Citation Nr: 1803011 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 09-26 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a compensable rating for mechanical low back pain. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to October 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2014, when it was remanded for further evidentiary development. The record reflects the Veteran has filed a VA Form 9, Substantive Appeal, on matters seeking a rating in excess of 50 percent for mood disorder, entitlement to an effective date prior to March 21, 2012 for the assignment of a 50 percent rating for mood disorder, and entitlement to service connection for posttraumatic stress disorder, a disability manifested by short-term memory loss, type II diabetes mellitus, carpal tunnel syndrome of the bilateral upper extremities, and loss of teeth. The record reflects the Agency of Original Jurisdiction (AOJ) is still taking action on these claims. Therefore, they are not currently before the Board and will not be addressed further in this decision. FINDINGS OF FACT 1. During the appellate period, the Veteran's mechanical low back pain was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, but not favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes with a total duration of at least four weeks, but less than six weeks, in a twelve month period. 2. The Veteran's mechanical low back pain has contributed to moderate incomplete paralysis of the sciatic nerve in the left and right lower extremities. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no higher, for a lumbosacral spine disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate rating of 20 percent for moderate incomplete paralysis of the sciatic nerve in the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, DC 8520. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate rating of 20 percent for moderate incomplete paralysis of the sciatic nerve in the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his attorney 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). Legal Criteria and Analysis The Veteran seeks a compensable rating for mechanical low back pain. Disability evaluations are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'' as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran's service-connected mechanical low back pain is rated as noncompensable under DC 5237. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted where there is 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 is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, the following ratings will apply: A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 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 20 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. Note (1) provides that for purposes of evaluating 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. The Veteran filed his claim for a compensable rating for mechanical low back pain in February 2005. Private treatment records from 2004 reflect intermittent lumbar back pain, which increased with activity. The Veteran also reported chronic right lower extremity pain. An MRI in May 2004 reflected a diagnosis of radiculopathy in the left lower extremity and mild generalized peripheral polyneuropathy in the right lower extremity. A March 2005 VA examination report indicates that the Veteran reported back pain at a level five, which increased to a level ten with activity. The Veteran indicated that he must rest and lie down for the pain to be manageable; he also noted he was not prescribed bed rest by a physician in the last twelve months. The Veteran reported he could walk a block, had no difficulty with daily activity, and did not require a device to help him ambulate. He had been wearing an elastic low back support. He reported recently beginning to experience pain down the left leg to the knee and indicated that he had previously been experiencing such pain in the right leg. On physical examination, the spine had flexion of 0 to 40 degrees, extension of 0 to 20 degrees, left and right lateral flexion of 0 to 10 degrees, left and right lateral rotation of 0 to 10 degrees. There was increased pain with flexion and extension upon repeated testing. Objective evidence indicated moderate weakness, fatigability, and lack of endurance with repeated use. There was spasm on the left lumbar area on palpation. The examiner noted that the Veteran had pain radiating down the right leg to the calf with a major functional component of back pain. A March 2005 X-ray report indicated early degenerative disc changes at L3-4 with mild depression of the superior and inferior endplates at all levels. Some sclerosis of the endplates at L3-4 with minor anterior spur at L4 and normal sacroiliac joints. A June 2006 VA examination report indicates the Veteran reported moderate, constant leg or foot weakness, erectile dysfunction, numbness and paresthesias. He did not have any urinary incontinence, urinary frequency, urinary urgency, or fecal incontinence. He reported having moderate flare-ups weekly lasting two to three days, aggravated by sitting, bending, and twisting. The Veteran endorsed a moderate decrease in motion, moderate fatigue, moderate weakness of the legs, moderate spasming of the low back, and moderate daily pain in the low back which radiated to the right foot and left calf and was aching, burning, lancinating, sharp, shock-like, shooting, and stabbing. The Veteran did not endorse any incapacitating episodes which required bed rest prescribed by a doctor. The Veteran reported use of a brace and was unable to walk more than a few yards. On physical examination, the spine had active and passive motion as follows: flexion of 0 to 40 degrees, extension of 0 to 10 degrees, left and right lateral flexion of 0 to 10 degrees, and left and right lateral rotation of 0 to 20 degrees. There was objective evidence of pain on active and passive range of motion testing. The VA examination report indicated the examiner tested additional limitation of range of motion following three repetitions with pain causing loss of 10 degrees of motion on flexion. There was no evidence of ankylosis. There was objective evidence of mild atrophy of the lumbar sacrospinalis bilaterally, and moderate spasm, guarding, tenderness, weakness, and pain with motion of the bilateral lumbar sacrospinalis. However, there was no objective evidence that muscle spasm, localized tenderness or guarding resulted in abnormal gait or spinal contour. Sensory examination indicated impaired sensation in the right lower extremity to vibration, pinprick, light touch, and position sense in the medial lateral thigh, lateral calf, foot, and sole of foot. Deep tendon reflexes at the knee and ankle were hypoactive in both lower extremities. The June 2006 VA examiner indicated that the etiology of the Veteran's complaints were related to his claimed mechanical low back pain. June 2006 X-ray reports reflect degenerative disc disease with mild compression of multiple endplates and osteophytic spurring at the L3-4 level. Per the January 2014 remand instructions, the Veteran underwent another VA examination in April 2015. The examiner diagnosed chronic low back pain and degenerative disc disease of the lumbar spine with radiculopathy of both lower extremities, status post laminectomy. The Veteran did not report flare-ups of the low back. The Veteran reported functional loss of the thoracolumbar spine, evidenced by the need for constant use of a walker to ambulate. On physical examination, the spine had flexion of 0 to 70 degrees, extension of 0 to 25 degrees, left lateral flexion of 0 to 15 degrees, right lateral flexion of 0 to 20 degrees, left lateral rotation of 0 to 15 degrees, and right lateral rotation of 0 to 20 degrees. There was objective evidence of pain on range of motion on flexion, left and right lateral flexion, and left and right lateral rotation. The VA examination report indicates the examiner tested additional limitation following three repetitions with no additional loss of motion. There was no evidence of ankylosis. There was objective evidence of localized tenderness or pain on palpation of the joints of the thoracolumbar spine. The examiner noted that pain, weakness, fatigability, or incoordination significantly limit the functional ability with repeated use over time. The examiner also noted muscle spasming which resulted in abnormal gait or abnormal spinal contour. Additional factors contributing to the Veteran's disability were less movement than normal due to ankylosis, adhesions, etc., weakened movement due to muscle or peripheral nerve injury, disturbance of locomotion, interference with sitting, and interference with standing. Sensory testing revealed decreased dermatome testing in the right and left lower leg/ankle and the right foot/toes. Muscle strength testing of the lower extremities was 4/5 (active movement against some resistance). There was no muscle atrophy. Reflex testing of the lower extremities was normal. Straight leg raising testing was positive. No intervertebral disc syndrome or incapacitating episodes requiring bed rest were reported. An April 2015 X-ray report reflects arthritis and a moderate narrowing of the L3-4 intervertebral disc spaces with endplate sclerosis and irregularity with slight anterior slippage of the L4. The April 2015 VA examiner opined that the current changes reflected on the X-ray report, including degenerative disc disease, occurred after the Veteran's work injuries in 2002 and 2005, as well as surgery in 2003. The examiner continued that these changes are independent of the service connected mechanical chronic low back strain and that the progression in back pain can only be explained by his injuries in 2002 and after. An April 2015 addendum opinion by the April 2015 VA examiner clarified that the Veteran's decreased range of motion and muscle spasms are attributable to the Veteran's degenerative disc disease, work injuries, and surgery. Further, the examiner opined that the Veteran's localized tenderness of the thoracolumbar spine is attributable to his service connected low back pain and his 2002 and 2005 work injuries and 2003 surgery. The examiner continued that "we cannot attribute [pain] to one or other as he always had pain." Based on the reported symptomatology and functional impairment of his service-connected mechanical low back pain, the Board finds that when affording the Veteran the benefit of the doubt that a 20 percent rating is warranted for the Veteran's service-connected mechanical low back pain disability. The Board notes that for a 20 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees but not greater than 60 degrees. 38 C.F.R. § 4.71a, DC 5237. For the period on appeal, such impairment was noted in the March 2005 and June 2006 examinations. The Board notes that the range of motion testing done on April 2015 examination reflects forward flexion to 70 degrees, which does not fall within the criteria for a 20 percent evaluation. However, in considering the Veteran's complete medical history during the appellate period, to include limited range of motion and functional loss due to pain, weakness, and excess fatigability, the Board finds that the Veteran's overall disability picture most closely approximates the criteria for a 20 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Schafrath, 1 Vet. App. at 594; DeLuca, 8 Vet. App. 202; Burton, 25 Vet. App. at 5. The medical evidence demonstrates that the Veteran had increasing difficulty with lower back pain as his symptoms had worsened and that he had to use a cane or walker to ambulate as a result of the pain in his lumbar spine. Of note, the Veteran reported that he had constant back pain at a level of 5 out of 10 at the March 2005 VA examination and at the June 2006 VA examination he reported moderate weekly flare-ups, lasting two to three days. Although the April 2015 VA addendum opinion indicates that range of motion limitations were related to the Veteran's non service-connected degenerative disc disease and post-service injuries and surgeries, the examiner also indicated that his pain and localized tenderness could not clearly be attributed to the service-connected or nonservice-connected back disability. The April 2015 VA examiner also noted that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time. Therefore, as the symptoms of pain and the resultant functional loss, as shown by decreased range of motion findings, cannot clearly be attributed to the service-connected or nonservice-connected back disability, the Board must associate them with the service-connected back disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)) (noting that the Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence that does so). As such, when considering the factors of pain, weakness, and fatigue and associated functional impairment, coupled with the range of motion findings taken during the appeal period, the Board finds that a 20 percent rating for the service-connected low back disability is warranted. See 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for a higher initial evaluation in excess of 20 percent for mechanical low back pain. Regarding the orthopedic manifestations, the Board notes that for a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Such impairment was not documented as forward flexion of his thoracolumbar spine was not limited to 30 degrees or less at any time during the appeal period and the Veteran did not have any type of spinal ankylosis noted. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45, and DeLuca, 8 Vet. App. at 204-07. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms. Although pain was noted on the March 2005, June 2006, and April 2015 VA examinations, the functional loss is not equivalent to limitation of flexion to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine to meet the criteria for a 40 percent evaluation. See 38 C.F.R. § 4.71a. Thus, the Board finds that the current 20 percent evaluation adequately portrays any functional impairment, pain, and weakness that the Veteran experienced as a consequence of his mechanical low back pain. Therefore, a preponderance of the evidence is against the grant of a disability rating in excess of 20 percent, based on orthopedic manifestations. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21, 4.59. Regarding an evaluation in excess of 20 percent based on incapacitating episodes, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a higher rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. However, the provisions for evaluating intervertebral disc syndrome are also not for application for the Veterans service-connected mechanical low back pain because the evidence of record does not document any incapacitating episodes with bed rest prescribed by a physician. See 38 C.F.R. § 4.71a, DC 5243. Notably, on the March 2005 VA examination the Veteran reported that with activity, he experiences pain to a level of 10 and must rest and lie down but denied being prescribed bedrest by a physician. On the June 2006 VA examination, the Veteran reported flare-ups to a pain level of six with sitting, bending and twisting. However, there is no indication that the Veteran was prescribed bed rest by a physician at that time. Thus, even with the Veteran's reported flare-ups in 2005 and 2006, the Board finds that the Veteran did not have any incapacitating episodes as defined by the rating criteria that would warrant a rating in excess of 20 percent. Therefore, a rating in excess of 20 percent based on incapacitating episodes is also not warranted. See 38 C.F.R. § 4.71a. Accordingly, the Board finds that the evidence supports the assignment of a 20 percent rating for mechanical low back pain. However, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent for a low back disability. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Finally, the Board also acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment, including bowel or bladder impairment. The record does not reflect that the Veteran has any bowel or bladder impairment; therefore, there is no basis for a separate award for neurological impairment on that basis. However, the record does reflect the Veteran has radiculopathy of the bilateral lower extremities. Under the Diagnostic Code 8520 criteria, disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, and moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild or at most, the moderate degree. See 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id.; see Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). Notably, private treatment records in 2004 reflect that the Veteran was experiencing chronic right lower extremity pain and an MRI in May 2004 diagnosed the Veteran with mild generalized peripheral polyneuropathy of the right lower extremity and radiculopathy of the left lower extremity. The March 2005 VA examination report reflects pain radiating down the Veteran's right leg to the calf with associated lumbar muscle moderate weakness, fatigability, and lack of endurance. The June 2006 VA examination report reflects moderate, constant leg or foot weakness, numbness, and paresthesias with moderate daily pain in the low back which radiates to the right foot and left calf. The April 2015 VA examination found the Veteran had radiculopathy of both lower extremities. Sensory testing reflected decreased sensation in the right and left lower extremity and right foot. Muscle strength testing was 4/5 (active movement against some resistance) and straight leg raising testing was positive. The examiner noted that the Veteran experienced additional contributing factors due to his mechanical back pain, to include weakened movement due to muscle or peripheral nerve injury. Although the examiner indicated the Veteran had degenerative disc disease with radiculopathy of the lower extremities, the examiner did not specifically provide an opinion regarding whether the radiculopathy was related to the service-connected or nonservice-connected back disability. Therefore, such radiculopathy must be attributed to the service-connected back disability. Resolving any reasonable doubt in favor of the Veteran, the Board finds that right and left lower extremity radiculopathy has been manifested by moderate incomplete paralysis of the sciatic nerve (the criteria for a 20 percent rating each). Therefore, separate initial ratings of 20 percent under Diagnostic Code 8520 for moderate incomplete paralysis of the sciatic nerve for both the left and right lower extremity are warranted. 38 C.F.R. §§ 4.3, 4.7. The Board further finds that higher ratings in excess of 20 percent for the left and right lower extremity radiculopathies are not warranted for any part of the rating period on appeal. The weight of the lay and medical evidence demonstrates that the left and right lower extremity radiculopathies have not more nearly approximated moderately severe incomplete paralysis of the sciatic nerve (the criteria for a 40 percent rating), severe incomplete paralysis with marked muscular atrophy of the sciatic nerve (the criteria for a 60 percent rating), or complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement possible of the muscles below the knee, or flexion of the knee is weakened or lost (the criteria for a 100 percent rating). For these reasons, and resolving any doubt in favor of the Veteran, the Board finds that separate 20 percent, but no higher, disability ratings under DC 8520 for left and right lower extremity radiculopathies are warranted. 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to a rating of 20 percent, but no higher, for mechanical low back pain is granted, subject to the regulations governing the payment of monetary awards. A separate 20 percent, but no higher, disability rating for left lower extremity radiculopathy is granted, subject to the regulations governing the payment of monetary awards. A separate 20 percent, but no higher, disability rating for right lower extremity radiculopathy is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs