Citation Nr: 18148217 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 07-21 564 DATE: November 7, 2018 ORDER Entitlement to an initial rating in excess of 20 percent prior to February 12, 2014, for degenerative joint disease of the thoracolumbar spine, and in excess of 40 percent thereafter, is denied. Entitlement to separate 10 percent ratings for left and right lower extremity thoracolumbar radiculopathy are granted from August 9, 2006. FINDINGS OF FACT 1. Prior to February 12, 2014, the Veteran’s thoracolumbar spine disability was manifested by forward flexion limited to at most, 55 degrees. 2. As of February 12, 2014, the Veteran’s thoracolumbar spine disability was manifested by forward flexion limited to 30 degrees or less, without evidence of unfavorable ankylosis of the entire thoracolumbar spine. 3. Throughout the appeal period, the Veteran has had bilateral lower extremity radiculopathy approximating at least mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 20 percent for degenerative joint disease of the thoracolumbar spine prior to February 12, 2014, and in excess of 40 percent thereafter, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237-5242 (2017). 2. The criteria for separately compensable ratings of 10 percent each, but no greater, for left and right lower extremity radiculopathy, have been met. 38 U.S.C. 1155, 5107 (2012); 38 C.F.R. § 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2000 to October 2004. This matter comes to the Board of Veterans’ Appeals (Board) from an April 2006 rating decision, which granted service connection for thoracolumbar spine degenerative joint disease (herein after “thoracolumbar spine disability”), evaluated as 20 percent disabling, effective October 3, 2004. In an April 2015 rating decision, and during the pendency of the issue on appeal, the AOJ granted an increased rating for the Veteran’s spine disability, evaluated as 40 percent effective February 12, 2014. The AOJ also granted service connection for right lower extremity radiculopathy, evaluated at 10 percent disabling effective February 12, 2014, and at 20 percent from March 3, 2013, and for left lower extremity radiculopathy, evaluated at 20 percent disabling effective March 3, 2015. However, as radiculopathy is not a separate condition from thoracolumbar degenerative joint disease, but rather a progression of the disease, the Board has considered whether separate ratings are warranted for bilateral lower extremity radiculopathy for the period on appeal. In October 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. In May 2017 and February 2018, the Board remanded the claims for additional development, to include obtaining outstanding treatment records and a VA examination. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an initial rating in excess of 20 percent for degenerative joint disease of the thoracolumbar spine prior to February 12, 2014, and in excess of 40 percent thereafter. The Veteran contends that a higher rating is warranted for his thoracolumbar spine disability. The Veteran is currently assigned a 20 percent rating prior to February 12, 2014, and a 40 percent rating thereafter. The Veteran’s thoracolumbar spine disability is evaluated under Diagnostic Code 5242, degenerative arthritis of the spine, which is evaluated using the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under this formula, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a (2017). A 20 percent evaluation is warranted when the 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, there is 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 criteria for a 30 percent evaluation pertain only to the cervical spine and are not applicable in this case. A 40 percent evaluation is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. 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. Because the rating criteria are based upon limitation of motion, additional functional loss must be considered. DeLuca, 8 Vet. App. at 206. In addition to the General Rating Formula, a veteran suffering from intervertebral disc syndrome may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS), whichever rating formula results in a higher rating. See 38 C.F.R. § 4.71a, DC 5243. IVDS is evaluated either on the total duration of incapacitating episodes over the past 12 months or by the Veteran’s evaluation under the General Rating Formula combined with separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, as described under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The IVDS provides that a 10 percent evaluation is warranted when the veteran has incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted when the veteran has incapacitating episodes having a total duration of a least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when the Veteran has incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. An incapacitating episode is “a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, Diagnostic Code 5243, formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Turning to the evidence of record, a May 2005 VA treatment record reflects that the Veteran complained of back pain if he stood for too long. June 2005 imaging studies revealed spondylolysis and grade 1 spondylolisthesis at L5-S1, and compression of the T6-9 vertebra. A November 2005 VA examination report reflects that Veteran reported constant back pain present all day long, which was improved by medication as well as by lying down. However, the Veteran reported that at times, he was unable to function, with three periods of incapacitation per month for about a day each time, but no incapacitating episodes in the year prior. The examiner noted that the Veteran’s gait was normal and he did not require an assistive device to ambulate. Range of motion testing revealed flexion to 55 degrees and extension to 30 degrees, with pain in both flexion and extension. Right and left lateral flexion and rotation were all to 30 degrees and without pain. The examiner found that range of motion of the thoracolumbar spine was limited by pain, but not limited by fatigue, weakness, lack of endurance or coordination after repetitive use. The examiner diagnosed the Veteran with degenerative joint disease of the thoracolumbar spine with mild thoracokyphosis, and indicated that the Veteran should avoid frequent bending, stooping, and crouching. Flare-ups were not addressed in the examination report. In August 2006, the Veteran reported constant back pain that interfered with his ability to sleep, with pain radiating down into his legs bilaterally. The Veteran also reported that he sometimes got intermittent bilateral leg numbness when sitting, and it would later tingle when he stood. An August 2006 imaging study revealed wedging of the T7-10 vertebra with mild kyphosis, but no osseous destruction. An April 2007 VA examination report reflects that the Veteran reported constant pain which came on by itself, but could also be elicited by physical activity, and relieved by rest and medication. The Veteran denied incapacitating episodes. The examiner noted the Veteran’s gait was normal and the Veteran did not require an assistive device. Range of motion testing revealed flexion to 90 degrees and extension, and right and left lateral flexion and rotation to 30 degrees each, with pain beginning at 90 and 30 degrees, respectively. The examiner found that pain after repetitive use impacted functional ability, but fatigue, weakness, lack of endurance and incoordination did not affect function after repetitive use. There was no additional loss of motion due to repetitive use. The examiner indicated there was no muscle spasm, IVDS, or ankylosis of the spine. Flare-ups were not addressed. A November 2008 VA examination report noted full range of motion of the back, but the examiner provided limited information. A September 2010 imaging study revealed an old compression fracture of the T7-10 vertebra and probable spondylolysis of the L5 vertebra without significant spondylolisthesis. An April 2011 VA examination report reflects the Veteran reported constant back pain, with weakness, stiffness, popping and tendency to lock. The Veteran reported severe flare-ups which could occur daily and last several days depending on the activity. The Veteran reported that he was unable to perform activities of daily living and that he had five incapacitating episodes per month in which he was unable to get out of bed. He reported having to constantly take time off from work due to doctor appointments and the inability to move, and that his occupation, recreational activities, and driving ability were affected. The Veteran reported he used a brace on and off for the last six years. Upon examination, the examiner noted the Veteran’s gait was slow and he was unable to walk on his heels and toes. Squatting was difficult, Trendelenburg gait was abnormal, and a straight leg test was positive at 60 degrees, with decreased sensation in the right leg. Range of motion testing revealed forward flexion to 70 degrees, and extension, right and left lateral flexion and rotation to 30 degrees each. The examiner found increased pain, fatigue, weakness, and lack of endurance on repetitive motion in the thoracolumbar spine, but no additional loss of range of motion. Although the Veteran reported flare-ups, the examiner did not address whether there was additional loss of motion during or due to flare-ups. An April 2011 VA treatment record reflects that the Veteran’s lumbar spine range of motion was decreased to 75 percent of the normal range in flexion, extension, and lateral rotation, with pain at the end of each range. In June 2011 and August 2012, the Veteran underwent a thoracic paravertebral block. A February 2014 VA treatment record noted that the Veteran reported constant mid-back pain with occasional sharp pains in his lower back, with pain radiating down his right leg to the knee for the past two years. The Veteran was found to have poor range of motion of his back, and could not bend forward greater than 30 degrees, with decreased rotation bilaterally, left greater than right. An October 2014 imaging study revealed mild diffuse disc bulging and mild-to-moderate diffuse facet arthrosis, with grade 1 spondylolisthesis of L5 over S1 with questionable bilateral spondylolysis defects. A March 2015 examination report reflects that the Veteran was diagnosed with degenerative joint disease of the thoracolumbar spine, which had progressed to intervertebral disk syndrome (IVDS). The Veteran reported constant back pain, that he could not bend forward, and sharp pain in his right buttock and down his leg. The Veteran reported flare-ups which required him to lay down and prevented him from walking or bending at times. The examiner noted that the Veteran used a cane to move around. Upon examination, the examiner found the Veteran’s gait was normal, but straight leg testing was positive on the right side. Range of motion testing revealed forward flexion, extension, right and left lateral flexion and rotation to 10 degrees each, with pain beginning at 10 degrees in each measurement. Repetitive use testing resulted in flexion to 10 degrees, and extension and right and left lateral flexion and rotation to 5 degrees each. The examiner found that the Veteran experienced less movement than normal and pain on movement after repetitive use. While the examiner initially indicated that there was no additional limitation to range of motion on repetitive use, the examiner noted that the Veteran experienced additional limitation of range of motion of 5 degrees during flare-ups or over repeated use. The examiner found no evidence of muscle spasms or guarding and that while the Veteran had IVDS, he had had no incapacitating episodes in the prior 12 months. However, the examiner indicated that the Veteran had symptomology associated with radiculopathy, consisting of severe constant bilateral lower extremity pain. The examiner indicated that the L4/5/S1/2/3 nerve roots were involved, resulting in moderate radiculopathy on the right side, with the left side unaffected. In October 2016, the Veteran testified at a Board hearing that he was in constant pain due to his back, and that he was unable to sleep through the night. He indicated that sitting, standing, walking, and driving for long periods was difficult, and that sometimes his wife would drive him to work. He stated that sometimes could not move or get out of bed, but that his physician had not prescribed bed rest. He testified that he could move, but that his forward range of motion was limited to 20 degrees. A January 2017 VA treatment record reflects the Veteran reported persistent and progressively worsening back pain that had been ongoing for several years. He reported that his pain from the top of his back all the way down, with lower back pain in a band-like region that radiated down both legs. The Veteran was noted to have poor posture and tense, tight paraspinal muscles, without tenderness to palpation. A November 2017 VA treatment record reflects complaints of back pain that was achy in nature, but low back pain that would become sharp and radiate. The Veteran reported his back pain was aggravated by walking but that rest helped. A May 2018 VA examination report reflects that the Veteran reported back pain that had worsened over time, flare-ups of the thoracolumbar spine with prolonged laying, sitting, standing, walking, and bending, and that his spine disability made prolonged drives, getting comfortable at night, and lifting difficult. The Veteran reported that he used a brace regularly. Straight leg testing was positive bilaterally and range of motion testing revealed forward flexion to 70 degrees and extension, right and left lateral flexion, and right and left lateral rotation all to 20 degrees. The examiner indicated that pain during range of motion contributed to functional loss, and that leaning down to reach and lift would be difficult. The examiner found that the Veteran experienced pain on movement after repetitive use and during flare-ups, without additional limitation to range of motion. The examiner noted that decrease in range of motion would be expected over time with use and during flare-ups, but that variability in pain tolerance and type and length of activity and severity of flare-up would determine additional decrease in range of motion. The examiner indicated that there were no spasms or guarding, muscle atrophy, IVDS, or ankylosis. However, the examiner found that the Veteran’s thoracolumbar spine disability disturbed his locomotion, interfered with standing and sitting, and limited the amount of time he could comfortably sit, stand, and walk. The examiner indicated that the Veteran had signs of radiculopathy, to include intermittent mild pain and paresthesias and/or dysthesias bilaterally. The examiner indicated involvement of the L4/5/S1/2/3 nerve roots, resulting in mild bilateral radiculopathy. Prior to February 12, 2014 After considering all the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran’s thoracolumbar spine disability prior to February 12, 2014. While the Veteran reported flare-ups, the evidence of record does not demonstrate that the Veteran had functional limitations prior to February 12, 2014 that meet or nearly approximate the criteria for a rating higher than 20 percent. Particularly, the objective evidence of record reflects that the Veteran’s forward flexion of the thoracolumbar spine was limited to, at most, 55 degrees during his November 2005 VA examination, with demonstrated limitation of forward flexion to 70 to 90 degrees in all subsequent evaluations prior to February 12, 2014, which more nearly approximates the 20 percent criteria under DC 5242. The evidence does not more nearly reflect limitation of the lumbar spine to 30 degrees or less prior to February 12, 2014. While the Veteran reportedly experienced flare-ups during this time, the evidence of record does not reflect that the Veteran’s forward flexion was limited to 30 degrees or less. The Board acknowledges that the November 2005, April 2007, November 2008, and April 2011 VA examination reports do not indicate whether testing was done for pain on both active and passive motion, in weight bearing and nonweight-bearing, the November 2005 and April 2007 reports do not address whether the Veteran experienced flare-ups, and the April 2011 report did not express the Veteran’s functional loss during flare-ups in degrees of range of motion lost. However, the Board finds that at this time, remanding the claim for retroactive opinions would likely result in speculative opinions; therefore, it would be futile to remand the claim back and such a delay is outweighed by giving the Veteran a decision on his claim that has been pending for over a decade. The VA examiners addressed the functional impact on the Veteran’s thoracolumbar spine disability upon ordinary conditions of daily work and life and the Board notes that it has afforded the Veteran every possible benefit of the doubt where applicable. The Veteran has complained of increased pain in his back with flare-ups depending on the activity, and that his back pain limits his ability to stand, sit, or lay down for prolonged periods, but the Board does not find that these limitations meet the criteria for a rating in excess of 20 percent. The evidence also does not demonstrate limitation of forward flexion to 30 degrees or less, or favorable or unfavorable ankylosis of the thoracolumbar spine prior to February 12, 2014. Accordingly, a rating in excess of 20 percent under the General Formula is not warranted. 38 C.F.R. § 4.3, 4.71a, DC 5242 (2017). The Board also finds that a rating in excess of 20 percent is not warranted under the IDVS rating formula. To the extent that the Veteran has demonstrated intervertebral disc syndrome, and the Veteran indicated that he had incapacitating episodes, the Veteran did not indicate that he suffered incapacitating episodes of least four weeks during any twelve-month period on appeal. Furthermore, while the Veteran has reported limitations on his ability to stand, sit, and lay down for prolonged periods, the evidence does not reflect that a physician has prescribed bed rest for extended periods. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted under the IDVS. 38 C.F.R. § 4.3, 4.71a, DC 5242 (2017). In conclusion, the Board finds the Veteran’s thoracolumbar spine disability prior to February 12, 2014 more nearly approximates the criteria for a 20 percent rating, but no higher. See 38 C.F.R. 4.3; 4.71a, DC 5242. After February 12, 2014 After considering all the evidence of record, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran’s thoracolumbar spine disability after February 12, 2014. While the evidence of record reflects that the Veteran’s range of motion was severely limited, to include forward flexion to 10 degrees or less during a flare-up or on repetitive use, the evidence of record does not demonstrate that the Veteran functional limitations were so severe as to more nearly approximate unfavorable ankylosis of the thoracolumbar spine and warrant a rating in excess of 40 percent. Furthermore, no clinician or VA examiner has found that the Veteran’s thoracolumbar spine disability resulted in ankylosis after February 12, 2014, or at any point during the appeal period. The Court of Appeals for Veterans Claims (Court) has defined ankylosis to mean that “a joint is fixed, or ‘frozen’ in one position.” See Villareal v. Principi, 18 Vet. App. 13 (2001). The Veteran’s thoracolumbar spine cannot be considered ankylosed because it is not fixed in one position; thus, while range of motion may be limited, the Veteran is able to flex, extend, and rotate to some degree. Therefore, the Veteran’s thoracolumbar spine does not meet the definition of “ankylosis” as defined by the Court. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7; 38 C.F.R. §§ 4.40, 4.45 (2017), this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). For similar reasons, the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the Court held that 38 C.F.R. § 4.59 requires range of motion testing requirements with which VA must comply, is not for application, as range of motion findings will not result in a higher rating. Therefore, any deficiency in testing for joint pain in the March 2015 and May 2018 VA examinations under the requirements set forth in Correia is harmless. Cf. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate with regard to flare-ups where the examination was the basis for a denial of a higher disability rating based on range of motion findings). The Board also finds that a rating in excess of 40 percent is not warranted under the IDVS rating formula. To the extent that the Veteran has demonstrated intervertebral disc syndrome, and the Veteran indicated that he had incapacitating episodes, the Veteran has not indicated that he suffered incapacitating episodes of least six weeks during a twelve-month period at any point after February 12, 2014. Furthermore, while the Veteran has reported limitations on his ability to stand, sit, and lay down for prolonged periods, the evidence does not indicate that he has been prescribed bed rest for extended periods. Accordingly, the Board finds that a rating in excess of 40 percent is not warranted under the IDVS formula. 38 C.F.R. § 4.3, 4.71a, DC 5242 (2017). In conclusion, the Board finds the Veteran’s thoracolumbar spine disability after February 12, 2014 more nearly approximates the criteria for a 40 percent rating, but no higher. See 38 C.F.R. 4.3; 4.71a, DC 5242. Entitlement to separate ratings for left and right lower extremity thoracolumbar radiculopathy. The Board finds that separate ratings for left and right lower extremity radiculopathy is warranted. DC 8520 rates neurological impairment based on the degree of complete or incomplete paralysis of the sciatic nerve. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular atrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. Complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement is possible of the muscles below the knee, and flexion of the knee weakened or (very rarely) lost warrants a maximum 80 percent evaluation. 38 C.F.R. § 4.124a, DC 8520. Under the relevant criteria, a 10 percent rating is warranted for right and left lower extremity radiculopathy. The Board notes that the Veteran has complained of radiating pain of the bilateral lower extremities since August 9, 2006. Furthermore, straight leg testing was positive during his August 2011 VA examination, with abnormal gait and decreased sensation in his right leg. Resolving reasonable doubt in the Veteran’s favor, the Board finds that such findings reflect mild incomplete paralysis of the sciatic nerve since August 9, 2006. Thus, the Board finds that separate 10 percent ratings are warranted for left and right lower extremity radiculopathy. The evidence does not reflect any more severe than “mild” incomplete paralysis of the left and right sciatic nerves. The Veteran has not demonstrated signs of loss of muscle strength or atrophy of his bilateral lower extremities. Accordingly, the Board finds that separate 10 percent ratings, but no higher, are warranted for left and right lower extremity radiculopathy, effective August 9, 2006. 38 C.F.R. 4.124a, DC 8520. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel