Citation Nr: 18149764 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-35 489A DATE: November 14, 2018 ORDER A disability rating higher than 10 percent for degenerative disc disease (DDD) is denied. FINDINGS OF FACT 1. The Veteran’s degenerative disc disease (DDD) causes increased pain when sitting, walking, standing, or lying in bed for prolonged periods; difficulty lifting, bending, and stooping; and forward flexion to 80 degrees with pain, extension to 15 degrees with pain, right lateral flexion to 20 degrees with pain, left lateral flexion to 20 degrees with pain, right lateral rotation to 20 degrees with pain, and left lateral rotation to 20 degrees with pain. 2. An August 2018 rating decision granted the Veteran’s claim for a sciatic nerve impairment of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for degenerative disc disease (DDD) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243 (2017). 2. The Board lacks jurisdiction over the claim of service connection for a sciatic nerve impairment of the left lower extremity because the claim been granted and rendered moot. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2002 to December 2013. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. 1. DDD The Veteran contends that his DDD should be rated higher than 10 percent based, in part, on evidence that he experienced a “debilitating episode” that lasted approximately 3 weeks. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where, as here, the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5243 which provides ratings for intervertebral disc syndrome (IVDS). A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, for the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, for 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 the 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, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). There are also several relevant note provisions associated with Diagnostic Code 5243. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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 motion 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Code 5238 (2017). IVDS can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 is the method that should be utilized. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Note (1) provides that for purposes of evaluations under diagnostic code 5243, 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. (Italics added). Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In March 2013, the Veteran underwent a VA examination. He had forward flexion to 90 degrees without pain, extension to 30 degrees without pain, right lateral flexion to 30 degrees without pain, left lateral flexion to 30 degrees without pain, right lateral rotation to 30 degrees without pain, and left lateral rotation to 30 degrees without pain. There was no weakness, fatigue, lack of coordination, or lack of endurance. There was no additional limitation in the range of motion with repetitive movement because of pain, weakness, fatigue, lack of coordination, or endurance. There was no tenderness or guarding of the paraspinous muscles and the condition of the spine did not result in an abnormal gait or abnormal spinal contour. In February 2015, in conjunction with his Notice of Disagreement, the Veteran stated that his lifestyle has been significantly impacted by his low back disability, to include his inability to participate in several physical activities. He further reported that his low back disability has caused him to gain approximately 30 pounds. As the Veteran noted in his August 2018 statement, October 2017 VA treatment records demonstrated that the Veteran experienced low back pain for approximately three weeks which he described as “debilitating.” However, there is no indication that the Veteran was prescribed best rest, nor was he under the treatment of a physician. To this point, the evidence is silent for any incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician. As indicated above, an incapacitating episode is defined as one involving bedrest prescribed by a physician. The use of “and” is clearly conjunctive: it is necessary that both bed rest be prescribed and that treatment be afforded by a physician. The August 2018 VA examination report stated that the Veteran had degenerative arthritis of the spine with moderately large left paracentral disc extrusion seen at L4-L5 with compression on the left anterior wall. The Veteran reported constant lower back pain (which he described as aches and pressure) that increased with bad sleep positioning, and prolonged walking, sitting, or standing. The Veteran had trouble lifting, bending, and stooping. He denied the use of assistive devices. He reported that the pain radiated down his left leg to his ankle, and that he also experienced tingling sensations and numbness. He had forward flexion to 80 degrees with pain, extension to 15 degrees with pain, right lateral flexion to 20 degrees with pain, left lateral flexion to 20 degrees with pain, right lateral rotation to 20 degrees with pain, and left lateral rotation to 20 degrees with pain. After repeated use there was no additional loss of range of motion. The Veteran denied experiencing flare-ups. He had no spasms, guarding, or atrophy, but did have pain with motion. There was no ankylosis nor spinal stenosis. Given these facts, the Board finds that the current 10 percent rating adequately reflects the Veteran’s lumbar spine limitation of motion and functional impairment during the relevant period. 38 C.F.R. § 4.7; see Hart, 21 Vet. App. at 505. In making this determination, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-207. A 20 percent rating is not warranted because the Veteran does not have forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and has not had any 12 month period where he had incapacitating episodes of a total duration between 2 to 4 weeks. 38 C.F.R. 4.71a, Diagnostic Code 5243. Therefore, a disability rating higher than 10 percent is not warranted and must be denied. 2. Sciatic nerve impairment The Veteran also claimed entitlement to service connection for sciatic nerve impairment of the left lower extremity. When there is no case or controversy, or when a once live case or controversy becomes moot, the Board lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992); Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990). An August 2018 rating decision granted the Veteran’s claim for service connection for sciatic nerve impairment of the left lower extremity. Given that service connection already been granted, there is no “controversy” or “issue” currently before the Board as the claim has been resolved in the Veteran’s favor. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (a case or controversy must exist to obtain appellate review). The law provides that the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5) (2012). As the Veteran has received a full grant of the benefit sought (i.e., service connection for sciatic nerve impairment of the left lower extremity) there remains no error of fact or law for the Board to address, and the appeal must be dismissed. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carolyn Colley, Associate Counsel