Citation Nr: 18142515 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-27 370 DATE: October 17, 2018 ORDER Entitlement to a rating in excess of 10 percent from January 23, 2013, to August 14, 2016, and in excess of 20 percent since August 15, 2016, for a lumbar spine disability is denied. Entitlement to a separate rating for mild right lower extremity radiculopathy associated with a lumbar spine disability is granted effective January 22, 2015. FINDINGS OF FACT 1. From January 23, 2013, to August 14, 2016, the Veteran’s lumbar spine disability manifested with no more than pain on movement, limited bending, lifting, standing and walking, flare-ups, forward flexion to 90 degrees, and a combined ROM of 230 degrees. 2. Since August 15, 2016, the Veteran’s lumbar disability manifested with no more than pain on movement, limited bending, lifting, standing and walking, flare-ups, forward flexion to 60 degrees, and IVDS. 3. The first instance that medical evidence indicates the Veteran tested positive for radiculopathy associated with his lumbar spine disability is January 22, 2015. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent from January 23, 2013, to August 14, 2016, and in excess of 20 percent since August 15, 2016, for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.71a, Diagnostic Code (DC) 5237 (2017). 2. The criteria for a disability rating of 10 percent from January 22, 2015, for mild right lower extremity radiculopathy associated with a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.124a, DC 8620 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 2003 to July 2008. During the pendency of the appeal, an August 2016 rating decision increased the rating for the Veteran’s lumbar spine disability to 20 percent effective August 15, 2016, the date of the Veteran’s VA medical examination. Since this evaluation is not the maximum available benefit and the claimant has not withdrawn the appeal, the issue remains in appeal status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a NOD as to an RO decision assigning a rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In October 2016, the Veteran submitted a notice of disagreement ( NOD ) to the August 2016 rating decision, indicating he warranted an earlier effective date for the increased evaluation. As noted above, since the rating increased granted during the appellate period did not abrogate the increased rating claim for the entire appellate period, the Veteran’s contention of an earlier effective date to the increased rating is essentially a continuation of the Veteran’s claim for a higher rating for his service-connected lumbar disability and is therefore not a separate claim on appeal. Increased Rating Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 10 percent from January 23, 2013, to August 14, 2016, and in excess of 20 percent since August 15, 2016, for a lumbar spine disability Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Lumbar levoscoliosis is to be evaluated either under the 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 rating. Under the General Rating Formula for the Musculoskeletal System, the Veteran’s lumbar disability was evaluated as 10 percent disabling effective January 23, 2013, and 20 percent disabling effective August 15, 2016. See 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula, a 10 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine is 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 when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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 of 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 entire spine. 38 C.F.R. § 4.71a. In addition, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar 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 normal combined range of motion of the thoracolumbar spine is 240 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 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. Id. at Note (2). The Formula for Rating IVDS Based on Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted for 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, DC 5243. An incapacitating episode is 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. at Note (1). VA treatment records indicate the Veteran reported mid- to lower back pain in June 2012. July 2012 MRI results indicated multilevel degenerative changes of spondylosis, with disc protrusion and annular tear, without evidence of neural impingement. In January 2013 the Veteran began using a TENS unit to address his chronic low back pain. The Veteran continued to report flare-ups, pain after sitting for long periods of time, the need to change positions constantly at work, and the inability to lift heavy equipment. VA treatment records indicate he continued to deny leg weakness, numbness or tingling. In March 2013, the Veteran’s supervisor C.M. provided a statement that she witnessed the Veteran experience back pain while at work. She also reported the Veteran received an ergonomic chair to alleviate discomfort, was given flexibility with his work schedule to attend medical appointments, and utilized other internal resources to limit heavy lifting while at the office or at client sites. Another colleague M.A. indicated he witnessed the Veteran experiencing back pain. He noted the Veteran could perform most duties other than lifting large computer equipment. He also noted the Veteran required breaks to alleviate back pain. Also in March 2013, the Veteran’s spouse submitted a statement detailing the Veteran’s attempts to acquire an adequate bed mattress to help alleviate his back pain while sleeping. She also noted the Veteran’s need to continue with his pain medication treatment, and his inability to perform sports due to his back pain. She also noted her concern that her husband would continue to have difficulty working because of his frequent back pain. These lay statements are competent regarding their observations of the Veteran’s back pain, and to establish the presence of observable symptomatology, including frequency. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 307-8 (2007). While also presumed credible in this instance, these observations are not competent to rate the Veteran’s disability according to the General Rating Formula for spinal disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). At the May 2013 VA medical examination, the Veteran reported constant throbbing back pain with flare-ups. ROM testing indicated forward flexion to 90 degrees or more with pain, extension to 30 degrees or more without pain, bilateral lateral flexion to 30 degrees without pain, and bilateral lateral rotation to 30 degrees or more without pain. Repetitive testing did not result in any additional loss of ROM. The Veteran’s lumbar disability caused functional impairment of pain on movement, but the examiner noted that pain, weakness, fatigability and incoordination were not factors that significantly limited functional ability. The Veteran’s spine demonstrated localized tenderness in his mild paraspinal area, but otherwise did not demonstrate muscle spasms or guarding. Muscle strength, reflexes and sensory tests were all normal. The Veteran’s spine did not demonstrate radicular symptoms, other neurological abnormalities, or IVDS. The Veteran was assessed with mild levoscoliosis, with a minimum curvature of the spine, but not arthritis. The examiner noted the functional impact of the disability included limited extensive lifting or bending and temporary assignments to lighter or sedentary duties. Also in May 2013, the Veteran received an epidural injection for his back pain. Although VA treatment records indicate his pre-operative diagnosis was lumbar radiculopathy, there was no evidence of radicular symptoms prior to this procedure. In July 2013 the Veteran reported his TENS unit provided relief, and he continued to deny leg weakness, numbness, tingling or bowel or bladder incontinence. In August 2013 the Veteran received another epidural pain relief injection. The examiner noted the exam was “consistent with radiculopathy.” At the October 2013 VA medical examination, the Veteran reported approximately 3 flare-ups a month, which caused him to limit heavy lifting at work, seek bed rest, and limit all activity. He denied unsteadiness, falling, and radicular symptoms. ROM testing indicated forward flexion to 90 degrees or greater with pain; extension to 20 degrees with pain; bilateral lateral flexion to 30 degrees or more with pain; and bilateral lateral rotation to 30 degrees or more with pain. The examiner noted the Veteran described the pain during ROM testing as more discomfort than pain. Repetitive use testing did not result in any loss of ROM. Functional impairment factors included pain on movement. The Veteran’s spine demonstrated tenderness to the intrascapular thoracic spine, but with no muscle spasms or guarding. Muscle strength, reflexes, and sensory tests were normal. Straight leg raise test was negative bilaterally, and the Veteran did not demonstrate other radicular symptoms, neurological abnormalities, or IVDS. The examiner noted the Veteran indicated pain with the Patrick’s test, indicating possible hip-joint pathology. February 2014 VA treatment records indicate the Veteran did not demonstrate radicular symptoms. In April 2014, an MRI of the Veteran’s thoracic spine indicated mild degenerative changes of spondylosis. In May 2014, the Veteran discussed further pain relief options, describing his chronic low back pain as constant, sharp, and deep throughout the entire thoracic spine. He also reported associated numbness along the right lower extremity down to his ankle. On examination, the examiner noted limited flexion, extension, and rotation, without specifying the limitation in degrees. The examiner also noted tenderness on palpitation, good bilateral lower extremity strength, steady gait, and no evidence of numbness. The examiner reviewed the April 2014 MRI result, and noted a bulging disc. In January 2015, the Veteran reported occasional tingling in his leg, but with no bowel or bladder incontinence. He also reported good experiences working with a private chiropractor and trainer. On examination, the examiner noted “limited” ROM and a positive straight leg raise test, indicating radiculopathy. At the August 2016 VA medical examination, the Veteran reported chronic pain, which increased with bending, lifting, standing and walking. The Veteran also reported the onset of right lower extremity radiculopathy, which increased with bending and lifting. The Veteran denied flare-ups. ROM testing indicated forward flexion to 60 degrees with pain, extension to 20 degrees with pain, bilateral lateral flexion to 20 degrees with pain, and bilateral lateral rotation to 20 degrees with pain. The examiner noted pain on weight bearing and that pain caused functional loss to include limited ROM. The Veteran could perform repetitive use testing without additional loss of ROM. The examiner could only speculate whether pain, weakness, fatigability or incoordination significantly limited the Veteran’s functional ability with repeated use because the Veteran was not examined during a flare-up. The examiner noted the Veteran’s spine demonstrated normal muscle strength, reflexes and sensory examinations, and did not demonstrate muscle spasms or guarding. The Veteran’s right leg tested positive for radiculopathy, and the examiner diagnosed the Veteran with mild radiculopathy in the right lower extremity. The Veteran did not demonstrate ankylosis, or other neurological abnormalities. However, the Veteran’s spine demonstrated IVDS that did not require bed rest prescribed by a physician in the last 12 months. The examiner noted the functional impact of the Veteran’s spine disability included an inability to engage in heavy manual labor, but that otherwise the Veteran could engage in sedentary employment. From January 23, 2013, to August 14, 2016, the Veteran’s lumbar spine disability manifested with no more than pain on movement, limited bending, lifting, standing and walking, flare-ups, forward flexion to 90 degrees, and a combined ROM of 230 degrees, and warrants a 10 percent rating. A higher rating is not warranted because the Veteran’s lumbar disability did not demonstrate with forward flexion limited to 60 degrees, or a combined ROM limited to 120 degrees, or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. From August 15, 2016, to present, the Veteran’s lumbar disability manifested with no more than pain on movement, limited bending, lifting, standing and walking, flare-ups, forward flexion to 60 degrees, and IVDS, and warrants a 20 percent rating. A higher rating is not warranted because the Veteran’s lumbar disability did not manifest with forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire lumbar spine. In addition, the Board has considered whether the Veteran’s disability warranted a higher rating during either period based on the Formula for Rating IVDS Based on Incapacitating Episodes. Although the Veteran demonstrated IVDS during the appellate period, there is no probative medical evidence that indicates he had physician-prescribed bed rest during any 12-month period. Given these facts, the Board finds that a 10 percent evaluation from January 23, 2013, to August 14, 2016, and a 20 percent evaluation since August 15, 2016, adequately reflects the Veteran’s lumbar levoscoliosis disability. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 2. Entitlement to a separate rating for right lower extremity radiculopathy associated with a lumbar spine disability Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory. Id. Special consideration is given to complete or partial loss of use of one or more extremities and disturbances of gait. 38 C.F.R. § 4.124a. Right lower extremity radiculopathy is rated under DC 8620, which provides a 10 percent rating for mild incomplete paralysis; a 20 percent rating for moderate incomplete paralysis; and a 40 percent rating for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis. Terms such as “mild,” “moderate” and “moderately severe” are not defined in the regulatory criteria, and the Board must make considerations as to their applicability to symptoms reported in the record in a manner that is “equitable and just.” See 38 C.F.R. § 4.6. As noted above, VA treatment records indicate the Veteran began reporting occasional numbness and tingling in his lower extremities starting in May 2014. However, the first instance that medical evidence indicates the Veteran tested positive for radiculopathy was January 22, 2015. The Board notes that the Veteran was granted service connection for mild right lower extremity radiculopathy effective August 15, 2016, the date of the VA medical examination. However, a review of the record indicates the Veteran’s lumbar spine disability warranted a separate rating for radiculopathy effective January 22, 2015. Given these facts, the Board finds that a separate rating of 10 percent for mild radiculopathy of the right lower extremity associated with a lumbar spine disability is warranted effective January 22, 2015. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel