Citation Nr: 18150160 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 18-32 675 DATE: November 14, 2018 ORDER Entitlement to an initial rating greater than 10 percent prior to August 8, 2018 and greater than 20 percent thereafter (excluding the period from September 23, 2013 to November 30, 2013 wherein a temporary total evaluation was assigned for convalescence following surgery) for lumbar spine degenerative disc disease, status-post hemilaminectomy is denied. Entitlement to a separate rating of 10 percent, but no higher, for lumbar radiculopathy of the left lower extremity is granted. Entitlement to a separate rating of 10 percent, but no higher, for lumbar radiculopathy of the right lower extremity is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the appeal period prior to August 8, 2018, the Veteran’s lumbar spine degenerative disc disease, status-post hemilaminectomy disease, was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees and less than 85 degrees, but was not manifested by forward flexion between 30 degrees and 60 degrees, incapacitating episodes of at least 2 but less than 4 weeks, or ankylosis. 2. For the appeal period beginning August 8, 2018 the Veteran’s lumbar spine degenerative disc disease, status-post hemilaminectomy disease is manifested by forward flexion of the thoracolumbar spine greater than 30 degrees and less than 60 degrees, but was not manifested by forward flexion 30 degrees or less, or incapacitating episodes of at least 4 but less than 6 weeks, or ankylosis. 3. For the entire period on appeal, the Veteran’s lumbar spine disability has been associated with lumbar radiculopathy of the left lower extremity that was manifested by mild, incomplete paralysis. 4. For the entire period on appeal, the Veteran’s lumbar spine disability has been associated with lumbar radiculopathy of the right lower extremity that was manifested by mild, incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for lumbar spine degenerative disc disease, status-post hemilaminectomy, prior to August 8, 2018 and greater than 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5235-5242 (2017). 2. The criteria for a separate rating of 10 percent for lumbar radiculopathy of the left lower extremity for the entire period on appeal have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.7, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for a separate rating of 10 percent for lumbar radiculopathy of the right lower extremity for the entire period on appeal have been met. 38 U.S.C. §§1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.7, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1970. 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,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance.” Id., quoting 38 C.F.R. § 4.40. 1. Entitlement to an initial rating greater than 10 percent prior to August 8, 2018 and greater than 20 percent thereafter (excluding the period from September 23, 2013 to November 30, 2013 wherein a temporary total evaluation was assigned for convalescence following surgery) for lumbar spine degenerative disc disease, status-post hemilaminectomy In this case, the Veteran was initially assigned a 10 percent rating for a lumbar spine degenerative disc disease, status-post hemilaminectomy, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242. A September 2018 rating decision increased the rating to 20 percent disabling, effective August 8, 2018. 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. 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 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 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. Also, any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. 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, Note (1). 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. The Veteran contends that his back disability is more severe than his current ratings depict. See September 2018 Third Party Correspondence. The Veteran was afforded a VA examination in July 2008. The examiner noted the Veteran had a hemilaminectomy in 1977 for back pain. On examination, the Veteran reported that his legs recently gave out causing him to fall and that he now wears a back brace. He also reported low back pain which radiates down both legs. The examiner noted a history of numbness and paresthesias not unrelated to the Veteran’s back. The Veteran reported severe flare-ups which occur weekly, lasting hours. He stated that during a flare-up, he is unable to walk or stand for prolonged periods of time and is unable to do household chores. On examination, forward flexion was to 90 degrees, with pain noted at 80 degrees, extension, lateral flexion and rotation was to 30 degrees, with pain noted at 25 degrees. It was noted that the Veteran experienced pain on active and passive motion and after repetitive use. However, there was no additional loss of motion after repetitive use. The Veteran was noted to have spasms and guarding but no abnormal gait or spinal contour. The Veteran had normal motor functioning but was noted to have decreased vibration and light touch sensation at the left great toe and left foot. The examiner noted that the Veteran last worked in construction in the 1990s and left his job due to his back, knee and heart condition. The examiner stated that the Veteran’s back caused decreased mobility, problems with lifting and carrying, difficulty reaching and had a significant impact on daily activities such as chores, bathing, and dressing. The Veteran was afforded another VA examination in July 2012. The examiner noted the Veteran’s diagnosis of a lumbar spine degenerative disc disease, status-post hemilaminectomy. The Veteran reported that he experienced constant moderate to severe back pain but denied flare-ups. On examination, forward flexion was to 85 degrees, with pain, extension was to 25 degrees with pain, lateral flexion and rotation was to 30 degrees, with pain. The Veteran was able to perform repetitive use testing with no additional limitation in range of motion. The Veteran did not have localized tenderness, guarding, muscle spasms or ankylosis. It was also noted that the Veteran did not have any signs of radicular pain or radiculopathy. The examiner noted the Veteran had IVDS but did not have any incapacitating episodes in the past 12 months. Treatment records from June 2013 to June 2015 indicate a diagnosis of lumbar neuritis and lumbar radiculopathy. See June 2013 CAPRI; June 2015 CAPRI. An April 2018 VA treatment record noted lower back pain that radiates down both legs to the feet. The pain was described as constant tingling. The Veteran also stated that he experiences numbness and weakness but denied bowel and bladder symptoms. The Veteran was afforded another VA examination in August 2018. The Veteran reported flare-ups that cause more pain, stiffness and difficulty walking. On examination, forward flexion was to 65 degrees, extension was to 20 degrees, lateral rotation and flexion were to 20 degrees. The examiner stated that pain was noted on examination for forward flexion, extension, lateral rotation and flexion but that it does not result in or caused functional loss. The Veteran was able to perform repetitive-use testing and the examiner noted that it did not cause additional loss of range of motion. The Veteran was also examined immediately after repetitive use over time and it was noted that pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time. Range of motion after repeated use over time was noted as flexion to 60 degrees, extension, lateral rotation and flexion to 15 degrees. The Veteran was not examined during a flare-up but the examiner noted that the examination is medically consistent with the Veteran’s statements describing functional loss during a flare-up. The examiner was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. The examiner stated that there was not a flare-up during the examination but it is expected that functional ability would decrease during flare-ups. The Veteran had guarding or muscle spasms resulting in an abnormal gait or abnormal spinal contour. The examiner noted that the Veteran experienced disturbance of locomotion, interference with sitting and standing and weakened movement due to muscle or peripheral nerve injury. Muscle strength and deep tendon reflexes were noted as normal. Muscle atrophy and radiculopathy were not noted. It was noted that the Veteran constantly uses a back brace and walker. The examiner stated that the Veteran has difficulty using public transportation, cleaning, cooking, tying shoelaces, and getting dressed. The examiner also stated that the Veteran is unable to climb ramps, stairs, and ladders, balance on narrow, slippery surfaces, stand or walk on level terrain frequently. The Veteran is also unable to kneel, crouch, stop or crawl. The examiner stated that the Veteran can do light desk work without specific restrictions. Based on a review of the evidence, entitlement to a disability rating greater than 10 percent for lumbar spine degenerative disc disease, status-post hemilaminectomy prior to August 8, 2018 and higher than 20 percent thereafter is not warranted. In order to warrant a higher rating for the period prior August 8, 2018, there must be the functional equivalent of limitation of flexion to greater than 30 degrees but not greater than 60 degrees. See DeLuca, supra; 38 C.F.R. § 4.7. In this case, however, limitation of flexion greater than 30 but not greater than 60 has not been shown by any of the medical evidence of record, to include as due to pain, weakness, excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The medical evidence indicated that prior to August 8, 2018, at its worst, range of motion has only been limited to 85 degrees. Further, there is no evidence of ankylosis. Although the July 2012 VA examiner stated that the Veteran had IVDS, the Veteran did not have any incapacitating episodes. In order to warrant a higher rating for the period beginning August 8, 2018, there must be the functional equivalent of limitation of flexion to 30 degrees, favorable ankylosis of the entire cervical spine, or favorable ankylosis of the entire lumbar spine. See DeLuca; 38 C.F.R. § 4.7. In this case, however, limitation of flexion to 30 degrees or less or ankylosis has not been shown by any of the medical evidence of record, to include as due to pain, weakness, excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Although the Veteran has consistently complained of pain, decreased range of motion and flare-ups, the medical evidence clearly indicates that at its worst, range of motion has only been limited to 60 degrees flexion and there is no evidence of ankylosis or IVDS. As discussed below, the Board notes that the Veteran is entitled to separate ratings for bilateral lower extremity radiculopathy, secondary to his lumbar spine disability. The preponderance of the evidence is against an increased rating greater than 10 percent for the Veteran’s lumbar spine degenerative disc disease, status-post hemilaminectomy prior to August 8, 2018 and greater than 20 percent thereafter. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 2. Entitlement to a separate rating of 10 percent, but no higher, for lumbar radiculopathy of the bilateral lower extremities As stated above, with respect to objective evidence of radiculopathy or other neurological impairment in the lower extremities as a result of the lumbar spine disability, the Board resolves reasonable doubt in the Veteran’s favor that the evidence supports a finding of lumbar radiculopathy of the bilateral lower extremities. While none of the VA examinations noted symptoms of radiculopathy, the July 2008 VA examination noted decreased vibration and light touch in the left great toe and foot with S1 involvement and VA treatment records for the entire period on appeal contain complaints of back pain radiating down the legs to the feet, tingling, numbness, and weakness. The treatment records also contain diagnoses of lumbar neuritis and lumbar radiculopathy. Pursuant to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board must consider whether any objective neurological abnormalities warrant a separate evaluation under any applicable diagnostic code used to evaluate neurological disabilities. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C. § 4.124 a, Diagnostic Code 8520. A 10 percent evaluation is assigned for mild incomplete paralysis, a 20 percent evaluation is assigned for moderate incomplete paralysis, and 40 percent evaluation is assigned for moderately severe incomplete paralysis, 60 percent evaluation is assigned for severe incomplete paralysis with marked muscle atrophy, and an 80 percent evaluation is assigned with complete paralysis. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Words such as “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 equitable and 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. Instead, 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. During the July 2008 VA examination, the Veteran complained of pain radiating down both legs. The examiner indicated that the Veteran had a history of numbness and paresthesias not unrelated to his back. Upon examination, it was noted that the Veteran had decreased vibration and light touch at the great left toe and left foot. The Veteran was noted to have normal reflexes and muscle strength without muscle atrophy. VA treatment record from October 2011 and February 2012 note complaints of radiating leg pain from the Veteran’s back. The Veteran describes the pain as sharp and constant aching. He also described numbness and weakness in the legs. An April 2018 VA treatment record noted lower back pain that radiates down both legs to the feet. The pain was described as constant tingling. The Veteran also stated that he experiences numbness and weakness but denied bowel and bladder symptoms. Considering the severity of the Veteran’s bilateral lumbar radiculopathy, given the presence of radiating pain, numbness and weakness, the Board finds that separate 10 percent disability ratings but no higher are warranted for radiculopathy of the bilateral lower extremities for the entire period on appeal. As the Veteran has retained normal reflexes and muscle strength, with no muscle atrophy the Board finds that there is no objective medical evidence that would support the assignment of a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). REASONS FOR REMAND 1. Entitlement to TDIU is remanded. The Veteran does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). However, there is considerable evidence showing that the Veteran is potentially unable to work due to his service-connected disabilities. 38 C.F.R. § 4.16(b) provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director of the Compensation Service for consideration of an extra-schedular rating of unemployability. The Board is prohibited from awarding extraschedular TDIU in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service. The matter is REMANDED for the following action: 1. Refer the Veteran’s claim for TDIU to the Director of the Compensation Service for extraschedular consideration. 2. Then readjudicate the claim. If the benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Brandt