Citation Nr: 18142201 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 13-17 138 DATE: October 15, 2018 ORDER Entitlement to a rating in excess of 40 percent disabling for lumbar spine disability is denied. Entitlement to a rating in excess of 10 percent disabling for status post right inguinal hernia repair with neuralgia is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability has not been manifested by ankylosis or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. The Veteran’s service-connected status post right inguinal hernia repair with neuralgia affecting the ilioinguinal nerve is rated at the highest schedular rating available for such disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, diagnostic code (DCs) 5003, 5243 (2018). 2. The criteria for a rating in excess of 10 percent for status post right inguinal hernia repair with neuralgia have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, DC 8520 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2005 to October 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veterans Affairs Regional Office (RO). The Board notes that the Veteran requested a Board hearing in his June 2013 VA Form 9, Substantive Appeal. In March 2017, the Veteran and his representative were notified of a scheduled Board hearing to be held in April 2017. In April 2017, the representative notified the RO of the Veteran’s change of address. The Veteran and his representative were reminded of the scheduled Board hearing in two April 2017 letters; one sent to the former address and one sent to the recently updated address. The Veteran did not report for his scheduled Board hearing. However, in a May 2017 VA Form 21-4138, the RO was notified that the Veteran had been admitted to a VA medical center for psychiatric treatment, and that prior to admission he had been evicted from his residence. Thereafter, in October 2017, the representative notified VA of the Veteran’s current address. The Board sent a letter to the current address on file in August 2018 inquiring whether the Veteran wanted a Board hearing. The letter was additionally sent to Veteran’s representative. No response was received. The record shows that the Veteran failed to report for his scheduled Board hearing. There has been no request from the Veteran or his representative for any rescheduling, there has been no change of address information provided for the Veteran, and there is no suggestion that notice of the latest attempt to schedule the hearing was not delivered to the Veteran or his representative. In light of the above, the Board finds that the Veteran has failed to report for the requested Board hearing without a showing of good cause and the Board shall proceed with appellate review of the case at this time. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Lumbar Spine Disability The Veteran filed an increased rating claim on May 5, 2011. The Veteran underwent a VA lumbar spine examination in August 2011. The examiner noted a diagnosis for DDD. The Veteran reported increased pain and flare-ups which made activities of daily living difficult. ROM testing revealed the following: forward flexion to 80 degrees with objective evidence of painful motion beginning at 80 degrees; extension to 25 degrees with objective evidence of painful motion beginning at 25 degrees; right lateral flexion to 20 degrees with no painful motion; left lateral flexion to 25 degrees with no painful motion; and bilateral lateral rotation to 30 degrees with no painful motion. Repetitive use testing resulted in the same ROM results. The examiner noted functional loss due to less movement than normal and pain on movement. In addition, the examiner found localized tenderness and guarding or muscle spasm which did not result in an abnormal gait or abnormal spinal contour. Muscle strength, reflex and sensory testing were normal. No radiculopathy was found. Lastly, the examiner noted that the lumbar spine disability was not manifested by ankylosis or intervertebral disc syndrome (IVDS). A September 2011 VA medical record noted a diagnosis for RLE lumbar radiculopathy. In March 2013, a VA medical record noted full ROM in the spine. Pain to palpation was also noted. At an October 2015 VA examination, the Veteran was diagnosed with DDD and DJD of the lumbar spine. The lumber spine disability was manifested by forward flexion to 80 degrees, extension to 20 degrees, bilateral lateral flexion to 25 degrees, and bilateral lateral rotation to 30 degrees. No pain was elicited during ROM testing, with weight bearing or any evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was found able to perform repetitive use testing with no change in ROM. The Veteran denied any flare-ups. The examiner did state that he was unable to objectively provide an opinion as to whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time without resorting to mere speculation. The examiner additionally noted normal muscle strength, reflex and sensory testing results. The lumbar spine disability was not manifested by radiculopathy, ankylosis or IVDS. Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases or Injuries of the Spine, the diagnostic code criteria pertinent to lumbar spine disabilities provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees, and left and right lateral rotation are 0 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 for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (2). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). The Veteran’s lumbar spine disability is currently rated at 40 percent disabling. The Board notes that a 40 percent disability rating represents the highest available rating based on limitation of motion under the General Rating Formula for Diseases and Injuries of the Spine. Therefore, based on ROM findings, the Veteran is currently in receipt of the highest rating available. The Board has considered higher ratings; however, the evidence of record establishes that the Veteran’s lumbar spine disability has not been manifested by ankylosis or IVDS. Therefore, based on the General Rating Formula for Diseases and Injuries of the Spine, the Board finds that a rating in excess of 40 percent is not warranted. The Board further recognizes that the medical evidence of record noted RLE lumbar radiculopathy. However, the RLE disability has been diagnosed as right ilioinguinal neuralgia status post right inguinal herniorrhaphy, a condition he is already service connected for and the increased rating claim for that disability rating is addressed below. Moreover, the regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). Accordingly, the Board concludes that the preponderance of the evidence is against the assignment of a disability rating in excess of 40 percent for the period on appeal. As the preponderance of the evidence is against the claim, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Status Post Right Inguinal Hernia Repair with Neuralgia The Veteran filed an increased rating claim on May 5, 2011. The Veteran underwent a VA peripheral nerve examination in August 2011 during which he was diagnosed with status post right inguinal hernia repair with complications of anterior thigh neuropathy. The examiner noted symptoms of moderate RLE paresthesias and/or dysesthesias. BLE muscle strength, reflex and sensory testing was found normal. No trophic changes were found. The only nerve found affected was the right external cutaneous nerve of the thigh which was manifested by moderate incomplete paralysis. Finally, the examiner noted a related residual scar which was not manifested by pain, instability or covering an area greater than 39 square cm. At an October 2015 VA examination, the examiner noted a diagnosis for right ilioinguinal neuralgia status post right inguinal herniorrhaphy. The examiner noted a 2005 surgery for right inguinal hernia with no evidence of any recurrence of the hernia. The examiner did note a scar associated with the 2005 procedure which was not found painful, unstable or covering a total area greater than 39 square cm. No other pertinent physical findings, complications, conditions, signs or symptoms were found. The examiner noted moderate symptoms attributable to a RLE peripheral nerve condition. Muscle strength, reflex and sensory testing was found normal. No trophic changes were found. The only nerve found affected was the ilio-inguinal nerve which was found manifested by mild incomplete paralysis. The examiner did note that the confidence level of the examination finding was low as the Veteran was found to provide a confusing set of positive and negative responses to sensory testing of the BLE that had no apparent scientific medical basis. The Veteran’s RLE disability is rated at 10 percent disabling pursuant to 38 C.F.R. § 4.124a, DC 8530, which governs the ilio-inguinal nerve. Under DC 8530, a non-compensable rating is warranted for mild or moderate paralysis, and a 10 percent rating is warranted for severe to complete paralysis. The highest rating available under this diagnostic code is 10 percent. The maximum rating for neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which is at times excruciating is equal to that for severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating for neuritis not characterized by such organic changes is equal to that for moderately severe incomplete paralysis when the involved nerve is the sciatic nerve. Id. Neuralgia, characterized by dull and intermittent pain, is rated as injury of the involved nerve just like neuritis. 38 C.F.R. § 4.124. The maximum rating is equal to that for moderate incomplete paralysis. Id. Other nerves of the lower extremities rated under 4.124a include the sciatic nerve (8520), external popliteal (common peroneal) (8521), musculocutaneous (superficial peroneal) (8522), anterior tibial (deep peroneal) (8523), internal popliteal (tibial) (8524), posterior tibial (8525), anterior crural (8526), internal saphenous (8527), obturator (8528), and external cutaneous nerves (8529). Paralysis, neuritis, and neuralgia thereof is addressed by DCs 8521 through 8530, 8621 through 8630, and 8721 through 8730. The evidence of record shows that the Veteran’s RLE disability has been alternatively found to involve only the right external cutaneous nerve (August 2011 VA examination) or the ilio-inguinal nerve (October 2015 VA examination). Accordingly, DCs 8520-8528 are not for application and will not be considered. With regard to DC 8529, the Board notes that the rating criteria for the right external cutaneous nerve mirrors that for the ilio-inguinal nerve. The Board further notes that the evidence of record does not show that both nerve groups are separately affected. Rather, the VA examiners have differed in which nerve groups were affected by the RLE disability. In any event, a separate rating for each nerve is prohibited. 38 C.F.R. § 4.14 (avoidance of pyramiding). Accordingly, the Board notes that use of DC 8530 for the ilio-inguinal nerve, in sum, is most appropriate. In this case, for the entire period on appeal, the Veteran’s service-connected status post right inguinal hernia repair with neuralgia affecting the ilio-inguinal nerve has been rated as 10 percent disabling under DC 8530, the maximum rating allowable for severe to complete paralysis of the ilio-inguinal nerve. In this regard, the Board notes that both the August 2011 and October 2015 VA examiners found the ilio-inguinal or right external cutaneous nerve manifested by no worse than moderate symptoms. Accordingly, no higher rating is available. Additionally, the Board finds that all of the Veteran’s pain is contemplated in currently assigned rating for the ilio-inguinal nerve disability. Thus, a separate rating based on pain would amount to impermissible pyramiding. The RLE disability has also not been found manifested by muscle atrophy or a scar manifested by pain, instability or an area covering an area greater than 39 square cm. Thus, separate ratings for those conditions are not applicable. Accordingly, in providing the benefit-of-the doubt, the Board concludes that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the period on appeal. The claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel