Citation Nr: 18148791 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-18 679 DATE: November 8, 2018 ORDER Entitlement to service connection for a dental disorder for compensation purposes is denied. Entitlement to a 20 percent rating, but no more, for service-connected degenerative joint disease of the lumbar spine prior to April 9, 2015, is granted; a rating higher than 20 percent from April 9, 2015, to July 21, 2015, is denied; and a rating higher than 40 percent from July 21, 2015, is denied. Entitlement to a rating higher than 10 percent for service-connected radiculopathy of the anterior tibial and internal popliteal nerves of the right lower extremity is denied. Entitlement to a rating higher than 10 percent for service-connected radiculopathy of the anterior tibial and internal popliteal nerves of the left lower extremity is denied. FINDINGS OF FACT 1. Under the laws administered by VA, the Veteran does not have a current dental disorder for which VA disability compensation is payable. 2. Prior to July 21, 2015, the Veteran’s service-connected lumbar spine disability manifested, at worst, by forward flexion to 75 degrees with painful motion beginning at 50 degrees; there was no abnormal gait, abnormal spinal contour, or incapacitating episodes. 3. Since July 21, 2015, the Veteran’s service-connected lumbar spine disability has manifested, at worst, by pain and forward flexion of less than 30 degrees; it has not manifested by unfavorable ankylosis of the thoracolumbar spine or the entire spine, or by incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 4. For the entire appeal period, the Veteran’s right lower extremity radiculopathy has manifested by, at worst, mild incomplete paralysis of the anterior tibial and internal popliteal nerves. 5. For the entire appeal period, the Veteran’s left lower extremity radiculopathy has manifested by, at worst, mild incomplete paralysis of the anterior tibial and internal popliteal nerves. CONCLUSIONS OF LAW 1. The criteria for service connection for a dental disorder for VA compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 1712, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.150 (2018). 2. Prior to April 9, 2015, a 20 percent rating, but no more, for service-connected degenerative joint disease of the lumbar spine have been met; the criteria for a rating higher than 20 percent from April 9, 2015, to July 21, 2015, have not been met; and the criteria for a rating higher than 40 percent from July 21, 2015, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5242 (2018). 3. The criteria for a rating higher than 10 percent for service-connected right lower extremity radiculopathy of anterior tibial and internal popliteal nerves, not have been met at any time during the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8524 (2018). 4. The criteria for a rating higher than 10 percent for service-connected left lower extremity radiculopathy of anterior tibial and internal popliteal nerves, not have been met at any time during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8524. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1987 to April 1991. As discussed in more detail below, service connection may be awarded for dental conditions for (1) compensation benefits and/or (2) outpatient dental treatment purposes. Pursuant to Veterans Benefits Administration (VBA) Fast Letter 12-18 (July 10, 2012), claims for outpatient dental treatment submitted to VBA should be referred to the Veterans Health Administration (VHA) for preparation of a dental treatment rating. See also 38 C.F.R. § 3.381. In the present case, the record reflects that the issue of entitlement to service connection for a dental disorder for outpatient dental treatment purposes has been raised. See Mays v. Brown, 5 Vet. App. 302 (1993) (any claim for service connection for a dental condition is also a claim for VA outpatient dental treatment). Review of the file reveals, however, that the Agency of Original Jurisdiction (AOJ) (i.e., VBA) has only adjudicated the issue of entitlement to service connection for a dental disorder for VA compensation purposes. As it is unclear whether any claim for outpatient dental treatment has yet been considered and/or referred to VHA, it is referred to the AOJ for any appropriate action. In addition, the Board acknowledges that a claim for an increased rating includes a claim for a total disability rating based on individual unemployability to the extent it is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In their appellate brief, the Veteran’s representative noted that his recent VA examination stated that his lumbar spine disability would impact his disability to work. However, there has been no actual assertion or showing in the claims file that the Veteran is currently unemployed. Indeed, the VA examination report referred to by the Veteran’s representative specifically indicates that the Veteran was working at the time as a clerk and had been for the previous 5 years; there is no evidence that this work was marginal. In addition, an August 2017 VA examination report shows that the Veteran continues to work as a clerk at VA. As such, the Board finds that the issue of TDIU has not been raised by the record and will not be addressed in this decision. 1. Entitlement to service connection for a dental disorder for treatment purposes. Service connection may generally be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Dental disorders are an exception to this general rule and are treated differently than other medical disorders in the VA benefits system. The regulations governing dental claims make a fundamental distinction between replaceable missing teeth and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. §§ 3.381; 4.150; Simington v. West, 11 Vet. App. 41, 44 (1998). Absent a demonstration of dental trauma, service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. See Woodson v. Brown, 8 Vet. App. 352, 354 (1995). Under 38 C.F.R. § 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities but will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161; 38 U.S.C. § 1712; 38 C.F.R. § 3.381(a) (2016) (as amended at 38 C.F.R. § 3.381(b) with no substantive changes for the purposes of this claim). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a dental condition for compensation purposes. The Veteran’s service treatment records document that he chipped his front right tooth in service. However, there is no evidence that he has a dental disorder for which compensation may be payable. Specifically, as indicated previously, compensation is available for loss of teeth only if such loss is due to loss of substance of the body of the maxilla or mandible during service due to trauma. In this case, although the Veteran reported that his tooth was chipped during service, there is no evidence that such resulted in a loss of substance of the body of the maxilla or mandible. Indeed, the Veteran himself admitted that he is only seeking compensation for his front teeth “because they have deteriorated over the past 20 plus years;” meaning that his teeth are still intact and are just in need of dental caps. Inasmuch as the Veteran does not have a dental disorder for which VA compensation benefits are payable, the claim for service connection for a dental disorder for VA compensation purposes must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against this claim, that doctrine is not applicable. As a final point, the Board notes that this decision is limited to whether compensation benefits are warranted for the Veteran’s claimed dental disorder. As discussed in the Introduction, the AOJ (VHA) may not yet have addressed any claim of service connection for outpatient dental treatment purposes. Accordingly, this issue has been referred to the AOJ for any appropriate action. Increased Rating The Veteran seeks higher ratings for his service-connected lumbar spine disability. Service connection for degenerative joint disease of the lumbar spine was granted by a May 2013 rating decision, with an evaluation of 10 percent effective April 12, 2011. In a February 2017 rating decision, the RO granted an increased rating of 20 percent effective April 9, 2015; and a 40 percent rating effective July 21, 2015. It is worth noting that by an August 2016 rating decision, the Veteran was separately granted service connection for radiculopathy of the anterior tibial and internal popliteal nerves, rated under Diagnostic Code 8254. Because these disabilities were found during the appeal period to be secondary to the Veteran’s lumbar spine, the Board will also consider the propriety of these ratings. The Veteran’s lumbar spine disability is currently rated under Diagnostic Code 5242. Under that Diagnostic Code, rating of 10 percent is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. A rating of 20 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 10 percent when there are incapacitating episodes having a total duration of at least one week but less than two weeks during the prior 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the prior 12 months. A 40 percent disability rating for IVDS is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. As to the Veteran’s now service-connected radiculopathy, the Board notes that a 10 percent rating was assigned for radiculopathy of anterior tibial and internal popliteal nerves for the bilateral lower extremities by an August 2016 rating decision. Within one year of that decision the Veteran indicated that his tingling had worsened. An August 2017 rating decision then continued the Veteran’s 10 percent ratings for each lower extremity. Under Diagnostic Code 8524 mild incomplete paralysis of the internal popliteal nerve warrants a 10 percent disability rating; moderate incomplete paralysis of the internal popliteal nerve warrants a 20 percent disability rating; severe incomplete paralysis of the internal popliteal nerve warrants a 30 percent disability rating; and complete paralysis of the internal popliteal nerve and loss of function marked by loss of plantar flexion, impossibility of frank adduction of the foot, abolition of flexion and separation of the toes, inability to move the muscle in the sole of the foot, the presence of lesions of the nerve high in the popliteal fossa, and loss of plantar flexion of the foot, warrants a 40 percent rating. The same criteria are used for neuritis and neuralgia associated with the internal popliteal nerve. Id. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated 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. In applying the schedular criteria for rating peripheral nerve disabilities, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Court has held that the Board must determine whether there is evidence of weakened movement, excess fatigability, incoordination, or functional loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Board acknowledges the holdings in Correia v. McDonald and Sharp v. Shulkin, related to range of motion testing and flare-ups. However, because the Veteran’s lumbar spine is currently rated at the highest available rating for loss of motion, remanding for additional testing would serve no useful purpose to the Veteran. 28 Vet. App. 158 (2016); 29 Vet. App. 26 (2017). 2. Entitlement to an initial rating higher than 10 percent for service-connected degenerative joint disease of the lumbar spine prior to April 9, 2015. 3. Entitlement to a rating higher than 20 percent for service-connected degenerative joint disease of the lumbar spine from April 9, 2015 to July 20, 2015. 4. Entitlement to a rating higher than 40 percent for service-connected degenerative joint disease of the lumbar spine since July 21, 2015. When considering all the evidence of record, the Board finds that a 20 percent rating for the Veteran’s lumbar spine disability, but no higher, is warranted prior April 9, 2015. For the period from April 9, 2015 to July 20, 2015; the Veteran’s lumbar spine disability was appropriately rated as 20 percent disabling. In addition, a rating higher than 40 percent is not warranted thereafter. The Veteran was afforded a VA examination for his lumbar spine in May 2013. On range of motion testing, he had flexion to 75 degrees with painful motion beginning at 50 degrees; extension to 15 degrees with painful motion beginning at 15 degrees; right lateral flexion to 15 degrees with painful motion beginning at 15 degrees; left lateral flexion to 15 degrees with painful motion beginning at 15 degrees; right lateral rotation to 20 degrees with painful motion beginning at 20 degrees; and left lateral rotation to 20 degrees with painful motion beginning at 20 degrees. His combined range of motion was 160 degrees. He did not experience flare-ups of his lumbar spine; and was able to perform repetitive use testing with no additional loss of motion. There was no guarding or muscle spasms of the lumbar spine. VA treatment records from April 9, 2015, show that the Veteran reported lower back pain described as 5 out of 10 in intensity; which increased to 10 out of 10 with activity and walking. He had flexion to 55 degrees; extension to 15 degrees; right lateral bending to 20 degrees; and left lateral bending to 20 degrees. VA treatment records from July 21, 2015, show that the Veteran had forward flexion to 25 degrees; extension to 5 degrees; right lateral bending to 10 degrees; and left lateral bending to 15 degrees. Similarly, VA treatment records from February 2016 show that the Veteran had flexion to 20 degrees; extension to 10 degrees; right lateral bending to 10 degrees; and left lateral bending to 10 degrees. Further, VA treatment records from July 2016 show that the Veteran had flexion to 20 degrees; extension to 10 degrees; right lateral bending to 10 degrees; and left lateral bending to 10 degrees. On VA examination in November 2016, ankylosis was not found. He reported flare-ups that would occur “a couple of hours” if he slept too much. He had flexion to 70 degrees; extension to 25 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 examiner noted that the Veteran tried very hard to perform the range of motion maneuvers though flexion was limited by knee pain while standing; his hamstrings were also tight. Pain was noted on examination during right and left lateral rotation, but did not result in or cause any functional loss. The Veteran had tenderness on palpation across the entire lower back. He could perform repetitive use testing with no additional loss of function or range of motion. There was no guarding or muscle spasms found on examination. Muscle strength testing was normal. The examiner specifically noted that the Veteran did not have ankylosis of the spine; and did not experience any additional neurological abnormalities other than radiculopathy. He was noted to have intervertebral disc syndrome (IVDS) of the lumbar spine without any episodes of acute signs and symptoms that required bedrest. When applying the above law to the facts of the case, the Board finds that after resolving reasonable doubt in his favor, the Veteran is entitled to a 20 percent rating dating from the beginning of the appeal period to July 21, 2015. During this time period, the Veteran’s VA treatment records are replete with complaints of pain related to his lumbar spine. In addition, on VA examination, he objectively demonstrated painful motion on flexion which began at 50 degrees; and in April 2015, he had flexion to 55 degrees. The examiner specifically noted that the Veteran had less movement than normal; pain on movement; and interference with sitting, standing and/or weight-bearing. Thus, when considering the factors in DeLuca, the Board finds that prior to July 21, 2015, the Veteran demonstrated flexion to, at worst, 50 degrees such that a 20 percent rating is warranted. However, a 40 percent rating is not warranted at any time prior to July 21, 2015. There is no evidence of forward flexion of the thoracolumbar spine 30 degrees or less, even when considering pain; or favorable ankylosis of the entire thoracolumbar spine. In addition, at no point during this period did the Veteran having any incapacitating episodes; much less episodes having a total duration of at least 4 weeks but less than 5 weeks during the 12 months prior. Further, he was specifically noted not to have IVDS. In forming this decision, the Board has considered the Veteran’s complaints of pain in the lumbar spine. Indeed, as noted above, the Board has awarded a 20 percent rating prior to July 21, 2015, based on the Veteran’s showing of objective evidence of painful motion on examination. However, the lay and objective medical evidence does not show that his symptoms resulted in additional functional limitation to the extent that the Veteran’s disability warrants a 40 percent disability rating under DCs 5237, 5243. 38 C.F.R. § 4.71a for this time period. Since July 21, 2015, the Board finds that a rating higher 40 percent is not warranted for the Veteran’s lumbar spine disorder. At no point has the Veteran demonstrated ankylosis. Although limited, his VA treatment records document motion in the lumbar spine. On VA examination in November 2016, the Veteran had flexion to 70 degrees; and the examiner specifically found that he did not have ankylosis. Even though flexion of 70 degrees would warrant only a 10 percent rating for the Veteran’s lower back, because a permanent improvement has not been shown, the RO has declined to decrease the Veteran’s rating. The Board recognizes the Veteran’s lay statements of pain as well as the VA examination report’s documentation that the Veteran experiences flare-ups. These complaints have been relied upon by the Board in awarding a 40 percent rating for assigning the maximum rating for thoracolumbar spine motion loss. The Board may not further consider the application of 38 C.F.R. §§ 4.40 and 4.45 in determining whether ankylosis exists. Johnson v. Brown, 10 Vet. App. 80 (1995). In addition, although IVDS was noted on most recent VA examination, the Veteran did not have any incapacitating episodes requiring bedrest in the 12 months prior. Thus, the Board finds that the Veteran is not entitled to a disability rating higher than 40 percent since July 21, 2015, as the Veteran’s entire thoracolumbar spine and/or his entire spine has not been manifested by unfavorable ankylosis, or by incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DCs 5237, 5243. The Board has also considered whether further staged ratings are appropriate in this case. However, at no time during the relevant appeal period has the service-connected lumbar spine disability more nearly met or nearly approximated the criteria for a higher disability rating. Accordingly, staged ratings are not for application in the instant case. Finally, the Board again notes that at no point during the appeal period has the Veteran demonstrated any bowel or bladder incontinence secondary to his service-connected lumbar spine disability. Indeed, he has consistently denied as much. As such, no further discussion of these neurological abnormalities is warranted. 5. Entitlement to a rating higher than 10 percent for radiculopathy of the anterior tibial and internal popliteal nerves, left lower extremity, effective June 1, 2015. 6. Entitlement to a rating higher than 10 percent for radiculopathy of the anterior tibial and internal popliteal nerves, right lower extremity, effective June 1, 2015. As noted above, the Veteran is now service-connected for radiculopathy of the anterior tibial and internal popliteal nerves, of the bilateral lower extremities. He was assigned an effective date of June 1, 2015, which is the date an EMG confirmed that the Veteran had bilateral subacute-chronic lumbosacral radiculopathy at S1 on the right and mild bilateral subacute-chronic radiculopathies at L5. He was assigned an effective date of June 1, 2015, which is the date an EMG confirmed that he had bilateral subacute-chronic lumbosacral radiculopathy at S1 on the right and mild bilateral subacute-chronic radiculopathies at L5. After careful review of the evidence, the Board finds that a disability rating higher than 10 percent for the Veteran’s service-connected bilateral lower extremity radiculopathy is not warranted during the entire period on appeal. In this regard, the Board notes that in June 2016, a VA medical opinion was obtained regarding the Veteran’s radiculopathy. The examiner specifically noted that the radiculopathy was mild in nature. On VA examination in November 2016, the Veteran had no constant pain in the lower extremities; but had mild intermittent pain in the lower extremities. He had no paresthesias in the right lower extremity, but mild paresthesias in the left; and no numbness in the bilateral lower extremities. The examiner stated that the Veteran did not have any other signs of symptoms of radiculopathy, and opined that the severity of the Veteran’s bilateral radiculopathy was mild. On most recent VA examination in August 2017, the Veteran’s nerves were all found to be normal; with no evidence of radiculopathy; thus, suggesting that the Veteran’s radiculopathy is mild at worst. No VA examiner during the period on appeal found the Veteran’s disability manifested at least moderate incomplete paralysis of any nerve in the bilateral lower extremities to warrant a higher 20 percent disability rating; and radiculopathy was not objectively demonstrated until June 1, 2015. See 38 C.F.R. § 4.124a. In reaching this decision, the Board has again considered the Veteran’s lay statements, and notes that he is competent to report his own observations with regard to his symptoms. His lay assertions do not indicate more moderate incomplete paralysis of the peripheral nerves in his lower extremities. To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions assessing the level of severity of the service-connected radiculopathy. In sum, as the preponderance of the evidence is against a finding that the Veteran’s bilateral lower extremity radiculopathy more nearly approximates the criteria for a higher rating during the period on appeal, a rating higher than 10 percent for each lower extremity is not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.124a. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel