Citation Nr: 18148543 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 14-12 277 DATE: November 7, 2018 ORDER Entitlement to an increased rating in excess of 40 percent for spondylolisthesis with degenerative arthritis is denied. Entitlement to an effective date of May 24, 2010, for the grant of a separate 20 percent rating for radiculopathy, sciatic nerve, left lower extremity, associated with spondylolisthesis with degenerative arthritis, is granted. Entitlement to an effective date of May 24, 2010, for the grant of a separate 20 percent rating for radiculopathy, sciatic nerve, right lower extremity, associated with spondylolisthesis with degenerative arthritis, is granted. Entitlement to an effective date of May 24, 2010, for the grant of a separate noncompensable rating for scar, midline lumbar, associated with spondylolisthesis with degenerative arthritis, is granted. FINDINGS OF FACT 1. The Veteran’s spondylolisthesis with degenerative arthritis has been manifested by painful motion and limitation of motion due to functional loss. There is no evidence of favorable or unfavorable ankylosis, or incapacitating episodes of Intervertebral Disc Disease having a total duration of 6 weeks during a 12-month period. 2. The Veteran filed a claim for an increased rating for his service-connected lumbar spine disability on May 24, 2010. 3. Resolving reasonable doubt in favor of the Veteran, the evidence reveals complaints of radiculopathy of the left and right lower extremities as far back as May 24, 2010. 4. The evidence reveals a scar, midline lumbar, as far back as May 24, 2010. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for spondylolisthesis with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5239 (2017). 2. An earlier effective date of May 24, 2010, is warranted for the award of a separate 20 percent rating for radiculopathy, sciatic nerve, left lower extremity. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 3. An earlier effective date of May 24, 2010, is warranted for the award of a separate 20 percent rating for radiculopathy, sciatic nerve, right lower extremity. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 4. An earlier effective date of May 24, 2010, is warranted for the award of a separate noncompensable rating for scar, midline lumbar. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1977 to November 1980. This matter is on appeal from October 2010 (back) and August 2018 (radiculopathy and scar) rating decisions. The Veteran testified before a Decision Review Officer (DRO) in December 2013, and in March 2016, he testified at a Board hearing. The Board previously remanded this matter in June 2016 and December 2017 for additional development. In an August 2018 rating decision, the RO granted separate evaluations for bilateral lower extremity radiculopathy (each at 20 percent disabling effective March 13, 2018), and a scar, midline lumbar (noncompensably disabling effective March 13, 2018), as associated with the service-connected spondylolisthesis with degenerative arthritis. Although the Veteran has not disagreed with the effective dates assigned for these disabilities, the Board finds that these issues are part and parcel of the increased rating claim for spondylolisthesis with degenerative arthritis. As such, the Board has considered whether the Veteran is entitled to earlier effective dates for the grants of separate ratings for the radiculopathy of the bilateral lower extremities and lumbar scar associated with the service-connected spondylolisthesis with degenerative arthritis. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. at 354. Entitlement to an increased rating in excess of 40 percent for spondylolisthesis with degenerative arthritis. The Veteran is seeking a rating in excess of 40 percent for his service-connected spondylolisthesis with degenerative arthritis. The Veteran was granted a 40 percent rating based on severe limitation of motion of the lumbar spine under the old lumbar spine rating criteria. See 38 C.F.R. § 4.71a, DC 5295 (2003). Under the new criteria effective from September 26, 2003, disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. See 38 C.F.R. § 4.71a, DCs 5235-5243 (2017). Under the General Rating Formula (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. When rated based on incapacitating episodes, a 10 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, DC 5243. 38 C.F.R. § 4.71a, DCs 5235-5243. The normal findings for range of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion, right and left, to 30 degrees, and rotation, right and left, to 30 degrees. 38 C.F.R. § 4.71a, Plate V. As noted above, the General Rating Formula does not provide for a rating higher than 40 percent unless there is unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine. See 38 C.F.R. § 4.71a, DC 5237. Ankylosis is defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case, the Veteran has not been diagnosed with ankylosis of any segment of his spine. The medical records clearly demonstrate that while the motion of the Veteran’s lumbar spine has been limited, flexion was still possible, and some range of motion has been present throughout the applicable period under appeal. In this regard, at the July 2010 VA examination, range of motion measurements were as follows: flexion to 90 degrees seated and 80 degrees erect with discomfort at 60 degrees; extension to 10 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 30 degrees. On VA examination in January 2014, range of motion measurements were as follows: flexion to 60 degrees; extension to 25 degrees; right lateral flexion to 25 degrees; left lateral flexion to 30 degrees; and right and left lateral rotation to 20 degrees. On VA examination in November 2016, range of motion measurements were as follows: flexion to 60 degrees; extension to 20 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 20 degrees. Finally, on VA examination in March 2018, range of motion measurements were as follows: flexion to 40 degrees; extension to 5 degrees; right lateral flexion to 15 degrees; left lateral flexion to 10 degrees; and right and left lateral rotation to 15 degrees. There is no medical evidence of any spinal ankylosis. Thus, it cannot be concluded that the Veteran has ankylosis of the thoracolumbar or lumbar spine, and certainly not unfavorable ankylosis. There is no basis, therefore, for a higher evaluation inasmuch as there is no clinical evaluation of ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). The Board has also considered whether an increased evaluation could be assigned on the basis of functional loss due to the Veteran’s subjective complaints of pain, weakness, and stiffness. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Veteran already receives the maximum disability rating available for limited motion in the lumbar spine absent ankylosis. In addition, none of the medical evidence suggests that the severity of his service-connected back disability is the functional equivalent of ankylosis. In fact, the Board finds that the range of motion measurements during this timeframe were generally more consistent with a 20 percent evaluation. Even with DeLuca considerations, all of the examinations during this timeframe demonstrated that the Veteran had at least some range of motion in his lumbar spine. Hence, even with consideration of sections 4.40 and 4.45 and DeLuca, the record presents no basis for the assignment of a rating higher than 40 percent based on functional loss. As such, the Veteran is not entitled to a higher rating under the General Rating Formula for limitation of spine movement. See 38 C.F.R. § 4.71a, DCs 5243-5237. Moreover, the medical evidence of record does not suggest that the Veteran has had incapacitating episodes having a total duration of at least six weeks during the past 12 month period. Although the Veteran reported some incapacitation in his December 2013 DRO hearing, the VA examiners specifically found no objective evidence of intervertebral disc syndrome or incapacitating episodes requiring bed rest prescribed by a physician as required for the next higher rating. The Veteran’s VA treatment records also do not support findings of incapacitation requiring bed rest prescribed by a physician. As such, a disability rating higher than the currently assigned 40 percent under the rating criteria for intervertebral disc syndrome, also, would not be appropriate. Id. As to whether additional compensation for neurological impairment is warranted, the General Rating Formula requires consideration of neurological findings, to include bladder or bowel impairment, separate from orthopedic manifestations. As noted above, in an August 2018 rating decision, the RO granted separate compensable ratings for right and left lower extremity radiculopathy and a separate noncompensable rating for scar, midline lumbar, as associated with the service-connected spondylolisthesis with degenerative arthritis. The Veteran has not disagreed with the ratings or effective dates assigned for these disabilities. Moreover, there is no evidence indicating that the assigned ratings should be higher. Finally, the Board will be addressing the effective dates assigned for these matters below. There have not been any other neurological findings related to the service-connected lumbar spine disability during the appeal period. Accordingly, the preponderance of the evidence is against assignment of a rating in excess of 40 percent for the Veteran’s service-connected spondylolisthesis with degenerative arthritis. As the greater weight of evidence is against the claim, there is no doubt on this matter that could be resolved in his favor. Entitlement to earlier effective dates for the grants of separate ratings for radiculopathy left and right lower extremity and scar, midline lumbar, associated with spondylolisthesis with degenerative arthritis. The Veteran filed a claim for an increased rating for his lumbar spine disability on May 24, 2010. As noted above, in an August 2018 rating decision, the RO granted separate evaluations for bilateral lower extremity radiculopathy (each at 20 percent disabling effective March 13, 2018), and a scar, midline lumbar (noncompensably disabling effective March 13, 2018), as associated with the service-connected spondylolisthesis with degenerative arthritis. The RO assigned an effective date of March 13, 2018, which it explained was the date of the VA examination showing entitlement. However, after a review of the evidence of record, the Board finds that the evidence supports the assignment of an effective date of May 24, 2010, for the grant of separate compensable ratings for radiculopathy left and right lower extremity, and a separate noncompensable rating for scar, midline lumbar. In general, except as otherwise provided, the effective date of an evaluation of an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Here, the evidence shows that the Veteran has complained of lumbar radicular pain throughout the appeal period. In his July 2010 VA examination, he complained of back pain radiating down both legs to his feet. The examiner noted a chronic history of daily radiation of numbness and pain down both legs following the sciatic nerve to the feet with a pain severity of 6/10. In his March 2016 hearing, the Veteran testified that he had difficulty walking due to radicular pain going down his back into his knees and ankles. He also reported numbness radiating down both legs. Finally, in a May 2018 VA treatment record, the Veteran complained of intermittent pains radiating to his legs and feet for years. Although the March 2018 VA examination report was the first to include findings pertaining to radiculopathy, none of the prior VA examination reports adequately addressed the Veteran’s complaints of radicular pain and symptomatology. As such, and resolving any reasonable doubt in favor of the Veteran, the Board finds that an effective date of May 24, 2010, the date of his claim for an increased rating for his lumbar spine disability, is warranted for his lumbar radiculopathy of the bilateral lower extremities associated with the spondylolisthesis with degenerative arthritis. Additionally, the evidence shows that the Veteran had lumbar spine surgery in 2002, and VA examinations have noted a lumbar spine scar resulting from the surgery. As such, an effective date of May 24, 2010, the date of the Veteran’s claim for an increased rating for his lumbar spine disability, is warranted for his scar, midline lumbar, associated with the spondylolisthesis with degenerative arthritis. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs