Citation Nr: 1801394 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 10-07 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to increased ratings for service-connected or degenerative disc disease of the lumbar spine, evaluated as 10 percent disabling prior to February 6, 2017 and 40 percent disabling on and after February 6, 2017. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from December 1986 to July 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in April 2009 and April 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO granted a rating of 40 percent for the Veteran's low back disability in an April 2017 rating decision, effective February 6, 2017. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit had not yet been awarded, the claim remained still in controversy and on appeal. Id. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) claims file. LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. The Veteran provided testimony at a November 2014 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. Prior to February 6, 2017, the Veteran's lumbar spine disability is manifested by forward flexion to 64 degrees at its worst and a combined range of motion of 175 at its worst, but not flexion limited to less than 60 degrees, a combined range of motion not 120 degrees or less, ankylosis of the lumbar spine, or incapacitating episodes or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. 2. On and after February 6, 2017, the Veteran's lumbar spine disability is not productive of unfavorable ankylosis or incapacitating episodes. 3. The Veteran's lumbar spine degenerative disc disease is manifested by right lower extremity sciatic nerve involvement. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a lumbar spine disability prior to February 6, 2017 have not been met. 38 U.S.C. § 1155, 5103, 5107 (West 2012); 38 C.F.R. §§ 38 C.F.R. 3.159, 3.321, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5237 (2017). 2. On and after February 6, 2017, the criteria for an evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237-5243 (2017). 3. A separate evaluation for right lower extremity sciatic nerve involvement is warranted. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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 a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in November 2014. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior January 2015 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Lumbar Spine Disability The Veteran was granted service connection for his lumbar spine disability in a February 1997 rating decision and assigned an initial 10 percent rating. Thereafter, in February 2009 the Veteran filed a claim for an increased rating for his back disability and the RO denied such in an April 2009 rating decision. The Veteran perfected an appeal as to the issue. In April 2017 the RO increased the Veteran's rating for his low back to 40 percent from February 6, 2017 onward. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. 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 absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by 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. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. Although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected back disability. Falzone v. Brown, 8 Vet. App. 398 (1995). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237. The rating criteria, in pertinent part, provide a 20 percent rating is assigned 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 rating is warranted for when forward flexion of the thoracolumbar spine is limited to 30 degrees or less or when favorable ankylosis of the entire thoracolumbar spine is present. A 50 percent rating is assigned where unfavorable ankylosis of the entire thoracolumbar spine is present, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffens, or aching in the area of the spine affected by residuals of injury or disease). 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. 38 C.F.R. § 4.71a, Note (2). Associated objective neurological abnormalities, including, but no limited to, bowel or bladder impairment, are rated separate under appropriate diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (1). In a March 2012 rating decision, service connection was granted for right and left lower extremity radiculopathy. The Veteran did not appeal either the effective date or the percentage assigned to these disabilities. Thus, these disabilities and symptoms are not considered herein. Other neurological impairment, however, will be considered. Intervertebral Disc Syndrome is rated under Diagnostic Code 5243 and is evaluated under either 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 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). Under Diagnostic Code 5243, a 20 percent rating is assigned when the evidence shows incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is provided when the evidence shows incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent rating is warranted when the evidence shows incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For VA purposes, an incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Veteran received private treatment at the Las Sendas Spinal Institute. In November 2008 the Institute submitted a statement noting that the Veteran had diagnoses of lumbar strain/sprain, thoracic or lumbosacral radiculitis and segmental dysfunction of the lumbar region. In March 2009 the Veteran was afforded a VA examination. The Veteran reported that he had chronic daily pain in his lower back, and also reported incapacitating episodes four days per month. He noted no loss of bowel or bladder but stated he had radiating pain to the right leg and knee. His current treatment of such was NSAIDs as needed. The Veteran noted a history of fatigue, decreased motion, stiffness, weakness and pain. He noted his pain was in the low back and that it was a constant dull ache. He noted his pain was daily and that it radiating into the right buttocks to the right hip and thigh and that it was burning. The Veteran further reported flare ups of his spinal condition, severe in nature and occurring weekly and lasting hours. He noting that precipitating activities included being over active. The Veteran stated that he had 3-4 days of incapacitating pain per month. He was able to walk 1-3 miles. Upon examination the examiner found that the Veteran's range of motion measurements were as follows: flexion was 0 to 80 degrees, extension was 0 to 25 degrees, left lateral flexion was 0 to 20 degrees, left lateral rotation was 0 to 20 degrees, right lateral flexion and rotation were 0 to 20 degrees respectively. The Veteran's combined range of motion is 185. The Veteran had objective evidence of pain following repetitive motion and had additional limitation after repetitive range of motion, with a flexion limited to 70 degrees, which caused range of motion to be 175 degrees. There was normal reflexes and sensation of the right lower extremity with full muscle strength. IVDS was not noted and neither were incapacitating episodes due to IVDS. The Veteran was noted to have been employed at the County Police department at the time of the examination with his disability having no significant effects on his occupation. The Veteran was afforded another examination in November 2010. At that time the Veteran reported that he had pain at all times, and that the pain was aching and sharp at a level of 9/10. The pain would intermittently radiate to the lateral right hip occurring with walking or moving his right lower extremity in certain ways. The Veteran reported that he had fatigue, decreased motion, stiffness, weakness, spasm and spinal pain. He further noted that the pain was severe and constant, occurring daily. Upon examination the Veteran's range of motion measurements were: flexion 0 to 64 degrees, extension 0 to 15 degrees, left lateral flexion 0 to 20 degrees, left lateral rotation 0 to 50 degrees, right lateral flexion 0 to 25 degrees, right lateral rotation 0 to 45 degrees and with objective evidence of pain on active range of motion. The Veteran's combined range of motion was 219 degrees. There was normal reflexes and sensation of the right lower extremity with full muscle strength. The Veteran had an X-ray report from November 2010 which revealed moderate to severe degenerative disc disease with loss of disk space height and spurring. The Veteran was still employed at the Police station and noted that he was able to perform the physical requirements of the job, but that it was painful. The Veteran further noted that his movements needed to be slowed down due to his disability and that he had pain getting in and out of his car and his gun belt also aggravated his low back pain. In April 2011 the Veteran received private treatment for his low back disability at the Armstrong Chiropractic Family Center. At that time the medical professional noted that the Veteran reported moderate to severe back pain radiating throughout the lumbar spine, with intermittent, daily sharp shooting pain down the right lateral leg. This caused him to have a slow gait with mild left lateral antalgic posture. The Veteran noted that his back pain has gotten worse since his discharge. The physical examination performed at the time demonstrated normal lower extremity neurologic signs of sensory, motor and refluxes, painful and limited ranges of motion. X-ray findings showed moderate to severe reduction in intervertebral disc height at the L5/S1 level and mild degenerative changes throughout the remaining lumbar spine. Diagnosis of lumbar degenerative disc disease was identified and the treating medical professional performed 3 adjustments. A private December 2013 MRI revealed severe lumbar spondylosis and formations of the lumbar spine consistent with degenerative changes. The Veteran was also afforded treatment at the Vierra VA clinic through 2016. At such treatment sessions he reported severe back pain radiating into his right hip. In February 2017 the Veteran was afforded another VA examination. At that time the Veteran reported that he had constant pain in the lumbar spine described as a throbbing, aching and sharp pain. He noted that the pain would occur intermittently, radiate to his right lateral hip and would occur daily with certain positions and last for a few seconds to a few minutes. The Veteran reported experiencing flare ups approximately 3-4 times a week lasting approximately five minutes and if he changed positions could last up to an hour. He noted that if he sat down and stopped movement and waited for the pain to subside it usually would. The Veteran reported being able to walk 20-30 feet before he had severe pain and had to sit down. The Veteran reported working full time at the Sheriff's office but noted that getting in and out of the car and bending down was an issue. He reported not having missed any work in the past 12 months due to his lower back. Upon examination, the Veteran's range of motion measurements were: flexion 0 to 20 degrees, extension 0 to 25 degrees, right lateral flexion 0 to 10 degrees, left lateral flexion 0 to 10 degrees, right lateral rotation 0 to 30 degrees, left lateral rotation 0 to 15 degrees. Pain was noted upon examination on the lower mid back over what appeared to be the sacrum. Guarding of the spine was noted, but it did not result in abnormal gait or abnormal spinal contour. There were hypoactive ankle reflexes but normal sensation of the right lower extremity with full muscle strength. The Veteran reported radicular pain of the right lower extremity. The examiner stated that he or she was not sure if the findings were true radiculopathy, but then noted there was right lower extremity sciatic nerve involvement. Ankylosis of the spine was not noted. IVDS of the lumbar spine was reported, but with no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months. The examiner noted that there was no evidence of pain on passive range of motion, no evidence of pain when the joint was used in non weight bearing. The examiner addressed the Veteran's prior December 2013 MRI and noted that the Veteran's low back disorder impacted his ability to work. The Board finds that prior to February 6, 2017 an evaluation in excess of 10 percent for the Veteran's lumbar spine disability is not warranted. In this regard, the March 2009 and November 2010 VA examinations show forward flexion to 64 degrees at the worst and extension to 15 degrees and no ankylosis and a combined range of motion of 185 and 219. The Veteran's examinations further fail to show muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. Moreover, the Board finds that from February 6, 2017 onward an evaluation in excess of 40 percent is not warranted as the Veteran has not showed ankylosis of the spine. Considering additional functional loss throughout the period on appeal, the Veteran reported pain, stiffness, weakness, spasm, fatigue, and flare-ups. The Veteran reported increased pain upon prolonged standing, sitting, bending, lying down, and walking. But at the March 2009 VA examination, the Veteran was able to walk 1 to 3 miles and additional limitation of flexion upon use still did not meet the requirements for a higher evaluation. The March 2009 VA examiner also found normal reflexes and full muscle strength and that the disability had no significant effects on the Veteran's occupation. At the November 2010 VA examination, there were normal reflexes and full muscle strength. The Veteran was still employed at the Police station and was able to perform the physical requirements of the job, but that it was painful. At the February 2017 VA examination, the Veteran was only able to walk 20 to 30 feet before he had severe pain and had to sit down. However, the Veteran was working full time and had not missed any work in the past 12 months due to his lower back. There was still full muscle strength. There was not reduced range of motion upon use. Thus, the evidence shows functional loss that is otherwise compensated - prior to 2017, the Veteran was able to walk 1 to 3 miles and even with use, his range of motion was no significantly decreased. Flare-ups were present, but even those did not significantly affect his activities, including employment. Accordingly, even considering additional functional loss, higher evaluations are not warranted. See 38 C.F.R. § 4.40, 4.45; DeLuca, 8 Vet. App. 202; Mitchell, 25 Vet. App. 32. Although the Veteran has been diagnosed with IVDS, no higher evaluations during the appeal period are warranted under Diagnostic Code 5243 because the Veteran has not reported, and the evidence does not support, that there has been physician-ordered bed rest due to incapacitating episodes. Note (1) under the General Rating Formula for Diseases and Injuries of the Spine directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Here, the Veteran has consistently denied bowel or bladder symptoms. Thus, no separate ratings on this basis are for assignment. The Veteran, however, has consistently reported pain radiating to his right lower extremity. Additionally, the February 2017, resolving all doubt in favor of the Veteran, found objective manifestations of sciatic nerve involvement. Accordingly, the Board finds that a separate rating right lower extremity sciatic nerve involvement is warranted. Furthermore, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In light of the above, the claim for a higher rating for the Veteran's lumbar spine disability must be denied. In reaching this decision, the Board finds that the preponderance of the evidence is against the claim, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Prior to February 6, 2017, an evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine is denied. On and after February 6, 2017, an evaluation in excess of 40 percent for degenerative disease of the lumbar spine is denied. Entitlement to a separate rating for right lower extremity sciatic nerve involvement is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs