Citation Nr: 18148106 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 17-24 004 DATE: November 7, 2018 ORDER Prior to March 30, 2017, an initial evaluation in excess of 10 percent for service-connected thoracolumbar spine degenerative disc disease (DDD) (the “back”) is denied. Since March 30, 2017, an evaluation in excess of 20 percent for service-connected thoracolumbar spine DDD is denied. FINDINGS OF FACT 1. Prior to March 30, 2017, the Veteran’s service-connected thoracolumbar spine DDD was manifested, at its worst, by painful motion and localized tenderness not resulting in abnormal gait or abnormal spinal contour; it was not productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or by a combined range of motion of the thoracolumbar spine greater than 120 degrees; or by muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. Since March 30, 2017, the Veteran’s service-connected thoracolumbar spine DDD has been manifested, at its worst, by forward flexion of the thoracolumbar spine to 40 degrees; it has not been productive of forward flexion of the thoracolumbar spine to 30 degrees or less; or by favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to March 30, 2017, the criteria for a disability rating in excess of 10 percent for service-connected thoracolumbar spine DDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5237. 2. Since March 30, 2017, the criteria for a disability rating in excess of 20 percent for service-connected thoracolumbar spine DDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1999 to June 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2015 and July 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the Veteran is already in receipt of a 100 percent combined disability rating from July 31, 2017 and special monthly compensation (SMC). Neither the Veteran nor his representative has 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 duty to assist argument). Entitlement to an evaluation in excess of 10 percent for service-connected thoracolumbar spine DDD, prior to March 30, 2017, and to an evaluation in excess of 20 percent thereafter. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability demonstrates symptoms that warrant different ratings). A claim is denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In its April 2015 rating decision, the RO granted service connection and assigned an initial 10 percent disability rating for the Veteran’s thoracolumbar spine DDD. The Veteran appealed that initial rating. In a July 2017 rating decision, the RO increased the disability rating of the Veteran’s thoracolumbar spine DDD from 10 percent to 20 percent, effective March 30, 2017. As the Veteran has not received a total grant of benefits sought on appeal for his service-connected thoracolumbar spine disability, this issue remains on appeal before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board must now determine whether the Veteran is entitled to increased ratings for his service-connected lumbar spine disability, currently rated 10 percent disabling prior to March 30, 2017, and 20 percent disabling since that date. The Veteran’s service-connected thoracolumbar spine disability is evaluated under Diagnostic Code 5237 (lumbosacral strain), which assigns ratings based upon the General Rating Formula for Rating Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. Pursuant to Diagnostic Code 5237, a minimum 10 percent rating is warranted for 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 of more of height. A 20 percent rating is warranted for 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 is not greater than 120 degrees; or when there are muscle spasms 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 if forward flexion of the lumbar spine is to 30 degrees or less; or if there is favorable ankylosis of the entire lumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire lumbar spine. A maximum 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. When there is evidence of intervertebral disc syndrome (IVDS), the disability should be evaluated under Diagnostic Code 5243 which provides a 20 percent disability for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 percent disability rating with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a. Prior to March 30, 2017, the Veteran’s service-connected thoracolumbar spine disability was, at its worst, manifested by painful motion and localized tenderness not resulting in abnormal gait or abnormal spinal contour. There was no evidence of muscle spasm, guarding, or ankylosis. Range of motion testing revealed forward flexion to 100 degrees, extension to 20 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. The Veteran did not have any additional loss of function or range of motion after repetitive use. The Veteran’s combined range of motion of the thoracolumbar spine was 240 degrees. See April 2015 VA examination report. In short, the objective evidence of record does not show that the Veteran’s lumbar spine disability was ever manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or by a combined range of motion of the thoracolumbar spine greater than 120 degrees; or by muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See Diagnostic Code 5242, criteria for a 20 percent rating. Additionally, an alternative rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted as the Veteran has not exhibited any incapacitating episodes during the relevant period and, therefore, a rating under the General Rating Formula for Diseases and Injuries of the Spine is more favorable. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. There accordingly exists no basis for an underlying thoracolumbar spine disability rating in excess of 10 percent prior to March 31, 2017. 38 C.F.R. § 4.71, Diagnostic Code 5237. On March 30, 2017, the Veteran underwent a private chiropractic evaluation. The chiropractor found that the Veteran’s service-connected thoracolumbar spine disability ranges of motion were moderately decreased with pain and manifested by forward flexion to 40 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 10 degrees; and left lateral rotation to 10 degrees. The Veteran’s combined range of motion was 90 degrees. His gait was observed to be guarded and his posture was noted to be antalgic. On subsequent June 2017 VA spine examination, the VA examiner found that the Veteran’s service-connected thoracolumbar spine disability resulted in forward flexion to 45 degrees; extension to 15 degrees; right lateral flexion to 15 degrees; left lateral flexion to 15 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 20 degrees. The Veteran’s combined range of motion was 130 degrees. The examiner noted that the Veteran’s pain caused functional loss but that there was no additional loss of function or range of motion after repetitive use. The examiner found no evidence of muscle spasm, localized tenderness, guarding, or ankylosis. Based on a review of the relevant evidence, the Board finds that a rating in excess of 20 percent is not warranted at any time since March 30, 2017. Specifically, the evidence during that period demonstrates that the Veteran’s service-connected thoracolumbar spine disability has been manifested, at its worst, by forward flexion of the thoracolumbar spine to 40 degrees. See March 30, 2017 private chiropractor’s report (forward flexion to 40 degrees; combined range of motion of 90 degrees); June 2017 VA examination report (forward flexion to 45 degrees; combined range of motion of 130 degrees). In fact, since March 30, 2017, the objective evidence of record does not show that the Veteran’s thoracolumbar spine disability has ever been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or by favorable ankylosis of the entire thoracolumbar spine. See Diagnostic Code 5237, criteria for a 40 percent rating. Additionally, an alternative rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted as the Veteran has not exhibited any incapacitating episodes during the relevant period and, therefore, a rating under the General Rating Formula for Diseases and Injuries of the Spine is more favorable. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. There accordingly exists no basis for an underlying lumbar spine disability rating in excess of 20 percent since March 30, 2017. 38 C.F.R. § 4.71, Diagnostic Codes 5237. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds no other applicable rating criteria that would provide a higher rating or an additional rating. The Board also acknowledges the reports of constant pain associated with the Veteran’s thoracolumbar spine disability during the periods considered above. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. However, the General Formula for disabilities of the spine expressly states that the criteria and ratings apply “with or without symptoms such as pain.” See 38 C.F.R. § 4.71a, General Rating Formula. In other words, the presence of pain is already considered in the formula. 68 Fed.Reg. 51454 -5 (Aug. 27, 2003) (“Pain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and consider the presence of pain, stiffness or aching, which are generally present when there is a disability of the spine.”). As such, the Board does not find that any higher rating is warranted based on the Veteran’s reports of low back pain, to include after repetitive movement. Similarly, the Board acknowledges that under 38 C.F.R. § 4.59, examination of certain joints should include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and if possible, with the range of opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). However, as previously discussed, the pertinent ratings of the spine apply with or without symptoms such as pain. Thus, any deficiency of the spine examinations of record in this regard is harmless, as assessment of pain in accordance with 38 C.F.R. § 4.59 would not provide a basis for the assignment of any higher rating. Moreover, given the lapse of time since the periods decided herein, any additional examination would be merely retrospective, while objective, contemporaneous medical evidence is of record. Hence, remanding the thoracolumbar spine issue for further examination would not result in any further benefit to the Veteran and would cause an unnecessary delay in the adjudication of the case. Sabonis v. Brown, 6 Vet. App. 426 (1994); Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand not required when it would impose unnecessary burdens on VA adjudication system with no benefit flowing to the Veteran). Finally, the Board notes that service connection is currently in effect for the neurologic abnormalities associated with the Veteran’s thoracolumbar spine DDD. The Veteran’s left lower extremity radiculopathy was assigned an initial 10 percent disability rating based on the severity of impact to his femoral nerve. It was also assigned a separate initial 10 percent disability rating based on the severity of impact to his sciatic nerve. The Veteran’s right lower extremity radiculopathy was assigned an initial 10 percent disability rating based on the severity of impact to his sciatic nerve. These three disabling ratings have been in effect since March 30, 2017. The Veteran has not expressed any disagreement with these ratings. Nevertheless, because these disabilities are closely intertwined with the Veteran’s thoracolumbar spine DDD, the Board has considered whether the Veteran should receive increased initial ratings for his service-connected left and right lower extremity radiculopathy manifestations. The Veteran’s service-connected left lower extremity radiculopathy has been rated under the criteria of Diagnostic Codes 8620 (for neuritis of the sciatic nerve) and 8626 (for neuritis of the anterior crural/femoral nerve). See 38 C.F.R. § 4.124a. His service-connected right lower extremity radiculopathy has been rated under the criteria of Diagnostic Code 8620 (for neuritis of the sciatic nerve). Id. Under Diagnostic Code 8626, neuritis resulting in incomplete paralysis of the anterior crural/femoral nerve warrants a 10 percent rating when the incomplete paralysis is “mild;” a 20 percent rating when the incomplete paralysis is “moderate;” and a 30 percent rating when the incomplete paralysis is “severe.” A 40 percent rating is warranted when the neuritis results in complete paralysis of the anterior crural/femoral nerve (paralysis of the quadriceps extensor muscles). Id. Under Diagnostic Code 8620, neuritis resulting in incomplete paralysis of the sciatic nerve warrants a 10 percent rating when the incomplete paralysis is “mild;” a 20 percent rating when the incomplete paralysis is “moderate;” a 40 percent rating when the incomplete paralysis is “moderately severe;” and a 60 percent rating when the incomplete paralysis is “severe” with marked muscular atrophy. An 80 percent rating is warranted with the neuritis results in complete paralysis of the sciatic nerve (the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost). Id. The words “slight,” “moderate,” “moderately severe,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, the Board notes that radiculopathy was not found on VA examination in April 2015. Radiculopathy symptoms were noted in the March 2017 private chiropractor’s report. On VA spine examination in June 2017, the examiner reported that the radiculopathy associated with the Veteran’s thoracolumbar spine disability specifically involved the L2/L3/L4 nerve roots (femoral nerve) of the left lower extremity and the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) of both the left and right lower extremities. Based on sensory testing, the examiner found that the Veteran’s radiculopathy symptoms resulted in mild right lower extremity intermittent pain; moderate left lower extremity intermittent pain; mild right lower extremity paresthesias or dysesthesias; moderate left lower extremity paresthesias or dysesthesias; mild right lower extremity numbness; and moderate left lower extremity numbness. Despite finding moderate symptoms for the left lower extremity, the examiner assessed the overall severity of the Veteran’s radiculopathy as “mild” incomplete paralysis affecting the left lower extremity femoral and sciatic nerves and right lower extremity sciatic nerve. Accordingly, the Board finds that the previously assigned initial 10 percent ratings for all three affected nerves are appropriate. The Board has considered the applicability of the benefit of the doubt doctrine. However, the Veteran’s service-connected thoracolumbar spine and left and right lower extremity radiculopathy disabilities have not increased to such a severity to warrant increased initial disability ratings. Because the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Finally, the Board notes that 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 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the veteran or reasonably raised by the evidence of record). Further, the Veteran has not raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the Board finds it unnecessary to address any other considerations at this time. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel