Citation Nr: 18140247 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 08-28 408 DATE: October 2, 2018 ORDER Prior to March 30, 2010, a 40 percent rating, but no higher, for the lumbar spine disability is granted. From November 15, 2011, a 40 percent rating, but no higher, for left lower extremity radiculopathy and sluggish bowel associated with the lumbar spine disability, is granted. FINDINGS OF FACT 1. Prior to March 30, 2010, when considering pain and corresponding functional loss during flare-ups, the Veteran’s lumbar spine disability was productive of forward flexion to 30 degrees or less, with no evidence of ankylosis of the thoracolumbar spine or intervertebral disc syndrome (IVDS). 2. From November 15, 2011, neurologic symptoms of left lower extremity and sluggish bowel more nearly approximate moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to March 30, 2010, the criteria for a 40 percent rating, but no higher, for a lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Codes (DCs) 5235-5243. 2. The criteria for a 40 percent rating, but no higher, for left lower extremity radiculopathy and sluggish bowel associated with a lumbar spine disability are met from November 15, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1995 to January 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which continued a 20 percent rating for the Veteran’s lumbar spine disability. In an August 2012 rating decision, the RO granted service connection for left lower extremity radiculopathy associated with the lumbar spine disability and assigned a 20 percent rating, effective November 15, 2011. In a February 2017 decision, the Board denied the Veteran’s appeal for a rating in excess of 20 percent prior to March 30, 2010 and subsequent to January 24, 2016, but awarded a 40 percent rating from March 30, 2010, to January 24, 2016. Additionally, the Board denied a rating in excess of 20 percent for left lower extremity radiculopathy and declined to award a separate rating for any other associated neurologic manifestation. The Veteran timely appealed the February 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2018 Memorandum Decision, the Court vacated and remanded the Board decision as to a rating in excess of 20 percent for a lumbar spine disability, prior to March 30, 2010, and a rating in excess of 20 percent for neurologic manifestations associated with a lumbar spine disability or a separate neurologic rating under an alternate diagnostic code. The Court dismissed the appeal as to a rating in excess of 40 percent for a lumbar spine disability from March 30, 2010, to January 24, 2016, and affirmed the Board’s denial of o a rating in excess of 20 percent from January 24, 2016 and finding that a total disability rating based on individual unemployability had not been raised. In August 2011, the Veteran testified during a Board hearing before a Veterans Law Judge (VLJ). In July 2018, she was advised that the VLJ who took her testimony was no longer employed by the Board and given an opportunity to request a new hearing. In August 2018 correspondence, the Veteran indicated she did not wish to attend another hearing. 38 C.F.R. § 19.3(b). Increased Ratings 1. Entitlement to a 40 percent rating for the lumbar spine disability from February 1, 2008 to March 30, 2010 is granted. 2. Entitlement to a 40 percent rating for left lower extremity radiculopathy and sluggish bowel associated with a lumbar spine disability is granted November 15, 2011. I. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervations, 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. Id. 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever 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). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. II. Rating Criteria Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. Ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Pursuant to this formula, a 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237. Any associated objective neurologic abnormalities, including bladder or bowel impairment, are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Note (1). The Veteran’s left lower extremity radiculopathy is currently rated pursuant to DC 8520. Under DC 8520, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent rating, and moderately severe incomplete paralysis of the sciatic nerve warrants a 40 percent rating. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscle atrophy. A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). 38 C.F.R. § 4.124, DC 8520. It is noted that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. The words, “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board evaluates all of the evidence to the degree that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Board notes that “marked” is defined as “noticeable; obvious; appreciable; distinct; conspicuous.” See Webster’s New World Dictionary, Third College Edition (1988) at 828. The rating schedule also includes criteria for evaluating IVDS. Under DC 5243, IVDS is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on the Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DC 5243. Under the IVDS formula, a 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. For these purposes, an incapacitating episode is defined as 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, DC 5243, Note (1). III. Analysis The Veteran is currently in receipt of a 20 percent rating, prior to March 30, 2010, and from January 24, 2016, and a 40 percent rating from March 30, 2010, to January 24, 2016, for her service-connected lumbar spine disability. She is also in receipt of a 20 percent rating for her service-connected left lower extremity radiculopathy associated with a lumbar spine disability, from November 15, 2011. The current appeal period before the Board for her lumbar spine disability and associated neurological manifestations is from February 1, 2008, to March 30, 2010, with February 1, 2008, being the date of her VA examination (considered as an increased rating claim) plus the one year “lookback” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); see also 38 C.F.R. § 3.157(b)(1) (in effect prior for claims filed prior to March 24, 2015). Throughout the appeal period, the Veteran has complained of worsening back pain and stiffness that causes functional impairment and limits her range of motion, as well as severe spinal flare-ups. See May 2007 through March 2010 VA treatment records and February 2008 VA examination report. VA treatment records dated in July 2007 and June 2011 noted the Veteran’s bowels as moving regularly and she denied a change in her bowel movements, but noted a history of constipation/diarrhea that was diet-related. See July 2007 and June 2011 VA treatment records. The Veteran was afforded a VA spine examination in February 2008. She reported back spasms that went into her buttocks occurring twice a week, decreased motion, stiffness, and severe sharp pain lasting hours one to six times a week. She also reported weekly severe spinal flare-ups lasting several hours during which radiating and piercing pain caused her to stop what she was doing and seek treatment. Physical examination revealed forward flexion to 75 degrees with pain and no additional functional loss with repetitive use. The examiner found muscle spasms, guarding, and tenderness. No muscle atrophy, weakness, abnormal gait, gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, or reverse lordosis were indicated. Additionally, no urinary incontinence, urinary retention, urinary frequency, nocturia, fecal incontinence, erectile dysfunction, obstipation, leg or foot weakness, unsteadiness, visual dysfunction, or dizziness were found. The examiner noted urinary urgency, numbness, and paresthesia. Motor, sensory, and reflex testing were normal and no IVDS test was rendered. The examiner noted the Veteran’s activities of daily life and work were impacted in that she had difficulty sitting for long periods of time. The Veteran was afforded another VA spine examination in March 2010. She reported flare-ups consisting of back spasms and back pain that were associated with changing positions and certain stressing activities. She denied radiating pain into her legs and any incapacitating episodes in the last 12 months. Physical examination revealed forward flexion of between 70-75 degrees with no additional loss with repetitive use. The examiner noted that during flare-ups she could lose between 10-15 degrees of forward flexion. The examiner noted a normal gait and posture. No muscle atrophy was found and sensory and reflex testing were normal. Straight leg testing was negative in both legs and no neurologic abnormalities were found. Mild effects on activities of daily life and employment were noted. The Veteran was afforded a VA back examination on November 15, 2011. She reported muscle spasms, pain, tingling, and numbness in her left leg. She also reports flare-ups that were more common in the winter months with back spasms and stiffness and that she had to call out of work for up to two days to recover. Physical examination revealed forward flexion of 80 degrees, with pain noted as causing functional loss. The examiner noted additional loss with repetitive use of forward flexion to 70 degrees. The examiner noted less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, standing, and or weight bearing, and bilateral pain over greater trochanter, extending down towards the knee laterally as factors contributing to functional loss. Muscle spasms or guarding was found that did not result in abnormal gait or abnormal spinal contour. No muscle atrophy was found and muscle strength testing normal was normal. Reflex testing was normal in both knees and absent (0) in the left ankle and hypoactive (1+) in the right ankle. Sensory testing was normal in the right leg and decreased in the left leg. Straight leg testing was positive in both legs. The examiner noted neurologic symptoms of mild intermittent pain, moderate paresthesias/dysesthesias, and severe numbness in the left lower extremity and no symptoms in the right lower extremity with moderate left lower extremity radiculopathy and no right lower extremity radiculopathy endorsed. The examiner also noted a sluggish bowel as a neurologic abnormality related to her lumbar spine condition. No IVDS was indicated or assistive devices used. The examiner noted that the Veteran’s ability to work was impacted, as the condition led to absenteeism during flare-ups and despite having an ergonomic chair at work she could not sit for prolonged periods. In a March 2015 addendum opinion to the November 2011 VA examination, the VA examiner stated he could not opine on potential loss of range of motion during flare-ups without resorting to mere speculation. He also noted that urinary frequency is not related to her lumbar spine disability, as the Veteran denied such in a contemporaneous gynecological examination in June 2011. The Veteran was most recently afforded a VA spine examination on January 24, 2016. She reported her back condition as the same or worse with spasms a few times per week and pain when sitting or standing for long periods of time. She also reported her belief that she had radiculopathy in both legs due to numbness on and off. She denied flare-ups, but reported functional loss. Physical examination revealed forward flexion of 90 degrees with pain noted as not causing functional loss. No additional loss with repetitive use was indicated. The examiner found muscle spasms, but was not able to evaluate if they resulted in abnormal gait or spinal contour. No guarding or ankylosis were found. Muscle atrophy of the left calf was found (reduced by 2 centimeters compared to the right, and noted by the examiner as “clinically insignificant”), and muscle strength, reflex, and sensory testing were normal. Straight leg testing was negative in both legs. The examiner noted neurologic symptoms of mild paresthesias and numbness in the left lower extremity and no symptoms in the right lower extremity. Vibration sense was slightly less on the left side. No other neurologic abnormalities were found, including sluggish bowel, and no IVDS was present. The Veteran’s ability to work was noted as impacted. As such, given the totality of the evidence when considering the Veteran’s competent and credible reports of limited lumbar spine motion, stiffness, pain, and spasms combined with her consistent reports of weekly severe flare-ups beginning during her February 2008 VA examination and lasting until her January 2016 VA examination, the Board finds that a 40 percent rating for her lumbar spine disability is warranted from February 1, 2008, to March 30, 2010. See DeLuca, 8 Vet. App. at 205-206; see also Mitchell, 25 Vet. App. at 38; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As no ankylosis is demonstrated, a rating in excess of 40 percent is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. A disability rating in excess of 40 percent based on incapacitating episodes is also not warranted as no IVDS is found at any time during the appeal period and the Veteran has not asserted that she experienced any such episodes. Therefore, a rating under DC 5243 is not applicable. As for objective neurologic abnormalities, as noted in the Introduction, Note (1) to the General Rating Formula for Diseases and Injuries of the Spine requires consideration of entitlement to separate compensable ratings for neurological findings, including bladder or bowel impairment. 38 C.F.R. § 4.120. Here, the Board finds that a 40 percent rating, but no higher, is warranted for the combined symptoms of left lower extremity radiculopathy and sluggish bowel from November 15, 2011, as these symptoms did not manifest before this time period. Notably, the Veteran first complained of pain, tingling, spasms, and numbness in her left leg during the November 2011 VA examination and the examiner noted radicular symptoms of mild intermittent pain, moderate paresthesias and/or dysesthesias, severe numbness in the left lower extremity with absent reflexes in the ankle and a sluggish bowel. Subsequently, the January 2016 VA examiner found no evidence of a sluggish bowel and instead noted only mild paresthesias and/or dysesthesias and numbness in the left lower extremity along with clinically insignificant muscle atrophy and normal reflexes. In this regard, the Board finds that her left calf atrophy is not marked, as it was described as clinically insignificant and resulted in no accompanying loss of muscle strength or other organic findings. Thus, given the evidence of a sluggish bowel and wholly sensory findings with the exception of absent left ankle reflexes in 2011 (that have since resolved) and clinically insignificant left calf atrophy, the Veteran’s neurologic symptoms more nearly approximate the criteria for a 40 percent rating, but no higher, for moderately severe incomplete paralysis of the sciatic nerve from November 15, 2011. Additionally, the Board has considered awarding separate ratings for other neurological manifestations during the appeal period, but finds these ratings are not warranted. To this end, the Board has considered the fleeting notations of numbness, paresthesia, and urinary urgency during the February 2008 VA examination, however it is unclear from the examination report to which body part the numbness and paresthesia is attributed and urinary urgency has been deemed unrelated to the Veteran’s lumbar spine disability, as noted in the above March 2015 VA addendum opinion. Additionally, the Board acknowledges the Veteran’s statement during her January 2016 VA examination that she also has radiculopathy in her right leg. Although she is competent to attest to symptoms such as numbness, she is not competent to diagnose an underlying condition like radiculopathy or determine its etiology. In this regard, the Board affords more probative weight to the opinions of the competent VA examiners of record, who have consistently indicated that no right lower extremity radiculopathy is present during the appeal period. Moreover, the Board notes that the Court did not take issue with the Board’s prior finding that a separate compensable rating was not warranted for the right lower extremity or the March 2015 VA examiner’s opinion regarding reported urinary urgency, and referenced no evidence prior to 2011 for consideration in addressing inadequacies in the Board’s discussion of separate neurological ratings. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (“Court will [not] review Board decisions in a piecemeal fashion”); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff’d, 972 F.2d 331 (Fed. Cir. 1992) (“[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court”). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel