Citation Nr: 18156690 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-09 515 DATE: December 11, 2018 ORDER Entitlement to a disability rating in excess of 40 percent prior to March 30, 2018, for invertebral disc syndrome (IVDS) with degenerative disc disease (DDD), L3-L5, and herniated disc of L5-S1, of the lumbar spine (hereinafter referred to as a “lumbar spine disability”) is denied. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity (RLE) is denied. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity (LLE) is denied. REMANDED Entitlement to a disability rating in excess of 10 percent as of March 30, 2018, for a lumbar spine disability, to include whether the rating reduction from 40 to 10 percent was proper, is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to March 30, 2018, the Veteran’s lumbar spine disability was manifested by forward flexion ranging from approximately 40 to 60 degrees, with no evidence of ankylosis or incapacitating episodes of IVDS having a total duration of at least six weeks during. 2. The Veteran’s radiculopathy of the RLE is no worse than mild in severity. 3. The Veteran’s radiculopathy of the LLE is no worse than mild in severity. CONCLUSIONS OF LAW 1. Prior to March 30, 2018, the criteria for a disability rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. For the entire appeal period, the criteria for a disability rating in excess of 10 percent for radiculopathy of the RLE are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 3. For the entire appeal period, the criteria for a disability rating in excess of 10 percent for radiculopathy of the LLE are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1999 to August 2003. April 2018 and June 2018 rating decisions addressed the Veteran’s claims for plantar fasciitis and bilateral knee disabilities. However, the Veteran has not yet submitted any indication of disagreeing with such decisions. Additionally, he submitted a claim for sleep apnea in November 2018, which is currently before the Regional Office (RO) to be adjudicated. These claims are currently not on appeal, and thus will not be addressed herein. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion (ROM) testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to a disability rating in excess of 40 percent prior to March 30, 2018, for a lumbar spine disability The Veteran contends that a rating in excess of 40 percent is warranted for his lumbar spine disability. Specifically, in April 2015, he stated that he struggled to get out of bed and move around because of back pain. Based on a careful review of all of the evidence, the Board finds that a disability rating in excess of 40 percent prior to March 30, 2018, is not warranted for his lumbar spine disability. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. The Veteran’s lumbar spine disability is evaluated as 40 percent disabling under 38 C.F.R. § 4.71a, DC 5242. The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) encompasses such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasms, and tenderness. See 38 C.F.R. § 4.71a, DCs 5235-5243. The General Rating Formula provides for a 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is available for unfavorable ankylosis of the entire spine. 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 ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. The normal ROMs for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2); see also Plate V. 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. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (5). IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An “incapacitating episode” is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). Turning now to the evidence, a March 2014 VA examination report reflects a diagnosis of degenerative arthritis of the spine. The Veteran reported soreness and flare-ups, during which time he was confined to bed and unable to go to work. He had forward flexion to 45 degrees without any objective evidence of painful motion. After repetitive-use testing, he had flexion to 40 degrees. The Veteran did not have any ankylosis, other neurologic abnormalities, or IVDS. A November 2016 VA treatment record reflects the Veteran’s complaint of a flare-up of his chronic lower back pain for the last three weeks with pain more on the right than the left, which sometimes to the front of the thigh on both sides with no numbness. He denied any incontinence of the bowel or the bladder. He was diagnosed with lower back pain that was chronic with an acute flare-up. A December 2016 VA examination report reflects a diagnosis of degenerative arthritis of the spine. The Veteran stated that, over the last two to three years, he developed a constant pain across his beltline that shot into his right and left buttocks. Bending and twisting at the waist was especially irritating when standing after sitting for prolonged periods of time. He denied any bowel or bladder problems. He had forward flexion to 60 degrees with pain, but no additional functional loss due to pain. There was no pain with weight-bearing, and no additional loss of function after three repetitions. Pain, weakness, fatigability, and incoordination did not significantly limit his functional ability with repeated use over a period of time. He did not have ankylosis or IVDS. The examiner noted that the Veteran consistently showed markers of pain and symptom magnification on ROM testing, such as grimacing in pain, clenching his teeth, and grunting and groaning with any type of ROM request. Although the Veteran’s assertion of increased pain and loss of function were credible, the examiner stated that the probable etiology of the additional intensity of pain was more than might be expected with the current diagnosis. Therefore, the examiner found that the significant increase in intensity of pain suggested that it may be more likely than not attributable to non-anatomic causes, which increased the Veteran’s perception of pain and loss of function. Possible confounding factors were identified as depression, posttraumatic stress disorder, and anxiety. The Board finds the weight of the competent evidence demonstrates the Veteran does not meet the criteria for a rating in excess of 40 percent for his lumbar spine disability. The General Rating Formula reflects that a rating in excess of 40 percent requires unfavorable ankylosis of the entire thoracolumbar spine. The Board acknowledges that, prior to March 30, 2018, the Veteran had forward flexion to 40 degrees after repetitive-use testing at the March 2014 VA examination; and flexion limited to 60 degrees at the December 2016 VA examination. Despite evidence of flare-ups, which may significantly limit his mobility due to pain, and expressions of pain and symptom magnification at the December 2016 VA examination, there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine. Additionally, the Board notes that the March 2014 and December 2016 VA examiners did not differentiate between active and passive motion. Regardless, the Veteran is already receiving the maximum schedular disability rating for limitation of motion, and therefore consideration of the provisions of DeLuca is not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Ultimately, there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine to warrant a higher rating under the General Rating Formula. Furthermore, the Board notes that, prior to March 30, 2018, the Veteran was not found to have incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243. For these reasons, the Board finds that the weight of the evidence does not reflect that a rating in excess of 40 percent for the Veteran’s lumbar spine disability is warranted prior to March 30, 2018. The period from March 30, 2018, will be addressed in the remand portion below. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Issues 2-3: Entitlement to disability ratings in excess of 10 percent for radiculopathy of the RLE and for radiculopathy of the LLE The RO assigned initial 10 percent ratings for radiculopathy of the RLE and LLE under DC 5242-8520 for incomplete paralysis of the sciatic nerve. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Although the RO applied the hyphenated DC 5242-8520, the Board finds that DC 8520 is appropriate. Regardless, the criteria used to evaluate the disabilities do not change. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; 20 percent for moderate incomplete paralysis; 40 percent for moderately severe incomplete paralysis; 60 percent for severe incomplete paralysis with marked muscular atrophy; and 80 percent for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee and flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. In this case, a March 2014 VA examination report reflects no radiculopathy of the RLE, although he had mild constant pain, mild intermittent pain, and mild paresthesias and/or dysesthesias of the RLE. He had mild radiculopathy of the LLE. VA treatment records from September and October 2014 reflect the Veteran’s complaints of radiculopathy pain and symptoms. However, a November 2016 treatment record reflects no radiculopathy. A December 2016 VA examination report reflects no radiculopathy. A March 2018 VA examination report reflects that the Veteran had mild radiculopathy involving the bilateral sciatic nerves. Based on the evidence, both lay and medical, the Board concludes that ratings in excess of 10 percent for the Veteran’s radiculopathy of the RLE and LLE are not warranted. The evidence does not reflect any indication of moderate incomplete paralysis of the sciatic nerves. In fact, the Veteran was found to have no radiculopathy of the RLE and/or LLE in the March 2014 VA examination report, November 2016 VA treatment record, and December 2016 VA examination report. At most, he has wholly sensory symptoms such as radicular pain, paresthesias and/or dysesthesias. As such, disability ratings of 10 percent are warranted as there is no medical or lay evidence even suggesting that the Veteran’s symptoms of radiculopathy are more than mild in severity. Based on the foregoing, the Board finds that the preponderance of the evidence is against granting ratings in excess of 10 percent for the Veteran’s radiculopathy of the RLE and LLE. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, supra. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent as of March 30, 2018, for a lumbar spine disability, to include whether the rating reduction from 40 to 10 percent was proper, is remanded. A new VA examination must be obtained to assess the current severity of the Veteran’s service-connected lumbar spine disability. The Veteran was last provided a VA examination for compensation purposes in March 2018, where he had forward flexion to 80 degrees. However, private treatment records from April and May 2018 reflect flexion limited to 30 degrees. Given the suggestion of a possible worsening of ROM, a new examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). 2. Entitlement to a TDIU is remanded. The Veteran’s claim for a TDIU is inextricably intertwined with the claim remanded herein, and the adjudication of this claim may depend on the outcome of the other remanded claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matter is REMANDED for the following action: 1. Provide a VA examination by an appropriate medical professional to determine the current severity of the Veteran’s lumbar spine disability and any associated neurological impairment. In evaluating the disability, the examiner is reminded to: (a) Clearly indicate all orthopedic and neurological manifestations of the Veteran’s service-connected lumbar spine disability. (b)Test the ROM of the thoracolumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, clearly explain why that is so. *The examiner should consider and discuss, as needed, the Veteran’s description of any flare-ups, the March 2018 VA examination ROM results, and the 2018 private treatment records.* (c) Comment on whether any functional impairment is present in the Veteran’s ability to perform work or work-like tasks due to the service-connected lumbar spine disability. The examiner should provide an explanation for any conclusions reached. 2. Thereafter, readjudicate the claim of entitlement to a disability rating in excess of 10 percent as of March 30, 2018, for a lumbar spine disability, to include whether the rating reduction from 40 to 10 percent was proper, and the claim for a TDIU. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee