Citation Nr: 1803533 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-22 208A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 40 percent for service-connected lumbar strain, residual of a lumbosacral injury. 2. Entitlement to an additional separate rating for bilateral lower extremity radiculopathy, claimed as associated with service-connected lumbar strain, residual of a lumbosacral injury. REPRESENTATION Appellant represented by: Christopher Loiacono, Attorney ATTORNEY FOR THE BOARD F. Bulger, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1975 to May 1976 and from January 1978 to October 1979 with 1 day of separation. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. During the pendency of the claim, the Veteran's back disability rating was increased to 40 percent. As this rating evaluation is not the maximum benefit potentially allowable, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In December 2015, the RO determined that the Veteran filed a claim on April 9, 2013 for entitlement to a total disability rating for compensation purposes due to individual unemployability (TDIU) associated with his service-connected back disability. See December 2015 VA Form 21-0961. In January 2016, the RO denied the claim. The Veteran submitted a timely notice of disagreement and requested a Decision Review Officer (DRO) review, but no further action has been taken to perfect an appeal. See September 2016 Correspondence from Christopher Loiacono; September 2016 Notice of Disagreement. In December 2016, the Veteran filed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Because the separate adjudication related to TDIU has not been perfected for appeal, and VA's Veterans Appeals Control and Locator System (VACOLS) indicates it is still under development, the Board declines jurisdiction over this issue. In September 2016, the Veteran requested a Travel Board hearing; subsequently, the Veteran waived this request. See July 2017 Letter from Christopher Loiacono. Neither the Veteran, nor his representative, has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). FINDINGS OF FACT 1. The service-connected lumbar strain is manifested by pain productive of limitation of motion, comparable to favorable ankylosis of the lumbar spine, without demonstration of immobilization in either flexion or extension. 2. The Veteran does not have bilateral lower extremity radiculopathy associated with service-connected lumbar strain. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for service-connected lumbar strain have not been met at any point during the pendency of this claim. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2017). 2. The criteria for a separate additional rating for bilateral lower extremity radiculopathy, claimed as associated with service-connected lumbar strain, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, 4.120, 4.124a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has not identified, and the record does not suggest, any deficiencies in the duty to notify and assist; therefore, the Board need not address these issues before proceeding to the merits of the claim. 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 the Veteran's failure to raise a duty to assist argument before the Board). Increased Rating for Back Disability Where functional loss due to painful joint motion is raised, the provisions of 38 C.F.R. Sections 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). For disabilities of the joints, the rating schedule contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Unfavorable ankylosis is defined by VA regulation as a condition in which the spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, note 5. Fixation in the neutral position of zero degrees always represents favorable ankylosis. Id. The rating decision on appeal stems from an increased rating claim received on October 6, 2009. The service-connected lumbar strain is currently rated 40 percent disabling from October 6, 2009 under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. DC 5237 provides a 40 percent rating for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent is for assignment for unfavorable ankylosis of the entire spine. In summary, for a rating in excess of 40 percent, the Veteran's back must be effectively fixed in a position of flexion or extension. The Board may look at the evidence of record from one year before the Veteran's October 6, 2009 claim for increased evaluation to determine whether the rating for his back disability should be increased. See 38 C.F.R. § 3.400(o)(2) (2017). Here, the appeal period runs from October 7, 2008. The record for the appeal period shows that the Veteran's spine is not fixed or fused in place. The 2016 VA examiner found no ankylosis and noted slight forward flexion, lateral flexion and rotation movement of the thoracolumbar spine. See 2016 VA Examination. At its most limited, the range of motion in the Veteran's thoracolumbar spine was measured in 2016 as forward flexion to 20 degrees; extension of zero degrees; right lateral flexion to 10 degrees; and left lateral flexion to 5 degrees. In 2013, right lateral rotation was to 10 degrees; and in 2016, there was left lateral rotation of zero degrees. See 2013 and 2016 VA Examinations. All of these measurements indicate pain on motion. Id. The record reflects that while the Veteran's lower spine forward flexion is severely limited and extension is not possible, the spine can maintain a naturally upright position. See January 2016 VA Examination. This is consistent with the current 40 percent rating which contemplates functional impairment comparable to favorable ankylosis of the lumbar spine. Because the spine can maintain a natural position, the question becomes whether at its worst during flares the Veteran's spine ends up being immobilized in an unfavorable position. To answer this question, the Board must consider whether the severity and frequency of flare-ups and limitations on repeated use result in functional immobilization of the spine in flexion or extension. From 2008 to 2011, the medical record does not contain much evidence of reported flare-ups. The Veteran's back disability is characterized in a medical report dated October 2008 as chronic low back pain normally on the left side with occasional radiating pain down the left leg. In January and June 2011, medical records document mild back pain with limited movement. By September 2011, however, a VA medical report indicates that the Veteran's back pain was worsening. In the period from 2012 through 2016, however, VA medical records provide much more detail on the frequency and severity of painful flare-ups and establish that in this period the Veteran is experiencing worsening of his back disability. VA medical records taken from November 2012 to August 2016 several times a year for the purposes of monitoring the severity of the Veteran's pain show that the Veteran reports constant severe back pain, aggravated by damp weather or certain activities and relieved by rest and medication. They indicate that while the Veteran's back pain does not cause him to stay home, the Veteran reports that he needs to lay on a couch or a bed an estimated 10 to 20 days each month. These medical records confirm that he reports that he was not hospitalized, nor was he treated at an emergency room or by any other provider, for painful flare-ups in this period. A February 2015 VA medical treatment report provides evidence that the Veteran's back disability impedes his ability to walk farther than 30 feet before he must rest. VA conducted examinations of the Veteran's back in 2013 and 2016, neither of which occurred during a painful flare-up. When VA conducts a musculoskeletal examination that is not scheduled during a flare-up, the examiner must be adequately informed of flare-ups and address any additional or increased symptoms and limitations that are experienced during flares. See Sharp v. Shulkin, No. 16-385 (Vet. App. Sept. 6, 2017), citing Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Flare-ups were adequately reported by the Veteran to the 2013 examiner as "increased pain on use," and the examiner found the flares caused "limitations on repeated use include less motion, incoordination, pain, interference with sitting, standing and/or weight-bearing and locomotion." See 2013 VA Examination. The VA examiner in 2016 noted that the Veteran reported flare-ups as "difficulty in bending, lifting, standing and walking" with "pain worse in cold and damp weather." See 2016 VA Examination. The 2016 examiner also noted that the Veteran is unable to get off the floor without assistance and found that he was unable to engage in repetitive motion of his spine due to pain. Id. The medical record over the appeal period provides adequate evidence of the frequency, severity and functional loss or impairment associated with painful flare-ups and repeated use. In this case, the medical record demonstrates that the Veteran's back pain increases regularly during flare-ups to a level that prevents functional use of his back and requires him to take medication and rest about 10 to 20 days each month. However, the record on appeal also establishes that the Veteran's spine is able to maintain a natural position even during periods of functional immobility due to flare-ups. There is no evidence in the record that the spine is ever unable to move out of a position of flexion or extension. Because there is no evidence in the record that the Veteran's spine is immobilized in a position of flexion or extension, the spine disability does not qualify for a rating of 50 or 100 percent. If painful flare-ups, or any other functional impairment, occur that result in the immobilization of the Veteran's spine in an unnatural position, the Veteran is welcome to file another claim for increased evaluation. Finally, all potentially applicable diagnostic codes, whether or not raised by the Veteran, must be considered on appeal. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). After review, the Board finds that no other diagnostic code for this disability would provide a higher rating. The 2016 examination noted diagnoses of degenerative disc disease, invertebral disc syndrome (IVDS) and arthritis. The General Rating Formula of the Spine is used to evaluate lumbosacral strain, spinal stenosis, spondylolisthesis, ankylosing spondylitis, degenerative arthritis and IVDS and does not distinguish among the various contributions of these different diagnoses; as a result, all the Veteran's current back diagnoses are included in the disability rating under the General Rating Formula of the Spine. Moreover, the 2016 examiner found no episodes of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician in the past year. See 2016 Examination. As a result, there is no evidence in the record showing incapacitating episodes, or bed-rest and treatment ordered by a physician, lasting at least six weeks in total duration during the past year, which is required for a 60 percent rating under the Formula for Rating Intervertebral Disc Syndrome. See 38 C.F.R. § 4.71a. The preponderance of the most probative evidence demonstrates that the requirements for a rating in excess of 40 percent have not met; the benefit of the doubt rule does not apply; and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Radiculopathy When evaluating a back disability, the Board must consider associated neurologic abnormalities, to include lower extremity radiculopathy. See 38 C.F.R. § 4.71a, note 1. Radiculopathy of the lower extremities is rated as paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a, DC 8520. DC 8520 provides the following ratings: 10 percent for mild incomplete paralysis of the sciatic nerve; 20 percent for moderate incomplete paralysis; 40 percent for moderately severe incomplete paralysis; 60 percent for severe incomplete paralysis with marked muscular atrophy; and 80 percent for complete paralysis. Id. A review of the VA medical treatment records demonstrates that from April 2008 through April 2013, the Veteran experienced occasional pain radiating down his legs. An October 2008 VA outpatient treatment report noted the Veteran complained of chronic low back pain which is normally on the left side and occasionally radiates down the left leg. There was no incontinence, and no definite weakness. The Veteran had the same complaints when seen on April 3, 2008. At the April 8, 2013 VA examination, the examiner noted a medical history of degenerative disc disease at L5 with some leg pain on the left side, and diabetic neuropathy with numbness in the feet. On clinical examination, the examiner found evidence of moderate bilateral lower extremity radiculopathy based on reports of mild intermittent pain, mild tingling, and moderate numbness in both legs. It was noted that there was sciatic nerve root involvement on both the left and right. It was indicated that there were no other neurologic abnormalities or findings related to the thoracolumbar spine. It was noted the Veteran had intervertebral disc syndrome of the thoracolumbar spine. The examiner concluded that the degenerative disc disease of L5 was not related to service strain, but rather natural age progression. As rationale for the opinion, the examiner noted that X-rays in the 1980's were normal and only allowed for strain. The January 2016 VA examiner indicated that the Veteran experiences moderate constant radicular pain in both legs. As noted above, clinical evidence of record demonstrates sciatic radiculopathy of the lower extremities associated with degenerative disc disease (DDD) of the lumbar spine, and diabetic neuropathy with numbness in the feet. Service connection has not been established for degenerative disc disease of the lumbar spine, the medical evidence of record has related DDD of the lumbar spine to the natural aging process as opposed to injury during the Veteran's military service, and the evidence of record does not clinically demonstrate any relationship between the service-connected lumbar strain and degenerative disc disease of the lumbar spine. As such, the sciatic radiculopathy due to DDD of the lumbar spine is not for consideration in the evaluation of the service-connected lumbar strain. Further, clinically demonstrated diabetic neuropathy is not for consideration. Under 38 C.F.R. § 4 14, the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation is to be avoided. Based on the above medical findings in the record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's sciatic radiculopathy is associated with the service-connected lumbar strain, and as such, against the award of an additional separate evaluation for the Veteran's sciatic radiculopathy, claimed as associated with service-connected lumbar strain. As the preponderance of the evidence is against the claim, there is no doubt to be resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. ORDER Entitlement to a rating in excess of 40 percent for service-connected lumbar strain is denied. Entitlement to an additional separate rating for bilateral lower extremity radiculopathy, claimed as associated with service-connected lumbar strain, is denied. ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs