Citation Nr: 18151216 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 17-14 411 DATE: November 16, 2018 ORDER A 20 percent rating, but not in excess thereof, is granted for the Veteran’s service-connected low back disorder from March 27, 2006, to October 8, 2008. A 20 percent rating, but not in excess thereof, is granted for right lower extremity radiculopathy from March 27, 2006, to October 8, 2008. A 20 percent rating, but not in excess thereof, is granted for left lower extremity radiculopathy from March 27, 2006, to October 8, 2008. A 20 percent rating, but not in excess thereof, is granted for the Veteran’s service-connected low back disorder since January 1, 2009. A 20 percent rating, but not in excess thereof, is granted for right lower extremity radiculopathy since January 1, 2009. A 10 percent rating, but not in excess thereof, is granted for left lower extremity radiculopathy since January 1, 2009. FINDINGS OF FACT 1. For the period from March 27, 2006, to October 8, 2008, the Veteran’s low back disorder caused sharp pain, aching, and burning; right leg tingling; right and left lower extremity pain and numbness; increased pain with walking, standing, and lifting; decreased reflexes; no left Achilles reflex; an inability to fully flex and extend his spine; disc space narrowing; degenerative changes of the disc; a positive straight leg raising test on the left side; degenerative disc disease (DDD); scoliosis; left L5-S1 lateral recess stenosis; right L5-S1 foraminal stenosis; and resulted in forward flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right and left lateral flexion from 0 to 30 degrees, and right and left lateral rotation from 0 to 45 degrees. He took several prescription pain medications. He did not have bowel or bladder incontinence, ankylosis, or muscle spasms, or incapacitating episodes due to IVDS, and his gait was normal. 2. Since January 1, 2009, the Veteran’s low back disorder has caused sharp pain, flare-ups, stiffness, tingling in the toes, decreased reflexes, decreased sensation, and muscle tenderness; right lower extremity moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness; left lower extremity mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness; DDD, degenerative spur formation, dextroscoliosis, degenerative joint disease (DJD), and intervertebral disc syndrome (IVDS); prevented him from lifting more than 10 pounds; caused difficulty bending, climbing, prolonged sitting, walking, and prolonged standing; resulted in less movement than normal; pain on movement; interference with sitting, standing, and/or weight-bearing; he had to frequently shift and reposition himself while sitting and had some difficulty rising from a lying position; a scar measuring 9 centimeters long by 1 centimeter wide, and forward flexion to 55 degrees with pain, extension to 20 degrees with pain, right lateral flexion to 20 degrees with pain, left lateral flexion to 15 degrees with pain, right lateral rotation to 30 degrees or greater, and left lateral rotation to 30 degrees or greater. He did not have bowel or bladder incontinence, ankylosis, muscle spasms, or incapacitating episodes due to IVDS, and his gait was normal. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but not in excess thereof, from March 27, 2006, to October 8, 2008, for the Veteran’s low back disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242, 5243 (2017). 2. The criteria for a rating of 20 percent, but not in excess thereof, from March 27, 2006, to October 8, 2008, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a Diagnostic Code 8520 (2017). 3. The criteria for a rating of 20 percent, but not in excess thereof, from March 27, 2006, to October 8, 2008, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a Diagnostic Code 8520 (2017). 4. The criteria for a rating of 20 percent, but not in excess thereof, since January 1, 2009, for the Veteran’s low back disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242, 5243 (2017). 5. The criteria for a rating of 20 percent, but not in excess thereof, since January 1, 2009, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a Diagnostic Code 8520 (2017). 6. The criteria for a rating of 10 percent, but not in excess thereof, since January 1, 2009, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Air Force from August 1972 to November 1973. This appeal is before the Board of Veterans’ Appeals (Board) from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Entitlement to an initial rating of more than 10 percent from March 27, 2006, to October 8, 2008, and since January 1, 2009, for a low back disorder and of more than 10 percent for right lower extremity radiculopathy since March 27, 2006. The Veteran seeks increased ratings for his low back disorder and associated radiculopathy. The Board notes that he had back surgery on October 8, 2008. As a result, he is already in receipt of a 100 percent evaluation for his lumbar spine disability for convalescence from that date until January 1, 2009. As the surgery was intended to address his radiculopathy, this rating reflects a full grant of all the disabilities on appeal. This period is therefore outside the scope of this decision. 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). Degenerative arthritis, established by x-ray, will be rated on the basis of limitation of motion under the appropriate diagnostic criteria for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a 20 percent rating is warranted if there are also occasional incapacitating exacerbations. Note (1) states: The 20 percent and 10 percent ratings based on x ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) states: The 20 percent and 10 percent ratings based on x ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). Diagnostic Code 5242 provides ratings for degenerative arthritis of the spine. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine 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. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). There are also several relevant note provisions associated with Diagnostic Code 5242. 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 5242 (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 (2017). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 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. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 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. 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 (2017). Lower extremity radiculopathy affecting the sciatic nerve is rated according to Diagnostic Code 8520. A 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (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). VA treatment records dated between March 27, 2006, and October 8, 2008, indicate that the Veteran had symptoms of low back pain; right leg tingling; right and left lower extremity pain and numbness; increased pain with walking, standing, and lifting; decreased reflexes; no left Achilles reflex; an inability to fully flex and extend his spine; disc space narrowing; degenerative changes of the disc; and a positive straight leg raising test on the left side. He took several prescription pain medications, had no bowel or bladder incontinence, had no lower extremity weakness, and was diagnosed with DDD. In January 2007, the Veteran was afforded a VA examination. He reported aching, burning, and sharp pain in the low back which radiated down his right leg and caused numbness in his toes. He had no weakness, bowel or bladder incontinence, or flare-ups. His pain was constant regardless of activity. On examination, his posture, gait, reflexes, strength testing, toe walking, heel walking, and heel to toe walking were all normal. He had flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right and left lateral flexion from 0 to 30 degrees, and right and left lateral rotation from 0 to 45 degrees. He was diagnosed with DDD and the examiner noted that he had scoliosis. On October 9, 2008, the Veteran underwent decompression surgery for lumbar radiculopathy. He had a left laminotomy and a right foraminotomy. His pre operative diagnoses were left L5-S1 lateral recess stenosis and right L5-S1 foraminal stenosis. VA treatment records beginning January 1, 2009, indicate symptoms of low back pain, tingling in the toes, decreased reflexes, right lower extremity numbness and tingling, and muscle tenderness in the low back area. He took prescription pain medications, including gabapentin, hydrocodone, and morphine. He reported that his back pain was so bad that he sometimes took a double dose of his pain medication. In May 2014, the Veteran was afforded a VA examination. He was diagnosed with DDD, status-post left laminectomy and right foraminotomy, and residual right lumbar radiculopathy. The examiner indicated that he had DDD, degenerative spur formation, dextroscoliosis, DJD, and IVDS. He reported that his left lower extremity radiculopathy had resolved following his October 2008 surgery. He continued to have stiffness, pain, constant right lower extremity paresthesia and numbness, and tingling of his right foot toes. He had difficulty lifting or carrying more than 20 pounds, bending, climbing, prolonged sitting, walking, and prolonged standing. He constantly wore a back brace except at church. He reported flare ups which occurred approximately 3 to 4 times per year after overuse or excessive physical activity. The flare-ups lasted 24 hours in duration and were relieved with rest and pain medication. On examination, he had forward flexion to 55 degrees with pain, extension to 20 degrees with pain, right lateral flexion to 30 degrees or greater, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees or greater, and left lateral rotation to 30 degrees or greater. He had no additional limitation in range of motion following repeated use. He had functional impairment resulting in less movement than normal; pain on movement; interference with sitting, standing, and/or weight-bearing; he had to frequently shift and reposition himself while sitting; and had some difficulty rising from a lying position. He had right lumbar tenderness, no muscle spasms, and a normal gait. Muscle strength testing was normal and he had no muscle atrophy. He had decreased deep tendon reflexes in the left knee and left and right ankles, and had decreased sensation in the right lower leg and ankle. The examiner indicated that the Veteran had mild paresthesias and/or dysesthesias and mild numbness in the right lower extremity. He had no ankylosis and had had no incapacitating episodes in the prior 12 months due to IVDS. The examiner indicated that he did not have any scars and that his back disorder resulted in mild functional impairment at work. A December 2014 VA treatment record indicates that the Veteran reported difficulty urinating but no nocturia. The clinician did not indicate that the Veteran’s back disorder was causing bladder symptoms. November 2016 and January 2017 statements from the Veteran’s employer indicate that he had limited ability to bend and lift, which affected his job performance. In January 2017, the Veteran was afforded VA examinations. The examiner indicated that he had DJD. The Veteran reported sharp low back pain with movement. He was working at a recycling plant which required frequent bending and walking which negatively affected his back. He wore a back brace daily and was limited to lifting less than 10 pounds. He had pain with driving and standing for prolonged periods of time and had moderate pain with both active and passive range of motion. He reported flare-ups daily with work activities and pain and stiffness in the mornings. He reported numbness, feelings of pins and needles, and tingling in both lower extremities. On examination, he had flexion to 90 degrees with pain, extension to 20 degrees with pain, right lateral flexion to 20 degrees with pain, left lateral flexion to 15 degrees with pain, and right and left lateral rotation to 30 degrees each with no pain. There was pain on palpation of the lumbar spine and left lateral spine area. He had no guarding or muscle spasms. Muscle strength testing was normal and he had no muscle atrophy. He had decreased reflexes in both knees and ankles, decreased sensation in the right lower extremity, and had positive straight leg raising test in both lower extremities. He had moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness in the right lower extremity. He had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left lower extremity. He had no ankylosis. He had a lumbar spine scar measuring 9 centimeters long by 1 centimeter wide. The examiner indicated that the Veteran did not have IVDS. For the period from March 27, 2006, to October 8, 2008, the Veteran’s low back disorder caused sharp pain, aching, and burning; right leg tingling; right and left lower extremity pain and numbness; increased pain with walking, standing, and lifting; decreased reflexes; no left Achilles reflex; an inability to fully flex and extend his spine; disc space narrowing; degenerative changes of the disc; a positive straight leg raising test on the left side; DDD; scoliosis; left L5-S1 lateral recess stenosis; right L5-S1 foraminal stenosis; and resulted in forward flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right and left lateral flexion from 0 to 30 degrees, and right and left lateral rotation from 0 to 45 degrees. He took several prescription pain medications. He did not have bowel or bladder incontinence, ankylosis, or muscle spasms, and his gait was normal. There is no evidence of incapacitating episodes. Given these facts, the Board finds that a 20 percent back rating is warranted for the Veteran’s low back symptoms as he had scoliosis. The Board also finds that the Veteran is entitled to a 20 percent rating for left lower extremity radiculopathy and a 20 percent rating for right lower extremity radiculopathy. The Veteran’s lower extremity symptoms were severe enough during this period to require surgery. See 38 C.F.R. § 4.7; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, 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 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). A 40 percent rating is not warranted for the Veteran’s back symptoms because he did not have forward flexion limited to 30 degrees or less and he did not have ankylosis. A 40 or 60 percent rating is not warranted for right or left lower extremity radiculopathy because the Veteran’s symptoms were wholly sensory. Since January 1, 2009, the Veteran’s low back disorder has caused sharp pain, flare-ups, stiffness, tingling in the toes, decreased reflexes, decreased sensation, and muscle tenderness; right lower extremity moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness; left lower extremity mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness; DDD, degenerative spur formation, dextroscoliosis, DJD, and IVDS; prevented him from lifting more than 10 pounds; caused difficulty bending, climbing, prolonged sitting, walking, and prolonged standing; resulted in less movement than normal; pain on movement; interference with sitting, standing, and/or weight-bearing; he had to frequently shift and reposition himself while sitting and had some difficulty rising from a lying position; a scar measuring 9 centimeters long by 1 centimeter wide, and forward flexion to 55 degrees with pain, extension to 20 degrees with pain, right lateral flexion to 20 degrees with pain, left lateral flexion to 15 degrees with pain, right lateral rotation to 30 degrees or greater, and left lateral rotation to 30 degrees or greater. He did not have bowel or bladder incontinence, ankylosis, muscle spasms, or incapacitating episodes due to IVDS, and his gait was normal. Given these facts, the Board finds that a 20 percent back rating is warranted for the Veteran’s low back symptoms as he had scoliosis and limitation of flexion to 55 degrees with pain. The Board also finds that the Veteran is entitled to a 10 percent rating for left lower extremity radiculopathy and a 20 percent rating for right lower extremity radiculopathy. The Veteran’s left lower extremity symptoms were mild and the right lower extremity symptoms were moderate. The October 2008 decompression surgery caused an improvement in the Veteran’s lower extremity symptoms. See 38 C.F.R. § 4.7; see also Hart, 21 Vet. App. at 505. In making these determinations, 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 (2017); DeLuca, 8 Vet. App. at 206-07. A 40 percent rating is not warranted for the Veteran’s back symptoms because he did not have forward flexion limited to 30 degrees or less and did not have ankylosis. A 20 percent rating is not warranted for the Veteran’s left lower extremity radiculopathy because his symptoms were not moderate. A 40 percent rating is not warranted for right lower extremity radiculopathy because his symptoms were not moderately severe. A separate rating is not warranted for the Veteran’s lumbar scar because his symptoms were not severe enough to be compensable. Although a December 2014 VA treatment record indicates that the Veteran reported difficulty urinating, the Board finds that a separate rating is not warranted for bladder impairment due to the low back disorder. The clinician providing the treatment did not indicate that the Veteran’s reported urinary difficulty was due to his low back disorder and subsequent records did not indicate bladder impairment. Therefore, the Board finds that the low back disorder did not cause bladder impairment that would entitle the Veteran to a separate compensable rating. The Veteran has repeatedly reported that his low back symptoms interfere with his ability to perform his job. He has indicated that he believes this should entitle him to a higher rating, including on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). The Board has granted increased schedular ratings for the Veteran’s disorder. The Board has also considered whether the Veteran’s claim should be referred for consideration of entitlement to an extraschedular rating. The Board finds, however, that the established criteria found in diagnostic codes 5003, 5242, 5243, and 8520 fully address the Veteran’s symptoms and functional impairment during both periods on appeal. Indeed, the Veteran and his employer both indicated that his work-related impairment was caused by limitations in lifting and bending, which are symptoms fully addressed by the rating criteria. Therefore, the Board finds that the evidence does not show that the Veteran’s disability is unusual or exceptional and finds that the schedular criteria adequately describes his disability level and associated impairment. Therefore, the Board has determined that referral of this claim for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel