Citation Nr: 18142114 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 16-04 411 DATE: October 16, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for the period prior to June 2, 2017, and 40 percent thereafter, for degenerative disc disease of the lumbosacral spine is denied. REMANDED Entitlement to a disability rating in excess of 10 percent prior to June 2, 2017, and 20 percent thereafter, for radiculopathy of the right lower extremity is remanded. Entitlement to a disability rating in excess of 10 percent prior to June 2, 2017, and 20 percent thereafter, for radiculopathy of the left lower extremity is remanded. FINDINGS OF FACT 1. For the period prior to June 2, 2017, the Veteran’s service-connected lumbar spine disability was manifested by pain and forward flexion greater than 30 degrees. It was not manifested by ankylosis, or incapacitating episodes requiring bed rest prescribed by a physician. 2. For the period beginning June 2, 2017, the Veteran’s service-connected lumbar spine disability was manifested by pain and forward flexion to 30 degrees or less. It was not manifested by ankylosis, or incapacitating episodes requiring bed rest prescribed by a physician of more than 2 weeks duration over a 12 month period. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for the period of time prior to June 2, 2017, and 40 percent thereafter, for service-connected degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 2004 to January 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating for Degenerative Disc Disease Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 10 percent disability rating when forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, when combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or when there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined 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., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, the Veteran’s service-connected diagnosis is degenerative disc disease of the lumbar spine; however, IVDS with incapacitating episodes of the requisite duration to support a higher disability rating is not shown. Service connection for degenerative disc disease of the lumbar spine has been in effect since January 2010 at a 10 percent disability rating. In January 2014, the Veteran filed his claim for an increased disability rating. During the appeal period the Veteran underwent VA examinations in April 2014 and June 2017. At the April 2014 Compensation and Pension examination range of motion testing was performed and showed, at worst, forward flexion to 60 degrees. There was no evidence of ankylosis of the spine, and no evidence of incapacitating episode resulting from IVDS. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. Based on the range of forward flexion documented on this examination report, a disability rating of 20 percent was assigned effective January 29, 2014, the date of claim. At the June 2017 Compensation and Pension examination range of motion testing was performed and showed, at worst, forward flexion to 28 degrees. There was still no evidence of ankylosis of the spine. The examiner indicated incapacitating episode resulting from IVDS which resulted in 2 weeks of bed rest over the past 12-month period of time. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The examiner estimated that forward flexion after repetitive use over time or during flare-up would be to 28 degrees. Based on the range of forward flexion documented on this examination report, a disability rating of 40 percent was assigned effective June 2017, the date of the examination. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). While the Veteran has essentially stated that he has pain and reduced motion in his spine, he has not described a range of motion which would warrant a higher rating for any period of time in question. In this regard, the Veteran’s 2017 examination was conducted during an active flare-up. Previously he described the flare-ups as consisting of back pain with prolonged sitting or lying down. The Veteran’s statements do not suggest the requisite limitation of motion necessary for a higher rating for the periods of time in question. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given the above, higher disability ratings are not warranted based on limitation of motion for any period covered by this appeal Ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran. Regarding relevant neurological findings, the Veteran is assigned separate disability ratings for radiculopathy of both lower extremities. Those disability ratings are on appeal and are the subject of the Remand below. The Veteran is also service-connected for intermittent fecal incontinence associated with his back disability. The rating assigned for that disability is not on appeal. No other neurological symptomatology is shown to be related to the service-connected back disorder. The evidence is against a finding that the Veteran meets the criteria for the assignment of a disability rating in excess of 20 percent for the period prior to June 2, 2017, and 40 percent thereafter, for his service-connected degenerative disc disease of the lumbosacral spine. Accordingly, disability ratings in excess of those assigned for the periods in question are denied. 38 C.F.R. §§ 4.3, 4.7 (2017) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The Veteran is assigned separate disability ratings for radiculopathy of both his lower extremities as symptoms of his service-connected degenerative disc disease of the lumbosacral spine. The radiculopathy is currently rated as 10 percent disabling prior to June 2, 2017 and 20 percent disabling thereafter for each lower extremity. These issues require remand for additional VA examination. In June 2017 a VA peripheral nerves examination of the Veteran was conducted with respect to the current appeal. The examination report indicated that the Veteran had pain, numbness and paresthesia of both lower extremities and the examiner indicated that this was comparable to moderate incomplete paralysis of the sciatic nerve for both lower extremities. In July 2018 another VA peripheral nerves examination of the Veteran was conducted with respect to a different claim for increased disability ratings which is not presently on appeal. The examination report indicated that the Veteran did not have pain, numbness, or paresthesia of either lower extremity; strength and reflexes were normal in the lower extremities; and sensory examination showed only decreased sensation in the lower leg/ankle and feet/toes. However, this time the examiner indicated that this was comparable to moderately severe incomplete paralysis of the sciatic nerve for both lower extremities. While usage of the term “moderately severe” suggest an increase in the disability, the other documented symptoms, or lack thereof, appear inconsistent with this finding. Further examination is necessary to clarify the current severity of the Veteran’s radiculopathy. It is also noted that the requisite Supplemental Statement of the Case was not issued after VA added the examination findings to the Veteran’s claims file. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA joints examination to determine the current symptoms, level of severity, and functional impairment associated with his service-connected radiculopathy of the right and left lower extremities. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. 2. Readjudicate the claims for higher ratings for right and left lower extremity radiculopathy and issue a Supplemental Statement of the Case. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Havelka, Counsel