Citation Nr: 18159145 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 12-35 810 DATE: December 18, 2018 ORDER A 40 percent rating since February 9, 2010, for thoracolumbar degenerative arthritis is granted. A 20 percent rating from February 9, 2010, to September 20, 2017, for right lower extremity radiculopathy is granted. A 20 percent rating from February 9, 2010, to September 20, 2017, for left lower extremity radiculopathy is granted. A rating of more than 20 percent since September 21, 2017, for right lower extremity radiculopathy is denied. A rating of more than 20 percent since September 21, 2017, for left lower extremity radiculopathy is denied. REMANDED The issue of an increased rating since February 9, 2010, for shell fragment wound of the right knee with a retained foreign body, currently rated as 10 percent for limitation of motion and 10 percent for muscle group XIII injury is remanded. FINDINGS OF FACT Since February 9, 2010, the Veteran’s thoracolumbar degenerative arthritis with right and left lower extremity radiculopathy caused scoliosis, spondylosis, degenerative joint disease (DJD), and stenosis; pain, stiffness, tenderness, fatigue, spasms, weakness, flare-ups, antalgic gait, disc bulging, positive straight leg tests, and difficulty bending; prevented walking for more than 2 blocks, standing for more than 20 minutes, sitting for more than 30 minutes, squatting, climbing more than 1 flight of stairs, and walking on toes or heels; interfered with sleeping; required use of a back brace, pain medication, and steroid injections; resulted in flexion limited to 22 degrees, extension limited to 8 degrees, right lateral flexion to 9 degrees, left lateral flexion limited to 10 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees; and caused lower extremity symptoms of no reflexes, decreased sensation, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and numbness. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, since February 9, 2010, for thoracolumbar degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for a rating of 20 percent, from February 9, 2010, to September 20, 2017, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8620 (2017). 3. The criteria for a rating of 20 percent, from February 9, 2010, to September 20, 2017, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8620 (2017). 4. The criteria for a rating of more than 20 percent, since September 21, 2017, for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8620 (2017). 5. The criteria for a rating of more than 20 percent, since September 21, 2017, for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8620 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from November 1968 to November 1988. His military decorations include the Purple Heart, Combat Infantryman’s Badge, and the Master Parachutist Badge. Effective August 2012, the Veteran is in receipt of a total disability evaluation based on individual unemployability. In June 2016, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. Entitlement to a rating of more than 20 percent since February 9, 2010, for thoracolumbar degenerative arthritis, to include separate compensable ratings for right and left lower extremity radiculopathy, currently rated as 20 percent each since September 21, 2017. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Diagnostic Code 5242 provides ratings for degenerative arthritis of the spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). There are also several relevant note provisions associated with Diagnostic Code 5242. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran’s right and left lower extremity radiculopathy is rated according to diagnostic code 8620 for neuritis of the sciatic nerve. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. A 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8620. A March 2010 private X-ray study indicates that the Veteran had mild scoliosis and mild spondylosis of the thoracic spine. In April 2010, the Veteran was afforded a VA examination. He reported symptoms of constant, mild pain; stiffness; fatigue; spasms; decreased motion; paresthesia; numbness; and weakness. He had no bowel or bladder symptoms associated with his low back disorder. His symptoms worsened with physical activity and improved with rest. He reported flare-ups that did not cause functional impairment or limitation of motion. He had not had any incapacitation in the prior 12 months. On examination, the Veteran had no muscle spasm, no guarding, no tenderness, no weakness, normal muscle tone, no atrophy, and no ankylosis. He had flexion to 60 degrees with pain, extension to 20 degrees with pain, right lateral flexion to 20 degrees with pain, left lateral flexion to 30 degrees, right rotation to 30 degrees, and left rotation to 30 degrees. He had no additional loss of range of motion following repeated use. He had no neurological impairment and did not have Intervertebral Disc Syndrome (IVDS). In July 2010, the Veteran was afforded another VA examination. He reported increased pain and muscle spasms, for which he had been prescribed pain medication. He had no bowel or bladder symptoms associated with his back disorder. He had back stiffness, spasms, and moderate to severe, constant pain. He had no incapacitating episodes, a normal gait, no abnormal spine curvature, and no ankylosis. He had active range of motion of flexion to 90 degrees, extension to 30 degrees, and left and right lateral flexion and left and right lateral rotation to 30 degrees each. There was no pain on active range of motion and no loss of range of motion on repeated use. Lower extremity sensory testing was normal, muscle tone was normal, and there was no muscle atrophy. X-ray studies indicated degenerative changes in the thoracic and lumbar spine. A November 2011 private medical evaluation indicates that the Veteran had intermittent sharp back pain. He had previously been running 2 miles, 3 times per week but had to quit in 2011. At the time of evaluation, he could walk 2 blocks, stand for 20 minutes, sit for 30 minutes, lift 30 pounds level and 15 pounds overhead, could bend, could not squat, and could climb 1 flight of stairs. He reported that the pain interfered with his sleep. He had a mildly antalgic gait, could not walk on his toes or heels, and moved slowly. He had no reflexes in the lower extremities. He was diagnosed with arthritis. December 2011 Social Security Administration (SSA) records indicate that the Veteran occasionally carried 20 pounds, frequently carried 10 pounds, stood or walked for at least 2 hours out of an 8-hour work day, and sat for about 6 hours out of an 8-hour work day. It was noted that he could stand or walk up to 4 hours per day. He was occasionally limited in climbing, balancing, stooping, kneeling, crouching, and crawling. In August 2012, the Veteran was afforded another VA examination. He reported constant pain at a level 8 out of 10 and spasms in his back. He had received steroid injections. On examination, he had flexion to 90 degrees, extension to 30 degrees, and right and left lateral flexion and lateral rotation to 30 degrees each. There was no objective evidence of pain on motion. He had no additional loss of range of motion following repeated use. He had functional impairment due to pain on movement. He had no guarding, muscle spasm, abnormal gait, or abnormal spinal contour. Muscle strength testing was normal and there was no muscle atrophy. Reflexes and sensory testing were normal. The examiner did not indicate whether the Veteran had radiculopathy but indicated that there were no other neurological impairments due to the back disorder. He had no IVDS and used no assistive devices. The examiner indicated that the Veteran should avoid heavy or unassisted lifting; repetitive rotation of the back; carrying, pushing, or pulling heavy objects; vibrational stresses; overhead work; prolonged sitting; and prolonged standing; and he should take frequent rest breaks. An April 2014 statement from the Veteran’s VA physician states that he had pain which increased with lifting, bending, prolonged sitting, and prolonged standing. His symptoms were relieved with pain medication. VA treatment records dated between October 2013 and June 2017 indicate diagnoses of spondylosis, DJD, and stenosis and symptoms of tenderness, decreased sensation, pain, muscle spasms, no radicular symptoms, positive straight leg raise tests, disc bulging, degenerative changes, and flexion to 55 degrees with pain, extension to 45 degrees with pain, right and left lateral bending to 25 degrees each with pain, and right and left lateral rotation to 45 degrees each with pain. He used of back brace and took prescription pain medication. In September 2017, the Veteran was afforded a VA examination. He reported flare-ups resulting in sharp pain, that he needed help to stand up due to pain, that he was unable to sit for prolonged periods of time, and that pain interfered with his sleep. On examination, he had flexion to 65 degrees with pain, extension to 20 degrees with pain, right and left lateral flexion to 25 degrees each, and right and left lateral rotation to 30 degrees each. The pain noted on flexion and extension did not cause functional loss. He had no additional loss of range of motion following repeated use. The examiner noted that passive range of motion testing was not performed as it was not safe. There was pain on weight-bearing, but no pain on non weight-bearing. Pain significantly limited functional ability with repeated use over a period of time and with flare-ups. He had muscle spasm resulting in an abnormal gait or abnormal spinal contour. Muscle strength testing was normal and there was no muscle atrophy. Reflexes were normal and he had decreased sensation in his thighs and knees. Straight leg raising tests were positive. He had bilateral symptoms of radiculopathy including moderate intermittent pain, moderate paresthesias and/or dysesthesias, and numbness. The examiner indicated that radiculopathy involved the right and left sciatic nerves. He had no ankylosis of the spine and no other neurologic abnormalities associated with his back disorder. He did not have IVDS. An April 2018 private treatment record indicates that the Veteran reported pain in his back, difficulty bending, difficulty sitting, and pain which interfered with sleep. He stated that he did not have pain radiating to the hips or legs. He had flexion to 22 degrees, extension to 8 degrees, right lateral flexion to 9 degrees, and left lateral flexion to 10 degrees. Since February 9, 2010, the Veteran’s thoracolumbar degenerative arthritis with right and left lower extremity radiculopathy caused scoliosis, spondylosis, DJD, and stenosis; pain, stiffness, tenderness, fatigue, spasms, weakness, flare-ups, antalgic gait, disc bulging, positive straight leg tests, and difficulty bending; prevented walking for more than 2 blocks, standing for more than 20 minutes, sitting for more than 30 minutes, squatting, climbing more than 1 flight of stairs, and walking on toes or heels; interfered with sleeping; required use of a back brace, pain medication, and steroid injections; resulted in flexion limited to 22 degrees, extension limited to 8 degrees, right lateral flexion to 9 degrees, left lateral flexion limited to 10 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees; and caused lower extremity symptoms of no reflexes, decreased sensation, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and numbness. Given these facts, the Board finds that a 40 percent rating most closely approximates the Veteran’s lumbar spine limitation of motion and functional impairment during the relevant period. The Board also finds that a 20 percent rating is warranted for right and left lower extremity radiculopathy throughout the entire period on appeal. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). A 50 percent rating is not warranted for the lumbar spine symptoms as the Veteran did not have ankylosis. A 40 percent rating is not warranted for right and left lower extremity radiculopathy as no examiner indicated that the Veteran’s symptoms were moderately severe and symptoms were not consistently detectable. REASONS FOR REMAND The issue of an increased rating since February 9, 2010, for shell fragment wound of the right knee with a retained foreign body, currently rated as 10 percent for limitation of motion and 10 percent for muscle group XIII injury is remanded. The matter is REMANDED for the following action: 1. Reason for the remand: In an August 2018 informal hearing presentation (IHP), the Veteran reported that his right knee shell fragment wound with a retained foreign body had worsened since his September 2017 VA examinations. Therefore, remand is necessary to afford the Veteran updated examinations. 2. Schedule the Veteran for VA examinations to obtain an opinion as to the current severity of his right knee shell fragment wound residuals. The following examinations must be conducted: (1) muscle group injuries examination, (2) knee examination, and (3) scars examination. If the Veteran has other residuals from his right knee shell fragment wound with retained foreign body (ie. neurological symptoms), schedule the Veteran for examinations to document those symptoms. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 3. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel