Citation Nr: 18155605 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-01 776 DATE: December 4, 2018 ORDER Entitlement to a 20 percent disability evaluation for lumbar strain with intervertebral disc syndrome, for the rating period prior to June 26, 2018, is granted. Entitlement to a disability evaluation in excess of 40 percent for lumbar strain with intervertebral disc syndrome is denied. Entitlement to a 20 percent disability evaluation for trochanteris pain syndrome of the left hip with limitation of flexion for the rating period prior to June 26, 2018, is granted. Entitlement to a disability evaluation in excess of 20 percent for trochanteris pain syndrome of the left hip with limitation of flexion is denied. Entitlement to a disability evaluation in excess of 10 percent for left lower extremity sciatic nerve radiculopathy is denied. Entitlement to a disability evaluation in excess of 10 percent for right lower extremity sciatic nerve radiculopathy is denied. FINDINGS OF FACT 1. For the period prior to June 26, 2018, the Veteran’s back disability was manifested by full range of flexion and extension with pain, no guarding, no atrophy, no abnormal gait, no need for assistive devices, no muscle spasm, but flare-ups brought on by use that caused pain that made it difficult to get around and perform the activities of daily life sufficient to cause functional loss; for the period beginning on June26, 2018, the Veteran’s lumbar strain with intervertebral disc syndrome is manifest by pain, with guarding and muscle spasm productive of abnormal gait and spinal contour. Forward flexion is limited to no more than 30 degrees, without ankylosis. 2. Throughout the entire rating period on appeal, trochanteris pain syndrome of the left hip with limitation of flexion is manifest by pain on motion, with limitation of flexion of the thigh to 30 degrees. 3. The Veteran’s left lower extremity sciatic nerve radiculopathy is manifested by mild incomplete paralysis of the sciatic nerve. 4. The Veteran’s right lower extremity sciatic nerve radiculopathy is manifested by mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability evaluation for lumbar strain with intervertebral disc syndrome have been met for the rating period prior to June 26, 2018. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2018). 2. The criteria for a disability evaluation in excess of 40 percent disability evaluation for lumbar strain with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2018). 3. The criteria for a 20 percent disability evaluation for trochanteris pain syndrome of the left hip with limitation of flexion have been met for the rating period prior to June 26, 2018. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5251-5253 (2018). 4. The criteria for a disability rating in excess of 20 percent for trochanteris pain syndrome of the left hip with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5251-5253 (2018). 5. The criteria for a disability rating higher than 10 percent for Veteran’s left lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2018). 6. The criteria for a disability rating higher than 10 percent for Veteran’s right lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Army from March 2000 to September 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. The Veteran’s claims for increased disability ratings were previously before the Board in May 2018, wherein the Veteran’s claims were remanded for additional development and due process considerations. A supplemental statement of the case on these issues was most recently issued in October 2018. Also, in an October 2018 rating decision, the Veteran was awarded a 40 percent evaluation for lumbar strain with intervertebral disc syndrome and a 20 percent evaluation for her left hip trochanteris pain syndrome with limitation of flexion; an effective date of June 26, 2018 was assigned for both increased disability evaluations. As the Veteran has not been granted the maximum benefits allowed, the claims for increased disability ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The case was returned to the Board for appellate consideration. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued a notice letter to the Veteran. The letter explained the evidence necessary to substantiate the Veteran’s claims for increased disability ratings, as well as the legal criteria for entitlement to such benefits. The letter also informed her of her and VA’s respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the Veteran’s own statements in support of her claims. The Veteran was afforded VA examinations responsive to the claims for increased disability ratings. These opinions were conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The examination reports contain all the findings needed to assess the Veteran’s claims on appeal, including history and clinical evaluation. See 38 C.F.R. § 3.327(a) (2018); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). The Board has reviewed the Veteran’s statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran’s claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 1. Entitlement to a 40 percent disability evaluation, but no higher, for lumbar strain with intervertebral disc syndrome The Veteran is assigned a 10 percent disability evaluation for lumbar strain with intervertebral disc syndrome for the rating period prior to June 26, 2018, and a 40 percent disability rating thereafter pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5237 – 5243. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2018). Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (“general rating formula”). 38 C.F.R. § 4.71a, Diagnostic Code 5237-5242. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as 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. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as 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 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 10 percent evaluation is to be assigned 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 evaluation is to be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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 40 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 for lumbosacral strain; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. The Veteran contends that she is entitled to a higher rating and that her symptoms have been consistent throughout the appeal period. After a review of all the evidence, the Board finds that the Veteran’s disability picture more nearly approximates the criteria for a 20 percent disability rating for her service-connected lumbar strain with intervertebral disc syndrome for the period prior to June 26, 2018, and a 40 percent rating for the period thereafter. For the period prior to June 26, 2018, the March 2012 VA examination demonstrated that the Veteran had full range of motion, with pain on motion, with flare-ups that made it difficult to get around. The Veteran’s March 2012 VA examination report showed tenderness, without spasm, guarding, or abnormal spinal contour. Treatment records show that she sought treatment for her back in June and August 2013 due to pain induced by exercise. She was prescribed pain medications, but had full range of motion, and no neurological indications. Other VA treatment records and VA examination reports indicated that there was pain on motion, but without atrophy; and strength and reflex testing was normal. The Board acknowledges that the Veteran had full range of motion during this period and no evidence of guarding or spasm, which would entitle the Veteran to a higher rating under the schedular criteria, however, the Board notes that the Veteran nonetheless had documented pain on motion and use, and tenderness to palpation, and that the Veteran sought treatment for her back pain due to its interference with her activities of daily living. Accordingly, the Board finds that this period has demonstrated functional loss the equivalent of a 20 percent disability rating during the period prior to June 26, 2018. However, the lay and medical evidence demonstrates that the Veteran’s symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating. There was no spasm, atrophy, guarding, documented limitation of motion due to pain, she ambulated without an antalgic gait on most occasions, and did not assistive devices. Accordingly, a 20 percent rating, and no higher, for functional loss due to back pain, for the period prior to June 26, 2018, is awarded. For the period beginning on June 26, 2018, at the more recent June 2018 VA examination, the Veteran had flexion to 60 degrees, extension to 20 degrees, lateral flexion to 30 degrees on the right and 25 degrees on the left, and lateral rotation to 20 degrees on the right and 25 degrees on the left; she had pain on motion and at rest. However, upon on repetitive use, she had additional functional loss. Upon repetitive use testing, she had flexion to 30 degrees, extension to 10 degrees, lateral flexion to 10 degrees bilaterally, and lateral rotation to 15 degrees bilaterally. At the June 2018 VA examination, there was tenderness, as well as spasm and guarding productive of abnormal gait and abnormal spinal contour. Thus, applying the facts to the criteria set forth above, the Veteran is entitled to no more than a 40 percent evaluation for lumbar strain with intervertebral disc syndrome for the period beginning on June 26, 2018. The Board finds that the criteria for a disability rating of 50 percent have not been met or more nearly approximated. The evidence does not demonstrate the presence of ankylosis. The June 2018 VA examination report expressly stated that there was no evidence of ankylosis. The Board has considered the lay evidence of pain. However, that evidence when accepted as correct does not establish that there is ankylosis as required for a higher rating. As previously noted, the March 2012 VA examiner stated that flexion was full (90 degrees or better) and the June 2018 VA examiner found that the Veteran had flexion to no worse than 30 degrees on repetitive use testing. The Veteran does not require the use of assistive devices for locomotion. To the extent that the Veteran claims that her pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current ratings are based on the objectively demonstrated reduced motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran is at the maximum evaluation for limited motion. The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis, as is the case here. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The evidence also shows that the Veteran’s lumbar strain with intervertebral disc syndrome has not been productive of incapacitating episodes at any time during the rating period on appeal. The Veteran has not reported, and the evidence does not demonstrate, that the Veteran experienced incapacitating episodes requiring bed rest; the Veteran’s VA examination reports and treatment records do not demonstrate that her treating physicians noted any incapacitating episodes or prescribed bed rest. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran was granted service connection for radiculopathy of the right and left lower extremities and assigned separate disability evaluations for each lower extremity. As the Veteran is separately evaluated for her lower extremity neurological deficits, it is not for consideration here. As such, the Board finds that the Veteran’s service-connected lumbar strain with intervertebral disc syndrome is entitled to a disability rating of 20 percent for the period prior to June 26, 2018, and not entitled to a rating greater than 40 percent for the period beginning on June 26, 2018. 2. Entitlement to a 20 percent disability evaluation, but no higher, for trochanteris pain syndrome, left hip, with limitation of flexion The Veteran’s trochanteris pain syndrome, left hip, with limitation of flexion, is rated pursuant to Diagnostic Code 5252 for limitation of motion of the thigh. See 38 C.F.R. § 4.20, authorizing the rating of a condition according to the requirements of an analogous condition. A noncompensable disability evaluation was assigned for the rating period prior to June 26, 2018 and a 20 percent disability evaluation was assigned from June 26, 2018. Under Diagnostic Code 5252, a 10 percent disability evaluation is assigned for flexion of the thigh limited to 45 degrees. For the next higher 20 percent disability evaluation, there must be limitation of flexion to 30 degrees. A 30 percent disability evaluation is assigned for flexion limited to 20 degrees and a 40 percent disability evaluation is assigned for flexion limited to 10 degrees. Diagnostic Codes 5251 and 5253 also provide ratings for limitation of motion of the thigh. Diagnostic Code 5251 assigns a 10 percent disability evaluation where there is limitation of extension of the thigh to 5 degrees; no higher evaluation is provided for under this Code. Pursuant to Diagnostic Code 5253, a 10 percent disability evaluation is assigned for limitation of rotation, with an inability to toe-out in excess of 15 degrees or where there is limitation of adduction such that one cannot cross their legs. A 20 percent disability evaluation is warranted for limitation of abduction, where motion is lost beyond 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5251-5253. Considering the rating criteria applicable to the Veteran’s trochanteris pain syndrome, left hip, with limitation of flexion, the Board finds that the Veteran’s left hip trochanteris pain syndrome with limitation of flexion, most closely approximates the criteria for a 20 percent disability evaluation for the entire rating period on appeal. The Veteran experiences limitation of flexion of the thigh to 30 degrees or less. The Veteran had full range of motion at her March 2012 VA examination, but at the more recent June 2018 VA evaluation, she had flexion to 30 degrees. The Board notes that the Veteran had complaints of pain, tenderness, weakness, and incoordination at the June 2018 VA examination. The Board points out that it is impossible to determine from the record when the Veteran’s left hip trochanteris pain syndrome with limitation of flexion worsened. However, a finding that the Veteran’s left hip trochanteris pain syndrome with limitation of flexion worsened on the date of the June 2018 VA examination and not in the interim time period between examinations is incongruous with the medical and lay evidence of record. In particular, the Veteran asserted that her left hip pain and limitation of motion was constant throughout the entire rating period on appeal and VA treatment records show reports of treatment for left hip pain during the rating period prior to June 26, 2018; no findings as to range of motion were noted in her VA treatment records. As such, it is clear that the Veteran’s left hip trochanteris pain syndrome with limitation of flexion worsened at some, unknown point, prior to the June 26, 2018 VA examination. In concluding the Veteran is not entitled to a rating greater than 20 percent for her left hip trochanteris pain syndrome with limitation of flexion at any time during the rating period on appeal, the Board has considered as well whether she has additional functional loss, beyond that objectively shown, due to her pain, or because of weakness, premature or excess fatigability, incoordination, etc. See DeLuca, supra. Nonetheless, there is no indication in the record that her functional ability is decreased beyond the weakness and tenderness shown on examination, even when her symptoms are most problematic. As a result, the current 20 percent rating adequately compensate her for the extent of her pain, including insofar as its resulting effect on her range of motion. Thus, the Board finds that the Veteran’s symptomatology due to left hip trochanteris pain syndrome with limitation of flexion falls within the criteria for the currently assigned 20 percent disability evaluation for the entire rating period on appeal. 3. Entitlement to a disability evaluation in excess of 10 percent for left lower extremity sciatic nerve radiculopathy 4. Entitlement to a disability evaluation in excess of 10 percent for right lower extremity sciatic nerve radiculopathy The Veteran is currently assigned a 10 percent disability evaluation, per lower extremity, for right lower extremity sciatic nerve radiculopathy and a 10 percent disability evaluation for left lower extremity sciatic nerve radiculopathy pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent disability evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis and a 30 percent disability rating requires moderately severe incomplete paralysis. A 50 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent disability rating requires complete paralysis; the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran’s right and left lower extremity sciatic nerve radiculopathy is no more than mild. The evidence of record does not show that she experiences moderate incomplete paralysis of the right or left sciatic nerve. At the June 2018 VA examination, the VA examiner described the Veteran’s neurological manifestations as mild; she experienced mild intermittent pain, mild numbness, and mild paresthesias and dysthesias, despite involvement of the L4, L5, S1, S2, and S3 nerve roots. At the March 2012 VA examination, her intermittent pain was described as moderate, but her paresthesias and dysthesias were described as mild, and there was no evidence of numbness of the lower extremities. Likewise, the Board points out that the Veteran had a normal sensory examination at the March 2012 and June 2018 VA examinations. Both examination reports also indicate that the Veteran’s reflexes were normal; muscle strength was full and there was no evidence of atrophy. Therefore, her symptomatology most closely approximates the criteria for the currently assigned 10 percent disability evaluation for mild incomplete paralysis of the sciatic nerve. In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. §§ 4.120, 4.123, and 4.124. As such, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent, per lower extremity, for right and left lower extremity sciatic nerve radiculopathy for the entire appeal period, and the appeal for a rating in excess of 10 percent is denied. 38 C.F.R. §§ 4.3, 4.7. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel