Citation Nr: 1801687 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-25 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection radiculopathy of the lower right extremity. 2. Entitlement to service connection for radiculopathy of the lower left extremity. 3. Entitlement to a disability rating in excess of 20 percent for a low back disability. 4. Entitlement to a disability rating in excess of 10 percent for a right knee disability. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1983 to November 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issue of entitlement to a disability rating in excess of 10 percent for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has manifested radiculopathy of the right lower extremity which is proximately due his previously service-connected low back disability. 2. The Veteran has manifested radiculopathy of the left lower extremity which is proximately due his previously service-connected low back disability. 3. The Veteran's back disability has not manifested ankylosis of the spine, a forward flexion of 30 degrees or less, or incapacitating episodes having a total duration of four weeks or more. CONCLUSIONS OF LAW 1. The criteria for service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 2. The criteria for service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). 3. The criteria for a disability rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, 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 treatment records, VA treatment records, and private treatment records have been obtained. The Veteran testified at a personal hearing before the Board, and a transcript of the hearing is of record. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes. The Board notes that the Veteran objected to the adequacy of a VA examination conducted in May 2012, because: his disability had increased in severity; he was under the influence of prescribed pain medication at the time of the examination; the examiner allegedly did not take into consideration treatment records presented by the Veteran; and that the examination was not conducted by a physician. The Board understands the Veteran's frustration, and endeavored to explain the purpose of the VA examination to the Veteran at his Board hearing. Moreover, the rating criteria for back disabilities was explained to the Veteran at the hearing to explain how back disabilities worked. As noted, examiners do not necessarily have to review all of the Veteran's treatment records, particularly in an increased rating claim, where it would not change objective and dispositive findings made during a medical examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Here, the Veteran has not alleged or demonstrated how reviewing additional medical records would change the results of range of motion testing or other objective findings of a VA examination, and he was invited to submit any private treatment records he might have. Finally, the examinations of record were conducted by a nurse practitioner who have been previously found to be qualified to provide medical evidence. Cox v. Nicholson, 20 Vet. App. 563 (2007). Additionally, the Veteran was provided an additional VA examination in July 2017 which would have measured the increased severity of his low back disability. The Board notes that a supplemental statement of the case (SSOC) was not issued following the provision of this examination, but one was not necessary as the Veteran expressly waived Agency of Original Jurisdiction (AOJ) review of any evidence submitted subsequent to his hearing. 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). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Radiculopathy of the Right Lower Extremity The Veteran underwent a VA examination in July 2017. During the examination, the Veteran was diagnosed with radiculopathy of the bilateral lower extremities associated with his low back disability. As such, the Veteran is entitled to service connection for radiculopathy of the bilateral lower extremity. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Low Back Disability At issue is whether the Veteran is entitled to a disability rating in excess of 20 percent for a low back disability. Unfortunately, the criteria for a disability rating in excess of 20 percent have not been met. The Veteran first filed for service connection in December 1995, and, in April 1996, the RO granted service connection and assigned a disability rating of 10 percent. The Veteran's disability rating was subsequently increased to 20 percent. In March 2012, the Veteran filed an increased rating claim, and, in June 2012, the RO denied the Veteran's increased rating claim. The Veteran appealed. 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.A. § 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 appellant 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. The regulations provide that back disabilities are 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. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a disability rating of 20 percent is assigned when a low back disability manifests in incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, and a disability rating of 40 percent is assigned when a low back disability manifests in incapacitating episodes having a total duration of four weeks but less than six weeks during the past 12 months. Finally, a disability rating of 60 percent is assigned when a low back disability manifests in incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Incapacitating episodes require physician prescribed bedrest. Id. at Note (1). Under the General Rating Formula for Diseases and Injuries of the Spine, a disability rating of 20 percent is assigned when the Veteran's back disability manifests in the following ways: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine is 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 disability rating of 40 percent is when the Veteran's back disability manifests in: forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A disability rating of 50 percent is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine, and a total disability rating is assigned when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 3.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis of the spine has not been raised by the record, because the Veteran has undergone multiple VA examinations which indicate that he does not have spinal ankylosis, and the Veteran's treatment records do not contain a diagnosis of ankylosis or reports of or treatment for periods of a permanent total loss of range of motion of the thoracolumbar spine or the entire spine. Therefore, the record does not contain an adequate basis to assign the Veteran with a disability rating of 50 percent or a total disability rating. As such, the Board shall only consider assigning a disability rating of 40 percent based on criteria other than ankylosis of the thoracolumbar spine. The Veteran's treatment records indicate that the he has experienced back symptoms throughout the period on appeal including pain and limited range of motion. The Veteran underwent a VA examination in May 2012 at which he reported that approximately once per month his back condition would flare-up. The Veteran's forward flexion was measured to 80 degrees. The examiner did not observe objective evidence of pain upon motion, and the Veteran was able to perform three repetitions of range of motion testing without additional loss of range of motion. The examiner indicated that the Veteran did not manifest additional functional loss or impairment of the back. The examiner indicated that the Veteran's back manifested IVDS with incapacitating episodes of a total duration of at least one weak but less than two weeks over the last 12 months. The examiner indicated that the Veteran's low back disability limited his ability to work. In a June 2014 addendum to the examination, the examiner indicated that he could not estimate the level of additional functional loss without resorting to mere speculation. The Board notes that in a June 2014 VA Form 9, the Veteran alleged that repetitive range of motion testing was not performed, but the Veteran conceded that his forward flexion was measured at least once. A September 2012 VA treatment record indicates that the Veteran demonstrated forward flexion to approximately 100 degrees. An April 2013 VA treatment record indicates that the Veteran demonstrated forward flexion to 90 degrees. At a Board hearing in November 2016, the Veteran reported that his back had gotten worse since his most recent VA examination. The Veteran reported experiencing constant pain seven days per week, and he indicated that after completing a day of work his pain would be severe enough that he would have to lay down. The Veteran also indicated that his range of motion would be constantly reduced throughout the course of the day. Finally, the Veteran indicated that he was unable to bend over to pick a penny off the floor. See Transcript. The Veteran underwent another VA examination in July 2017 at which he reported daily back pain that he treated with regular use of an inversion table. The Veteran claimed flare-ups impacted his range of motion. The Veteran's forward flexion was measured to 85 degrees. The Veteran indicated that there was evidence of pain with weight bearing, and that pain caused additional functional loss; because the Veteran cannot bend over to pick objects of the floor or fully reach his sides. The Veteran was able to perform repetitive range of motion testing without additional loss of range of motion. The examiner indicated that the examination was consistent with the Veteran's reports of functional loss with repetitive use over time. The examiner indicated that pain, fatigue, weakness, and lack of endurance leads to additional functional loss. The examiner indicated that the Veteran did not manifest incapacitating episodes due to IVDS that required bedrest prescribed by a physician and treatment by a physician in the past 12 months. The examiner indicated that the Veteran's back prevents physical occupations but does not preclude sedentary employment. The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 20 percent for a back disability. In order to meet the criteria for a disability rating in excess of 20 percent, the Veteran's forward flexion must be functionally limited to 30 degrees or less, ankylosis of the spine must be present, or incapacitating episodes of IVDS requiring prescribed bed rest for at least four weeks must be shown. As previously noted, ankylosis of the spine is not raised by the record. Additionally, the Veteran's flexion was repeatedly measured throughout the period on appeal, and the Veteran's flexion was never measured to anywhere even approaching 30 degrees or less. Finally, the evidence does not establish that the Veteran manifested incapacitating episodes characterized by physician prescribed bedrest of a total duration of at least four weeks during any 12 month period during the period on appeal. As such, the criteria for a disability rating in excess of 20 percent have not been met. 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 however, 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 Veteran is clearly manifesting additional functional loss due to pain, fatigue, weakness, and lack of endurance. Namely the Veteran is claiming that over the course of the day he manifests additional loss of range of motion, and that he cannot bend over to pick a penny or other objects off the floor. Nevertheless, the issue is ultimately whether the Veteran's additional functional loss is so severe as to functionally limit the Veteran's flexion to 30 degrees or less. The Veteran's inability to bend over to pick a penny up off a floor essentially indicates that the Veteran's flexion is limited to less than 90 degrees. 38 C.F.R. § 4.71a, Plate V. However, 90 degrees is well in excess of the range of motion required for a disability rating in excess of 20 percent. Additionally, the Veteran's range of motion measurements were already measured as being less than 90 degrees anyway. Regarding the Veteran's contentions that his range of motion was increasingly limited throughout the course of the day, the Board finds that the evidence of record is not sufficient to warrant an increased disability rating either. First it is unclear from the Veteran's reports to what extent his range of motion is additionally functionally limited. Nevertheless, even if one is generous enough to assume that the Veteran's forward flexion (ranging from 80 degrees to 100 degrees throughout the period on appeal) is functionally reduced by half, then the Veteran's range of motion is still in excess of criteria for a disability rating of 40 percent. Therefore, the Veteran is not entitled to a disability rating in excess of 20 percent even after taking the Veteran's additional functional loss into consideration. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran meets the criteria for a disability rating in excess of 20 percent. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to disability rating in excess of 20 percent for a low back disorder is denied. TDIU The Board has considered whether the issue of entitlement to a total disability rating due to individual unemployability (TDIU) has been raised by the record, and the Board finds that it has not. Rice v. Shinseki, 22 Vet. App. 447 (2009). The medical evidence of record does not establish that the Veteran's back prevents the Veteran from securing and maintaining substantially gainful employment. The Veteran's representative indicated at the Veteran's Board hearing that the Veteran is employed and was not attempting to infer a claim for TDIU. See Transcript, pp. 6 & 10. ORDER Service connection for radiculopathy of the right lower extremity is granted. Service connection for radiculopathy of the left lower extremity is granted. A disability rating in excess of 20 percent for a low back disability is denied. REMAND The Veteran contends that he is entitled to a disability rating in excess of 10 percent for a right knee disability. He testified that his right knee disability had increased in severity since his most recent VA examination. See Transcript, p. 12. This is sufficient to trigger VA's duty to assist, and this matter must be remanded in order to provide the Veteran with an additional VA examination. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA examination to determine the current severity of his right knee disability. 2. Then, readjudicate the claim on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs