Citation Nr: 1805039 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-24 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for a service-connected bilateral foot disability. 2. Entitlement to an increased rating in excess of 10 percent for a service-connected lumbar spine disability for the period prior to September 20, 2016, and in excess of 20 percent thereafter. 3. Entitlement to an increased rating in excess of 20 percent for service-connected radiculopathy of the femoral nerve, left lower extremity. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to February 1976 and from December 1984 to April 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran appeared at the RO and testified before the undersigned Veterans Law Judge (VLJ) in September 2014. A transcript of the hearing is of record. The Board previously remanded the issues to the Agency of Original Jurisdiction (AOJ) in June 2014 and March 2016 for additional development. The case has now returned to the Board for additional appellate action. The Board notes that the RO granted an increased rating of 20 percent, but no greater, for the Veteran's service-connected lumbar spine disorder, effective September 20, 2016, in an October 2017 rating decision. Therefore, the Board will only be considering a rating in excess of 20 percent for the period since September 20, 2016. The RO also granted service connection for radiculopathy of the left lower extremity in the October 2017 rating decision and assigned a separate 20 percent rating, effective June 6, 2017. The claims remain in controversy as less than the maximum benefit available was awarded for each disability. See AB v. Brown, 6 Vet. App. 35 (1993). The Board further notes that the issue of right lower extremity radiculopathy was raised by the record. As this is the type of neurological impairment contemplated by 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, it is part and parcel of the lumbar spine disability on appeal. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's service-connected bilateral foot disability most closely approximated acquired flatfoot characterized as severe. 2. Throughout the period on appeal, the Veteran's service-connected lumbar spine disability most closely approximated muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. Since June 6, 2017, the Veteran's service-connected radiculopathy of the femoral nerve, left lower extremity, most closely approximated symptoms characterized as moderate. 4. The Veteran was diagnosed with mild radiculopathy of the sciatic nerve, right lower extremity in June 2012, and again in September 2016. 5. The Veteran is service-connected for diabetic peripheral neuropathy of the right lower extremity, rated as 10 percent disabling effective April 18, 2008, with noted symptoms including incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but no greater, for a bilateral foot disability have been met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5284 (2017). 2. The criteria for a rating of 20 percent, but no greater, for a lumbar spine disability have been met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5235-5243. 3. The criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 8526. 4. The criteria for a separate noncompensable rating for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5235-5243, 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's 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). The Veteran has not alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other evidentiary development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Concerning VA's duty to assist, the Veteran's service treatment records have been obtained, available pertinent post-service medical records have been obtained, and no outstanding records were identified by the Veteran. The Veteran has also been afforded VA examinations relating to each of the instant claims. The Board therefore finds that no additional evidence which may aid the Veteran's claim being adjudicated herein or might be pertinent to the bases of the claim has been submitted, identified, or remains outstanding, and the Board's duty to assist has been satisfied. There is no indication that any failure on the part of VA to provide additional notice or assistance would reasonably affect the outcome of this case, and the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating Claims Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. Pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; 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. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). A. Bilateral Foot Disability The Veteran seeks entitlement to an evaluation in excess of 10 percent for his service-connected bilateral foot disability. The Veteran's bilateral foot disability is currently rated as 10 percent disabling under Diagnostic Code 5276. 38 C.F.R. § 4.71a. Under these relevant provisions, acquired flat foot is rated as 10 percent disabling for moderate involvement, whether unilateral or bilateral, with objective evidence of weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. A 30 percent evaluation is assignable for severe bilateral involvement, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is assignable for pronounced bilateral involvement, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board notes that words such as "severe" and "moderate" 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, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. The medical evidence of record indicates that the Veteran has experienced substantial symptoms related to his bilateral foot disability during the period on appeal. In a September 2013 VA examination, the examiner noted the Veteran experienced pain in his feet on walking, especially in his heels. He indicated that he regularly wore orthotics and underwent periodic steroid injections in his feet, which provided some relief. The examiner indicated that there was no Morton's neuroma; metatarsalgia; hammer toe; hallux valgus; hallux rigidus; claw foot; malunion or nonunion of tarsal or metatarsal bones; foot injuries; or weak foot. He documented pain on deep palpation of the heels and over the metatarsal joints. A September 2016 VA examination indicated the Veteran experienced increased pain when standing or walking for an extended period of time. The examiner noted the Veteran had accentuated pain on use and he reported flare-ups with increased pain. The examiner indicated that the he utilized arch supports and orthotics; did not have characteristic calluses; no pain on manipulation of the feet; no extreme tenderness of plantar surfaces of feet; no evidence of marked deformity; no marked pronation of one or both feet; no evidence the weight-being line fall over the medial to the great toe for one or both feet; no extremity other than pes planus causing alteration of the weight-bearing line. He noted that there was no inward bowing of the Achilles tendon on either foot; no marked inward displacement or severe spasm of the Achilles tendon on either foot; no Morton's neuroma; no metatarsalgia; no indication of hammer toe, hallux valgus, hallux rigidus, or acquired clawfoot; no malunion or nonunion of tarsal or metatarsal bones, and no other foot injuries or conditions. The examiner indicated that the Veteran's bilateral foot disability led to functional loss precluding him from standing or walking for long periods of time. Additionally, the Veteran indicated in his July 2012 notice of disagreement that he experienced substantial pain in his feet that required him to utilize crutches to move around his house on his days off from work, and that his feet would swell badly on a daily basis. He testified at his September 2014 Board hearing that he had what he assumed was a bunion on each big toe that were painful to the touch, and he was instructed by a physician to be file them off weekly. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. While the Board finds that the Veteran is not competent to make a specific medical diagnosis of a "bunion," he is competent to report observable symptoms such as a callous which might be treated with regular filing. The Board also finds that the Veteran is competent to report the observable symptom of swelling of his feet. When combined with the medical evidence of record indicating he experienced accentuated pain on manipulation and use, as well as functional loss due to the disability, the Board resolves all reasonable doubt in favor of the Veteran and finds that his symptoms most closely approximate bilateral acquired flatfoot characterized as severe. However, there is no indication from the medical evidence of record of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, or that orthopedic shoes or appliances did not improve the Veteran's condition. Accordingly, an increased rating of 30 percent, but no greater, is warranted for the period on appeal. B. Lumbar Spine Disability The Veteran seeks entitlement to an evaluation in excess of 10 percent prior to September 20, 2016, and an evaluation in excess of 20 percent disabling thereafter for his service-connected lumbar spine disability. The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under these relevant provisions, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height is rated at 10 percent. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis if the entire spine warrants a 100 percent rating. In addition, intervertebral disc syndrome may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. The medical evidence of record indicates that prior to September 20, 2016, the Veteran's lumbar spine disability most closely approximated muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A June 2012 VA pain clinic note stated that the Veteran had an antalgic gait with favoritism toward the left side. A July 2012 private orthopedic treatment record indicated that x-ray evidence showed scoliosis and abnormal lordotic curvature of the lumbar spine. The private physician indicated a diagnosis of degenerative scoliosis as well as a significant imbalance of the spine. However, a September 2013 VA examination indicated that there was no scoliosis demonstrated on a lumbar x-ray or MRI, and that there was no apparent scoliosis on examination. The examiner did note that there was a significant amount of muscle spasm, and opined that scoliosis might have been seen on a prior x-ray due to back spasms occurring while the x-ray was taken. The September 2013 examiner indicated that although there was guarding and muscle spasm present, there was no resultant abnormal gait or spinal contour. A VA examination of his spine in September 2016 indicated that there was guarding or muscle spasm of his spine resulting in an abnormal gait. Therefore, the record indicates that throughout the period on appeal the Veteran has exhibited guarding or muscle spasms of his lumbar spine, which have been noted to result in an abnormal gait or spinal contour. Although the September 2013 VA examiner indicated that the Veteran did not exhibit an abnormal gait and that the diagnosis of scoliosis may have been in error, any error was opined to be the result of muscle spasms. Further an abnormal gait was documented in VA medical records before and after the examination. Therefore, resolving all reasonable doubt in favor of the Veteran, an evaluation of 20 percent, but no greater, is warranted for the period prior to September 20, 2016. The Board finds that entitlement to an evaluation in excess of 20 percent disabling is not warranted for the Veteran's lumbar spine disability for any period on appeal. A September 2016 VA examination indicated the greatest limitation of motion for the Veteran's thoracolumbar spine during the period on appeal; he demonstrated 50 degrees of flexion, i.e., from 20 to 70 degrees. Furthermore, the record does not indicate that the Veteran has ever been diagnosed with ankylosis of his thoracolumbar spine. In addition, there is no indication of any incapacitating episodes requiring bed rest prescribed by a medical provider. Accordingly, a rating in excess of 20 percent is not warranted at any time during the period on appeal under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. As noted above, the Veteran was granted entitlement to service connection for radiculopathy of the left lower extremity, evaluated as 20 percent disabling effective June 6, 2017, during the pendency of the instant appeal. He was first diagnosed with moderate radiculopathy of the femoral nerve, left lower extremity, in a June 2017 VA contract examination. The Veteran indicated that his left thigh stayed numb, with decreased sensation, since undergoing radiation treatment after he was diagnosed with multiple myeloma in September 2016. There is otherwise no indication prior to June 6, 2017 that he complained of symptoms related to radiculopathy of the femoral nerve, left lower extremity, or that he has indicated the symptoms of his radiculopathy of the left lower extremity have worsened since the June 2017 examination. Accordingly, the current 20 percent evaluation for moderate radiculopathy of the femoral nerve, left lower extremity, is appropriate and a rating in excess of 20 percent is denied. See 38 C.F.R. § 4.71a, Diagnostic Code 5826. The record also indicates that the Veteran has a current diagnosis of radiculopathy of the right lower extremity, which warrants a separate compensable rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 at Note (1). VA primary care notes from March and October 2011 and January 2012 indicated that the Veteran was experiencing symptoms of low back pain with radiculopathy. A June 2012 VA pain clinic note stated that the Veteran had "bilateral foot and ankle pain, low back pain with radiculopathy into the right hip and left is greater than right on the foot pain." The clinician indicated that the Veteran had an antalgic gait with favoritism toward the left side. The clinician also noted degenerative changes, including evidence of neuroforaminal stenosis, in MRI imaging and rendered a diagnosis or lumbar radiculopathy. A September 2013 VA examination noted neurologic issues pertaining to the Veteran's right lower extremity related to his service-connected diabetic peripheral neuropathy, but did not indicate that any lumbar radiculopathy was present. Conversely, a September 2016 VA examination again diagnosed the Veteran with lumbar radiculopathy, specifically mild radiculopathy of the sciatic nerve, right lower extremity. As noted above, a June 2017 VA contract examination indicated that the Veteran had a diagnosis of radiculopathy related to his left lower extremity, but did not indicate radiculopathy of the right lower extremity. Although the evidence of record does not consistently indicate a diagnosis of lumbar radiculopathy of the right lower extremity in VA examinations during the period on appeal, resolving all reasonable doubt in favor of the Veteran, the Board finds that the preponderance of the evidence is in support of a finding of mild radiculopathy of the sciatic nerve, right lower extremity. However, the Board notes that the September 2013 VA examiner indicated that the Veteran's diabetic peripheral neuropathy resulted in mild incomplete paralysis of his sciatic nerves in each of his lower extremities, and assigning a separate rating would doubly compensate the Veteran for the same symptoms already considered under his evaluation for his service-connected bilateral diabetic peripheral neuropathy. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Additionally, although the Veteran testified at his Board hearing that he experienced urinary urgency and occasional bowel accidents, he was found in a July 2012 private treatment record to not have any persistent bowel or bladder dysfunction. Further, a September 2016 VA medical opinion indicated that the Veteran's claimed bladder condition was less likely as not related to his lower back condition, as his degenerative disc disease of the spine was not significant enough to cause the claimed condition. As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran has separate compensable bowel and bladder dysfunction due to his back disability. ORDER Entitlement to a rating of 30 percent, but no greater, for a service-connected bilateral foot disability for the entire period on appeal is granted. Entitlement to a rating of 20 percent, but no greater, for a service-connected lumbar spine disability for the entire period on appeal is granted. Entitlement to a rating in excess of 20 percent for service connected radiculopathy of the femoral nerve, left lower extremity is denied. Entitlement to a separate noncompensable rating for radiculopathy of the sciatic nerve, right lower extremity, effective June 5, 2012, is granted. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs