Citation Nr: 1805155 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-01 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation for osteoarthritis of the lumbar spine with discogenic disc disease, status-post discectomy with intervertebral disc syndrome and scar, lumbar region in excess of 10 percent prior to April 14, 2015, and in excess of 40 percent from that date. 2. Entitlement to an initial evaluation in excess of 10 percent for status-post, lumbar discectomy with intervertebral disc syndrome affecting the sciatic nerve, left leg. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2001 to February 2007. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that granted service connection and assigned initial ratings for the back disability and radiculopathy in both lower extremities. The Veteran disagreed with the evaluations assigned to the back and left lower extremity only. In a May 2015 rating decision, the RO granted a 40 percent rating for the Veteran's service-connected osteoarthritis of the lumbar spine with discogenic disc disease, status-post discectomy with intervertebral disc syndrome and scar, lumbar region. Although the RO addressed the issue of entitlement to an earlier effective date for the assignment of the 40 percent rating, the claim actually involves the propriety of the disability rating assigned during the entire appeal period. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran testified before the undersigned Veterans Law Judge in April 2016. A transcript of that hearing is associated with the record. The issues were previously before the Board in July 2016 and remanded for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to April 14, 2015, and throughout the pendency of the appeal period, the Veteran's lumbar spine disability was not shown to manifest forward flexion of the thoracolumbar spine limited to 60 degrees or less; or a combined range of motion of the thoracolumbar spine limited to 120 degrees or less; 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. 2. Beginning April 14, 2015 the Veteran's lumbar spine disability manifested forward flexion of the thoracolumbar spine that was limited to 30 degrees or less. Unfavorable ankylosis of the entire thoracolumbar spine is not demonstrated. 3. At no time during the appeal period is there evidence that the Veteran's lumbar spine disability resulted in incapacitating episodes or any right lower extremity neurological impairment. 4. For the period prior to April 14, 2015, the Veterans status-post, lumbar discectomy with intervertebral disc syndrome affecting the sciatic nerve, left leg has been moderate in severity. 5. From April 14, 2015, the Veterans status-post, lumbar discectomy with intervertebral disc syndrome affecting the sciatic nerve, left leg has been moderately severe. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating for osteoarthritis of the lumbar spine with discogenic disc disease, status-post discectomy with intervertebral disc syndrome and scar, lumbar region in excess of 10 percent prior to April 14, 2015, and in excess of 40 percent from April 14, 2015, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.71a, Diagnostic Code (DC) 5242, 5243 (2017). 2. The criteria for a rating of 20 percent, but no higher for status-post, lumbar discectomy with intervertebral disc syndrome affecting the sciatic nerve, left leg prior to April 14, 2015, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.124a, DCs 8520, 8720 (2017). 3. The criteria for a rating of 40 percent, but no higher, for status-post, lumbar discectomy with intervertebral disc syndrome affecting the sciatic nerve, left leg from April 14, 2015, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.124a, DCs 8520, 8720 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbar Spine Disability Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5243. Intervertebral disc syndrome (IVDS) will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome or based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the entire thoracolumbar spine not greater than 120 degrees; or, if 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 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine not 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. Id. Under notes to the rating formula: Note (2): (see also Plate V.) 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. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations 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. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80 (1997). Service treatment records show that the Veteran suffered a back injury during service that subsequently required L-5/S-1 discectomy surgery in May 2006. The Veteran was given a temporary disability retirement and discharged from service in February 2007. Following a September 2008 Physical Evaluation Board Proceeding the Veteran was given a permanent disability retirement for her lumbar spine disability. The Veteran submitted her application for compensation in December 2008. The Veteran was given a VA examination in February 2009. The Veteran reported to the examiner that she was diagnosed with degenerative disc disease of the lumbar spine during service in 2002 that progressed to a ruptured disc requiring surgery in 2006. The Veteran reported constant pain to her lower back that travels to her upper back, hips and legs. The Veteran described the pain as aching, oppressing and cramping with a pain rating of 5 out of 10. The pain occurs spontaneously and can be elicited by physical activity, stress and stiffening up while sleeping and is relieved with rest and pain medication. She denied loss of bladder control and loss of bowel control. The examiner reported the Veteran's thoracolumbar range of motion (ROM) as follows: forward flexion to 90 degrees (pain free); extension to 30 degrees (non-tender); right and left lateral flexion to 30 degrees each (with some tenderness); right and left rotation to 30 degrees. The Veteran had a combined ROM of 240 degrees. Repetitive use of the lumbar spine produced pain. However; there was no further loss ROM, weakness, fatigue, or weakness, lack of coordination or endurance. The physical examination revealed tenderness to the lumbar spine, pain at rest with normal range of motion lumbar spine. Lumbar spine X-ray's show moderate disc space narrowing at L4-L5 In a May 2009 rating decision the RO granted the Veteran service-connection with a 10 percent evaluation for osteoarthritis of the lumbar spine with discogenic disease post discectomy and IVDS. The Veteran was afforded a VA examination in April 2015. The Veteran reported to the examiner that she suffers from occasional incapacitating muscle spasms, lasting on average at least three weeks each. The Veteran further reported that she spent four months on crutches during her pregnancy due to an ongoing muscle spasm in her left hip and leg, and could only crawl when the crutches were not available or usable due to circumstances (tight hallways or needed to access something low, showering, etc.) The Veteran also reported that even when she restricts her activities during the day her back disability still hurts badly by bedtime each night. Regarding her sciatic nerve disability, the Veteran reported experiencing electric pain with every movement, no matter how small. The Veteran stated she cannot push off the ground with the front of her left foot when walking or running, drive a stick shift because she does not have the function in her left foot to apply pressure to the clutch pedal. The Veteran stated that her balance is reduced because of her left foot, resulting in frequent bumps into door frames and other stationary structures near her path of travel. The Veteran reported moderate sensory loss all down the back of her leg, and the bottom of her foot. She reported that she can feel pressure, but surface touches aren't felt. On examination, the VA examiner diagnosed the Veteran with IVDS. The examiner noted that the Veteran did not have localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. She also had no muscle spasm or guarding of the thoracolumbar spine that resulted in an abnormal gait or abnormal spinal contour. The Veteran's ROM measurements during the examination were as follows: forward flexion to 25 degrees (with pain at 25 degrees); extension to 10 degrees (with pain at 5 degrees); right lateral flexion to 15 degrees (with pain at 10 degrees) and left lateral flexion to 10 degrees (with pain at 10 degrees); right rotation to 10 degrees (with pain at 10 degrees) and left rotation to 10 degrees (with pain at 5 degrees). The Veteran had a combined ROM of 80 degrees (with consideration of pain, to 65 degrees). With repetitive motion, repeated three times, there is no change in range of motion. The examiner also noted that the Veteran had a functional loss after repetitive use of less movement than normal and pain on movement. The VA examiner reported that the Veteran did not have any muscle atrophy and her reflexes were normal in both the knees and ankles bilaterally. The Veteran had a positive sign during the straight leg lift bilaterally and evidence of radiculopathy. During the sensory exam, the examiner reported decreased sensory on the left upper anterior thigh, left thigh, left knee area, left lower leg, left ankles, left foot and toes. The radiculopathy examination revealed moderate constant pain to the left lower extremity and severe intermittent pain, paresthesia/dysthesia and moderate numbness to both lower extremities. The examiner reported L4/L5/S1/S2/S3 nerve roots (sciatic nerve) involvement that was severe on the left side. Following the VA examination, the RO granted an increased rating of 40 percent effective April 14, 2015 for the Veteran's service connected osteoarthritis of the lumbar spine with discogenic disc disease, status-post discectomy with intervertebral disc syndrome and scar, lumbar region. The Veteran testified at an April 2016 Board hearing. The Veteran stated that the February 2009 VA examiner did not use a goniometer or any other measuring device during the examination. The Veteran testified that prior to the February 2009 VA examination, her thoracolumbar ROM was tested at Walter Reed Army hospital. As a result she is familiar with goniometers and knows that one was not used in February 2009. The Veteran also reasoned that at Walter Reed, her thoracolumbar ROM resulted in 4 degrees forward flexion. The Veteran testified that the Walter Reed examination was 18 months prior to the February 2009 examination. The Veteran also explained that there were no post-service medical records documenting her lumbar spine disability because she was unable to go to a primary care doctor. The reasoning the Veteran provided was that she was pregnant with her second child, and that she knew that while she was pregnant and/or nursing she could not take medication for her back pain, so there was no reason to go. The Veteran also reported that she had to use crutches while she was pregnant due to back spasms. In this case, based upon the available evidence and the rating criteria, the criteria for a rating in excess of 10 percent for the lumbar spine disability are not met for the period prior to April 14, 2015 for her lumbar spine disability. Although the Veteran referred to ROM studies conducted while she was in service, attempts to obtain any related records on remand were unsuccessful. When the RO notified the Veteran in August 2017 of the negative response to requests for related records, she indicated that she didn't know whether there were in fact any records beyond what was already submitted. She clarified that her statement at the hearing was really to the effect that she wondered whether there were any other records. The Board is satisfied that the development requested on remand was complete; no additional records were obtained. The only evidence in the record prior to April 14, 2015, is the February 2009 VA examination. In that examination the examiner reported that the Veteran had a ROM of forward flexion limited to 90 degrees with a combined range of motion of 240 degrees. There was no evidence of flexion to less than 60 degrees; even with consideration of pain. There is no evidence of muscle spasm resulting in abnormal gait or spinal contour or incapacitating episodes. The Board acknowledges the Veteran's assertions that her thoracolumbar ROM was less than 30 degrees prior to April 14, 2015. The Veteran is competent to report symptoms that are readily apparent to her because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide medical examination results. The issue of determining range of motion and functionality is medically complex and requires specialized knowledge and experience that the Veteran has not demonstrated she has. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Kahana v. Shinseki, 24 Vet. App. 428 (2011). During the April 2015 VA examination, the examiner who is competent to provide medical opinions reported the Veteran had forward flexion ROM of 25 degrees. Therefore, beginning April 14, 2015, the findings warranted a 40 percent evaluation. As there is no evidence of ankylosis of the entire thoracolumbar spine, a 50 percent rating is not warranted. Thus, the preponderance of the evidence is against the claim for an increased rating in excess of 10 percent prior to April 14, 2015 for osteoarthritis of the lumbar spine with discogenic disc disease, status-post discectomy with intervertebral disc syndrome and scar, lumbar region, and in excess of 40 percent from that date. 38 U.S.C. § 5107(b). Sciatic Nerve Damage The Veteran's sciatic nerve damage is evaluated under 38 C.F.R. § 4.124a, DC 8720, Neuralgia of sciatic nerve; the nerve specifically identified by the VA examiners. Under DC 8720, complete paralysis of the nerve (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost) is rated as 80 percent; 60 percent disability rating is for an incomplete paralysis with marked muscular atrophy. Disability ratings of 40 percent, 20 percent, and 10 percent are assignable for incomplete paralysis which is moderately-severe, moderate, or mild in degree. 38 C.F.R. § 4.124a, DC 8520. 38 C.F.R. § 4.120 provides that when rating peripheral nerve injuries and residuals consider the relative impairment of motor function, trophic changes, and/or sensory disturbances. Attention should be given to the site and character of the injury. 38 C.F.R. § 4.123 provides several principles relating to peripheral nerves. Neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, is to be rated on the scale provided for injury of the nerve involved under the DCs and evaluations provided in 38 CFR 4.124a. The maximum evaluation for neuritis is the evaluation provided for severe incomplete paralysis of the affected nerve. 38 CFR 4.124 provides that the maximum evaluation for neuralgia, characterized usually by a dull and intermittent pain in the distribution of a nerve, should be the evaluation provided for moderate incomplete paralysis of the nerve under the applicable DC. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. Note preceding Code 8510. 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" 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. 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, the Veteran's sciatic nerve on the left leg was damaged during her L5-S1discectomy surgery during service. Following service the Veteran was afforded a VA examination in February 2009. During the February 2009 examination, the Veteran reported experiencing tingling, numbness, abnormal sensation, pain, anesthesia and paralysis of he left leg. During the physical examination the examiner reported the Veteran had a positive bilateral leg straight leg raising test. The examiner noted there was no motor dysfunction. She had intervertebral disc syndrome at L4 with sensory deficit in her left lateral thigh and left front leg left medial leg at L5 and sensory deficit in her left lateral leg, left dorsal foot and left lateral foot at S1, She was diagnosed with sensory deficit to the left back of the thigh, left lateral leg and left lateral foot with neuralgia. In a May 2009 rating decision the RO granted service connection and assigned a 10 percent evaluation for the sciatic nerve of the left leg. The Veteran was afforded a VA examination in April 2015. The Veteran reported to the examiner that she had moderate sensory loss all down the back of her leg, and the bottom of her foot. She reported that she can feel pressure, but she cannot feel touches to the surface. There was a comment that the Veteran had some muscle atrophy in the left calf, but within the examination report the examiner said there was no muscle atrophy. Reflexes were normal in both the knees and ankles bilaterally. The Veteran had a positive sign during the straight leg lift bilaterally and evidence of radiculopathy. During the sensory exam, the examiner reported the Veteran had decreased sensory on the left upper anterior thigh, left thigh, left knee area, left lower leg, left ankles, left foot and toes. The sensory exam on the right lower extremity was normal. Reflexes were all normal. The radiculopathy exam revealed moderate constant pain to the left lower extremity and severe intermittent pain, paresthesia/dysthesia and moderate numbness to both lower extremities. The examiner specifically noted that there were no other signs or symptoms of radiculopathy. The examiner reported L4/L5/S1/S2/S3 nerve roots (sciatic nerve) involvement for both extremities that was severe on the left side and moderate on the right side. The Veteran testified at an April 2016 Board hearing that her sciatic nerve on the left side is so much worse than the right side. The Veteran also testified that she has muscular atrophy as a result of not being able to use her leg. In this case the Board finds that a staged rating is warranted; 20 percent from December 30, 2008; the date the claim was received, to April 14, 2015, when a 40 percent rating is approximated. For the period prior to April 2015, VA examinations and testing revealed that the Veteran had sciatic nerve damage from her lumbar IVDS. The examiner reported that the Veteran had subjective factors of tingling and numbness loss of all sensation pain and abnormal sensation and "paralysis of affected part." The objective factors reported by the examiner were: positive bilateral leg straight leg raising test intervertebral disc syndrome at L4 with sensory deficit to the left lateral thigh, left front leg and left medial leg; at L5 with sensory deficit left lateral, leg left dorsal foot left and lateral foot, and at S1 with sensory deficit to the left back of thigh left lateral leg and left lateral foot with neuralgia. Although, the VA examiner does not categorize the Veteran's sensory deficit as mild, moderate or severe, the findings documented by the examiner show that the Veteran's sciatic nerve paralysis affects her entire leg and foot affecting the sciatic nerve roots. Given that the involvement affects a large area and is more or less continuous, the Board finds that the VA examination reveals findings that more closely approximate moderate paralysis of the sciatic nerve. A higher 40 percent rating of moderate was not warranted as the February 2009 examiner reported that the "peripheral nerve root is sciatic with no complications." The involvement is wholly sensory; moderate is the maximum. Beginning April 14, 2015, a 40 percent rating is warranted. The April 2015 examiner reported moderate constant pain to the left lower extremity and severe intermittent pain, paresthesia/dysthesia and moderate numbness to both lower extremities. The examiner reported L4/L5/S1/S2/S3 nerve roots (sciatic nerve) involvement for both extremities that was severe on the left side. Although the examiner noted there was no muscle atrophy, there was some atrophy of the left calf muscle. 40 percent is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. Absent organic changes, a rating in excess of 40 percent is not warranted. While there is some muscle atrophy in the calf, it is not marked. The level of atrophy noted on examination is contemplated within the moderately severe evaluation. Thus, the Board finds that a 20 percent rating, but no higher, is warranted for neuralgia of the sciatic nerve affecting the left leg post discectomy, prior to April 14, 2015; as a 40 percent rating, but no higher, is warranted thereafter. ORDER Entitlement to an initial evaluation for osteoarthritis of the lumbar spine with discogenic disc disease, status-post discectomy with intervertebral disc syndrome and scar, lumbar region in excess of 10 percent prior to April 14, 2015, and in excess of 40 percent from that date is denied. Assignment of an initial evaluation of 20 percent for status-post, lumbar discectomy with intervertebral disc syndrome affecting the sciatic nerve, left leg, for the period prior to April 14, 2015 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement of a 40 percent rating for status-post, lumbar discectomy with intervertebral disc syndrome affecting the sciatic nerve, left leg from April 14, 2015, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs