Citation Nr: 18158007 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 14-24 542A DATE: December 14, 2018 ORDER Service connection for fibromyalgia as secondary to the service-connected lumbar spine disability is granted. For the initial rating period prior to February 21, 2018, a 40 percent rating for degenerative disc disease (DDD) of the lumbar spine is granted. For the rating period prior to February 21, 2018, a separate rating of 20 percent for radiculopathy of the right lower extremity is granted. For the rating period beginning February 21, 2018, a rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. For the entire rating period on appeal, a separate 20 percent rating for radiculopathy of the left lower extremity is granted. REMANDED For the entire rating period on appeal, entitlement to a rating in excess of 40 percent for DDD of the lumbar spine is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) for the period prior to May 8, 2013, is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s fibromyalgia is aggravated by the service-connected lumbar spine disability. 2. For the rating period prior to February 21, 2018, and in consideration of the Veteran’s flare-ups, the Veteran’s lumbar spine disability more nearly approximated forward flexion limited to 30 degrees or less. 3. For the entire rating period on appeal, the Veteran’s radiculopathy of the right and left lower extremities associated with his thoracolumbar spine disability more nearly approximates moderate incomplete paralysis of the sciatic nerves. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia as secondary to the service-connected lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 2. For the rating period prior to February 21, 2018, the criteria for a 40 percent rating for the lumbar spine disability are met. 38 U.S.C. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic 5242, 5243 (2018). 3. For the rating period prior to February 21, 2018, the criteria for a separate disability rating of 20 percent, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code 8520 (2018). 4. For the rating period beginning February 21, 2018, the criteria for a separate disability rating in excess of 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code 8520. 5. For the entire rating period on appeal, the criteria for a separate disability rating of 20 percent, but no higher, for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to August 1973, and from January 1995 to May 1995. This matter comes to the Board of Veterans’ Appeals (Board) from September 2011 and December 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously remanded by the Board in March 2016 for further development. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Only chronic diseases listed under 38 C.F.R. § 3.309(a) (2018) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Fibromyalgia The Veteran essentially contends that his currently diagnosed fibromyalgia is secondary to his lumbar spine disability. Initially, the Board notes that both VA and private medical professionals have diagnosed the Veteran with fibromyalgia. See, e.g., December 2012 Fibromyalgia Disability Benefits Questionnaire (DBQ). Next, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s fibromyalgia is secondary to his service-connected lumbar spine disability. In this regard, the evidence includes a February 2018 VA medical opinion. The examiner indicated that fibromyalgia was a common cause of chronic and widespread musculoskeletal pain with accompanying symptoms such as fatigue, cognitive disturbance, psychiatric symptoms and several somatic symptoms. The etiology of the condition, however, was unknown and pathophysiology was uncertain. Therefore, the examiner stated that it would be resorting to mere speculation to opine as to whether the Veteran’s fibromyalgia was caused by or was permanently increased in severity by his service-connected lumbar spine disability. The Board finds that that the February 2018 VA medical opinion weighs neither for nor against the Veteran’s claim. The evidence also includes a December 2012 fibromyalgia DBQ, in which a diagnosis of fibromyalgia was confirmed by a private physician. Further, the physician indicated that the Veteran’s fibromyalgia symptoms “worsens” due to the fact that he also suffers from multilevel spine degenerative joint and disc disease with bulging discs. The Board finds that the December 2012 DBQ weighs in favor of a finding that the Veteran’s fibromyalgia symptoms are, at least in part, aggravated by his service-connected lumbar spine disability. There are no contradictory opinions of record. Accordingly, and resolving reasonable doubt in the Veteran’s favor, the Board finds that secondary service connection for fibromyalgia is warranted. Disability Ratings Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Lumbar Spine The Veteran is currently in receipt of a 20 percent rating for his lumbar spine disability for the initial rating period prior to February 21, 2018; he is in receipt of a 40 percent rating beginning February 21, 2018. The Veteran’s lumbar spine disability has been rated under Diagnostic Code 5243 for IVDS (intervertebral disc syndrome), which is to be rated either under the General Rating Formula or under the IVDS Formula, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula provides a 20 percent rating for IVDS with 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 for IVDS with 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 rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to DC 5243 provides that, for purposes of ratings under DC 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, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. The General Rating Formula provides a 20 percent rating 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 rating is assigned forward flexion of the thoracolumbar spine 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. The Notes following the General Rating Formula 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, 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. The evidence includes a January 2010 statement from the Veteran’s chiropractor. The Veteran was noted to have severe low back pain with “radiculopathy to the left leg.” The Veteran also submitted a June 2010 evaluation by a private physician. At that time, the Veteran reported pain and numbness in the lumbar spine, hip, and right leg. The Veteran indicated that he could not sit, stand, or walk for more than 1 hour. Upon examination, there was decreased pain and vibration sensitivity to the right leg. Range of motion testing of the spine was not indicated. The evidence also includes an August 2011 VA spine examination report. During the evaluation, the Veteran reported that his pain was exacerbated by prolonged standing, sitting, walking, and bending movements. His repose to medical treatment was “fair.” The Veteran was noted to have an antalgic gait. There was no ankylosis of the thoracolumbar spine. Range of motion testing revealed flexion limited to 60 degrees with no additional limitation after three repetitions. Sensory examination of both lower extremities was normal. The Veteran submitted a statement dated in October 2012 from a private physician. At that time, it was noted that the Veteran was unable to tolerate prolonged sitting or standing. He presented with constant stiffness and continuous muscle spasms. The Veteran was also noted to have numbness and pinprick sensation of the lower extremities. Range of motion testing of the spine was not performed. The Veteran underwent an MRI in October 2012 due to complaints of continued low back pain and right lower extremity symptoms. The impression was mild levoscoliosis and facet arthropathy with right-sided facet joint effusion at L4-5. VA treatment records include a March 2016 VA orthopedic note where the Veteran was noted to have positive numbness and tingling in the right foot due to his lumbar spine disability. VA treatment records also show that the Veteran wore a lumbar brace. During a November 2013 VA spine examination, the Veteran reported that he had more pain, less range of motion, and difficulty standing, walking, sitting, and climbing. Flare-ups were noted to occur daily, and the Veteran was currently having a flare-up during the examination. Range of motion testing revealed flexion limited to 30 degrees, with pain starting at 30 degrees. The Veteran was unable to perform repetitive use testing due to “severe pain.” The examiner also diagnosed the Veteran with “moderate” radiculopathy of both lower extremities. The examiner also noted that the Veteran had incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There was no ankylosis of the spine. In a March 2016 VA treatment record, the Veteran’s gait was noted as unsteady and a notation of “bedridden/bedrest” was documented. In November 2016 and December 2017 VA treatment notes, the Veteran complained of severe back pain, which was poorly controlled with medication. It was noted that the Veteran was “almost bedridden” in that he was only able to get up to shower and for meals. The Veteran was afforded another VA spine examination in February 2018. At that time, the Veteran reported constant pain to the lower lumbar region. Flare-ups were noted to manifest as intermittent, shocking pain to the right side which impacted his ability to move the right leg—resulting in occasional falls. Range of motion testing revealed flexion of the thoracolumbar spine limited to 25 degrees. There was no evidence of pain on weight bearing. Upon repetitive use testing, flexion was additionally limited to 15 degrees. A sensory examination was normal; however, radiculopathy in the right sciatic nerve root was noted as moderate. There was no ankylosis of the spine and no other neurological abnormalities. The Veteran was noted to have IVDS, but no incapacitating episodes were noted. Upon review of all the evidence of record, the Board finds that, for the rating period prior to February 21, 2018, the evidence is in equipoise as to whether the Veteran’s lumbar spine disability more nearly approximates a 40 percent rating. In this regard, range of motion testing in the November 2013 VA examination showed flexion limited to 30 degrees. At that time, the Veteran was experiencing a flare-up and was unable to perform repetitive use testing. The evidence prior to February 2018 also shows that the Veteran had continued difficulty with walking, standing, sitting, and bending. He also reported occasional falls associated with his lumbar spine symptoms. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a 40 percent rating of the Veteran’s lumbar spine disability is warranted for the rating period prior to February 21, 2018. Pursuant to the Board’s decision herein, the Veteran is now in receipt of a 40 percent rating for his lumbar spine disability for the entire rating period on appeal. The issue as to whether a rating in excess of 40 percent is warranted is addressed in the remand section below. Associated Neurologic Abnormalities The RO has assigned a separate 20 percent rating for right lower extremity radiculopathy, effective February 21, 2018. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Upon review of the evidence of record, the Board finds that the Veteran is entitled to 20 percent ratings for both the right and left lower extremities due to radiculopathy affecting the sciatic nerve for the entirety of the appeal period. As noted above, a January 2010 statement from the Veteran’s chiropractor indicated that the Veteran had severe low back pain with “radiculopathy to the left leg.” The October 2012 evaluation from the private physician noted that the Veteran had numbness and reduced pinprick sensation of the lower extremities. Further, the November 2013 VA examiner specifically diagnosed the Veteran with “moderate” incomplete paralysis of the right and left sciatic nerve roots. For these reasons, the Board finds that a 20 percent rating for left lower radiculopathy is granted for the entire rating period on appeal. As it pertains to the right lower extremity, the Board finds that a 20 percent rating is warranted for the period prior to February 21, 2018. As noted above, the Veteran is already in receipt of a 20 percent rating for the right lower extremity beginning February 21, 2018. Moreover, the Board finds that ratings in excess of 20 percent are not warranted for either extremity as there is no indication that the Veteran’s radiculopathy is more than moderate in nature. The evidence of record, to include private and VA medical evidence, does not show that the Veteran’s radiculopathy more nearly approximates “moderately severe” incomplete paralysis of the sciatic nerve roots. REASONS FOR REMAND Lumbar Spine Pursuant to the decision herein, the Veteran is now in receipt of a 40 percent rating for his lumbar spine disability throughout the entire rating period on appeal. The IVDS Formula provides a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to DC 5243 provides that, for purposes of ratings under DC 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. The Board finds that clarification is needed as to whether the Veteran’s lumbar spine disability has resulted in incapacitating episodes having a total duration of at least 6 weeks during any 12-month period during the appeal period. Specifically, clarification is needed as to whether the Veteran’s lumbar spine disability requires bed rest prescribed by a physician. In this regard, the November 2013 VA examiner noted that the Veteran had incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Prescribed bed rest by a physician was not discussed in the examination report. In a March 2016 VA treatment note, that Veteran’s gait was noted as unsteady and a notation of “bedridden/bedrest” was indicated. In November 2016 and December 2017 VA treatment notes, the Veteran complained of severe back pain, which was poorly controlled with medication. It was noted that the Veteran was “almost bedridden” in that he was only able to get up to shower and for meals. During the most recent February 2018 VA examination, the Veteran was noted to have IVDS, but no resulting incapacitating episodes were noted. As such, the Board finds that a new VA examination is required. The examiner is asked to specifically discuss the Veteran’s incapacitating episodes and whether they have resulted in bedrest prescribed by a physician. TDIU The Veteran has been awarded a TDIU beginning May 8, 2013. The issue of entitlement to a TDIU for the period prior to May 8, 2013, is intertwined with the claim being remanded. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991). Thus, adjudication of the TDIU claim is deferred. The matter is REMANDED for the following actions: 1. Obtain all VA treatment medical records not already of record. 2. Then, schedule the Veteran for a VA examination of his service-connected back disability. The examiner must review the claims file and note that review in the report. The examiner must specifically address whether there are any incapacitating episodes of intervertebral disc syndrome requiring treatment by a physician and bedrest prescribed by a physician. In rendering this opinion, the examiner must randomly address the November 2013 VA examination and VA treatment records noting that the Veteran’s gait was unsteady, as well as a notation of “bedridden/bedrest.” A complete rationale for all opinions expressed must be included in the examination report. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel