Citation Nr: 18142615 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 11-29 793 DATE: October 17, 2018 ORDER Entitlement to an evaluation greater than 20 percent for service-connected degenerative disc changes to L4-L5 since October 1, 2013 is denied. REMANDED Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran’s degenerative disc disorder at L4-L5 is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 2. The most probative evidence of record does not show that the Veteran has incapacitating episodes of Intervertebral Disc Syndrome (IVDS) as refined by VA regulations. CONCLUSION OF LAW The criteria for entitlement to an evaluation greater than 20 percent for service-connected degenerative disc changes L4-L5 since October 1, 2013 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran testified at a September 2017 videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. The transcript of that proceeding is of record. The Board has considered this matter previously. In January 2018, the Board issued a decision granting an increased initial rating of 10 percent for degenerative disc disease L4-L5 prior to March 5, 2013, then further, denying a rating in excess of 10 percent for that condition from March 5, 2013 to June 27, 2013. Also in January 2018, the Board remanded the remaining issue entitlement to a disability rating in excess of 20 percent from October 1, 2013 onwards –– excluding the period where a temporary 100 percent rating was assigned from June 28, 2013 through September 30, 2013. The Board also remanded the issue of entitlement to service connection for a left foot disability. In an August 2018 rating decision, the RO granted service connection for a left foot disability. As the benefit was granted in full, the issue is no longer before the Board. 1. Entitlement to an evaluation greater than 20 percent for service-connected degenerative disc changes to L4-L5 since October 1, 2013. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. As indicated, by prior Board decision the issue of entitlement to an increased evaluation for disability of the thoracolumbar spine for time period prior to October 1, 2013 was already decided. The claim that remains therefore pertains to the additional timeframe from October 1, 2013 to the present. When evaluating a musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, particularly during times when these symptoms “flare up,” such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The Veteran’s back condition is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for spondylolisthesis or segmental instability. Diagnostic Code 5243 is in turn to be evaluated pursuant to VA’s General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The General Rating Formula provides for the assignment of a 20 percent rating when there is forward flexion of the thoracolumbar spine greater than 30 degrees but no greater than 60 degrees, or the 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. The next higher available 40 percent rating requires forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5237. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Id. 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, unfavorable ankylosis is a condition in which the entire thoracolumbar 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 (0 degrees) always represents favorable ankylosis. Id. at Note (5). Intervertebral Disc Syndrome is evaluated under the General Rating Formula for Diseases and Injuries of the Spine or otherwise based upon the frequency and severity of its incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The relevant rating formula provides that: If there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks, a 10 percent rating is warranted; if at least 2 weeks but less than 4 weeks, a 20 percent rating; if at least 4 weeks but less than 6 weeks, a 40 percent rating is warranted; and where there are incapacitating episodes with a total duration of at least 6 weeks during the past 12 months, the assignment of a maximum 60 percent rating is warranted. An incapacitating episode is 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). The Merits of the Claim for an Increased Rating There is no basis at this time for warranting an increased rating. The evidence shows that he Veteran has sufficient retained mobility of the thoracolumbar spine, without attendant signs or symptomatology attributable to muscle spasm or guarding. Nor is there indication that the Veteran had one or more incapacitating episodes of Intervertebral Disc Syndrome (IVDS) because bedrest has not been prescribed by a physician. The applicable standard supporting the current existing 20 percent requires one or more of the following: (1) forward flexion of the thoracolumbar spine greater than 30 degrees but no greater than 60 degrees; (2) or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; (3) 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. To warrant the next higher available rating, the review and consideration turns to VA’s General Rating Formula for Diseases and Injuries of the Spine. That formula singularly specifies that to warrant an increased rating to 40 percent, there must manifest either: (1) forward flexion of the thoracolumbar spine 30 degrees or less; or, (2) favorable ankylosis of the entire thoracolumbar spine. These findings are not manifested. The Veteran underwent VA Compensation and Pension examination on several instances this having occurred in March 2013, July 2015, and then again in June 2018. On each occasion the range of motion findings while certainly indicative of some lost range of motion, nonetheless showed sufficient retained capacity that the objective requirements for increase were not met. In March 2013, the Veteran had forward flexion to 75 degrees with pain at the endpoint of motion, no worse due to pain, weakness, fatigability, incoordination, or other forms of functional loss as recognized. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018). At his May 2015 VA examination, the Veteran had range of motion consisting of forward flexion to 54 degrees without pain, and not found to be worse after repetitive motion testing. At an April 2016 chiropractic consult, the Veteran reported chronic low back pain and his forward flexion was to 65 degrees. At his June 2018 VA examination, the Veteran had forward flexion to 70 degrees with pain. Here, it was indicated that the Veteran did have some signs of functional loss, up to and including pain on motion. He had tenderness to palpation over the paraspinous muscles as well as of the soft tissue overlying the lumbar spinous processes at L4-L5. The examiner noted that the Veteran was able to perform repetitive use testing with at least three repetitions, without additional loss of function or range of motion after testing was performed. As to whether functional loss resulted in actual reduced mobility of the thoracolumbar spine, however, that was not demonstrably shown. The VA examiner indicated as follows: “Based upon imaging studies, the chronicity of care for a lumbar spine disability, and the Veteran’s statements on his limitations, it is reasonable to conclude that there are additional functional limitations with repetitive use over a period of time. However, it would be pure speculation to assign a numeric value to the Veteran’s likely reduced range of motion as he is not being examined under these conditions.” This last section of the 2018 examination report is not written in a clear manner. In fact, the Veteran was being examined under the specific conditions of pain on use, repetitive motion, etc. Arguably, it would not be unexpected that the VA examiner through diligent objective methods could reach an approximation. What was the Veteran’s status post-pain, or post repetitive use, range of motion arguably could have been estimated as required. However, this was “harmless error” in any oversight on part of the examiner. The VA rating schedule necessitates forward flexion of the thoracolumbar spine be limited to 30 degrees or less. The already shown 70 degrees of forward flexion on the 2018 VA examination, is realistically not near that figure, nor does it seem reasonable that after three repetitive motion cycles and/or consideration of pain that develops with this usage, that figure would then reduce to 30 degrees or less. Aside from this, the Veteran clearly did not have “ankylosis” ever which is defined as total absence of mobility. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). Moreover, there is no other basis for increased rating. The Veteran has been diagnosed with having had Intervertebral Disc Syndrome at least once. This finding is consistent with the existing diagnosis of degenerative disc disease. However, there are no incapacitating episodes demonstrated. An incapacitating episode consists of a period of severely heightened symptoms requiring physician-prescribed bedrest. As well, the Board observes that the Veteran has been elsewhere service-connected for left leg lumbar radiculopathy, ratable at 10 percent pursuant to 38 C.F.R. § 4.118, Diagnostic Code 8520, that which pertains to sciatic neuropathy. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a (2017). The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (2017). For the left leg a 10 percent evaluation continues to represent the correct rating for radiculopathy of the left leg. At his March 2013 VA examination, the examiner found that the Veteran had radiculopathy in his left leg, but not his right leg. The examiner found that the Veteran had mild intermittent pain, mild numbness, and mild paresthesias and/or dysesthesias, but no other signs or symptoms. The examiner described the overall severity of the radiculopathy as mild. At his May 2015 VA examination, the examiner specifically found that the Veteran did not have radiculopathy in either leg. At his January 2018 VA examination, left leg radiculopathy was noted. The examiner found that the Veteran had mild, intermittent pain and numbness in his left leg, and mild paresthesias and/or dysesthesias. The examiner specifically found that the Veteran did not have constant pain in his left leg. The examiner stated that the Veteran did not have any other signs or symptoms of radiculopathy, and described its overall severity as mild. The January 2018 examiner specifically found that radiculopathy was not present in the right leg. The two VA examiners who diagnosed left leg radiculopathy found a “mild” level of overall severity was present. Of the symptoms that were present, the examiners found that they were mild, and did not select the options for moderate or severe. Additionally, both examiners specifically found that the Veteran did not have any level of constant pain. The 10 percent rating is consistent with actual neurological impairment of the left leg. The most probative medical and lay evidence of record does not show that the Veteran has right leg radiculopathy. There are no medical or lay complaints of bowel or bladder symptoms due to the back disability. The Board concludes on the basis of the above, accordingly, the preponderance of the evidence does not favor an increased rating. The claim is therefore being denied. Under these circumstances, VA’s benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b). 38 C.F.R. § 3.102. REASONS FOR REMAND By the Veteran’s statement as indicated upon the report of the January 2018 VA examination, he maintained that he been required to stop working on account of his back condition. A TDIU claim is raised by the record as part of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). The matter is REMANDED for the following action: 1. Send the Veteran a notice letter which advises him of the criteria needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information. 2. Adjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel