Citation Nr: 18158548 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-12 219 DATE: December 18, 2018 ORDER A rating in excess of 20 percent for a back disability is denied. Before February 22, 2016, a rating in excess of 10 percent for neurological symptoms of the Veteran’s back disability is denied; a rating in excess of 20 percent is denied thereafter. REMANDED ISSUES The issue of whether the character of the Veteran’s service from November 14, 2007, to January 26, 2010, is a bar to receiving Department of Veterans Affairs (VA) benefits based on this period is remanded. The issue of service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The Veteran’s back disability is not manifested by forward flexion functionally limited to 30 degrees or fewer, ankylosis, or incapacitating episodes of intervertebral disc disease (IVDS). 2. Before February 22, 2016, the neurological symptoms of the Veteran’s back disability caused no more than mild incomplete paralysis of the right lower extremity; since February 22, 2016, the neurological symptoms of the Veteran’s back disability caused no more than moderate incomplete paralysis of the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.59, 4.71a, Diagnostic Code 5242 (2018). 2. Before February 22, 2016, the criteria for a rating in excess of 10 percent for neurological symptoms were not met; after February 22, 2016, the criteria for a rating in excess of 20 percent for neurological symptoms have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code 8520 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 16, 1999, to July 3, 2012. He also had a period of dishonorable service that is not pertinent to the matter of an increased rating. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, staged ratings have been assigned, and as discussed below, the evidence does not support the assignment of any additional staged rating periods other than those discussed herein. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding—the evaluation of the same manifestation of a disability under different diagnostic codes—is to be avoided when rating a veteran’s service connected disabilities. 38 C.F.R. § 4.14. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon tie up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Spine disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R § 4.71a, Diagnostic Code 5242. The General Rating Formula for Diseases and Injuries of the Spine rates back disabilities as follows, in pertinent part: 20 percent: 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. 40 percent: Forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 50 percent: Unfavorable ankylosis of the entire thoracolumbar spine. 100 percent: Unfavorable ankylosis of the entire spine. 38 C.F.R § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2018). “Ankylosis” is immobility and consolidation of a joint due to a disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). The Formula for Rating IVDS Based on Incapacitating Episodes rates lumbar spine disabilities as follows, in pertinent part: 20 percent: Incapacitating episodes having a total duration of at least two weeks but fewer than four weeks during the past 12 months. 40 percent: Incapacitating episodes having a total duration of at least four weeks but fewer than six weeks during the past 12 months. 60 percent: Incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R § 4.71a, Diagnostic Code 5243 (2018). An “incapacitating episode” is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2018). Turning to the facts in this case, the Veteran filed her underlying claim for service connection for a back disability upon her July 2012 discharge from service. The Veteran underwent a VA examination in August 2012, at which time the examiner diagnosed her with degenerative disc disease of the lumbar spine. The Veteran experienced flare-ups, stating that she experienced pain in her legs and back. The Veteran had forward flexion to 60 degrees with pain, extension to 15 degrees with pain, bilateral lateral flexion to 25 degrees without pain, right lateral rotation to 15 degrees with pain, and left lateral rotation to 20 degrees with pain. Repetitive use testing resulted in a limitation of left lateral rotation to 15 degrees, but it did not otherwise result in an additional limitation of motion. The examiner noted that the Veteran had functional loss in the form of less movement than normal, painful movement, and interference with sitting, standing, or weight-bearing. The Veteran had tenderness to palpation, and she had guarding or muscle spasm that resulted in an abnormal gait. The examiner noted that the Veteran had IVDS with at least 1 week but fewer than 2 weeks of incapacitating episodes during the preceding 12 months. In November 2014, the Veteran reported experiencing worsening back pain. The Veteran was noted to have full flexion, extension, and bilateral side-bending. The Veteran had increased pain at the end of his ranges of motion. The Veteran underwent an additional VA examination in February 2016, at which time the examiner diagnosed the Veteran with IVDS, spinal fusion, and post-laminectomy pain syndrome. The Veteran experienced flare-ups of her disability, with an inability to walk for long distances or sit for long periods of time. The Veteran could not bend over to engage in activities such as scrubbing or doing yardwork. The Veteran had forward flexion to 70 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees, with pain at the endpoints of all ranges of motion. Repetitive use testing did not result in an additional limitation of motion. The Veteran experienced pain with weight-bearing. The examiner noted that the Veteran experienced functional loss in the form of a limited ability to perform tasks requiring bending forward or extending the spine to reach overhead. The Veteran had tenderness to palpation. Pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with flare-ups and repeated use over time, but the examiner could not express this limitation in terms of lost degrees of motion. The Veteran had tenderness and guarding resulting in abnormal gait or abnormal spinal contour, loss of lumbar lordosis, and limitations in stride length. The examiner noted that the Veteran had a remote history of IVDS but no current diagnosis. Turning to an analysis of the facts, the Veteran’s back disability is evaluated as 20 percent disabling under Diagnostic Code 5242, applicable to degenerative arthritis of the spine. The Veteran’s lumbar spine has not been ankylosed, or immobile, at any time. The record instead shows that the Veteran has maintained a range of motion in her spine since filing her claim. Thus, neither a 50 percent rating (requiring unfavorable ankylosis of the entire thoracolumbar spine), nor a 100 percent rating (requiring unfavorable ankylosis of the entire spine) is warranted at any time. The Board further finds that the Veteran’s forward flexion has never been limited to 30 degrees or fewer, even when taking pain into consideration. A 40 percent rating is unwarranted at any time because the Veteran did not show either ankylosis or flexion limited to 30 degrees or fewer. In reaching these conclusions, the Board considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered the effects of weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Although the Board accepts the Veteran’s assertions that her back disability causes her to experience pain, the Board has taken this into account in its above discussion of range of motion. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36 38 (2011). Furthermore, even when the Veteran’s complaints of pain are considered, the Board concludes that the overall manifestations of her spine disability generally do not demonstrate a degree of functional loss so as to warrant a higher rating. A rating in excess of 20 percent is unavailable under the formula for rating IVDS. A rating in excess of 20 percent based on IVDS would require incapacitating episodes with a total duration of at least four weeks during a 12 month period. In this case, to the extent that the Veteran indeed has IVDS, which has not been definitively established, bed rest has not been prescribed at any time during the course of the appeal. In sum, the criteria for a rating in excess of 20 percent based on IVDS have not been met. The Veteran’s neurological symptoms are rated 10 percent disabling for the right lower extremity before February 22, 2016, and 20 percent disabling thereafter. A 10 percent rating applies to mild incomplete paralysis; a 20 percent rating applies to moderate incomplete paralysis; a 40 percent rating applies to moderately severe incomplete paralysis, and; a 60 percent rating applies to severe incomplete paralysis with marked muscular atrophy. See 38 C.F.R. § 4.124a, Diagnostic Code 8620. While an 80 percent rating applies to complete paralysis of the sciatic nerve, the record contains no clinical evidence of complete paralysis, nor has the Veteran alleged that she has complete paralysis. Terms such as “mild”, “moderate”, and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. In August 2012, an examiner diagnosed the Veteran with radiculopathy. Muscle strength and sensory examinations were normal. Reflex testing was normal at the knees and hypoactive at the ankles. The examiner noted that the Veteran had mild intermittent pain, dysesthesias, and paresthesias of the bilateral lower extremities. The Veteran’s symptoms involved the right sciatic nerve root, but the examiner also indicated that neither of the Veteran’s lower extremities were affected by radiculopathy. In May 2014, the Veteran’s muscle strength and reflexes were normal. In November 2014, the Veteran complained of worsening right calf pain with standing and walking. The Veteran had diminished sensation to light touch of the right lower extremity. Muscle strength testing was normal. In February 2016, the Veteran reported having radiating pain in her right leg. The examiner diagnosed the Veteran with moderate right lower extremity radiculopathy at L5 and S1. The Veteran’s right hip flexion had active movement against some resistance, but muscle strength testing was otherwise normal. The examiner noted atrophy in the Veteran’s right calf. Reflex testing of the bilateral knees was hyperactive without clonus. Reflex testing of the right ankle was normal, and reflex testing of the left ankle was hypoactive. Sensory examination showed decreased sensation at the right lower leg, ankle, feet, and toes of the right lower extremity; sensory examination was otherwise normal. The examiner noted that the Veteran had moderate intermittent pain, paresthesias, and dysesthesias of the right lower extremity. The Veteran had mild numbness of the right lower extremity. The examiner found that the Veteran’s left lower extremity did not show signs of radiculopathy. A greater rating of the Veteran’s right lower extremity would require at least moderate incomplete paralysis before February 22, 2016, and at least moderately severe incomplete paralysis thereafter. Before February 22, 2016, the Veteran complained of subjective symptoms such as pain, dysesthesias, and paresthesias. The Veteran showed hypoactive reflexes of the right ankle in August 2012. Clinicians did not otherwise describe the Veteran’s right lower extremity symptoms as “moderate” in severity before February 22, 2016. With largely subjective symptoms before February 22, 2016, and only a mild impairment of right lower extremity reflexes, the Board finds that a rating in excess of 10 percent before February 22, 2016, which would require at least moderate incomplete paralysis, is unavailable. After February 22, 2016, the Veteran complained of radiating pain in her right leg, and clinical testing showed some reduction in muscle strength, some atrophy in the right calf, a hyperactive right knee reflex, and decreased sensory functioning in the right lower extremity. While the February 2016 examiner described the Veteran’s right neurological impairment as “moderate”, no clinician has described the Veteran’s right neurological symptoms as moderately severe or greater. The Board finds that such a symptom picture is appropriately rated at the current 20 percent rating. The Veteran’s symptoms of decreased strength, sensory functioning, and reflexes are consistent with the existing 20 percent rating. The Board finds that the symptoms affecting the Veteran’s right lower extremity have not been moderately severe or worse since February 22, 2016, and a greater rating than 20 percent is thus unavailable. While the Veteran may have some neurological symptoms affecting the left lower extremity, such symptoms do not approximate the mild incomplete paralysis that is associated with a compensable rating. In making this finding, the Board notes that in August 2012, the Veteran had a hypoactive reflex in the left ankle, and she complained of pain, dysesthesias, and paresthesias. The examiner found that the Veteran did not have radiculopathy of the left lower extremity. In May 2014, muscle strength and reflex testing of the left lower extremity were normal. In February 2016, the Veteran had a hyperactive reflex of the left knee and a hypoactive reflex of the left ankle; sensory examination was normal. The February 2016 examiner found that the Veteran did not have radiculopathy affecting the left lower extremity. The record shows some abnormal reflex testing and occasional subjective complaints of symptoms affecting the left lower extremity. The Board finds that such symptoms do not rise to the level of mild incomplete paralysis, and a compensable rating addressing neurological manifestations of the Veteran’s left lower extremity is unwarranted. REASONS FOR REMAND The Veteran served on active duty from November 16, 1999, to July 3, 2012. Certain facts in this case are not in dispute. VA has previously found that the nature of the Veteran’s service from November 16, 1999, to November 13, 2007, is not a bar to receiving VA benefits. The Veteran herself has conceded that the nature of her service from either January 27, 2010, or November 4, 2010, to July 3, 2012, is dishonorable and therefore a bar to receiving VA benefits. What remains at issue, then, is whether the Veteran’s period of service from November 14, 2007, to January 26, 2010, is a bar to receiving VA benefits based on this period of service. The Veteran’s personnel records have largely been associated with the record. The Veteran enlisted into service with the Army on November 16, 1999, and available documentation shows that she reenlisted on a number of occasions, with reenlistment documentation showing a last obligated period of service ending on January 26, 2010. The Veteran’s service separation document suggests that the Veteran again reenlisted on January 27, 2010. The Veteran received an honorable discharge certificate on November 3, 2010, and she reenlisted on November 4, 2010, for an indefinite period of obligation. Pursuant to charges of misconduct occurring between approximately June 1, 2011, to January 27, 2012, the Veteran requested a discharge from the service in lieu of trial by general court-martial. The Veteran’s command approved this request, and the Veteran separated from service under other than honorable conditions on July 3, 2012. Documentation associated with the Veteran’s January 27, 2010, reenlistment contract has not yet been associated with the record. This omission is significant because VA must determine the date when the Veteran’s dishonorable period of service began, with the evidence of record currently suggesting that such date is either January 27, 2010, or November 4, 2010. The Agency of Original Jurisdiction (AOJ) should therefore undertake all appropriate efforts to obtain documentation associated with the Veteran’s January 27, 2010, reenlistment contract. The Board finds the issue of service connection for an acquired psychiatric disability, to include PTSD, is intertwined with the determination of whether the character of the Veteran’s service from November 14, 2007, to January 26, 2010 bars the receipt of VA benefits based on this period. The matters are REMANDED for the following action: Undertake all appropriate efforts to obtain documentation associated with the Veteran’s January 27, 2010, reenlistment contract, or the circumstances by which the Veteran’s enlistment was otherwise extended beyond January 26, 2010. If such records are unavailable after making all appropriate requests, issue a formal finding documenting the unavailability of such records and inform the Veteran of such unavailability. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Flynn