Citation Nr: 1804443 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 15-35 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an initial disability rating for degenerative arthritis of the spine higher than 20 percent prior to September 16, 2015; and higher than 40 percent thereafter. 2. Entitlement to an initial disability rating higher than 10 percent for left lower extremity radiculopathy prior to May 17, 2017; and higher than 20 percent thereafter. 3. Entitlement to a separate rating for right lower extremity radiculopathy. 4. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to March 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Appeals Management Center (AMC), which granted service connection for degenerative arthritis of the spine with a rating of 20 percent, and service connection for left lower extremity radiculopathy with a rating of 10 percent; each effective March 28, 2007. In a rating decision dated in September 2015, the RO increased the rating for the Veteran's service-connected spine disability to 40 percent effective September 16, 2015. In August 2016, the Board remanded the case for additional development, including a new VA examination. In a rating decision dated in July 2017, the RO increased the rating for the Veteran's service-connected left lower extremity radiculopathy disability to 20 percent effective May 17, 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The decision below addresses the issue of a higher initial rating for service-connected degenerative arthritis of the spine. The associated radiculopathy and TDIU are addressed in the remand section following the decision and are REMANDED to the agency of original jurisdiction. VA will notify the appellant if further action is required. FINDING OF FACT Since March 28, 2007, the Veteran's degenerative arthritis of the spine has been productive of severe pain causing significant loss of range of motion and functional loss equivalent to flexion limited to 30 degrees or less; but it has not been productive of ankylosis and he has not been prescribed bedrest. CONCLUSION OF LAW Since March 28, 2007, the criteria for a disability rating of 40 percent, but not higher, for degenerative arthritis of the spine are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic 5237 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran's service-connected degenerative spine disability has been rated under Diagnostic Code 5237 throughout the appeal period, which provides for a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or when the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or if there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine; and the highest rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, Note (2). The rating schedule also includes criteria for evaluating intervertebral disc disease. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under Diagnostic Code 5243, a 40 percent rating requires incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months; and a rating of 60 percent is warranted requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of evaluation 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Facts In March 2014, the Veteran was afforded a VA examination, during which he complained of a lot of pain, weakness, fatigue, incoordination, weakness, and inability to walk more than a few steps; and said that he was unable to sleep in a bed, even in the hospital for other things, including hip replacement and CABG. He reported that he had had multiple injections of his back but found that they were only effective at pain relief for 3-4 days; and said that he "really has no functional mobility at all times, not just during flares." He added that he used a cane or walker at all times. Range of motion testing found painful forward flexion from 15 to 45 degrees with the Veteran unable to undergo repetitive testing because it was "too painful." There was no ankylosis; and no associated bowel or bladder impairment; but the examiner concluded that the Veteran "is very immobile, barely able to walk with a walker, which seems to mostly be from his severe back pain." In September 2015, another VA examination was done by the same examiner, which found forward flexion from zero to 30 degrees. According to the examiner, "his rom is very limited." In May 2017, the Veteran was afforded another VA examination, this time by a different examiner. During that examination the Veteran complained of constant back pain that occasionally disrupted his sleep, which was present on arising. The examiner further documented the Veteran as reporting as follows: The average intensity on arising is 6/10. The Veteran states that he has episodes of increased pain in non-weight bearing situations, that is, while reclining and resting. Of note, the Veteran has increased pain with lying flat and with sitting upright. The Veteran has found that the most comfortable position is a reclining position. He uses a reclining chair during the day and sleeps in the reclining chair at night. The pain increases in intensity with movement and activity. He notes increased pain with standing in place and walking. He states that in one-third to one-half of his attempts to stand up and ambulate that he has back and left lower extremity radiculopathy pain that is severe enough that he is unable to continue. He sits down and tries again later. He always uses a walker when he ambulates. He states that his ambulation is limited to no more than thirty feet because of increasing and ultimately intolerable pain. He climbs stairs, but gingerly and with increased pain after the effort. He does not jog or run because of pain. He has increased pain with bending. He does not squat for fear of provoking pain and of falling. He is limited in his ability to lift and carry objects. Range of motion testing found forward flexion from zero to 20 degrees, and extension from zero to 10 degrees. The examiner added that the Veteran "is unable to make normal movements such as fully bending over," and that the pain "causes functional loss." Analysis In the light of the whole recorded history and reconciling the various reports into a consistent picture (38 C.F.R. § 4.2), the Board finds that the Veteran's spine disability more nearly approximates a disability picture characterized by forward flexion of the thoracolumbar spine of 30 degrees or less throughout the appeal period, since range of motion of the spine, which itself is "very limited," is productive of functional loss due to pain on movement that interferes with sitting, standing, walking, weight bearing, and rest. See 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59. This is particularly so when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The criteria for an initial disability rating of 40 percent for degenerative arthritis of the spine are therefore met throughout the appeal period; that is, since March 28, 2007. The evidence does not, however, support a rating higher than 40 percent because ankylosis has not been shown. Examinations have not revealed ankylosis and the definition of ankylosis is not met where some movement is retained. There is also no record that bed rest has been prescribed during the appeal period. The criteria for an initial disability rating for the service-connected spine disability higher than 40 percent are therefore not met and the benefit-of-the-doubt doctrine is not further applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. ORDER An initial disability rating of 40 percent, but no higher, for degenerative arthritis of the spine since March 28, 2007, is granted; subject to the law and regulations governing the payment of monetary benefits. REMAND As for the neurologic manifestations of the Veteran's service-connected spine disability, in a rating decision dated in May 2014, the RO granted service connection for left lower extremity radiculopathy based on a VA examination report. However, contrary to VA examination reports, there is evidence that the Veteran may also have right lower radiculopathy related to his spine disability. See private medical records dated in February 2009, advising of "lower back pain radiating to the right buttock." See also November 2008 private medical record of "recurrent lower back pain mostly across the lower lumbar spine with radiation down the lower extremities." Although the Veteran was accorded a VA peripheral nerves examination in June 2015, the Board observes that the purpose of that examination, which was done by a staff physician, was to "evaluate for the current level of severity of the Veteran's service connected [left lower radiculopathy] disability." The Veteran should there be afforded a new VA neurology examination to determine whether he in fact has associated objective neurologic abnormality of the right lower extremity. The intertwined issues of a higher initial rating for service-connected left lower extremity radiculopathy, and entitlement to TDIU, are also remanded. Accordingly, these issues are REMANDED for the following actions: 1. Schedule the Veteran for a VA neurology examination. The examiner must discuss the Veteran's current complaints and symptoms with the Veteran and document the Veteran's assertions in the examination report. The record, including private medical records, should be reviewed by the examiner. The examiner is then specifically requested to a. determine whether the Veteran's service-connected spine disability is productive of any objective neurologic abnormality of the right lower extremity, such as radiculopathy. If so, the nature and severity of this manifestation should be assessed. b. ascertain the current severity of the Veteran's service-connected left lower extremity radiculopathy. A rationale for all opinions reached must be provided. 2. Finally, readjudicate the claims remaining on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs