Citation Nr: 18141168 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-37 131 DATE: October 9, 2018 ORDER Prior to January 5, 2017, entitlement to an increased initial disability rating of 10 percent for right wrist tendonitis is granted. Entitlement to a rating in excess of 10 percent for right wrist tendinitis is denied. Prior to April 30, 2016, an increased initial rating of 20 percent for degenerative joint and disc disease of the lumbar spine (hereinafter “lumbar spine disability”) is granted. From April 30, 2016, a rating in excess of 40 percent for a lumbar spine disability is denied. Prior to April 30, 2016, an initial rating in excess of 10 percent for radiculopathy and sciatica of the left lower extremity is denied. From April 30, 2016, an increased 20 percent rating for radiculopathy and sciatica of the left lower extremity is granted. Prior to April 30, 2016, an initial rating in excess of 10 percent for radiculopathy and sciatica of the right lower extremity is denied. From April 30, 2016, an increased 20 percent rating for radiculopathy and sciatica of the right lower extremity is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded FINDINGS OF FACT 1. Resolving doubt in the Veteran’s favor, prior to January 5, 2017, his right wrist tendonitis has been productive of functional limitation of motion more nearly approximating dorsiflexion less than 15 degrees and/or palmar flexion limited in line with forearm. 2. Ankylosis of the right wrist has not been demonstrated. 3. Prior to April 30, 2016, taking into account functional limitation factors such as painful motion, the Veteran’s lumbar spine disability was shown to be productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 4. Ankylosis of the thoracolumbar spine has not been demonstrated. 5. Prior to April 30, 2016, the Veteran’s radiculopathy and sciatica of the left lower extremity was manifested by incomplete paralysis of the sciatic nerve that was no more than mild in severity. 6. From April 30, 2016, the Veteran’s radiculopathy and sciatica of the left lower extremity has been manifested by incomplete paralysis of the sciatic nerve that is moderate in severity. 7. Prior to April 30, 2016, the Veteran’s radiculopathy and sciatica of the right lower extremity was manifested by incomplete paralysis of the sciatic nerve that was no more than mild in severity. 8. From April 30, 2016, the Veteran’s radiculopathy and sciatica of the right lower extremity has been manifested by incomplete paralysis of the sciatic nerve that is moderate in severity. CONCLUSIONS OF LAW 1. Prior to January 5, 2017, the criteria for an increased initial rating of 10 percent for right wrist tendinitis have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), Diagnostic Code (DC) 5215 (2017). 2. The criteria for a rating in excess of 10 percent for right wrist tendonitis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), DC 5215 (2017). 3. Prior to April 30, 2016, the criteria for an increased initial rating of 20 percent, but no higher, for a lumbar spine disability were met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), DC 5242-5243 (2017). 4. From April 30, 2016, the criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), DC 5242-5243 (2017). 5. Prior to April 30, 2016, the criteria for an initial rating in excess of 10 percent for radiculopathy and sciatica of the left lower extremity were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124(a), DC 8620 (2017). 6. From April 30, 2016, the criteria for an increased rating of 20 percent for radiculopathy and sciatica of the left lower extremity have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124(a), DC 8620 (2017). 7. Prior to April 30, 2016, the criteria for an initial rating in excess of 10 percent for radiculopathy and sciatica of the right lower extremity were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124(a), DC 8620 (2017). 8. From April 30, 2016, the criteria for an increased 20 percent rating for radiculopathy and sciatica of the right lower extremity have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124(a), DC 8620 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2008 from June 2012. In February 2017, during the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) issued a rating decision granting increased ratings for the Veteran’s lumbar spine and right wrist disabilities. However, as these increases do not constitute a total grant of the benefits sought on appeal, the claims remain before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Claims 1. Right wrist tendonitis The Veteran is in receipt of an initial noncompensable rating for his right wrist disability, prior to January 5, 2017, and a 10 percent rating thereafter. For the following reasons, the Board finds that a uniform, 10 percent initial rating is warranted. The Veteran’s right wrist disability is evaluated under DC 5215. See 38 C.F.R. § 4.71(a). Under that DC, a 10 percent rating is warranted for limitation of motion of the wrist manifested by either palmar flexion limited in line with the forearm or dorsiflexion of less than 15 degrees. Id. In this case, the record shows that the Veteran underwent VA examinations for his right wrist disability in July 2014 and January 2017. (A September 2012 examination noted a history of ganglion cyst in the wrist from two years prior, but did not include an examination of functional impairment.) Additionally, according to a March 2012 examination report (conducted three months prior to the Veteran’s discharge from service), the Veteran reported intermittent pain in his right wrist after doing push-ups. In April 2013, the Veteran reported a history of right wrist pain, identified as arthralgias or myalgias of the wrists. VA outpatient treatment notes reflect that he has been continuously followed for tenosynovitis and pain of the hand and wrists. The July 2014 VA examination report shows that the Veteran complained of right wrist pain which increased with pushing or pressure to the wrist, and also with typing. A diagnosis of tendonitis was noted. The Veteran reported that his pain was sharp and of short duration, and was improved with rotation and stretching. He also reported increased pain with repetitive motions such as cutting vegetables. Range of motion testing was normal, and no additional limitations were noted. The January 2017 VA examination report reflects the Veteran’s reports of right wrist pain which caused him difficulty typing and obtaining full range of motion. On physical examination, range of motion was zero to 60 degrees of dorsiflexion and palmar flexion, with pain. The Veteran also reported flare-ups manifested by a constant ache; the examiner noted that range of motion was further reduced during flare-ups to zero to 45 degrees of palmar flexion and dorsiflexion. Lack of endurance was also noted on repetitive-use resting. Muscle strength was normal, however, and there was no evidence of ankylosis. The Board notes that, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). As illustrated above, the Veteran has consistently reported pain in his right wrist that has resulting in functional impairment, including difficulty typing, throughout the appeal period. Accordingly, the Board finds that the initial noncompensable rating assigned for his right wrist disability was improper, and a uniform 10 percent rating is warranted for the entire appeal period. As noted above, the Veteran has been followed for right wrist symptoms since service, and as early as 2014 he reported that his disability was manifested by pain that increased on activity such as typing. The Board finds that such functional impairment warrants a compensable rating under 38 C.F.R. §§ 4.40 and 4.45. The Veteran’s 10 percent rating under DC 5215 is the highest available rating under that DC. The Board has considered DC 5214, which provides a minimum 30 percent rating for favorable ankylosis of the wrist (major joint) in 20 to 30 degrees dorsiflexion, with higher ratings assigned for ankylosis in unfavorable positions. 38 C.F.R. § 4.71(a). However, the evidence of record in this case does not suggest, nor has the Veteran asserted, that his right wrist disability has ever been manifested by ankylosis. The Board has considered the directives of Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), regarding the importance of ascertaining the specific functional impact of flare-ups. In this case, however, the Veteran’s most recent examination report included a specific finding with respect to his range of motion during flare-ups, and there is no indication in the record that the Veteran’s flare-ups are severe enough to equate to joint locking or other symptoms equivalent to ankylosis. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the record). In sum, the Board finds that an increased initial rating of 10 percent is warranted, prior to January 5, 2017, for the reasons discussed above. A rating in excess of 10 percent is not warranted, however, at any time during the pendency of the appeal. 2. Lumbar spine disability The Veteran is in receipt of a 10 percent initial rating for his lumbar spine disability, prior to April 30, 2016, and a 40 percent rating thereafter. For the following reasons, the Board finds that an increased initial rating of 20 percent is warranted, prior to April 30, 2016, but that a rating in excess of 40 percent is not warranted. Disabilities of the spine are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), or under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes (DC 5243), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula provides a 20 percent rating for 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. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71(a). Alternatively, DC 5243 provides that a 20 percent rating is assigned for incapacitating episodes of IVDS having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is assigned in the event of incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Note (1) under DC 5243 defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. In this case, the record shows that the Veteran underwent VA examinations for his lumbar spine disability in July 2014 and January 2017. Additionally, the Veteran has submitted Disability Benefits Questionnaires (DBQs) from April 2016 and May 2018. The Veteran’s pre-discharge examination (conducted in March 2012) reflects his reports of constant back pain. A diagnosis of DDD was provided. In November 2013, the Veteran was hospitalized for acute back pain after he bent over to pick up a suitcase. He was treated with steroids and muscle relaxants. An MRI revealed a disc protrusion in L5-S1. The Veteran requested and was referred to a rehabilitation facility for physical therapy. On VA examination in July 2014, range of motion testing revealed that the Veteran had forward flexion of the spine limited to 70 degrees; however, the examiner noted that that the Veteran could functionally flex to no more than 60 degrees when factoring in pain. The Veteran reported that he had flare-ups of back pain once or twice per year; the examiner noted that during such flare-ups the Veteran’s activities were “limited by 90%”—he was forced to use a walker and cane and required assistance. The examiner noted that while the Veteran had IVDS, he had not had any incapacitating episodes over the past 12 months. Muscle strength and sensation were normal. There was no evidence of ankylosis. The April 2016 DBQ revealed that the Veteran’s flare-ups were becoming more frequent (two or three per year, with additional “small” episodes). During these flare-ups, the Veteran had to use a cane and walker, and he reported that recovery lasted for more than a month and a half. Range of motion testing revealed forward flexion limited to 45 degrees, extension to 15 degrees, lateral flexion to 20 degrees (bilaterally), right lateral rotation to 20 degrees, and left lateral rotation to 10 degrees. Range of motion was additionally limited after repetitive-use testing—for example, the Veteran was only able to achieve 25 degrees of forward flexion after repeated use. In terms of factors of functional loss, the examiner noted that the Veteran had decreased movement, pain, instability, disturbance of locomotion, and interference with sitting and standing. The examiner noted that while the Veteran had IVDS, he had not had any incapacitating episodes over the past 12 months. On VA examination in January 2017, the Veteran again reported flare-ups of back pain causing difficulty standing, sitting, and walking for long periods of time. Range of motion testing revealed forward flexion limited to 75 degrees, extension to 25 degrees, and lateral flexion and rotation to 25 degrees, with an additional 10 degrees of motion lost due to pain (and an additional five degrees lost during flare-ups, as estimated by the examiner). No evidence of ankylosis was noted, nor did the examiner identify a history of IVDS, prior evaluations notwithstanding. The May 2018 DBQ reflects the Veteran’s reports of difficulties with daily activities due to back pain, particularly during flare-ups. Range of motion testing revealed forward flexion limited to 30 degrees, extension to 15 degrees, lateral flexion to 20 degrees (bilaterally), right lateral rotation to 20 degrees, and left lateral rotation to 10 degrees. Additional loss of motion was noted due to pain—for example, the Veteran was only able to functionally achieve 25 degrees of forward flexion. The examiner noted that the Veteran began to have a flare-up while testing; he was unable to stand, and stated his back felt like it was “locking up.” Additional functional loss factors included excess fatigability, swelling, instability, disturbance of locomotion, and interference with sitting and standing. The examiner noted that the Veteran’s IVDS caused incapacitating episodes having a total duration of at least two weeks but less than four weeks over the past 12-month period. As an initial matter, the Board finds that, when factoring in additional functional limitations, the Veteran’s lumbar spine disability met the criteria for an initial 20 percent rating. (He was previously assigned a 10 percent rating prior to April 30, 2016.) Specifically, the July 2014 VA examination report, discussed above, shows that the Veteran’s forward flexion was functionally limited to 60 degrees when considering pain. Under the criteria listed in the General Ratings Formula, such limitation warrants a 20 percent rating. 38 C.F.R. § 4.71(a). The Board reiterates that VA is obligated to consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-207. From April 30, 2016, however, the Board finds that the Veteran’s lumbar spine disability symptoms does not justify a rating in excess of 40 percent. In short, the Board can find no probative evidence establishing that the Veteran’s symptoms more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine, even when considering the types of functional impairment noted in 38 C.F.R. §§ 4.40 and 4.45 and DeLuca. The VA examination reports and DBQs of record reflect no evidence of ankylosis, and the Veteran has never asserted that ankylosis has been identified by another medical professional. Likewise, the weight of the evidence is against a finding that the Veteran has suffered incapacitating episodes of IVDS warranting an increased 60 percent rating under DC 5243. The Board acknowledges that the Veteran was hospitalized in November 2013 for acute back pain, and that he has consistently reported flare-ups of back pain which essentially leave him incapacitated (including his recent report of flare-ups causing back “locking”). He is of course competent to report these facts. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Notwithstanding, the Board notes that the Veteran’s lay reports regarding his flare-ups would not establish that a rating in excess of 40 percent is warranted, as he reported suffering flare-ups, at most, three times per year. Moreover, none of the VA examination reports in this case, including the May 2018 DBQ, reflect incapacitating episodes of such a severity or frequency as would warrant an increased rating. Thus, even accepting that the Veteran has had incapacitating episodes of IVDS during the appeal period, the weight of the evidence is against a finding of physician-prescribed bedrest specifically on account of IVDS for at least six weeks over a 12-month period. The Board is aware of the recent Court decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017), holding that when flare-ups are an indicated part of a claimant’s service-connected disability, VA examiners are obligated to elicit information concerning the “severity, frequency, duration, or functional loss manifestations” of flare-ups. As discussed above, the Veteran has reported flare-ups throughout the pendency of the appeal, which have been specifically address in detail by several of the VA and private examiners of record. Moreover, the Board has considered the Veteran’s lay reports of episodes of increased back pain, and finds that they do not demonstrate unfavorable ankylosis or incapacitating episodes of IVDS to such a degree that would justify a higher rating. The Board finds that VA has complied with Sharp with respect to the Veteran’s lumbar spine disability. The Board notes that the Veteran has filed separate claims for service connection for neurological impairment, to include urinary, bowel, and erectile dysfunction, which he contends are secondary to his service-connected lumbar spine disability. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate DC. 38 C.F.R. § 4.71(a). In this regard, VA examinations for these disorders were provided in March 2018. As the claims are pending at the AOJ, and additional relevant evidence may be forthcoming, the Board finds that a final decision on these matters would be premature. In sum, for the reasons discussed above, the Board finds that an increased initial rating of 20 percent, prior to April 30, 2016 is warranted. However, a rating in excess of 40 percent thereafter must be denied. 3. Radiculopathy of the lower extremities The Veteran is in receipt of initial 10 percent ratings for his bilateral lower extremity radiculopathy. For the following reasons, the Board finds that increased, 20 percent ratings are warranted for both lower extremities, effective April 30, 2016. The Veteran’s radiculopathy is rated under DC 8620, which applies to neuritis of the sciatic nerve. Under that DC, a 10 percent disability rating requires evidence of mild incomplete paralysis of the sciatic nerve; a 20 percent rating requires evidence of moderate incomplete paralysis; a 40 percent rating requires evidence of moderately severe incomplete paralysis; a 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy; and finally, the maximum 80 percent rating requires evidence of complete paralysis, where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124(a), DC 8520. The relevant evidence reflects that the Veteran’s lower extremity radiculopathy symptoms more nearly approximated mild incomplete paralysis until April 30, 2016, whereupon a DBQ revealed radiculopathy that was moderate in severity. Hence, an increased 20 percent rating is warranted, effective on that date. Prior to April 30, 2016, the relevant evidence included a VA examination conducted in July 2014. At that time, the Veteran was noted to have mild intermittent pain and paresthesias, with no other signs or symptoms. Overall, radiculopathy involving the sciatic nerve was determined to be mild in severity. The April 30, 2016 DBQ reflects the first indication of record that the Veteran’s radiculopathy had increased in severity. At that time, it was noted that his radiculopathy was productive of constant pain, paresthesias, and numbness that was moderate in degree, with no other signs or symptoms noted. Overall, the Veteran’s radiculopathy was noted to be moderate. A subsequent VA examination (conducted in January 2017) and DBQ (conducted in May 2018) likewise reflected moderate radiculopathy of the lower extremities. Having awarded an increased rating effective April 30, 2016, the Board finds that the preponderance of the evidence does not establish entitlement to a rating in excess of 20 percent for the Veteran’s lower extremity radiculopathy at any point thereafter. In short, there is no credible evidence of incomplete paralysis involving the nerves of the left lower extremity that is more than moderate in degree. Thus, the criteria for an increased rating have not been met. See 38 C.F.R. § 4.124(a), DC 8520. As noted above, the Veteran has reported pain and decreased sensation in his legs throughout the appeal period, particularly during flare-ups, with resulting limitations on his activities. His current staged rating, which contemplates symptoms associated with incomplete paralysis of the lower extremities, is consistent with these reports. The Board finds that the findings of medical professionals with respect to the specific level of severity of the Veteran’s radiculopathy is the most probative evidence of record. See Jandreau, 492 F.3d at 1377. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-70. Accordingly, the Board finds that the weight of the evidence is against entitlement to a rating in excess of 10 percent prior to April 30, 2016, and in favor of an increased 20 percent rating (but no higher) thereafter. REASONS FOR REMAND Given the severity of the symptoms reported by the Veteran regarding his service-connected disabilities, particularly including his lumbar spine disability, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). However, the Veteran has not been provided adequate notice of the requirements to substantiate TDIU, nor has the AOJ addressed this issue in the first instance. Thus, the issue must be REMANDED for the following action: After undertaking all appropriate development, including providing the Veteran with notice regarding the requirements to substantiate entitlement to a TDIU, the AOJ must adjudicate the issue of entitlement to a TDIU. Then, if necessary, return the case to the Board for further appellate review. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Minot, Associate Counsel