spine disability prior to March 23, 2017, the evidence must show forward thoracolumbar flexion to 60 degrees or less; a combined range of thoracolumbar motion of 120 degrees or less; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes having a total duration of at least 2 weeks during a twelve-month period. On VA examination in June 2010, the Veteran demonstrated lumbar spine forward flexion from zero to 70 degrees and extension, bilateral lateral flexion, and bilateral lateral rotation from zero to 20 degrees. Range of motion remained unchanged by pain, fatigue, weakness, lack of endurance after three repetitions. X-rays of the Veteran's lumbar spine showed degenerative joint disease and diminished disc space of L4-S1. There were no tenderness, muscle spasm, crepitus, radiation of pain, lower extremity muscle weakness, lower extremity numbness, or urinary or bowel incontinence. Muscle strength testing, reflex testing, and sensory testing were all normal. The Veteran demonstrated normal, non-antalgic gait and normal heel/toe walking. The examiner noted that the Veteran was gainfully employed as an electronic technician with no loss of work time in 2010. In his May 2011 Notice of Disagreement, the Veteran stated that the information on the VA examination was incorrect and that he had frequent weakness and numbness in his his back radiating down to both legs, mainly on down the right leg but sometimes switching over to the left leg. The Veteran also reported muscle spasms in his lower back making it difficult for him to move around. At the May 2016 Board hearing, the Veteran testified that he had random muscle spasms and that he did have pain radiating down into his leg into his knee and that the left side was worse and on occasion he had right side radiating pain. A July 2016 outpatient physical therapy evaluation noted that the Veteran had sedentary duties in a research center. Examination noted lumbar flexion 75 percent limited by pain as well as extension, side bending, and rotation 25 percent limited and painful. The provider noted that low back pain most consistent with deconditioning and inadequate core stabilization. The provider also noted negative left extremity neurological examination with negative straight leg raising. In this case, however, range of motion findings are not expressed in degrees but are expressed in percentages. If the findings are correct, flexion at that time would be flexion to 68 degrees and extension, right and left lateral flexion, and right and left lateral rotation 8 degrees. As the converted results are inconsistent with the other findings of records, the Board will not consider them in its analysis. A February 13, 2017 neurosurgery attending note indicates that the Veteran's right lower extremity pain had been most relieved (some occasional episodes of tingling) but limited by back pain for many activities (i.e., sitting, walking, etc.). The provider noted that the Veteran worked as a network/cellphone expert so he was mainly sedentary. On examination, the Veteran demonstrated diffuse tenderness across low back. Neuro showed motor 5/5 including standing on each tip toe (i.e., intact gastroc), mild right S1 sensory changes, absent right ankle reflex, gait slightly limited by back pain. A March 14, 2017 neurosurgery follow up report authored by a physician's assistant indicates that the Veteran reported to complete C&P evaluation for his service-connected spine disability. Each range of motion was performed three times per standard, forward flexion was to 70, 50, and 55 degrees; extension was to 25, 20, and 20 degrees; lateral flexion on the right and left was to 15 degrees each time; and lateral rotation on the right and left was to 30 degrees each time. Considering the evidence of record, the Board finds the manifestations of the Veteran's lumbar spine disability prior to March 23, 2017, did not approach the severity contemplated for a rating higher than 10 percent. Even considering limited motion due to pain and on repetitive testing, forward flexion was greater than 60 degrees, and the combined range of thoracolumbar motion was greater than 120 degrees. There was no objective evidence of left leg radiculopathy and no evidence documenting physician-ordered bed rest for a term consistent with a higher rating. Accordingly, entitlement to an evaluation in excess of 10 percent prior to March 23, 2017, for service-connected lumbar spine disability is not warranted. In order for a higher evaluation to be warranted for the Veteran's service-connected lumbar spine disability since March 23, 2017, the evidence must show forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least 4 weeks during a twelve-month period. On VA examination on March 23, 2017, the Veteran demonstrated forward flexion from zero to 70 degrees, extension from zero to 25 degrees, right and left lateral flexion from zero to 15 degrees, and right and left lateral rotation from zero to 30 degrees. The examiner noted that the Veteran had difficulty leaning over and lifting, pain with limitation in motion with lateral flexion and extension. The examiner noted that there was pain on forward flexion, extension, and right and left lateral flexion. There was evidence of pain with weight bearing and non-weight bearing. There was objective evidence of diffuse tenderness on palpation across low back at level of incision and also extending up to mid-thoracic area in paraspinal region. There was pain on passive motion. On repetitive testing, the Veteran demonstrated forward flexion from zero to 55 degrees, extension from zero to 20 degrees, right and left lateral flexion from zero to 15 degrees, and right and left lateral rotation from zero to 30 degrees. The examiner noted that pain significantly limited functional ability with repeated use over a period of time and with flare-ups and noted with repeated use, there was forward flexion from zero to 55 degrees, extension from zero to 20 degrees, right and left lateral flexion from zero to 15 degrees, and right and left lateral rotation from zero to 30 degrees. There was guarding resulting in abnormal gait or abnormal spinal contour. The examiner noted additional factors contributing to disability included less movement than normal due to ankylosis, adhesions, etc., disturbance of locomotion, and interference with sitting. The examiner noted that there was no ankylosis. Although the examiner noted that the Veteran had intervertebral disc syndrome, there were no incapacitating episodes in the prior twelve-month period. Muscle strength testing, reflex examination, and sensory examination were normal with respect to the left side. Straight leg raising was negative on the left. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy on the left; and the examiner indicated that the Veteran's left side was not affected by radiculopathy. The examiner noted that the Veteran's lumbar spine disability impacted his ability to work and noted, "Selection of sedentary (computer, network) work. Considering the evidence of record, the Board finds the manifestations of the Veteran's lumbar spine disability since March 23, 2017, has not approached the severity contemplated for a rating higher than 20 percent. Even considering limited motion due to pain and on repetitive testing, forward flexion was greater than 30 degrees. There has not been objective evidence of ankylosis or left leg radiculopathy, and there has been no evidence documenting physician-ordered bed rest for a term consistent with a higher rating. Accordingly, entitlement to an evaluation in excess of 20 percent for service-connected lumbar spine disability is not warranted since March 23, 2017. The Board notes that the Veteran's representative stated that in the examination, the examiner noted that the Veteran's back disability prevented his ability to work; however, this is not the case. The examiner noted that the Veteran's lumbar spine disability impacted his ability to work and noted, "Selection of sedentary (computer, network) work. VA treatment records indicate that the Veteran worked as a network/cellphone expert so he was mainly sedentary. ORDER Entitlement to an initial evaluation in excess of 10 percent prior to March 23, 2017, and in excess of 20 percent since March 23, 2017, for right L5/S1 herniated disc status post right-sided hemi laminectomy at L5/S1 is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs