Citation Nr: 1802193 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-23 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for radiculopathy of the right lower extremity. 2. Entitlement to service connection for radiculopathy of the left lower extremity. 3. Entitlement to a compensable disability rating for a low back disorder. 4. Entitlement to a compensable disability rating for a skin disorder. 5. Entitlement to a compensable disability rating for a neurological disorder of the upper left back. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1992 to June 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The issue of entitlement to a compensable disability rating for a neurological disorder of the upper left back 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 that is proximately due to his previously service-connected low back disorder. 2. The Veteran has manifested radiculopathy of the left lower extremity that is proximately due to his previously service-connected low back disorder. 3. The Veteran's back disability resulted in forward flexion functionally limited to less than 30 degrees, but ankylosis has not been shown or alleged. 4. The Veteran's skin disorder requires the use of systemic therapy for more than six weeks, but the Veteran's skin disorder did not manifest on more than 40 percent of his entire body, did not manifest on more than 40 percent of his exposed areas, and did not require constant or near constant systemic therapy over the past 12 months. 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, 3.310 (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, 3.310 (2017). 3. The criteria for a disability rating of 40 percent for a low back disorder have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). 4. The criteria for a disability rating of 30 percent for a skin disorder have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7822 (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. Additionally, 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, and neither the Veteran nor his representative has 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). 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 Bilateral Lower Extremities As discussed in more detail below, the Veteran contends that he is entitled to a compensable disability rating for a low back disability. Low back disabilities are evaluated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine indicates that objective neurologic abnormalities associated with diseases of the spine are required to be evaluated separately under appropriate Diagnostic Codes. Id. at Note (1). The Veteran submitted a disability benefits questionnaire completed by a private physician indicating that he had radiculopathy of the bilateral lower extremities due to his low back disorder. As such, the issue of entitlement to service connection for radiculopathy of the bilateral lower extremities is raised by the record, and the weight of the evidence of record indicates that the Veteran has a diagnosis of radiculopathy of the bilateral lower extremities that is proximately due to his previously service-connected low back disorder. As such, entitlement to service connection for radiculopathy of the bilateral lower extremities is granted. 38 C.F.R. § 3.310. Increased Rating At issue is whether the Veteran is entitled to an increased disability rating for multiple previous service-connected disabilities. 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. Back At issue is whether the Veteran is entitled to a compensable disability rating for a lumbar spine disability. The weight of the evidence indicates that the Veteran is entitled to a disability rating of 40 percent, but no higher. The Veteran first filed for service connection for his back in January 2012, and, in September 2012, the RO granted service connection and assigned a noncompensable disability rating effective the date the claim was received. The Veteran appealed his rating. 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 General Rating Formula for Diseases and Injuries of the Spine, a disability rating of 40 percent is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The Veteran submitted two disability benefit questionnaires in May 2014 and August 2017 completed by a private physician which indicated that the Veteran's forward flexion was less than 30 degrees. As such, the Veteran is entitled to a 40 percent rating. The Formula for Rating IVDS Based on Incapacitating Episodes is not raised by the record. The only disability rating in excess of 40 percent provided by the Formula for Rating IVDS Based on Incapacitating Episodes is a disability rating of 60 percent when the Veteran manifests incapacitating episodes lasting at least six weeks in the last twelve months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. The Veteran was provided a VA examination and submitted disability questionnaires completed by a private physician. The results of this evidence indicates that the Veteran either did not manifest incapacitating episodes due to IVDS or did manifest incapacitating episodes lasting less than six weeks in a twelve month period. Additionally, the medical evidence of record does not contain memorializations of physician prescribed bed rest lasting at least six weeks in a 12 month period. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). As previously noted under the General Rating Formula for Diseases and Injuries of the Spine, a disability rating of 40 percent is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less or there is 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. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Neither a 50 percent disability rating nor a total disability rating are raised by the record, because the Veteran's VA examination and disability benefit questionnaires did not suggest the presence of ankylosis in the Veteran's lumbar spine. Furthermore, the Veteran has not claimed, in any of his written statements, nor do any of his private or VA treatment records indicate that he has lost all motion in his spine. Therefore, there is no adequate basis to assign a disability rating of 50 percent or a total disability rating as ankylosis of the lumbar spine. Generally, 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). However, where, as in this case, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Here, the Veteran has been in receipt of a 40 percent rating for his low back disability since the day after he separated from service. Forty percent is the highest schedular rating available based on limitation of motion. As previously discussed, the schedular rating criteria require the rating of associated neurologic symptoms in addition to the orthopedic limitations from a spinal disability. Here, the Veteran has been granted service connection for radiculopathy of the bilateral lower extremities, and the Board shall not discuss it any further, because the RO has not had an opportunity to assign an initial disability rating for the Veteran's radiculopathy. To the extent that the Veteran objects to the initial disability rating, he should appeal the decision. Skin At issue is whether the Veteran is entitled to a compensable disability rating for a skin disability. The weight of the evidence indicates that the Veteran is entitled to a disability rating of 30 percent, but not higher. The Veteran first filed for service connection in January 2012, and, in September 2012, the RO granted service connection and assigned a noncompensable disability rating effective the date the claim was received. The Veteran appealed his disability rating. The Veteran's disability rating for his skin disorder is evaluated pursuant to Diagnostic Code 7822. Under Diagnostic Code 7822, a noncompensable disability rating is assigned for skin disorders that manifest on less than five percent of the entire body or exposed areas and that only require topical therapy required during the past 12 month period. A disability rating of 10 percent is assigned for skin disorders that manifest at least five percent of but less than 20 percent of the entire body or exposed areas or require systemic or light intensive therapy for a total duration of less than six weeks during a 12 month period. A disability rating of 30 percent is assigned for skin disorders that manifest from 20 percent to 40 percent of the entire body or exposed area or require systemic or light intensive therapy for more than six weeks in a 12 month period. Finally, a disability rating of 60 percent is assigned for skin disorders that manifest on more than 40 percent of the body or exposed areas of the body and require constant or near constant systemic or light intensive therapy. 38 C.F.R. § 4.118, Diagnostic Code 7822 (emphasis added). The Veteran's treatment records indicate that the Veteran manifested a skin disorder throughout the period on appeal. The Veteran underwent a VA examination in February 2012. The examiner indicated that the Veteran had a skin condition which was treated with topical medications, but that his skin disorder did not require systemic or light intensive treatment. Nevertheless, the examiner indicated that the Veteran was treated with oral and topical antibiotics. The examiner also indicated that the Veteran skin condition impacted less than five percent of the Veteran's total body area and total exposed area. In May 2014, the Veteran submitted a medical opinion written by a private physician. The physician indicated that the Veteran had been prescribed constant or near constant antibiotics in order to treat his skin disorder, and that his skin disorder should be considered systemic therapy. The Veteran submitted another medical opinion from a private physician, drafted in August 2017, indicating that the Veteran had been prescribed constant or near constant antibiotics in order to treat his skin disorder, and that his skin disorder should be considered systemic therapy. At his Board hearing in August 2017, the Veteran reported having been prescribed antibiotics to treat his skin disorder, and he asserted that these antibiotics should be considered constant or near constant systemic therapy for the condition. The weight of the evidence indicates that the Veteran has been prescribed antibiotics for more than six months in a twelve month period in order to treat his skin disorder. The February 2012 VA examiner obviously did not consider this treatment to be systemic therapy. Nevertheless, the Veteran has submitted two medical opinions from competent medical professionals explaining why the prescription antibiotics were systemic therapy. The Board finds this evidence highly probative and assigns it great weight. Accordingly, the Veteran is entitled to 30 percent rating for his service connected skin condition based on the need for systemic therapy for more than six weeks in a 12 month period. The Veteran is not entitled to a disability rating in excess of 30 percent. The rating criteria for a disability rating in excess of 30 percent requires that the skin disorder require constant or near constant systemic therapy and to manifest more than 40 percent of either total body area or exposed body area. As discussed above, the Veteran's skin disorder requires constant or near constant systemic therapy. In February 2012 however, a VA examiner indicated that the Veteran's skin disorder manifested less five percent of the total body area and less than five percent of the total exposed area. Additionally, the medical evidence of record does not otherwise establish that the Veteran's skin disorder manifests over 40 percent of his total body area or exposed body area. As such, a disability rating in excess of 30 percent for a skin disorder is denied. 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 of 40 percent for a lumbar spine disability is granted; subject to the laws and regulations governing the payment of VA monetary benefits. A disability rating of 30 percent for a skin disorder is granted; subject to the laws and regulations governing the payment of VA monetary benefits. REMAND The Veteran contends that he is entitled to a compensable disability rating for a neurological disorder of the upper left back. The Veteran was provided a VA examination in February 2012. The examiner specifically identified the symptoms associated with the Veteran's neurological disorder; including recurrent paresthesia of the upper left back. Nevertheless, the examiner did not evaluate the severity of these identified symptoms as complete paralysis or mild, moderate, or severe incomplete paralysis. Such characterizations of the Veteran's symptoms are not dispositive of the Board's conclusions, but they are ultimately the material facts that the Board must consider in evaluating the severity of the Veteran's skin disorder. Once VA undertakes to provide the Veteran with an examination it must provide the Veteran with an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such this matter must be remanded in order to evaluate the severity of the Veteran's neurological disorder. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an examination in order to evaluate the severity of his neurological disorder of the upper left back and to characterize any identified symptoms as mild, moderate, or severe incomplete paralysis or complete paralysis; and explain why. 2. Then, readjudicate the claim on appeal. If the benefits sought are 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