Citation Nr: 1801437 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-15 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating for lumbar spine herniated nucleated pulposus L4-5, status post-surgery with degenerative disc disease, degenerative joint disease L4-5 and L5-S1, and intervertebral disc syndrome, in excess of 10 percent prior to December 9, 2015, and from February 1, 2016, to prior to June 29, 2017, and in excess of 20 percent thereafter. 2. Entitlement to an initial rating for radiculopathy of the right lower extremity associated with lumbar spine herniated nucleated pulposus L4-5, status post-surgery with degenerative disc disease, degenerative joint disease L4-5 and L5-S1, and intervertebral disc syndrome, in excess of 10 percent prior to June 29, 2017, and in excess of 20 percent thereafter. 3. Entitlement to an initial rating for radiculopathy of the left lower extremity associated with lumbar spine herniated nucleated pulposus L4-5, status post-surgery with degenerative disc disease, degenerative joint disease L4-5 and L5-S1, and intervertebral disc syndrome, in excess of 10 percent. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1980. He had additional service in the United States Air Force Reserve, including periods of active service from August 16, 1990, to August 25, 1990, from September 26, 1990, to October 3, 1990, and from November 4, 1990, to November 9, 1990. This case initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the Veteran's appeal, the RO increased the Veteran's rating for his lumbar spine, assigned separate ratings for bilateral radiculopathy, and a temporary total rating under 38 C.F.R. § 4.30. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Inasmuch as radiculopathy is a neurological manifestation of a spine disability, it is included with the increased rating claim for a thoracolumbar spine disorder. In his May 2012 substantive appeal, the Veteran requested a hearing at the RO. In August 2015, the RO notified the Veteran that he had been scheduled for a hearing in September 2015. Thereafter, in September 2015, the Veteran withdrew his hearing request. Accordingly, the Board finds that his hearing request has been withdrawn. See 38 C.F.R. § 20.704(d), (e). In December 2015 and March 2017, the Board remanded the case for additional development. The case is now ready for adjudication. FINDINGS OF FACT 1. Prior to December 9, 2015, and from February 1, 2016, to prior to June 29, 2017, the Veteran exhibited forward flexion greater than 60 degrees, and a combined range of motion greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour had not been shown. 2. From June 29, 2017, onwards, the Veteran exhibited forward flexion greater than 30 degrees, but less than 60 degrees; ankylosis has not been shown. 3. Prior to June 29, 2017, the Veteran's radiculopathy of the right lower extremity was characterized by mild symptoms. 4. From June 29, 2017, onwards, the Veteran's radiculopathy of the right lower extremity has been characterized by moderate symptoms. 5. The Veteran's radiculopathy of the left lower extremity has been characterized by mild symptoms. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to December 9, 2015, and from February 1, 2016, to prior to June 29, 2017, and in excess of 20 percent thereafter, for lumbar spine herniated nucleated pulposus L4-5, status post-surgery with degenerative disc disease, degenerative joint disease L4-5 and L5-S1, and intervertebral disc syndrome, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243 (2017). 2. The criteria for a rating in excess of 10 percent prior to June 29, 2017, and in excess of 20 percent thereafter, for radiculopathy of the right lower extremity associated with lumbar spine herniated nucleated pulposus L4-5, status post-surgery with degenerative disc disease, degenerative joint disease L4-5 and L5-S1, and intervertebral disc syndrome, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, DC 8520 (2017). 3. The criteria for a rating in excess of 10 percent for radiculopathy of the left lower extremity associated with lumbar spine herniated nucleated pulposus L4-5, status post-surgery with degenerative disc disease, degenerative joint disease L4-5 and L5-S1, and intervertebral disc syndrome, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records as well as VA examinations are associated with the claims file. The Veteran nor his representative have notified VA of any outstanding records. This appeal was remanded by the Board in March 2017 in order for the Veteran to undergo a VA examination to evaluate his lumbar spine disorder and accompanying radiculopathy. See 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). In July 2017, the Veteran underwent a VA examination that fully measured his range of motion and his functional limitations. Thus, the Board is now satisfied there has been substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board acknowledges that in an August 2017 statement, the Veteran requested an additional VA examination as he believes that the current description of the severity of his back condition during the July 2017 VA examination was inadequate. However, after reviewing the examination, the Board finds that there are no deficiencies that would warrant another VA examination. The examiner reviewed the claims file, recorded the Veteran's complaints, and performed the proper testing. Additionally, the Board notes that the Veteran himself has not specifically asserted why the examination is inadequate. Therefore, VA has met its duty to assist with respect to obtaining pertinent evidence. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 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 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 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 (2017); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. 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 as 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 nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2017). The Veteran has appealed the initial rating of his lumbar spine disability. During the course of the appeal, the Veteran received both an increased rating as well as a temporary total for surgery. He is assigned a 10 percent rating prior to December 9, 2015, a total rating from that date until February 1, 2016, a 10 percent rating from February 1, 2016, to prior to June 29, 2017; and a 20 percent rating thereafter. See 38 C.F.R. § 4.71a, DC 5243 (intervertebral disc syndrome). As noted in DC 5243, the rating formula for spine disabilities and IVDS that results in the higher evaluation should be the one utilized. As the evidence indicates the absence of any incapacitating episodes that would warrant a compensable rating for IVDS, the Board will evaluate the Veteran's disorder under the General Rating Formula for Diseases and Injuries of the Spine. Under 38 C.F.R. § 4.71a, DC 5243, the next-higher 20 percent evaluation is warranted when the evidence shows: * Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; * Combined range of motion of the thoracolumbar spine not greater than 120 degrees; * Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. By comparison, a 40 percent rating is warranted when the evidence shows: * Forward flexion of the thoracolumbar spine to 30 degrees or less; or * Favorable ankylosis of the entire thoracolumbar spine; 38 C.F.R. § 4.71a, DC 5243 (2017). Ankylosis is the "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Note (1) to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes defines an "incapacitating episode" 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." See 38 C.F.R. § 4.71a. Initially, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent prior to December 9, 2015, and from February 1, 2016, to prior to June 29, 2017. During the Veteran's August 2010 VA examination, he complained of pain that ranged from dull pain to shooting pain. He reported persistent stiffness, weakness, and fatigability, but was still able to walk an unlimited distance. He possessed normal posture and gait with no gross scoliosis nor exaggerated kyphosis or lordosis. The examiner remarked that the Veteran's range of motion was limited by pain and that he exhibited 65 degrees of forward flexion along with 205 degrees of combined motion of the thoracolumbar spine. The Veteran underwent an additional VA examination in March 2016. As it had been less than 90 days since his December 2015 back surgery, range of motion testing was not appropriate at that time. The Veteran described a limited range of motion with intermittent dull pain at his surgical site. His major symptom was radiculopathy of the right leg, which will be addressed separately. Otherwise, he did not have guarding or muscle spasm of the spine. As a result of the Veteran's limited forward flexion and combined range of motion after taking into account his painful motion, the Board determines that no more than a 10 percent rating is warranted. To obtain a 20 percent rating, the Veteran would have to demonstrate a more limited forward flexion or combined range of motion. Alternatively, he could demonstrate muscle spasms or guarding severe enough to result in an abnormal gait or spinal contour. However, these criteria were not met prior to December 9, 2015, and from February 1, 2016, to prior to June 29, 2017. Next, the Board finds that a rating in excess of 20 percent is not warranted from June 29, 2017, onwards. During a June 2017 VA examination, the examiner noted that the Veteran's diagnosis has evolved to include IVDS. The Veteran complained of back spasms and flare-ups that included severe low back spasms. He suffered from functional loss in the form of stiffness and lack of mobility of lower spine. There was no evidence of pain upon weight bearing. Repetitive testing did not change his range of motion. After taking into consideration pain, he exhibited forward flexion of 45 degrees and a combined range of motion of 95 degrees. Both measurements represent a noticeable decrease in range of motion since his initial VA examination. There was also interference with sitting. As a result of the Veteran's limited forward flexion and combined range of motion after taking into account his painful motion during these time periods, the Board determines that no more than a 20 percent rating is warranted. To obtain a higher rating, the Veteran would have to demonstrate ankylosis or forward flexion of less than 30 degrees. However, none of the examiners found that the Veteran has ankylosis. Additionally, the Veteran's range of motion measurements has already taken into account his painful motion. As a result, a higher rating is unwarranted. Neurological Abnormalities When evaluating the extent of a Veteran's spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a), Note 1. In this instance, the Veteran is currently assigned a rating for right lower extremity radiculopathy of 10 percent prior to June 29, 2017, and 20 percent thereafter. He is also assigned a rating for left lower extremity radiculopathy of 10 percent since January 27, 2016. The Veteran is rated under 38 C.F.R. §§ 4.124a, DC 8520 (addressing paralysis of the sciatic nerve). Under this diagnostic code, the ratings are as follows: * A 10 percent rating is appropriate when there is incomplete paralysis of the sciatic nerve which is "mild" in nature; * A 20 percent rating is appropriate when there is incomplete paralysis of the sciatic nerve which is "moderate" in nature; * A 40 percent rating is appropriate when there is incomplete paralysis of the sciatic nerve which is "moderately severe" in nature. * A 60 percent rating is appropriate when there is incomplete paralysis of the sciatic nerve which is "severe, with marked muscular atrophy;" and * An 80 percent rating is appropriate when there is complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost." 38 C.F.R. §§ 4.124a, DC 8520. Initially, the Board finds that the Veteran is not entitled to a rating for right lower extremity radiculopathy in excess of 10 percent prior to June 29, 2017. During the Veteran's initial VA examination in August 2010, the Veteran was diagnosed with radiculopathy that was located in the middle right low back that radiated down his right leg to his toes. Flare-ups, which occurred twice weekly, led the Veteran's normal dull aching to turn into shooting pain that curled his toes. He also suffered from mild paresthesias/dysesthesia that comes and goes once or twice weekly with intensive physical activity. During a March 2016 VA examination, less than 90 days after spinal surgery, the Veteran described radiating pain down his right leg. The pain comes and goes approximately 2 to 3 times per day. It lasts for a few seconds and is treated by getting off of his feet. He also reported numbness in the anterior thigh with sharp leg pain. The examiner concluded and the Board has determined that the described symptoms can be considered mild. In making this determination, the Board cites the fact that he exhibited normal strength and normal sensation to light touch. Also, there was a rarity of flare-ups as well as the existence of paresthesias/dysesthesia. Next, the Board finds that the Veteran is not entitled to a rating for radiculopathy of his right lower extremity in excess of 20 percent from June 29, 2017, onward. Although the Veteran showed a clear worsening, his symptoms are rightly characterized as moderate symptoms. The Veteran reported back spasms with radiating pain down his right leg into his right foot and toes. He had moderate intermittent pain and paresthesias/dysesthesia as well as numbness. His right ankle was hypoactive. Nevertheless, his sensory examination was completely normal. He had normal muscle strength with no muscle atrophy. The examiner concluded and the Board agrees that the described symptoms can be considered moderate. With regards to the left lower extremity radiculopathy, the Board has determined that a rating in excess of 10 percent is not warranted. During the Veteran's March 2016 VA examination, he described only occasional nerve pain in the left leg akin to a wasp sting. His left leg radiculopathy occurred several times per day, but was momentary. At his June 2017 VA examination, he exhibited normal muscle strength with no muscle atrophy. During both his March 2016 and June 2017 VA examinations, the examiners determined that the Veteran's left lower extremity radiculopathy was so minor that they both considered him to have no lower extremity radiculopathy on his left side. The Board agrees and continues the Veteran's 10 percent rating for left lower extremity radiculopathy. When considering these ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, the VA examiners took into account the functional limitations such as the Veteran's limited ability to move. The additional functional loss caused by the pain is taken into account for his range of motion measurements. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). In fact, it was the measurement of his painful motion during his June 2017 VA examination that led the Board to assign him a 20 percent rating. Put another way, while the Veteran has complained of pain and numbness, these complaints are adequately contemplated in the ratings he currently receives. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. ORDER A rating in excess of 10 percent prior to December 9, 2015, and from February 1, 2016, to prior to June 29, 2017, and in excess of 20 percent, thereafter, for lumbar spine herniated nucleated pulposus L4-5, status post-surgery with degenerative disc disease, degenerative joint disease L4-5 and L5-S1, and intervertebral disc syndrome, is denied. A rating in excess of 10 percent prior to June 29, 2017; and a rating in excess of 20 percent thereafter, for radiculopathy of the right lower extremity associated with lumbar spine herniated nucleated pulposus L4-5, status post-surgery with degenerative disc disease, degenerative joint disease L4-5 and L5-S1, and intervertebral disc syndrome, is denied. A rating in excess of 10 percent for radiculopathy of the left lower extremity associated with lumbar spine herniated nucleated pulposus L4-5, status post-surgery with degenerative disc disease, degenerative joint disease L4-5 and L5-S1, and intervertebral disc syndrome, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs