Citation Nr: 1804528 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-13 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for lumbar degenerative changes with IVDS (claimed as degenerative disc disease, L5). 2. Entitlement to a disability evaluation in excess of 10 percent for radiculopathy femoral nerve, left lower extremity (LLE). 3. Entitlement to a disability evaluation in excess of 10 percent for radiculopathy femoral nerve, right lower extremity (RLE). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1984 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California that granted service with a 10 percent disability evaluation. FINDINGS OF FACT 1. The Veteran's lumbar degenerative changes with IVDS did not manifest as forward flexion functionally limited by pain to less than 60 degrees; the combined range of motion of the thoracolumbar spine was not functionally limited to 120 degrees or less; and neither muscle spasm nor guarding was shown to be severe enough to result in an abnormal gait or abnormal spinal contour. Additionally, no ankylosis was shown, and bed rest was not prescribed to treat incapacitating episodes of intervertebral disc syndrome. 2. The Veteran's radiculopathy femoral nerve of the LLE has not caused moderate incomplete paralysis. 3. The Veteran's radiculopathy femoral nerve of the RLE has not caused moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for lumbar degenerative changes with IVDS have not been met. 38 U.S.C. §§ 1155, 5107 (2012), 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5235-5243 (2017). 2. The criteria for a disability evaluation in excess of 10 percent for radiculopathy femoral nerve of the LLE have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8526 (2017). 3. The criteria for a disability evaluation in excess of 10 percent for radiculopathy femoral nerve of the RLE have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8526 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 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. With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. The Veteran requested a hearing before the Board and was scheduled for a hearing in June 2017. Unfortunately, he called the day of the hearing to say that he was not coming in. He has not provided good cause for his absence and has not requested an additional hearing be scheduled. As such, his hearing request is considered withdrawn. The Veteran was afforded a VA examination in connection with his claim. Upon review of the evidence, the Board finds that the examination report indicates that the examiner reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The existing medical evidence of record is therefore adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2; Barr, 21 Vet. App. 303 (2007). Neither the Veteran, nor his representative objected to the adequacy of the examination. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). Additionally, while the Veteran has not had a VA examination of his back in several years, he has not suggested that his back condition has worsened since his VA examination, so as to necessitate the provision of an additional examination. The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Increased Rating The Veteran's service-connected lumbar degenerative changes with IVDS is evaluated as 10 percent disabling, effective June 2011. Radiculopathy of the femoral nerve of the left lower extremity and right lower extremity is rated at 10 percent for each lower extremity, effective June 2011. The Veteran asserts that higher disability ratings are warranted for all the above because he experiences pain, discomfort, compromised mobility, and decreased quality of life. 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. Spine disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R § 4.71a, Diagnostic Code 5243. The General Rating Formula for Diseases and Injuries of the Spine rates spinal disabilities as follows: 10 percent: Forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is vertebral body fracture with loss of 50 percent or more of the height. 20 percent: 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 not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 40 percent: Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 50 percent: Unfavorable ankylosis of the entire thoracolumbar spine. 100 percent: Unfavorable ankylosis of the entire spine. 38 C.F.R § 4.71a, General Rating Formula for Diseases and Injuries of the Spine . "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). The Formula for Rating IVDS Based on Incapacitating Episodes rates lumbar spine disabilities as follows, in pertinent part: 10 percent: Incapacitating episodes having a total duration of at least one week but fewer than two weeks during the past 12 months. 20 percent: Incapacitating episodes having a total duration of at least two weeks but fewer than four weeks during the past 12 months. 40 percent: Incapacitating episodes having a total duration of at least four weeks but fewer than six weeks during the past 12 months. 60 percent: 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 (2016). An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. In June 2011, the Veteran filed a claim for service connection after being assessed with degenerative disc disease of the lumbar spine. He was noted to have normal flexion and curvature of the thoracic spine. At that time, the Veteran reported low back spasms and radiating right leg pain for the past five years, with more significant pain in the past year. In January 2012, the Veteran was assessed with radiculopathy of the LLE and retrolisthesis. At that time, he was noted to have experienced radicular signs for several years, with progressive worsening in the last several months. Treatment notes also indicate negatives for kyphosis or scoliosis. In August 2012, the Veteran reported experiencing low back pain after lifting furniture. He was assessed with ROM grossly restricted in full extension, but otherwise intact. The Veteran symptoms were noted as "generally well-controlled with NSAIDs and activity." He reported general episodes of radiating left leg pain that resolved in one to two days, and requested physical therapy. In August 2012, the Veteran was afforded a VA examination for his thoracolumbar spine disability. The Veteran was diagnosed with lumbar degenerative changes with IVDS involving the bilateral femoral nerves. The Veteran reported difficulty with bending, flare-ups with walking and lifting, and radiating back pain. The Veteran denied any bladder or bowel involvement. The Veteran was noted to have localized tenderness on palpation and IVDS with no incapacitating symptoms over the past twelve months. The examination was negative for straight-leg raise, muscle spasms, and guarding. Functional impact on his ability to work was demonstrated by impaired ambulation, lifting, and bending. The Veteran demonstrated the following range of motion (ROM): forward flexion to 90 degrees without pain, extension to 25 degrees without pain, right lateral flexion to 25 degrees without pain, left lateral flexion to 30 degrees with pain, right lateral rotation to 30 degrees without pain, and left lateral rotation to 30 degrees without pain. Extension was reduced to 15 degrees with three-time repetitive motion testing. There were no other changes with three-time repetitive motion testing. The Veteran was noted to have no additional limitation of motion after repetitive motion testing, although several functional limiters were present such as excess fatigability and pain on movement. Regarding flare-ups, the Veteran reported they can last two to three days. He described them as extremely painful at times, seriously impacting his ability to tie his shoes, walk, lay in certain positons, bend his back, and lift objects of a certain weight. The Veteran also stated the pain radiates down his buttocks into the back of his legs. Regarding radiculopathy, the Veteran was noted to have moderate intermittent pain in the LLE with severe intermittent pain in the RLE. Moderate paresthesias / dysesthesias in the bilateral lower extremities was also noted. There was no numbness or constant pain. The involved nerve roots were noted as L2, L3, and L4, and the examiner concluded that the radiculopathy was mild in both lower extremities. No other neurological symptoms were reported. September 2012 treatment records indicate the Veteran's lumbar spine demonstrated no impairment. He was assessed with greater than 50 degrees of forward flexion and greater than 25 degrees of extension. During the latter part of the month, the Veteran reported some improved symptoms, as well as some increase in pain upon returning from vacation. October 2012 treatment records indicate the Veteran had almost no complaints of back pain and reported improved symptoms. Specifically, the record indicates the Veteran experienced some improvement in strength, flexibility, ability to walk distances, and pain due to physical therapy. Applying the relevant rating criteria to the facts in this case, the Board finds that a disability evaluation in excess of 10 percent is not warranted. The Veteran has consistently reported limited range of motion, and back pain with radiation into his buttocks and legs. The Veteran has also reported that his condition is aggravated by lifting, bending, standing, and walking greater than two miles. Additionally, on at least two occasions the Veteran has stated his pain takes more than one day to resolve. The Veteran is also prescribed pain medications and muscle relaxers, indicating some functional limitation. However, treatment records also indicate the Veteran is able to participate in activities such as moving furniture, weekend travel, and pursuing full-time education-all of which reasonably involve concentrated periods of sitting, standing, and walking and are indicative of the Veteran's ability to do so. The Veteran's statement regarding his functional limitations are afforded some weight. Unfortunately, these symptoms do not establish a greater degree of impairment. The Board notes the Veteran is diagnosed with IVDS, however the evidence of record does not indicate IVDS symptoms requiring prescribed bed rest. As such, there is no basis to support an increased disability evaluation based on incapacitating episodes of IVDS. The Board notes there is evidence that the Veteran experiences flare-ups, limitation of motion and functional loss marked by less movement than normal, excess fatigability, and pain. However, these findings have been associated with the Veteran's lumbar extension rather than flexion and have not been shown to be sufficient to warrant an increased disability evaluation under applicable rating criteria. To warrant an increased disability evaluation, the Veteran's forward flexion would have to be shown to be functionally limited to 60 degrees or his combined ROM functionally limited less than 120 degrees. The evidence of record indicates the Veteran demonstrated 90 degrees of forward flexion and 230 degrees of combined motion. When accounting for limitation of extension after three-time repetitive motion testing, the Veteran still demonstrated 215 degrees of combined motion. The necessary ROM for a 20 percent disability evaluation is not demonstrated by the medical evidence of record. While the Board acknowledges that the Veteran experiences pain in his back and legs, he is currently being compensated for such under 38 C.F.R. § 4.59. Of note, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, it does not. The Veteran simply has not shown that pain has functionally limited the range of motion in his back such that a higher rating is warranted. Therefore, a rating in excess of 10 percent is not warranted based on limitation of motion. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Further, while the Veteran has reported experiencing muscle spasm, they were not found to be severe enough to result in an abnormal gait or spinal contour. The medical evidence of record specifically indicates the Veteran does not experience kyphosis, scoliosis, or curvature of the thoracic spine. Additionally, there is no indication that the Veteran experiences ankylosis as he retains significant ROM in the thoracolumbar spine. Here, the required degree of impairment for a 20 percent orthopedic disability evaluation is not shown. In addition to rating the orthopedic impairment caused by a back disability, the Board must also consider any neurologic manifestations of a lower back disability. See General Rating Formula for Diseases and Injuries of the Spine, Note (1). As previously stated, the Veteran is currently service connected for radiculopathy femoral nerve, LLE and RLE. Under Diagnostic Code 8526, a 10 percent evaluation is warranted for mild incomplete paralysis of the femoral nerve; a 20 percent evaluation requires moderate incomplete paralysis of the femoral nerve; a 30 percent evaluation requires moderately severe incomplete paralysis of the femoral nerve; and a maximum 40 percent rating requires complete paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a. At the 2012 VA examination, the examiner found that the Veteran had mild radiculopathy in his bilateral lower extremities. The evidence or record does not indicate more severe radicular symptoms. Additionally, there is no showing that any bowel or bladder problems are present. Here, the required degree of impairment for a 20 percent radicular disability evaluation is not shown. Therefore, neither an orthopedic rating, nor a radicular rating in excess of 10 percent is warranted. In reaching this decision, the Board would like to thank the Veteran for his two plus decades of service to this country. The Board acknowledges his concern that an earlier rating decision suggested to him that his condition was not permanent or was subject to improvement. The Board is not making any such suggestion, although the Board sincerely hopes his back condition improves. This decision is based on the current evidence of record as applied to the laws and regulations governing the adjudication of back disability claims. In the event the Veteran's back disability worsens in the future, he is encouraged to file a new claim for an increased rating. ORDER A disability evaluation in excess of 10 percent for lumbar degenerative changes with IVDS (claimed as degenerative disc disease, L5) is denied. A disability evaluation in excess of 10 percent for radiculopathy femoral nerve, left lower extremity is denied. A disability evaluation in excess of 10 percent for radiculopathy femoral nerve, right lower extremity is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs