Citation Nr: 18151201 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 11-33 655 DATE: November 16, 2018 ORDER Entitlement to an extension of the temporary total disability rating based on convalescence beyond September 1, 2010 is denied. Entitlement to rating higher than 40 percent for lumbar strain (back disability) effective September 1, 2010 is denied. Effective November 21, 2017, a separate 10 percent rating for right lower extremity radiculopathy as a neurological manifestation of the service connected back disability is granted, subject to regulations governing payment of monetary awards. FINDING OF FACTS 1. The Veteran’s need for convalescence following surgical treatment did not extend beyond September 1, 2010. 2. The Veteran’s back disability is not manifested by ankylosis. 3. As of November 21, 2017, the Veteran has mild right lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for extension, beyond September 1, 2010, of the total disability rating based on convalescence following the Veteran’s July 2010 back surgery, have not been met. 38 U.S.C. §1155; 38 C.F.R. §§ 3.159, 3.321, 4.30. 2. The criteria for entitlement to rating higher than 40 percent for back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242. 3. A separate rating of 10 percent, but no higher, is warranted for right lower extremity radiculopathy as a neurological manifestation of the service connected back disability, effective November 21, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.310, 4.124 (a), Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to February 1975 and January 1991 to April 1991. The Board remanded the claims for further development in June 2017. Because there has been substantial compliance with the remand directives, the Board will proceed to adjudicate the claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict compliance with the Board’s remand directives is required under Stegall). Temporary Total Rating The Veteran is seeking an extension of the convalescent rating for his back disability beyond September 1, 2010. A temporary total disability rating will be assigned when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted for treatment of a service-connected disability. 38 C.F.R. § 4.30. A temporary total rating will be assigned if the hospital or outpatient treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). The U.S. Court of Appeals for Veterans Claims (Court) has defined convalescence as the stage of recovery following an attack of disease, a surgical operation, or an injury. Recovery is defined as the act of regaining or returning toward a normal or healthy state. Felden v. West, 11 Vet. App. 427, 430 (1998). In this case, the medical evidence of record reflects that the Veteran had back surgery on July 20, 2010. See Chesapeake General Hospital Operation Report. The medical evidence of record does not reflect the exact date the Veteran was discharged. However, medical record from August 13, 2010 reflects that the Veteran came back for follow up to remove his suture, which indicates that he was discharged out of the hospital in less than a month. The record also has a note dated July 28, 2010, from certified Physician Assistant, T.W. The Board recognizes that this note is dated after the surgery occurred on July 20, 2010 even though T.W. writes in anticipation of the surgery being scheduled in the future. Notwithstanding, affording the Veteran the benefit of the doubt, the Board accepts that the Veteran indeed had to remaining in the hospital for three days after the surgery and he was required to wear braces for four weeks as stated by T.W. According to the note, the Veteran would have been allowed to resume activity after four weeks from the surgery. The Veteran underwent an examination in September 8, 2010, less than two months after the surgery, where his range of flexion was 60 degrees and extension was 10 degrees. Based on this evidence, the Board finds that while the Veteran continued to have pain after his surgery and some limitation of range of motion, he was returning towards normal activity after four weeks. Based on the foregoing evidence, the Board finds that an extension beyond September 1, 2010 for the temporary total disability rating for convalescence is not warranted. The Board notes that the Veteran has undergone back surgery in June 15, 2011 and he was discharged the same day. Similarly, the Veteran has had two spinal stimulator implants in 2015, which he testified helped with pain management. See hearing transcript at 4. However, the evidence does not establish that these procedures required at least one month of convalescence. For this reason, the Board finds that a temporary total disability rating is not required for the period following the June 15, 2011 surgery nor the spinal stimulator implants. Increase Rating The Veteran is seeking increase rating for his service-connected back disability and the Board finds a separate evaluation for right lower extremity radiculopathy is warranted. The VA’s Schedule for Rating Disabilities is used to determine ratings once a disability is service-connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. A. Back Disability The Veteran’s back disability is rated as 40 percent disabling effective September 1, 2010 under DC 5242. DC 5242 is part of the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5235-5243. Under this formula, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent is assigned for unfavorable ankylosis of the entire spine. Generally, ankylosis is stiffening or fixation of the 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), citing Dorland’s Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is “immobility and consolidation of a joint due to disease, injury, or surgical procedure.”). Note (5) of the General Rating Formula states that, for VA compensation purposes, unfavorable ankylosis is a condition in which the thoracolumbar 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 of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. In this case, the evidence of record shows that a rating higher than 40 percent is not warranted for the Veteran’s back disability after September 1, 2010. His examinations from November 2017, July 2012 and September 2010 all show that the Veteran does not have ankylosis. At worst, the Veteran range of motion was limited to 60 degrees of forward flexion and 10 degrees extension during the September 2010 exam. His most recent exam shows 80 degrees forward flexion and 20 degrees of extension. See November 2017 Disability Benefit Questionnaire (DBQ). Overall, while the Veteran has pain that limits his range of motion, his back is not fixed in flexion or extension at no point throughout the appeal period. There is no higher rating available based on limited range of motion and the examinations of record explicitly showed that the Veteran did not have ankylosis. Considering this evidence, the severity of the Veteran’s current condition is less than what is contemplated by a 50 percent rating. Note (1) to the General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. In this case, the Veteran has right lower extremity radiculopathy as discussed in detail below. However, the evidence does not show bowel or bladder impairment to warrant separate rating under Note (1). Reviewing the examinations of record, there is no evidence that the disability has resulted in IVDS requiring prescribed bed rest. On this basis, the Board finds that it need not further discuss these alternative rating criteria. B. Right Lower Extremity Radiculopathy As noted above, Note 1 of the General Rating Formula requires separate rating for neurological impairment associated with disabilities of the lumbar spine. In this case, the November 2017 DBQ shows radiculopathy in the right leg. Therefore, the Board finds that a separate rating is warranted for the Veteran’s radiculopathy of the right lower extremity. The Veteran has incomplete paralysis of the sciatic nerve, thereby his impairment is appropriately evaluated under DC 8520. Pursuant to DC 8520, mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete neuralgia of the sciatic nerve (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost), is rated 80 percent disabling. 38 C.F.R. § 4.124a. The Board notes that the term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. See “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124 (a). When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The words “mild,” “moderate” and “severe” are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.   The Veteran’s November 2017 DBQ reflects that he has mild incomplete paralysis of the sciatic nerve in the right lower extremity manifested by mild numbness. During muscle strength testing, active movement against some resistance was noted on the Veteran’s hip flexion and knee extension. However, his sensory exam found normal results. Based on this evidence, the Board finds that the Veteran’s right lower extremity radiculopathy is consistent with a 10 percent disability rating. Because the evidence of record does not support finding that the severity of his impairment raises to a moderate incomplete paralysis, a 20 percent rating is not warranted. Therefore, the totality of the evidence of record weights in favor of a 10 percent rating, but not higher. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.SOLOMON