Citation Nr: 18144243 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 12-01 783 DATE: October 24, 2018 ORDER Entitlement to a disability rating in excess of 20 percent prior to May 1, 2010, for low back strain with degenerative disc disease (DDD) is denied. Entitlement to a disability rating in excess of 10 percent from May 1, 2010, to March 5, 2013, for low back strain with DDD is denied. A rating of 20 percent from June 1, 2013 to January 2, 2018, for low back strain with DDD is granted. Entitlement to a rating in excess of 40 percent from January 3, 2018, for low back strain with DDD is denied. Entitlement to a rating in excess of 20 percent prior to May 1, 2010, for right sciatic nerve neuropathy is denied. Entitlement to a compensable rating from May 1, 2010, to December 5, 2011, for right sciatic nerve neuropathy is denied. A rating of 20 percent from December 6, 2011, to January 2, 2018, for right sciatic nerve neuropathy is granted. A rating of 40 percent from January 3, 2018, for right sciatic nerve neuropathy is granted. FINDINGS OF FACT 1. For the period prior to May 1, 2010, the Veteran’s low back strain with DDD was not manifested by thoracolumbar spine forward flexion of 75 degrees with pain. 2. For the period May 1, 2010, to March 5, 2013, the Veteran had forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees limited by pain. 3. For the period from June 1, 2013 to January 2, 2018 the Veteran had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees limited by pain. 4. For the period beginning January 3, 2018 the Veteran had forward flexion of the lumbar spine to 30 degrees or less limited by pain. 5. For the period prior to May 1, 2010, the Veteran’s right sciatic nerve neuropathy manifested as moderate. 6. For the period May 1, 2010, to December 5, 2011, the Veteran’s right sciatic nerve neuropathy did not manifest as mild. 7. For the period from December 6, 2011, to January 3, 2018 the Veteran’s right sciatic nerve neuropathy manifested as moderate. 8. For the period from January 3, 2018 the Veteran’s right sciatic nerve neuropathy manifested as moderately severe. CONCLUSIONS OF LAW 1. For the period prior to May 1, 2010, the criteria for a rating in excess of 20 percent for low back strain with DDD have not been met. 38 U.S.C. 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. 3.102, 3.159, 4.73, Diagnostic Code (DC) 5237 (2018). 2. For the period May 1, 2010, to March 5, 2013, the criteria for a rating in excess of 10 percent for low back strain with DDD, have not been met. 38 U.S.C. 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. 3.102, 3.159, 4.73, Diagnostic Code (DC) 5237 (2018). 3. For the period from June 1, 2013 to January 2, 2018 the criteria for a rating of 20 percent, but no higher, for low back strain with DDD, have been met. 38 U.S.C. 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. 3.102, 3.159, 4.73, DC 5237 (2018). 4. For the period beginning January 3, 2018 the criteria for a rating in excess of 40 percent for low back strain with DDD, have not been met. 38 U.S.C. 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. 3.102, 3.159, 4.73, DC 5237 (2018). 5. For the period prior to May 1, 2010, the criteria for a rating in excess of 20 percent for right sciatic nerve neuropathy have not been met. 38 U.S.C. 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. 3.102, 3.159, 4.73, DC 5243-8520 (2018) 6. For the period May 1, 2010, to December 5, 2011, the criteria for a compensable rating for right sciatic nerve neuropathy have not been met. 38 U.S.C. 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. 3.102, 3.159, 4.73, DC 5243-8520 (2018). 7. For the period December 6, 2011 to January 2, 2018 the criteria for a rating of 20 percent, but no higher, for right sciatic nerve neuropathy have been met. 38 U.S.C. 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. 3.102, 3.159, 4.73, DC 5243-8520 (2018). 8. For the period beginning January 3, 2018 the criteria for a rating of 40 percent, but no higher, for right sciatic nerve neuropathy, have been met. 38 U.S.C. 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. 3.102, 3.159, 4.73, DC 5243-8520 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to January 1984 in the United States Army. This case is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A Travel Board hearing was held before the undersigned in March 2016. A transcript of the hearing is of record. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. 1155; 38 C.F.R. 4.1 (2018). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. 4.2. Where there is a question as to which of two evaluations shall 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. 38 C.F.R. 4.7 (2018). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. 4.21 (2018). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. 4.14 (2018). However, 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In both initial rating claims and increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Low Back Strain with DDD. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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 evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not 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. A 40 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. 4.71a, DCs 5235-5237 (2018). Note (1) permits the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. In July 2009, VA received the Veteran’s claim for increased ratings for his low back strain with DDD and right sciatic nerve neuropathy. The Veteran’s service-connected low back disability, for the period on appeal, is currently rated in stages. The disability is rated as 20 percent disabling prior to May 1, 2010; 10 percent disabling from May 1, 2010, to March 5, 2013; a temporary 100 percent convalescent rating from March 6, 2013 to May 31, 2013, 10 percent disabling from June 1, 2013, to January 2, 2013; and 40 percent disabling from January 3, 2018. In December 2017, the Board affirmed the propriety of the reduction from 20 percent to 10 percent, effective May 1, 2010. The Veteran has also not raised any challenge or appeal to the temporary 100 percent rating for surgery convalescence. Therefore, the Board will consider entitlement to increased ratings from July 2008 (one year prior to the claim for increase), exclusive of the period of the temporary total convalescent rating. Prior to July 2009, VA outpatient treatment notes reflect that the Veteran was seen on a number of occasions for chronic low back pain. A VA compensation examination was conducted in August 2009. He complained of constant pain of the right lower back, which was moderate to severe. He reported flare-ups every two to three weeks and limitations to walking. Posture and gait were normal. The Veteran’s VA and private treatment records from May 2010 to his March 2013 surgery demonstrate ongoing soreness and lumbar spine pain but do not include objective measurements of range of motion. Thoracolumbar spine range of motion was flexion to 75 degrees. In December 2013, the Veteran underwent a VA back examination. The Veteran’s forward flexion of the lumbar spine was documented as limited to 40 degrees by pain during initial range of motion testing. Flare-ups of the Veteran’s lumbar spine symptoms were not endorsed and no additional functional loss was found after repetitive range of motion testing. The functional loss that was identified was described as less movement than normal and pain on movement. The examiner commented that she felt the Veteran was exaggerating his limitations when comparing her objective observations of range of motion and the range of motion testing. However, the examiner’s comments hold less probative value when considering other findings in the examination that conflict with the established medical evidence of record; specifically, a finding that the Veteran does not have any radicular symptoms or use of assistive devices when both are documented in the record. The Veteran’s treatment records following his December 2013 VA examination continue to document complaints of painful movement attributable to his lumbar spine disability but are devoid of additional objective range of motion testing. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in March 2016. The Veteran disputed the December 2013 VA examiner’s comments regarding an exaggeration of his range of motion restrictions, stating that he completed all range of motion tests as much as his back pain permitted. The Veteran also stated that his back symptoms had gotten worse and he was no longer able to bend over to tie his shoes, now requiring Velcro straps. In January 2018, the Veteran underwent a VA examination of his back. The objective initial range of motion testing revealed lumbar forward flexion to be limited to 20 degrees by pain. Pain, characterized as moderate to severe, was noted to cause functional loss described as an inability to walk for more than 100 yards without “indescribable pain” that prevents him from continuing activity. The Veteran was unable to perform repetitive testing because he was worried about incurring further pain. The VA examiner indicated that the Veteran experiences flare-ups of his lumbar spine symptoms and described them as manifesting with severe pain daily lasting for hours. In describing these flare-ups, the Veteran referred primarily to symptoms associated with his right sciatic nerve condition. The VA examiner stated that she was unable to provide an estimation of addition loss in range of motion as due to flare-ups. As rationale the examiner stated, “it is not possible to determine, without resort to mere speculation, to estimate loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” Additionally, the VA examiner found no evidence of ankylosis of the spine. The Board finds that the evidence does not support any increased rating for the Veteran’s service-connected low back strain for the period prior to May 1, 2010, or beginning May 1, 2010 and ending March 5, 2013. However, for the period from June 1, 2013 to January 2, 2018 the Board finds that, affording the Veteran the benefit of the doubt he is entitled to a 20 percent rating, but no higher. Finally, the Board finds that the Veteran is not entitled to an increased rating for the period from January 3, 2018. For the period prior to May 1, 2010, the evidence does not establish entitlement to a rating in excess of 20 percent for low back strain with DDD. While chronic low back pain was reported, the VA examination in August 2009 disclosed forward flexion was possible to 75 degrees, which is far less restriction of motion that the forward flexion of 30 degrees of less required for the next higher rating of 40 percent. (This examination formed the basis of the RO’s action to reduce the evaluation from 20 percent to 10 percent.) No other evidence during this period demonstrates limitation of motion so severe so as to warrant assignment of an increased rating. Under these circumstances, a rating in excess of 20 percent is not warranted prior to May 1, 2010. The objective medical evidence for the period May 1, 2010, to March 5, 2013, demonstrates that the Veteran presented with symptoms of limited and painful motion of his lumbar spine. There were no range of motion tests that revealed forward flexion less than 60 degrees or combined thoracolumbar spine range of motion less than 120 degrees. The current 10 percent rating best approximates impairment during this period. The December 2013 VA examination clearly demonstrates forward flexion of the thoracolumbar spine limited to 40 degrees. While the Board notes the VA examiner’s comments regarding the Veteran’s efforts, they are given less probative value in light of internal inconsistencies and the Veteran’s competent testimony under oath before the undersigned VLJ. Therefore, the Board finds that the results of this examination warrant an increase in the Veteran’s disability rating as they approximate the rating criteria for a 20 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine. Thereafter, there is no evidence prior to the January 2018 VA examination of forward flexion of the thoracolumbar spine 30 degrees or less or evidence of favorable ankylosis of the entire thoracolumbar spine. The increased 20 percent rating is assigned for the period June 1, 2013, to January 2, 2018, as the increased level of disability may be presumed following the expiration of the temporary total convalescent rating. For the period from January 3, 2018, to include the January 2018 VA examination and VA treatment records, the Veteran’s low back strain symptoms did not demonstrate or approximate unfavorable ankylosis of the thoracolumbar or entire spine. The Veteran is not service connected for a cervical spine disability. The Board is cognizant of the ruling in Sharp v. Shulkin, 29 Vet. App. 26 (2017) (addressing what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees... of flare-ups). While the January 2018 VA examiner did not provide an estimation of further range of motion loss in terms of degrees, despite acknowledging flare-ups, the Board finds that the VA examiner provided adequate rationale for her inability to provide such estimation. Furthermore, the VA examiner made attempts to solicit pertinent information on the frequency, severity, and duration of these flare-ups and the Veteran himself described his primary flare-up symptoms as associated with his right leg sciatic nerve symptoms. Therefore, even considering the Veteran’s flare-ups, the Board finds that there is no objective or subjective evidence that would demonstrate that the Veteran’s low back strain with DDD manifests with symptoms more closely approximating unfavorable ankylosis. The low back disability may also be rated based on the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DC 5243. Such a rating, however, would preclude a separate rating for right sciatic nerve neuropathy. 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 (1) following DC 5243. A rating based on incapacitating episodes would have to be 40 percent or higher to yield an evaluation higher than the combined rating for the back disability under the General Rating Formula and a separate rating for right sciatic nerve neuropathy under DC 8521, sciatic nerve incomplete paralysis. A 40 percent rating based on incapacitating episodes requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. In the present case, the evidence does not reflect such physician-prescribed bed rest with treatment by a physician. 2. Right Sciatic Nerve Neuropathy. The Veteran’s right sciatic nerve neuropathy have been evaluated pursuant to 38 C.F.R. § 4.124a, DC 8520. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve resulting in the foot dangling and dropping with no active movement possible of the muscles below the knee and weakened (or very rarely lost) flexion of the knee. 38 C.F.R. § 4.124a, DC 8520. Words such as “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather than applying a mechanical formula, VA must evaluate all the evidence in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. 7104; 38 C.F.R. 4.2, 4.6. The claim for an increased rating was received by VA in July 2009. The Veteran’s service-connected right leg sciatic neuropathy, for the period on appeal, is currently rated in stages. The disability is rated as 20 percent prior to May 10, 2010; noncompensable from May 1, 2010 to January 2, 2018; and 20 percent from January 3, 2018. In December 2017, the Board affirmed the propriety of the reduction from 20 percent to noncompensable effective May 1, 2010. Therefore, the Board will consider entitlement to increased ratings from July 2008 (one year prior to the claim for increase). VA treatment records dated prior to May 1, 2010, reflect the Veteran’s complaints of low back pain radiating to the feet. He also reported that his right leg would give way. An August 2009 VA examination (which formed the basis of the RO reduction of the rating from 20 percent to noncompensable) concluded that MRI and physical examinations did not support a diagnosis of sciatic nerve neuropathy. While the Veteran complained of radiating pain and numbness, the evidence from this period does not approximate moderately severe disability, the requirement for the next higher rating of 40 percent. December 2011 VA treatment records indicate that the Veteran requires the use of a cane due to his right leg sciatic symptoms. In January 2012 a private physician, Dr. JD, provided an opinion discussing the Veteran’s right leg sciatic symptoms. Dr. JD stated that the Veteran’s right posterior leg “gets numb all the way down to the heel” and “nothing precipitates the numbness and it just comes and goes.” May 2012 medical records from the Social Security Administration indicate that the Veteran experiences pain in his right leg described as “sharp, aching and throbbing with tingling and numbness.” December 2012 private medical records indicate that the Veteran experiences radiating pain in his right leg but no weakness or associated numbness. March 2013 VA treatment records describe the Veteran’s right leg sciatic nerve pain as manifesting at a level of eight out of ten. The pain is described as constant and impacting the Veteran’s activities of daily living. In a December 2013 VA spine examination, the examiner stated that there was no radiculopathy and that the Veteran did not use any assistive devices, contrasting with the contemporaneous medical evidence of record. In March 2016 the Veteran testified before the undersigned Veterans Law Judge (VLJ) regarding the severity of his right lower extremity sciatic nerve neuropathy. The Veteran testified that following his back surgery he required the use of a cane due to his right leg symptoms. In January 2018 the Veteran underwent a VA spine examination. The examination results indicate that the Veteran has hypoactive right lower extremity reflexes, decreased sensation throughout the entire right lower extremity, a positive straight leg test on his right side, and right lower extremity radicular symptoms of intermittent pain, paresthesias, and numbness all noted to be moderate in severity. Overall the examiner characterized the Veteran’s right lower extremity symptoms as moderate in severity. The examiner also noted the Veteran’s constant use of a cane for mobility due to these symptoms and described their functional impact as rendering the Veteran unable to walk without his case and unable to sit for prolonged periods of time. The Board finds that, affording the Veteran the benefit of the doubt, his service-connected right lower extremity sciatic nerve neuropathy more closely approximates the criteria for a 20 percent disability rating, but no higher, for the period from December 6, 2011, the date of a VA Treatment record verifying symptomatic right sciatic neuropathy, until January 2, 2018. For the period May 1, 2010, to December 5, 2011, the evidence does not demonstrate pertinent disability. Further, from January 3, 2018, a 40 percent rating is warranted, but no higher. Prior to December 6, 2011, the evidence does not demonstrate sciatic nerve neuropathy to at least a mild degree. There is not clinical evidence of pertinent symptoms or diagnosis. It is worth noting that at the August 2009 VA examination, it was concluded that MRI and physical examinations did not support a diagnosis of sciatic nerve neuropathy. During this period, a basis for an increased, compensable evaluation is not shown. Evidence beginning December 6, 2011 demonstrates the presence of symptoms of sciatic nerve neuropathy that are best described as moderate until January 2018, following which symptoms are best described as moderately severe. During this time period, the evidence shows consistent symptoms of radiating pain, the constant use of an assistive device (cane), and intermittent symptoms of numbness/weakness in his right lower extremity. This disability picture is quite similar to the symptoms that the January 2018 VA examiner cited in characterizing the Veteran’s right lower extremity sciatic nerve neuropathy as moderate in severity. The Board acknowledges the December 2013 VA examination noting no radiculopathy but finds this examination to be inadequate and less probative as it does not acknowledge any of the medical evidence that directly contradicts such a finding. While no radicular pain was noted by the examiner at this examination, the record is replete with complaints of the Veteran of pain radiating to the foot and reported giving way of the right leg. Therefore, affording the Veteran the benefit of the doubt, the Board finds that his disability from December 6, 2011, to January 2, 2018, more closely approximates a 20 percent disability rating. As to the January 2018 VA examination, the basis for the RO’s increase to 20 percent disabling effective the date of the examination, the Board finds that the examination taken as a whole more closely approximates a moderately severe disability picture and therefore a rating of 40 percent. The Veteran was identified as having every radicular symptom other than constant pain, all rated as moderate in severity. However, the Veteran has competently and credibly reported, to include in sworn testimony, that he experiences constant pain through his right lower extremity that is made worse by sitting for prolonged periods of time, causing spasms when he attempts to stand. Additionally, the evidence of record supports a finding that the Veteran’s constant pain manifests at least a moderately severe level, described as an eight out of ten. Finally, the disability questionnaire used to assess the severity of the radicular symptoms does not include an option to characterize symptom severity as moderately severe. The criteria for a 40 percent disability rating are met as of January 3, 2018. Therefore, affording the Veteran the benefit of the doubt the Board finds that his right lower extremity sciatic nerve neuropathy more closely approximates a 20 percent disability rating from December 6, 2011, to January 2, 2018. Furthermore, considering the Veteran’s competent and credible testimony, his symptoms and their functional impact as described on the January 2018 examination the Board finds that the Veteran’s right lower extremity sciatic nerve neuropathy more closely approximates a 40 percent disability rating from January 3, 2018. At no time during the period on appeal did the Veteran’s right lower extremity sciatic nerve neuropathy symptoms demonstrate severe incomplete paralysis with marked muscular atrophy or complete paralysis of the sciatic nerve resulting in the foot dangling and dropping with no active movement possible of the muscles below the knee and weakened (or very rarely lost) flexion of the knee. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod