Citation Nr: 18141285 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-28 766 DATE: October 10, 2018 ORDER Entitlement to a rating in excess of 40 percent for service-connected intervertebral disc syndrome (IVDS) with degenerative arthritic changes and involvement of the sciatic nerve is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT For the entire appeal period, the Veteran has demonstrated movement of his lumbar spine in all planes of excursion tested. While his range of motion is painful, there is no lay or medical evidence of flare-ups or additional loss of motion after repetitive use; nor does the evidence show symptoms that are consistent with ankylosis in the spine or that result in incapacitating episodes as defined by the schedular criteria. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for service-connected intervertebral disc syndrome (IVDS) with degenerative arthritic changes and involvement of the sciatic nerve are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to June 1982. This matter is on appeal from an April 2014 rating decision. 1. Entitlement to a rating in excess of 40 percent for service-connected intervertebral disc syndrome (IVDS) with degenerative arthritic changes and involvement of the sciatic nerve The Veteran is seeking a rating higher than 40 percent for his service-connected lumbar spine disability, which is evaluated under DC 5243-5237. The first DC is assigned for IVDS under DC 5243, while the second DC is assigned for lumbosacral strain under DC 5237. Both disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. In order to warrant a higher schedular rating, the evidence must show the Veteran’s lumbar spine is manifested by unfavorable ankylosis of the entire thoracolumbar or entire spine. The evidence shows the Veteran’s lumbar spine disability has been manifested by low back pain, which he has reported radiates into his left lower extremity and is also characterized by spasms and tenderness to palpation in the lumbar paraspinal muscles. See e.g., VA treatment records dated May 2013 and November 2014. The evidence also shows the Veteran has demonstrated limited range of motion in his lumbar spine throughout the appeal period. In November 2014, the Veteran demonstrated forward flexion to 30 degrees and extension to 10 degrees. A subsequent treatment record reflects that his flexion was limited to 50 to 75 percent due to pain and that his attempts to demonstrate extension were also painful. See VA treatment records dated November and December 2014. During the February 2014 VA examination, the examiner was unable to obtain accurate range of motion findings because of the Veteran’s attempts to magnify his symptoms, which the examiner explained included excessive dramatization and grossly exaggerated responses to normal physical examination maneuvers. February 2014 VA examination. Similarly, the March 2015 VA examination report reflects that the Veteran demonstrated forward flexion to 20 degrees, as well as extension, bilateral lateral flexion, and bilateral lateral rotation to 10 degrees; however, the examiner stated that these findings were unreliable due to inadequate effort from the Veteran. In this regard, the examiner was unable to provide an opinion regarding whether any additional factors significantly limited the Veteran’s functional ability given his poor effort during the examination. Nevertheless, the examiner noted the Veteran was able to perform repetitive use testing, which did not reveal any additional loss of function. March 2015 VA examination. Notably, the Veteran has denied having flare-ups throughout the appeal period. See February 2014 VA examination; March 2015 VA examination. Despite the Veteran’s poor effort during the VA examinations, the foregoing evidence shows he consistently demonstrated movement in his lumbar spine during the appeal period, which is contrary to a finding of ankylosis in any segment of his spine, including the thoracolumbar spine. In fact, the March 2015 VA examination report reflects that the Veteran demonstrated movement in every plane of excursion tested, even despite poor effort. The Board also notes that neither the lay nor medical evidence of record shows the Veteran’s limited, painful motion has resulted in fixation of the entire thoracolumbar spine with difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, Note 5, General Rating Formula for Diseases and Injuries of the Spine. Therefore, the Board finds the relevant evidence does not show the Veteran’s lumbar spine disability has been manifested by unfavorable ankylosis, or symptoms or functional impairment approximating unfavorable ankylosis, as contemplated by the rating criteria to warrant a rating higher than 40 percent under DC 5237 and the General Rating Formula for Diseases and Injuries of the Spine. The Board has considered whether a rating higher than 40 percent is warranted under the Formula for Rating Intervertebral Disc Syndrome (IVDS) on the Basis of Incapacitating Episodes; however, there is no competent lay or medical evidence of record showing the Veteran’s IVDS has been manifested by incapacitating episodes for 6 weeks during the appeal period to warrant a higher, 60 percent rating. Indeed, there is no indication or allegation that the Veteran’s lumbar spine disability has required bed rest and treatment prescribed by a physician. Therefore, a higher rating for the Veteran’s lumbar spine disability is not warranted at any point during the time period in question based upon that criterion. The Board finally notes that the General Rating Formula for Diseases and Injuries of the Spine directs VA to separately evaluate any objective neurological abnormalities associated with a spinal disability under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235-5243). In this case, while the Veteran has reported having pain radiating from his back into his left lower extremity, the March 2015 VA examiner stated that there was no objective evidence to support a diagnosis of peripheral neuropathy or a peripheral nerve condition, as a January 2015 EMG revealed normal findings in the bilateral lower extremities. The physicians who performed the VA examinations in this case also noted that there was no evidence of any other signs or symptoms of radiculopathy or associated neurologic abnormality. See February 2014 VA examination; March 2015 VA examination. Therefore, a separate rating is not warranted for a neurologic abnormality associated with the service-connected lumbar spine disability in this case. Based on the foregoing, the Board finds the preponderance of the evidence is against the grant of a rating higher than 40 percent for service-connected IVDS with degenerative arthritic changes and involvement of the sciatic nerve. As a result, the benefit-of-the-doubt doctrine is not for application and the increased rating claim is denied. REASONS FOR REMAND 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. The Board finds that additional development is necessary prior to appellate review. There is conflicting information regarding the impairment caused by the Veteran’s disabilities. The physicians who conducted his VA spine examinations in February 2014 and March 2015 stated that his disability does not impact his ability to work but the examination reports do not contain information regarding his ability to stand, sit, bend or perform other activities of daily living in light of the severity of his lumbar spine disability. Similarly, there is no current information or evidence of record regarding the functional impairment caused by the Veteran’s service-connected left knee or tinnitus disabilities. In this regard, the Board notes that the Veteran failed to appear for examinations that were scheduled in July 2015 but the VA treatment records also lack information regarding the functional limitations the Veteran may experience as a result of his service-connected disabilities. However, evidence in the Veteran’s Vocational Rehabilitation folder suggests that he has a serious employment handicap, to include as a result of his lumbar spine and left knee disabilities, and it is noted that it is not clear if he has the physical tolerance and stamina necessary to obtain and maintain employment, particularly given his limited and dated education. See November 2012 Assessment. Accordingly, this matter is REMANDED for the following action: 1. Obtain VA treatment records dated since December 2017. 2. Send the claims file to a VA clinician to obtain an opinion regarding the functional impairment caused by his service-connected lumbar spine, left knee, erectile dysfunction, and tinnitus disabilities. If an examination is deemed necessary to provide the requested information, one should be scheduled. Following review of the claims file (and examination of the Veteran if deemed necessary), the clinician is asked to address the functional impairment or limitations caused by each of the Veteran’s service-connected disabilities, including his ability to walk, stand, sit, bend, or perform physical or sedentary employment. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel