Citation Nr: 1804316 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-22 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent prior to January 29, 2016, and in excess of 30 percent thereafter, for cervical spine stenosis and spondylosis with myelopathy (cervical spine condition). 2. Entitlement to an initial disability rating in excess of 20 percent prior to August 31, 2017, and in excess of 40 percent thereafter, for lumbar degenerative arthritis, spinal stenosis, and spondylolisthesis (lumbar spine condition). 3. Entitlement to an initial disability rating in excess of 20 percent prior to August 31, 2017, and in excess of 40 percent thereafter, for right upper extremity peripheral neuropathy/radiculopathy. 4. Entitlement to an initial disability rating in excess of 20 percent for left upper extremity peripheral neuropathy/radiculopathy. 5. Entitlement to an initial disability rating in excess of 10 percent prior to August 31, 2017, and in excess of 20 percent thereafter, for right lower extremity peripheral neuropathy/radiculopathy affecting the femoral nerve. 6. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity peripheral neuropathy/radiculopathy affecting the femoral nerve. 7. Entitlement to an initial disability rating in excess of 10 percent prior to August 31, 2017, and in excess of 40 percent thereafter, for right lower extremity peripheral neuropathy/radiculopathy affecting the sciatic nerve. 8. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity peripheral neuropathy/radiculopathy affecting the sciatic nerve. REPRESENTATION Veteran represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The appeal was previously before the Board in June 2015, at which time it was remanded for further development. Then, in August 2017, the Board: (1) denied service connection for bilateral hearing loss; (2) denied an initial compensable rating for erectile dysfunction; (3) denied higher ratings for headaches due to a traumatic brain injury (TBI); and (4) denied an earlier effective dates for the awards of service connection for headaches and a cervical spine condition. The Board then remanded the remaining claims again for additional development. The case has again returned to the Board for appellate review. In a September 2017 rating decision, the RO increased the Veteran's ratings for a lumbar spine condition, right upper extremity peripheral neuropathy, and right lower extremity peripheral neuropathy affecting the sciatic nerve to 40 percent, effective August 31, 2017. Additionally, the RO increased the Veteran's rating for right lower extremity peripheral neuropathy affecting the femoral nerve to 20 percent, effective August 31, 2017. However, as these increases did not represent a total grant of the benefits sought on appeal, these issues remain in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. From the beginning of the claim period to April 13, 2010, and for the time period following July 13, 2010, the Veteran's cervical spine condition resulted in forward flexion of the cervical spine to 15 degrees or less. 2. From April 13, 2010 April 14, 2010, the Veteran was hospitalized for the purposes of a surgical procedure performed on his cervical spine. Following this procedure, he underwent a 3-month period of convalescence. 3. For the entire claim period, the Veteran's lumbar spine condition resulted in forward flexion of the lumbar spine to 30 degrees or less. 4. Throughout the entire claim period, the record is devoid of evidence that the Veteran suffered from unfavorable ankylosis of the cervical spine, lumbar spine, or entire spine. 5. For the entire claim period, the Veteran's peripheral neuropathy/radiculopathy of the bilateral upper extremities is best classified as moderate incomplete paralysis of the middle radicular group. 6. The Veteran is right hand dominant. 7. For the entire claim period on appeal, the Veteran's peripheral neuropathy/radiculopathy of the bilateral lower extremities affecting the femoral nerve is best classified as moderate incomplete paralysis. 8. For the entire claim period on appeal, the Veteran's peripheral neuropathy/radiculopathy of the left lower extremity affecting the sciatic nerve is best classified as moderate incomplete paralysis. 9. Beginning June 16, 2014, the Veteran's peripheral neuropathy/radiculopathy of the right lower extremity affecting the sciatic nerve is best classified as moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 30 percent, but no higher, for a cervical spine condition have been met from the beginning of the claim period to April 13, 2010, and for the time period following July 13, 2010. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5238 (2017). 2. The criteria for a temporary total rating based on convalescence for treatment of the Veteran's cervical spine condition have been met, effective April 13, 2010 to July 13, 2010. 38 C.F.R. § 4.30 (2017). 3. The criteria for an initial disability rating of 40 percent, but no higher, for a lumbar spine condition have been met for the entire claim period. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5242 (2017). 4. The criteria for an initial disability rating of 40 percent, but no higher, for peripheral neuropathy/radiculopathy of the right upper extremity have been met for the entire claim period. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8511 (2017). 5. The criteria for an initial disability rating of 30 percent, but no higher, for peripheral neuropathy/radiculopathy of the left upper extremity have been met for the entire claim period. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8511 (2017). 6. The criteria for an initial disability rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy/radiculopathy affecting the femoral nerve have been met for the entire claim period. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8526 (2017). 7. The criteria for an initial disability rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy/radiculopathy affecting the femoral nerve have been met for the entire claim period. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8526 (2017). 8. The criteria for an initial disability rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy/radiculopathy affecting the sciatic nerve have been met for the entire claim period. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8520 (2017). 9. The criteria for an initial disability rating of 40 percent, but no higher, for right lower extremity peripheral neuropathy/radiculopathy affecting the sciatic nerve have been met, effective June 16, 2014. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Cervical Spine Condition As indicated above, the Board finds that the Veteran is entitled to a 30 percent rating for his cervical spine condition from the time periods not encompassed by the temporary total rating due to convalescence, which will be discussed below. Accordingly, to this extent, the Veteran's claim is granted. In support of this determination, the Board notes that forward flexion of the Veteran's cervical spine was first limited to less than 15 degrees during an April 2012 VA examination. Specifically, during range of motion testing, forward flexion was to 25 degrees, but with objective evidence of painful motion first visible at 10 degrees. Using the measurement that incorporated the additional limitation of motion caused by pain, the Veteran meets the criteria for a 30 percent rating for the cervical spine pursuant to the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Therefore, the Board will grant the Veteran a 30 percent rating from the beginning of the claim period as the April 2012 VA examination is indicative of symptoms that the Veteran was experiencing at the time he submitted his claim for service connection in January 2010. Comparatively, in addressing why the Veteran is not entitled to a rating higher than 30 percent at any time during the pendency of the claim, the Board finds no evidence that the Veteran suffered from unfavorable ankylosis of the cervical spine or entire spine at any time during the claim period. Specifically, Note 5 to the General Rating Formula for Diseases and Injuries of the Spine defines unfavorable ankylosis as a condition where 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 pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. As the evidence does not indicate that the Veteran suffered from unfavorable ankylosis of the cervical spine or entire spine at any time during the claim period, the Board will deny the Veteran's claim to this extent. Lumbar Spine Condition Similar to the Veteran's cervical spine condition claim, the Board finds the evidence of record supportive of a 40 percent rating for his lumbar spine condition for the entirety of the claim period. Accordingly, to this extent the Veteran's claim is granted. In making this determination, the Board notes that, in order to warrant a 40 percent rating for a condition of the thoracolumbar spine under the General Rating Formula for Diseases and Injuries of the Spine, a claimant must show either (1) favorable ankylosis of the thoracolumbar spine, or (2) forward flexion of the spine limited to 30 degrees or less. In the instant case, the evidence indicates that forward flexion of the thoracolumbar spine was first limited to 30 degrees or less during an April 2012 VA examination. Specifically, during range of motion testing, forward flexion was to 45 degrees with objective evidence of painful motion first visible at 25 degrees. Accounting for the Veteran's painful motion, forward flexion of the thoracolumbar spine was limited to 25 degrees during this particular VA examination. As this limitation is representative of symptoms that the Veteran was experiencing at the time he submitted his claim for service connection in January 2010, the Board will assign a 40 percent rating for the entire claim period. In addressing why a rating higher than 40 percent is not warranted at any time during the claim period, the Board finds-similar to the Veteran's cervical spine condition-that the record of record is devoid of evidence of unfavorable ankylosis of either the thoracolumbar spine or the entire spine. Accordingly, to this extent, the Veteran's claim is denied. Temporary Total Ratings for the Lumbar Spine and Cervical Spine In forming the decisions discussed above, the Board has considered the request of the Veteran's representative in April 2016 to assign temporary 100 percent ratings pursuant to 38 C.F.R. § 4.30 for two time periods during the pendency of the appeal where the Veteran underwent surgical procedures for his cervical and lumbar spine conditions. Specifically, from April 13, 2010 to April 14, 2010, the Veteran was hospitalized at the Sacred Heart Hospital for the removal of C5-C6 anterior instrumentation and for a C4-5 anterior cervical discectomy and fusion. The Veteran's discharge instructions indicated that he was to wear a collar for 2 weeks and was not to bend, lift, twist, or stoop for 3 months. Comparatively, from January 4, 2011 to January 5, 2011 the Veteran was hospitalized at a VA facility and was treated for L3-4, 4-5 posterior decompression. The Veteran was discharged to his home with the following instructions: (1) no lifting more than 10 pounds unless cleared by a clinician; (2) no working until cleared by clinician; (3) no showering until the surgical dressing was removed; (4) no soaking of the incision for at least 2 weeks or until the incision was completely healed; (5) no driving while taking narcotic pain medication; (6) no sexual activity; and (7) no extreme twisting or bending. The Veteran was to remove the dressing 2 days after the procedure. Under 38 C.F.R. § 4.30, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. In order to attain the temporary total disability rating, the Veteran must demonstrate that his service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). Convalescence is defined as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland's Illustrated Medical Dictionary, p. 374 (28th ed. 1994)). Recovery has been defined as "the act of regaining or returning toward a normal or healthy state." Id. (citing Webster's Medical Desk Dictionary 606 (1986)). The purpose of a temporary total evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely-healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. 38 C.F.R. § 4.30. In this case, after reviewing the evidence of record, the Board finds that the Veteran underwent a 3-month period of convalescence following his cervical spine procedure in April 2010 due to the limitations placed on bending, lifting, twisting, and stooping. Accordingly, the Board will assign a temporary total rating under 38 C.F.R. § 4.30 for 3 months following the April 2010 procedure. Comparatively, the Board will not assign a temporary total rating following the lumbar procedure in January 2011 as the only restrictions were to lift no more than 10 pounds, refrain from working until cleared by a physician, and to refrain from sexual activity. As there is no evidence that these restrictions lasted at least one month in duration, the Board will not assign a temporary total rating under 38 C.F.R. § 4.30 for any time following the January 2011 lumbar spine procedure. Peripheral Neuropathy/Radiculopathy of the Bilateral Upper Extremities As indicated above, the Board finds the evidence of record warrants the assignment of (1) a 40 percent disability rating for peripheral neuropathy/radiculopathy of the right upper extremity, and (2) a 30 percent rating for peripheral neuropathy/radiculopathy of the left upper extremity for the entirety of the claim period. Accordingly, to this extent, the Veteran's claims are granted. In support of this determination, the Board acknowledges that these ratings are indicative of moderate incomplete paralysis of the middle radicular group, addressed by Diagnostic Code 8511. Under Diagnostic Code 8511, mild incomplete paralysis warrants the assignment of a 20 percent rating for either the major (dominant) side or minor (non-dominant) side. Moderate incomplete paralysis warrants the assignment of a 40 percent rating for the major side and a 30 percent rating for the minor side. Severe incomplete paralysis warrants the assignment of a 50 percent rating for the major side and a 40 percent rating for the minor side. Lastly, complete paralysis warrants the assignment of a 70 percent rating for the major side and a 60 percent rating for the minor side. Complete paralysis is defined as adduction, abduction and rotation of the arm, flexion of the elbow, and extension of the wrist being lost or severely affected. The evidence of record demonstrates that the Veteran's right side is his dominant side. Additionally, within this context, the terms "mild," "moderate," "moderately severe," and "severe" are not defined. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In addressing why the Veteran is not entitled to the next higher ratings of 50 percent and 40 percent associated with severe incomplete paralysis, the Board notes that, at no time during the appeal, did he present symptoms approaching complete paralysis of the middle radicular group. Specifically, during the April 2012 VA cervical spine examination, the Veteran had normal muscle strength, no muscle atrophy, and hyperactive biceps and triceps reflexes bilaterally. Next, during testing conducted in a January 2016 VA cervical spine examination, the Veteran displayed some loss of muscle strength on the right side, no muscle atrophy, only decreased sensation in the hands and fingers bilaterally, and normal reflexes. Likewise, during testing held in an August 2017 VA peripheral nerves examination, the Veteran displayed slight loss of muscle strength in the upper extremities bilaterally, no muscle atrophy, trace reflexes in the biceps and brachioradialis bilaterally, very brisk reflexes in the triceps bilaterally, and decreased sensation in the shoulder, forearm, hands, and fingers bilaterally. In addition to the VA examination reports recounted above, the Veteran's medical treatment records associated with the claims file do not demonstrate that his upper extremity peripheral neuropathy/radiculopathy could be classified as moderately severe at any time throughout the claim period. Specifically, in a March 2010 treatment record from the Marshfield Clinic, the Veteran reported pain down his right arm. The clinician noted that the Veteran had some limited range of motion in the right upper extremity and stated that the Veteran could not put his right arm behind his back and push. During an examination, the clinician noted normal tone in all major muscle groups, abnormal reflexes, and asymmetric hyperreflexia in the biceps, brachioradialis, and triceps on the right side with slight pathologic spread. Additionally, the Veteran had noticeable weakness in his right hand. However, the Veteran did not have any muscle atrophy or abnormal muscle tone. Later, in a July 2010 treatment record, Dr. Thapar at the Marshfield Clinic noted that a motor examination revealed normal tone, strength, and bulk in all the major muscle groups of the upper extremities. While the Veteran had an exaggerated finger flexor response, his remaining reflexes were normal. In a May 2011 Marshfield Clinic treatment record, Dr. Peters recorded that the Veteran had normal reflexes in his muscle extremities. Additionally, the Veteran denied joint stiffness, joint pain or swelling, muscle weakness or pain, numbness, or tingling. Likewise, in an August 2014 VA treatment record, the Veteran displayed very brisk reflexes bilaterally in the biceps, triceps, and brachioradialis; intact sensation; and moderate weakness. In light of the above, the Board concludes that, for the entire claim period, the Veteran's upper extremity peripheral neuropathy/radiculopathy was most analogous to moderate incomplete paralysis of the middle radicular group of nerves. Accordingly, it will assign a 40 percent rating for the Veteran's dominant right upper extremity and a 30 percent rating for the non-dominant left upper extremity. Peripheral Neuropathy/Radiculopathy of the Bilateral Lower Extremities As indicated previously, the Board finds that the evidence of record warrants the assignment of the following ratings for the Veteran's lower extremity peripheral neuropathy/radiculopathy: (1) 20 percent for the entire claim period for the right lower extremity affecting the femoral nerve; (2) 20 percent for the entire claim period for the left lower extremity affecting the femoral nerve; (3) 20 percent for the entire claim period for the left lower extremity affecting the sciatic nerve; and (4) 40 percent for the right lower extremity affecting the sciatic nerve, beginning June 16, 2014. Accordingly, to this extent, the Veteran's claims are granted. Femoral Nerve The Board has assigned the separate 20 percent ratings for the entire period regarding the femoral nerve pursuant to Diagnostic Code 8526. Under Diagnostic Code 8526, a 10 percent rating is assigned for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis. A 30 percent rating is assigned for severe incomplete paralysis. A 40 percent rating is assigned for complete paralysis-i.e., paralysis of the quadriceps extensor muscles. Similar to the above upper extremity claims, Diagnostic Code 8526 does not define the terms "mild," "moderate," "moderately severe," and "severe." In addressing why the Veteran is not entitled to the next higher disability ratings of 30 percent for severe incomplete paralysis, the Board finds the evidence of record to be lacking in symptoms analogous to almost complete paralysis of the quadriceps extensor muscle. Although the evidence does demonstrate that the Veteran suffered from pain and deficiencies in his thighs, he did not display such loss of function as to totally undermine his ability to ambulate. Accordingly, to this extent, the Veteran's claim is denied. Sciatic Nerve In regard to the Veteran's sciatic nerve claims, the Board has assigned its 40 percent and 20 percent ratings pursuant to Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or lost entirely. Regarding the Veteran's left lower extremity, the Board finds the Veteran's disability picture most analogous to moderate incomplete paralysis due to deficiencies consistently notated through objective testing of the lower extremities throughout the entirety of the appeal period. Conversely, in regard as to why a rating higher than 20 percent is not warranted, the record does not demonstrate that the Veteran displayed symptoms analogous to moderately severe incomplete paralysis of the sciatic nerve, such as muscular atrophy, foot drop, loss of active motion below the knee, or weakened or complete loss of flexion below the knee. Thus, to this extent, the Veteran's claim is denied. Comparatively, regarding the Veteran's right lower extremity, the Board finds the Veteran's disability picture to be most analogous to moderately severe incomplete paralysis prior to August 31, 2017. Specifically, the Board finds that an increase in the severity of his right lower extremity symptoms began on June 16, 2014 when the Veteran received lumbar spine epidural injections at a VA facility. A few weeks later in a July 2014 VA treatment record, the Veteran reported the onset of right heel numbness. In addition to heel numbness, in August 2016, the Veteran reported that he had developed symptoms of dragging his right leg, numbness, and fluctuations of sensation in his right lower extremity. Accordingly, using the VA epidural injections as a demarcation point for an increase in severity, the Board will increase the Veteran's rating for his right lower extremity to 40 percent, effective June 16, 2014. However, the Board also finds the record devoid of a finding of marked muscular atrophy at any time during the claim period. Such a finding is required for the assignment of the next higher rating of 60 percent. Accordingly to this extent, the Veteran's claim is denied. ORDER An initial disability rating of 30 percent for a cervical spine condition is granted from the beginning of the claim period to April 12, 2010; 100 percent from April 13, 2010 to July 13, 2010; and 30 percent from July 14, 2010 onward. An initial disability rating of 40 percent, but no higher, for a lumbar spine condition is granted for the entire claim period. An initial disability rating of 40 percent, but no higher, for right upper extremity peripheral neuropathy/radiculopathy is granted for the entire claim period. An initial disability rating of 30 percent, but no higher, for left upper extremity peripheral neuropathy/radiculopathy is granted for the entire claim period. An initial disability rating of 20 percent, but no higher, for right lower extremity peripheral neuropathy/radiculopathy affecting the femoral nerve is granted for the entire claim period. An initial disability rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy/radiculopathy affecting the femoral nerve is granted for the entire claim period. An initial disability rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy/radiculopathy affecting the sciatic nerve is granted for the entire claim period. An initial disability rating of 40 percent, but no higher, for right lower extremity peripheral neuropathy/radiculopathy affecting the sciatic nerve is granted beginning June 16, 2014. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs