Citation Nr: 18141598 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 13-05 548 DATE: October 11, 2018 ORDER Entitlement to service connection for depressive disorder is granted. Entitlement to a rating in excess of 20 percent for service-connected spondylolisthesis of the lumbosacral spine is denied. Entitlement to service connection for radiculopathy of the bilateral lower extremities (sciatic nerve) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The most probative evidence establishes that the Veteran’s currently manifested acquired psychiatric disorder is more properly diagnosed as a depressive disorder which was caused by conceded stressors during service. 2. Throughout the appeal period, the Veteran’s lumbar spine disability was manifested by pain, stiffness, and forward flexion limited to 60 degrees. Forward flexion limited to 30 degrees or favorable ankylosis of the entire thoracolumbar spine is not shown. 3. The Veteran has radiculopathy of the bilateral sciatic nerves, secondary to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.303. 2. The criteria for a rating in excess of 20 percent for service-connected spondylolisthesis of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5242 (2017). 3. The criteria for service connection for radiculopathy of the bilateral sciatic nerves have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to May 1998. Service Connection for Acquired Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disorder related to events during his period of active duty. Specifically, he asserts that he witnessed casualties, including a friend of his, during an explosion of a land mine in the Persian Gulf. He also remembers being wounded during that explosion. The Board concludes that the Veteran has a current diagnosis of depressive disorder that began during active service and is related to his conceded stressor of witnessing casualties during service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran’s service treatment records document his subjective reports of depression and nervous trouble. See Report of Medical History dated May 1998. Post-service VA treatment records document the Veteran’s diagnoses of PTSD, adjustment disorder, and depressive disorder. The Veteran has been afforded several VA psychiatric examinations. The reports reflect that the examiners were not able to diagnose PTSD, as the Veteran’s Minnesota Multiphasic Personality Inventory (MMPI) test scores suggested exaggeration of his symptoms. See VA Examinations dated June 2012, January 2013, and September 2017. The January 2013 examiner also stated that the Veteran’s diagnosed depression was not related to his service-connected lumbar spine disability, reasoning that the Veteran’s psychotic depression could not reasonably manifest secondary to pain. In order to afford the Veteran every consideration, the Board sought expert medical opinion from the Veterans Health Administration (VHA). Upon review of the record, Dr. S.F.W. indicated that the Veteran did not meet the DSM-V criteria for PTSD. However, Dr. S.F.W. diagnosed depressive disorder and opined that it was incurred during his period of service. In so finding, the psychiatrist found that the Veteran’s conceded stressor of seeing military casualties was a risk factor in developing depression. In addition, given the Veteran’s treatment and behavior during service, the clinician found that it was likely the Veteran was depressed during service and soon after service, and that his in-service depression was closely related to his post-service depression. See VHA Opinion dated April 30, 2018. Based on the above, the Board finds that service connection for depressive disorder is warranted. The most probative evidence on this issue is the April 2018 VHA opinion. The clinician reviewed the Veteran’s medical history along with his service treatment records and applied the specific facts of the Veteran’s claim to sound medical principles. The Board finds that this opinion is highly probative as to the issue of etiology. Contrarily, the Board finds that the VA examinations of record are not probative as to the issue of whether the Veteran’s depression was directly related to his period of service. The examiners seem to concede that the Veteran has depression, but they do not address the issue of direct service connection. Given these facts, the Board finds that the most probative evidence establishes that the Veteran’s currently manifested acquired psychiatric disorder is more properly diagnosed as a depressive disorder which was caused by conceded stressors during service. As such, service connection for depressive disorder is warranted. Increased Rating for Spondylolisthesis of the Lumbosacral Spine Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s lumbar spine disability is currently rated 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5239. Disabilities of the spine are evaluated under the General Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71(a), Diagnostic Codes 5235-5242. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is provided for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under the IVDS Rating Formula (Diagnostic Code 5243), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that 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. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. As a preliminary matter, the Board notes that during the appeal period, the Veteran did have surgery related to his lumbar spine. During his period of convalescence, he was assigned a temporary total disability rating. The Board will not disturb that rating. Thus, the ensuring analysis will focus on the severity of the Veteran’s lumbar spine disability during the appeal period, excluding the period during which the Veteran’s disability was rated 100 percent. By way of history, the Veteran was initially awarded service connection for his lumbar spine disability in February 2003; a 10 percent disability rating was assigned, effective September 23, 2002, the date of his initial claim. The 10 percent disability rating was premised on characteristic painful or limited motion. As there was no evidence of muscle spasms or unilateral loss of lateral spine motion in a standing position, a rating higher than 10 percent was not warranted. The Veteran filed a claim for an increased rating in February 2009 and was afforded a VA examination in May 2009. At the time of the examination, the Veteran rated his pain a 10 out of 10 at all times. He reported that all physical activities worsened his pain and his pain medication was not helping to alleviate his symptoms. He also reported that his pain radiated down his left leg and he endorsed fatigue, decreased motion, stiffness, weakness, and spasms. He stated that his symptoms flared up every 5 to 6 months and lasted between 2 to 4 weeks. Due to his symptoms, he was unable to walk more than a few hundred yards. Range of motion testing revealed flexion to 60 degrees and extension to 10 degrees. Total range of motion for the thoracolumbar spine was 170 degrees. While there was objective evidence of pain following repetitive range of motion, there was no additional limitation following three repetitions of range of motion. There was no evidence of ankylosis; however, the Veteran’s gait was abnormal and described as antalgic in nature. There was also evidence of spasms, guarding, and tenderness, but no signs of atrophy or weakness. The Veteran’s motor examination yielded normal results bilaterally. However, there was some evidence of decreased sensation to pain and light touch in the lower extremity. However, the Veteran did demonstrate normal reflexes in both lower extremities. Subsequent treatment records document the Veteran’s complaints of severe low back pain. He described his legs being intermittently weak with give-way that had caused him to fall. He indicated that his pain radiated down to his left buttock, but he endorsed numbness in his bilateral feet. He stated that he was unable to walk more than one block due to pain in his back. A magnetic resonance imaging (MRI) scan was interpreted as showing moderate disc bulge at L5-S1 and Grade I anterolisthesis of L5 upon S1 causing moderate bilateral neural foraminal stenosis. The Veteran was noted to have slightly weak iliospsoas muscle as well as bilateral lower extremity weakness. See VA Treatment Records dated September 9, 2009; November 5, 2009. In March 2010, the Veteran underwent anterior lumbar decompression and fusion. His follow-up treatment records noted the presence of persistent meralgia paresthetica and radicular pain. At a June 2011 VA examination, the Veteran reported persistent low back pain despite the surgical procedures performed in March 2010. He walked with a limp, using a cane to ambulate, due to left thigh pain with numbness. He was unable to walk more than a few yards. Examination was significant for lumbar flattening and pain with motion to the left and right. He had extension to 0 degrees and flexion to 45 degrees, bilateral flexion to 20 degrees and bilateral rotation to 25 degrees. There was no additional motion loss with repetitive testing. There were no neurologic abnormalities. The examiner stated that the Veteran’s lower spine disability rendered the Veteran unable to perform physical employment, and the Veteran was unable to do any sports or much exercise. At the June 2013 VA examination, the Veteran reported persistent low back pain, along with numbness and pain radiating down to his bilateral legs. He reported that his symptoms were worse with activity. Range of motion testing revealed the following results: forward flexion to 10 degrees and extension to 0 degrees. Total range of motion was 90 degrees. The Veteran was able to perform repetitive use testing with three repetitions with no additional limitation in range of motion. The examiner noted that the Veteran’s range of motion as demonstrated during the examination was less than the range of motion demonstrated while performing other activities in the exam room. The examiner concluded that the range of motion results were not valid for compensation purposes. Further testing revealed some decrease in muscle strength bilaterally. However, there was no muscle atrophy and he Veteran’s reflexes were normal. The examiner noted that sensation to light touch was absent bilaterally, but found that there were no signs or symptoms of radiculopathy. The examiner found that the Veteran’s numbness in his lower extremities, which became present after his back surgery, was primarily sensory. The examiner noted that the Veteran manifested a polyneuropathy, primarily sensory in nature, of unknown cause. The examiner diagnosed lumbago, spondylolisthesis, and intervertebral disc syndrome. However, there were no incapacitating episodes over the past 12 months. The Veteran also reported that he used a wheelchair and cane for ambulation purposes. A June 2013 electrodiagnostic study was interpreted as showing moderately severe primarily sensory polyneuropathy. Most recently, the Veteran was afforded a VA spine examination in September 2017. At that time, he was diagnosed with degenerative arthritis of the spine, status post laminectomy with anterolistheses of LS on S1. He indicated that he had pain most of the time, rated 5 out 10. He stated that his pain interfered with lifting and ambulating. The Veteran was not able to perform repetitive use testing with at least three repetitions. There was no evidence of guarding, muscle spasms, or pain with weight bearing, nor was there any objective evidence of localized tenderness, pain or palpation, or muscle atrophy. The Veteran demonstrated less muscle strength than normal bilaterally, along with normal reflexes and normal sensation to light touch. The examiner found functional limitation of an inability to bend due to low back pain. The clinician also diagnosed radiculopathy of the bilateral sciatic nerves. There was no ankylosis of the lumbar spine nor were there any other neurological abnormalities related to the lumbar spine. The Veteran did not have intervertebral disc syndrome, but did require constant use of a wheelchair. Also of record are the Veteran’s lay statements. The Veteran testified before the undersigned in February 2017 at a Board Hearing. He testified as to his increased difficulty with mobility in addition to his radiculopathy symptoms. Upon consideration of the evidence as outlined above, the Board finds that a rating higher than 20 percent is not warranted for the Veteran’s lumbar spine disability. Notably, in order to receive a higher rating, there must be either forward flexion of the thoracolumbar spine limited to 30 degrees or favorable ankylosis of the entire thoracolumbar spine. “Favorable ankylosis” is defined as “[f]ixation of a spinal segment neutral position (zero degrees).” 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (5). The Veteran has been afforded several VA examinations, and each time, the examiners unequivocally noted that there was no ankylosis of the spine. Further, the Veteran’s medical treatment records do not establish that the Veteran’s spine was in a fixed or immobile position. In regards to the range of motion, the Board finds that the most probative medical evidence does not establish that forward flexion of the Veteran’s spine was limited to 30 degrees. Two VA examinations document that the Veteran’s spinal forward flexion was greater than 30 degrees. The Board recognizes that at the June 2013 VA examination, range of motion testing demonstrated forward flexion to 10 degrees and total range of motion of the spine was 90 degrees. However, the Board finds that these results are not reliable and are insufficient in supporting a higher rating. The examiner specifically noted that the Veteran’s movements throughout the appointment demonstrated a higher range of motion than that which was demonstrated on the range of motion tests. Given these discrepancies, the Board finds that the results of the June 2013 range of motion tests were unreliable and insufficient to establish entitlement to a higher rating. The Board has considered whether a higher rating could be warranted based upon consideration of functional impairment on use. The Veteran’s low back pain prevents bending and physical work activities. However, on repetitive testing, the Veteran’s lumbar spine disability did not result in any additional motion loss. Overall, the lay and medical evidence does not establish that the Veteran’s motion loss more nearly approximates 30 degrees or less of flexion during flares or with additional functional impairment on use. As addressed below, the Board awards service connection for bilateral lower extremity radiculopathy as a neurologic manifestation of the service-connected lumbar spine IVDS. The AOJ will assign an appropriate initial rating and effective date of award for these separate complications. The Board also observes that, other than the period of convalescence following back surgery in March 2010, the record does not include any periods of bed rest prescribed by a physician. As the Veteran does not meet the regulatory definition of experiencing incapacitating episodes of IVDS, an alternative higher rating under the Formula for Incapacitating Episodes of IVDS is not for consideration. Based on the above, the Board finds that a rating higher than 20 percent is not warranted for the lumbar spine disability. The claim is denied. Service Connection for Radiculopathy Throughout the appeal period, the Veteran has reported numbness and pain radiating from his low back to his bilateral lower extremities. At the September 2017 VA examination, the examiner diagnosed bilateral radiculopathy of the sciatic nerves, secondary to the Veteran’s lumbar spine disability. Given these facts, the Board finds that service connection for sciatica of the bilateral legs is warranted.   REASONS FOR REMAND Entitlement to TDIU Based on the outcome of the service connection claims above, the Board finds that remand of the issue of entitlement to TDIU is required. The AOJ should adjudicated the issue of entitlement to TDIU upon consideration of the Veteran’s additional service-connected disabilities. The matters are REMANDED for the following action: 1. Readjudicate the claim on appeal. If the claim is not granted to the Veteran’s satisfaction, provide him and his representative a Supplemental Statement of the Case and allow them the appropriate time to respond before returning the appeal to the Board. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Orie, Associate Counsel