Citation Nr: 18161175 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 18-43 657 DATE: December 28, 2018 ORDER Entitlement to a rating in excess of 40 percent for residuals, hemilaminectomy for ruptured pulposus, right L4-5 prior to September 20, 2018 is denied. Entitlement to a 60 percent rating, but no higher, for residuals, hemilaminectomy for ruptured pulposus, right L4-5 (low back disability) from September 20, 2018 is granted. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to September 20, 2018 is denied. Entitlement to an initial 40 percent rating, but no higher, for right lower extremity radiculopathy from September 20, 2018 is granted FINDINGS OF FACT 1. Prior to September 20, 2018, the Veteran’s low back disability was manifested by decreased range of motion with pain, but there was no evidence of unfavorable ankylosis of the thoracolumbar spine. At no time during this stage of the appeal was the service-connected low back disability manifested by incapacitating episodes having a total duration of at least 6 weeks in any 12-month period. 2. Resolving all reasonable doubt in favor of the Veteran, from September 20, 2018, the Veteran’s low back disability has been manifested by incapacitating episodes having a total duration of at least 6 weeks in any 12-month period. 3. Prior to September 20, 2018, the Veteran’s right lower extremity radiculopathy was mild in nature. 4. Resolving all reasonable doubt in favor of the Veteran, from September 20, 2018, the Veteran’s right lower extremity radiculopathy has been moderately severe in nature. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent prior to September 20, 2018 for residuals, hemilaminectomy for ruptured pulposus, right L4-5 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). 2. The criteria for a 60 percent rating, but no higher, for residuals, hemilaminectomy for ruptured pulposus, right L4-5 have been met as of September 20, 2018. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). 3. The criteria for an initial rating in excess of 10 percent prior to September 20, 2018 for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8620 (2017). 4. The criteria for an initial 40 percent rating, but no higher, for right lower extremity radiculopathy have been met as of September 20, 2018. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8620 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1942 to January 1946 and from December 1947 to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Portland, Oregon. Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous...” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 1. Entitlement to a rating in excess of 40 percent for residuals, hemilaminectomy for ruptured pulposus, right L4-5 The Veteran’s service-connected low back disability has been evaluated under Diagnostic Code 5243 for intervertebral disc syndrome. Under the General Rating Formula, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Id. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Id. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Under Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Unfavorable ankylosis is a condition in which 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, General Rating Formula for Diseases and Injuries of the Spine, Note (5). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59 (2017). Pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). It is, however, VA’s policy to grant at least the minimal compensable rating for actually painful motion. 38 C.F.R. § 4.59. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5423 (2017) provides that 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. Factual Background The Veteran was provided a VA examination in February 2017. The examiner noted that the Veteran’s back pain had worsened since previous examinations. The Veteran no longer walked due to pain and was wheelchair mobile. He could transfer himself from bed to wheelchair, but ideally should have stand assistance due to balance issues. The appellant’s pain was constant and radiated into his lower extremities. It was aggravated by bending, twisting, or standing. The Veteran reported flare-ups described as increased pain with any movement. Additionally, he had functional loss or functional impairment of the lumbar spine, which he described as less movement with pain. Range of motion testing could not be conducted. In this regard, the examiner noted that the Veteran was in a wheelchair and when he assisted him to stand, the appellant was unable to straighten up. When he tried, he fell forward. However, in the wheelchair, he could lean side to side with pain. The examiner reported that pain on examination caused functional loss. There was also pain on weightbearing, but no objective evidence of localized tenderness or pain on palpitation of the joints or associated soft tissue. The examiner determined that pain, weakness, and incoordination significantly limited functional ability with repeated used over time, but he was unable to describe such limitations in terms of range of motion. Additionally, the examiner was unable to state without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-up. In so finding, he noted that the appellant was not observed during a flare-up. Guarding and muscle spasms were also found on examination, however, the examiner could not provide a description for such symptoms because the Veteran was in a wheelchair and was unable to ambulate. On muscle strength testing, the Veteran had active movement against some resistance in hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. Reflex examination results showed hyperactivity without clonus in the knees and hypoactivity in the ankles. Sensory examination showed decreased sensation to light touch in the right upper anterior, right thigh/knee, right and left lower leg/ankle, and right and left foot/toes. The Veteran was unable to perform straight leg raising test. Radiculopathy involving the bilateral sciatic nerves was also found on examination. The disability was manifested by moderate paresthesias and/or dysesthesias in the right lower extremity, mild paresthesias and/or dysesthesias in the left lower extremity, and mild numbness in the right lower extremity. The examiner determined that the radiculopathy was mild in severity. There was no ankylosis on examination. Intervertebral disc syndrome was noted, but the Veteran had not had any episodes of acute signs and symptoms that required bed rest prescribed and treatment by a physician in the past 12 months. With regard to other pertinent findings, the examiner noted that the Veteran was unable to stand straight and was slow to move. He could put on his shoes but was unable to dress himself without difficulty, and was unable to bathe. There was also a scar, but it was not painful or unstable and did not have a total area equal to or greater than 39 square centimeters. The examiner reported that he was unable to measure the scar. Regarding functional impact, the Veteran was found to need assistance with activities of daily living and instrumental activities of daily living. In the report of a May 2017 back disability benefits questionnaire provided by a private physician, chronic back pain was documented. Flare-ups were also reported, which caused back pain to worsen. With regard to functional loss or functional impairment, it was noted that the Veteran was wheelchair bound. The physician indicated that repetitive use testing could not be conducted due to the Veteran’s dementia. Additionally, weightbearing and non-weightbearing testing was not conducted because the Veteran was in a wheelchair. There was no localized tenderness or pain on palpitation or guarding or muscle spasms. The Veteran’s spinal contour was normal. Contributing factors of the Veteran’s lumbar spine disability included atrophy and disturbance of locomotion. Muscle strength testing revealed active movement with gravity eliminated. The physician indicated that the Veteran had muscle atrophy in the calf. On sensory examination, the physician found that the Veteran had a difficult time understanding. There were no results provided. However, it was documented that position sense, vibration sensation, and cold sensation were absent in the bilateral lower extremities. The Veteran was unable to perform straight left raising testing. The physician did not conduct testing for radicular pain. Additionally, he did not identify or detail intervertebral disc syndrome and incapacitating episodes. In correspondence received in July 2017, it was reported that the Veteran suffered from ongoing incapacitation due to his service-connected low back disability and right lower extremity radiculopathy. In the Veteran’s December 2017 notice of disagreement, he requested a new VA examination. Specifically, he contended that the disability benefit questionnaire did not include range of motion and was therefore inadequate. In a September 2018 statement from the Veteran’s primary care provider, she reported that in the past 12 months, the Veteran’s incapacitating episodes far exceeded VA’s 6-week total to receive a higher rating. Further, when the Veteran is not incapacitated, he is bound to his wheelchair due to his back disorder. Analysis After reviewing the evidence, and resolving doubt in favor of the Veteran, the Board finds that a 60 percent rating for the Veteran’s low back disability is warranted from September 20, 2018. However, the preponderance of the evidence is against a rating in excess of 40 percent prior to September 20, 2018. Prior to September 20, 2018, the Veteran’s low back disability was manifested by decreased range of motion and pain. As noted herein, in order to warrant a rating in excess of 40 percent under the applicable rating criteria, the Veteran’s disability must be manifested by unfavorable ankylosis of the entire thoracolumbar spine. The clinical evidence, however, establishes that the Veteran has retained motion in his spine, although with noted complaints of pain. Although range of motion testing could not be conducted, the February 2017 VA examiner indicated that the Veteran was able to lean side to side in his wheelchair. The fact that the appellant’s spine manifests some range of motion is evidence of the absence of unfavorable ankylosis. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure”). The evidence further reflects that he exhibits none of the indicia of ankylosis as set forth in 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5), such as a limited line of vision, restricting opening of the mouth, etc. In reaching this conclusion, the Board acknowledges the lay contentions of record asserting that the examinations are inadequate because range of motion testing was unable to be performed. However, as detailed herein, the next-higher rating is based on a finding of ankylosis, not range of motion testing. Thus, absent a finding of unfavorable ankylosis, which has not been shown by the evidence of record, a rating in excess of 40 percent is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5243. Additionally, the Board has considered whether a higher rating is warranted based on incapacitating episodes. However, the clinical records contain no indication that the appellant has been prescribed bed rest by any physician for his low back disability. The Board knowledges the lay contentions asserting that the Veteran suffered from ongoing incapacitation due to his service-connected low back disability. However, the evidence does not suggest that the appellant had incapacitating episodes having a total duration of at least 6 weeks during the past 12 months during the period in question. In so finding, the February 2017 VA examiner indicated that the Veteran’s intervertebral disc syndrome did not require prescribed bedrest. Further, the private physician who conducted the May 2017 examination did not discuss or report any incapacitating episodes caused by the Veteran’s low back disability. As such, a rating in excess of 40 percent is not warranted for incapacitating episodes. The Board has considered additional limitation of function per 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the record is clear that the Veteran experiences significant pain. Pain itself does not constitute functional loss. Rather, the pain must produce functional loss which results in disability which more nearly approximates the next higher rating in order to warrant a higher rating. After reviewing the record, the Board concludes that the objective evidence does not reflect the functional equivalent of symptoms, supported by adequate pathology, required for the assignment of a rating in excess of those assigned herein based on functional loss, including due to pain. Moreover, to the extent that the examinations may be deficient in not estimating additional functional limitation during periods of flare-up and on repeated use, such is harmless error, because without a showing of ankylosis, the disability picture does not most nearly approximate the next-higher rating percentage. From September 20, 2018, the Veteran’s low back disability has been manifested by incapacitating episodes having a total duration of at least 6 weeks during the last 12 months. In this regard, in correspondence from the Veteran’s primary care physician received in September 2018, she asserted that in the last 12 months, the Veteran’s incapacitating episodes far exceeded VA’s 6-week total requirement to receive the higher benefit. Thus, resolving all doubt in favor of the Veteran, a 60 percent rating, is warranted for the Veteran’s low back disability from September 20, 2018. 38 C.F.R. § 4.71a, Diagnostic Codes 5243. However, the preponderance of the evidence is against the finding of a rating in excess of 60 percent from September 20, 2018. In this regard, neither the Veteran nor the evidence suggests that there in unfavorable ankylosis of the entire spine. Id. Additionally, the Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the Veteran’s low back disability could not receive a higher rating under an analogous diagnostic code. See 38 C.F.R. § 4.115(b). The Board observes that in the report of the February 2017 VA examination, it was noted that the Veteran has a scar associated with his low back disability. However, the scar was not found to be painful or unstable and did not cover an area or areas of at least 6 square inches. See 38 C.F.R. § 4.118, Diagnostic Code 7801. Therefore, a separate rating for a scar is not warranted. In sum, the Board finds that a 60 percent rating for the Veteran’s low back disability is warranted as of September 20, 2018. However, the preponderance of the evidence is against assignment of a rating in excess of 40 percent prior to September 20, 2018. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy The Veteran’s service-connected right lower extremity radiculopathy has been evaluated under Diagnostic Code 8620, which contemplates neuritis of the sciatic nerve. Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. Paralysis of the sciatic nerve, such as that caused by sciatica, is rated under Diagnostic Code 8520. 38 C.F.R. § 4.124a. Under the applicable rating criteria, mild incomplete neuritis is rated 10 percent disabling; moderate incomplete neuritis is rated 20 percent disabling; moderately severe incomplete neuritis is rated 40 percent disabling; and severe incomplete neuritis, with marked muscular atrophy, is rated 60 percent disabling. Complete neuritis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a. 38 C.F.R. § 4.123 provides that neuritis, 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. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Factual Background The Veteran was provided a VA peripheral nerves examination in February 2017. At that time, he described numbness radiating down both legs. Symptoms associated with the right lower extremity included moderate paresthesias and/or dysesthesias and mild numbness. Muscle strength testing showed active movement against some resistance on knee extension, ankle plantar flexion, and ankle dorsiflexion. The examiner indicated that there was no muscle atrophy. Reflex tendon results showed hypoactivity in the ankle and hyperactivity with clonus in the knee. Sensory examination revealed decreased sensation in the thigh/knee, lower leg/ankle, and foot/toes. With regard to tropic changes, the appellant had dry skin with minimal hair. It was noted that the Veteran did not have a normal gait due to back pain. The examiner determined that the Veteran’s radiculopathy affected the right sciatic nerve. It caused incomplete paralysis that was mild in severity. In the report of a May 2017 back disability benefits questionnaire provided by a private physician, it was noted that muscle strength testing revealed active movement with gravity eliminated. The physician indicated that the Veteran had muscle atrophy in the calf. On sensory examination, the physician found that the Veteran had a difficult time understanding. There were no results provided. However, it was noted that position sense, vibration sensation, and cold sensation were absent in the bilateral lower extremities. The Veteran was unable to perform straight left raising testing. The physician did not conduct testing for radicular pain. In a September 2018 statement from the Veteran’s primary care physician, she indicated that the Veteran’s radiculopathy is more closely commensurate with a moderately severe disability picture. Analysis After reviewing the evidence, and resolving doubt in favor of the Veteran, the Board finds that a 40 percent rating for the Veteran’s right lower extremity radiculopathy is warranted from September 20, 2018. However, the preponderance of the evidence is against a rating in excess of 10 percent prior to September 20, 2018. Prior to September 20, 2018, the Veteran’s right lower extremity radiculopathy was manifested by symptoms which were found by the VA examiner to cause no more than mild incomplete radiculopathy. The diagnosed peripheral nerve disability was not shown to cause moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis, or complete paralysis of the right lower extremity. As detailed above, the appellant was provided VA examination in February 2017 in support of his claim. At that time, the Veteran reported numbness in the right lower extremity. Objective clinical testing showed moderate paresthesias and/or dysesthesias and mild numbness and tropic changes. Following, muscle strength testing, reflex tendon testing, and sensory examination, the VA examiner concluded that the Veteran’s symptoms resulted in mild incomplete paralysis of the right lower extremity. The Board observes that no medical professional has characterized the Veteran’s disability as more than mild in severity. Neither the Veteran nor his representative has pointed to any evidence which would support a rating in excess of 10 percent. Symptoms have included complaints of numbness, which are contemplated by the current 10 percent ratings. The Board acknowledges that the May 2017 private physician indicated that the Veteran had muscle trophy of the right calf, however, no testing was conducted. Conversely, following objective testing, the VA examiner determined that there was no evidence of muscle atrophy. Given the evidence of record, as well as the examiner’s characterizations of the disability as no more than mild, the Board concludes that the record reflects that a higher rating is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8620. From September 2018, the Veteran’s right lower extremity radiculopathy was manifested by symptoms which were found to be moderately severe. As noted herein, in correspondence received in September 2018, the Veteran’s treating physician opined that the Veteran’s radiculopathy was best characterized as moderately serve. There is no evidence to contradict this finding. Thus, resolving all doubt in favor of the Veteran, a 40 percent rating is warranted from September 20, 2018. However, the preponderance of the evidence is against the award of a rating in excess of 40 percent. In this regard, the evidence does not show severe incomplete paralysis, or complete paralysis of the right lower extremity. Neither the Veteran nor his representative contend otherwise. As such, a higher rating is not warranted. Id. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the Veteran’s radiculopathy of the right lower extremity would not receive a higher rating under an analogous diagnostic code as no more than mild or moderately severe impairment has been shown. See 38 C.F.R. § 4.124(a). In sum, the Board finds the Board finds that a 40 percent rating for the Veteran’s radiculopathy of the right lower extremity is warranted as of September 20, 2018. However, the preponderance of the evidence is against assignment of a rating in excess of 10 percent prior to September 20, 2018. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel