Citation Nr: 1806783	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  09-14 740	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wilmington, Delaware


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for depression.

2.  Entitlement to a rating in excess of 40 percent for chronic lumbosacral strain/sprain syndrome superimposed upon disc disease ("low back disability").

3.  Entitlement to a rating in excess of 10 percent for left sciatic nerve radiculopathy.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Schechner, Counsel
INTRODUCTION

The appellant is a Veteran who served on active duty from August 1978 to March 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran's claims file is in the jurisdiction of the Wilmington, Delaware RO.  In August 2012 a videoconference Board hearing was held before the undersigned; a transcript is in the record.  In December 2012, the Board remanded the matters for additional development.

[A September 2017 rating decision granted service connection (and separate compensable ratings) for right sciatic radiculopathy and left femoral radiculopathy.  Those ratings have not been appealed, and are not at issue herein.]

The matter of entitlement to a total disability rating based on individual unemployability (TDIU), raised in the context of the claim seeking an increased rating for low back disability, is being REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if action  is required. 


FINDINGS OF FACT

1.  An unappealed September 2005 rating decision denied the Veteran service connection for depression based essentially on a finding that any such disability was unrelated to his service.   

2.  Evidence received since the September 2005 rating decision is cumulative or does not tend to show that the Veteran's depression is related to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for depression; and does not raise a reasonable possibility of substantiating such claim.

3.  The Veteran's low back disability is not shown to have been manifested by unfavorable ankylosis of the entire thoracolumbar spine; incapacitating episodes of thoracolumbar disc disease and additional (to bilateral lower extremity radiculopathy) separately ratable neurological manifestations are not shown.

4.  The Veteran's left sciatic nerve radiculopathy is reasonably shown to be manifested by moderate, but not greater, incomplete paralysis of the sciatic nerve; moderately severe incomplete paralysis of the sciatic nerve is not shown.


CONCLUSIONS OF LAW

1.  New and material evidence has not been received, and the claim of service connection for depression may not be reopened.  38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. § 3.156(a)(2017).

2.  A rating in excess of 40 percent for low back disability is not warranted.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5243 (2017).

3.  A 20 percent rating is warranted for the Veteran's left sciatic nerve radiculopathy.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.21, 4.124a, Code 8520 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  VA's duty to notify was satisfied by correspondence in November 2006, May 2007, and August 2008.  See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159.  

The Veteran has not raised any issues with VA's duties to notify and assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ( "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  A deficiency in notice provided at a hearing (under Bryant v. Shinseki, 23 Vet. App. 488 (2010)), is not alleged (see Dickens and Scott).  The Board finds there has been substantial compliance with its December 2012 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) 

Legal Criteria, Factual Background, and Analysis

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.)  Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims.   

New and material evidence to reopen a claim of service connection for depression

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered.  38 U.S.C. § 7105.  However, a claim on which there is a final decision may be reopened if new and material evidence is submitted.  38 U.S.C. § 5108.

"New" evidence means existing evidence not previously submitted to agency decision-makers.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003).

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

A disorder first diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

Lay evidence may be competent evidence to establish incurrence.   See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement.  The Court interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding opening".  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claims.  If so, the claim is denied; however, if the evidence is in support of the claim, or is in equal balance, the claim is allowed.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102. 

The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U.S. Court of Appeals for Veterans Claims (CAVC) held that the scope of a claim of service connection for a specific psychiatric diagnostic entity encompasses other psychiatric diagnoses shown.  As the CAVC further noted, however, in claims to reopen where a previous final determination was limited to a specific diagnosis, a claim of service connection for a diagnosis other than the specific one previously adjudicated is a separate and distinct claim, rather than becoming part and parcel of the claim previously finally decided.  Accordingly, the scope of the claim to reopen a claim of service connection for depression is limited to that specific entity.

Regarding the claim to reopen, the Board observes that evidence associated with the claims file since the issuance of the previous denial includes service personnel records that were not previously associated with the record.  A VA regulation provides that if at any time after VA issues a decision on a claim VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA decided the claim, VA will reconsider the claim (de novo) (in which case reopening would not be necessary).  38 C.F.R. § 3.156(c)(1)(i).  Here, the newly received service personnel records do not contain information pertaining to the claim to reopen (and do not require de novo consideration of the claim under § 3.156(c)(1)(i)).
The Veteran seeks to reopen a claim of service connection for depression which he contends is either directly related to his service or, in the alternative, is secondary to his service-connected lumbar spine disability.

A September 2005 rating decision denied the Veteran service connection for depression, based essentially on a finding that such disability was not shown to be related to his service.  New and material evidence was not received within one year following the September 2005 decision.

The evidence of record at the time of the September 2005 rating decision included the Veteran's STRs, his lay statements, and VA and private treatment records.

The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis of depression.  On July 1978 service enlistment examination, he reported frequent trouble sleeping and depression or excessive worry.  On January 1980 service separation examination, psychiatric clinical evaluation was normal; in a contemporaneous report of medical history, he denied frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort.  In March 1980, he reported difficulty waking up from sleeping for the previous 2 weeks, falling asleep at work, losing weight and not eating well; the following week, he reported feeling less tired, and that his buddy was waking him up in the morning.

In June 1999, the Veteran was referred for VA substance abuse treatment for cocaine, alcohol and marijuana dependency.  He reported a history of drinking and using cocaine and marijuana for 20 years.   He reported that he had completed a substance abuse program in Boston in 1992 and stayed in recovery for 8 months.  In October 1999, he was admitted to a private facility complaining of hearing voices telling him to kill himself and was referred to the VA facility.  He reported that he had never been in treatment.  He denied suicidal or homicidal ideation but admitted to depression.
On February 2003 VA treatment, the Veteran reported feeling depressed during the previous month, reporting that he had recently separated from his fiancée and, despite being declared eligible for worker's compensation for an on the job back injury had not received any because his employer was uninsured.  He reported difficulty sleeping including PTSD-related nightmares associated with being the target of a murder attempt.  He reported suicidal ideation and attempt.  He was noted to have a history of cocaine abuse.  He reported having diagnoses of bipolar disorder and PTSD.  The assessments included substance-induced mood/psychotic disorders, cocaine abuse, bipolar disorder by history, and PTSD by history.  On February 2004 VA treatment, he was noted to have a long history of cocaine dependence, and began using in 1983; the diagnoses included cocaine and alcohol dependence and substance induced mood disorder.  On July 2004 VA admission, the impressions included alcohol dependence x 20 years, cocaine dependence x 20 years, PTSD and bipolar disorder.  Additional VA treatment records note treatment for depression, bipolar disorder, and substance dependence.

Evidence received since the September 2005 rating decision includes VA and private treatment records, and lay statements and testimony from the Veteran.

In October 2006, the Veteran was admitted for bipolar disorder and cocaine and alcohol dependence.  In January 2011, he was admitted for mental health treatment; the diagnoses were major depressive disorder, bipolar disorder, PTSD, and cocaine dependence.

At the August 2012 Board hearing, the Veteran testified that while he was stationed in Spokane, Washington in 1978 he got into an altercation with another soldier.  He testified that another altercation occurred shortly before he was discharged from service.  He testified that he sought treatment for depression within six years following separation from service.

On July 2017 VA psychological assessment, the Veteran reported that he wanted to clarify his diagnoses to help inform future treatment.  He reported that he had recently received inpatient psychiatric treatment after relapsing on cocaine and expressing homicidal ideation towards friends who (he believed) had robbed him; after one week of substance abuse treatment, he was discharged to return to work.  He related that he was discharged from the military because there was a race riot on his base and he believed that his commander and first sergeant did not want him to testify.  He related that he worked in construction for 30 years after service, and in the past 3 years had worked as a truck driver but was currently unemployed.  He reported that the last time things were going well in his life was in the early 1980s when he had a stable job in construction for 5 years.  He reported joint pain, low back pain, and bilateral knee pain, noting that his chronic pain impacted on overall mood.  He reported that he began using marijuana at age 21 and used intermittently until 1990, and that he began using cocaine at age 24 and once starts using he cannot stop.  His medical chart was noted to reflect diagnoses of unspecified bipolar disorder, noncombat PTSD, and personality disorder unspecified with antisocial features, and 12 previous admissions to the substance use treatment domiciliary program, extending back to 2003.  Following a thorough review of the record and testing, the diagnoses included bipolar I disorder, most recent episode depressed, moderate; severe stimulant use disorder; mild alcohol use disorder in sustained remission; and mild tobacco use disorder.

SSA records received in December 2017 note that the Veteran reported being constantly depressed since 1992; they do not include an opinion relating his current depression to service.

Because service connection for depression was previously denied based on a finding that any such disability was unrelated to service, for evidence to be new and material in this matter, it would have to pertain to that unestablished fact, i.e., tend to show that depression is related to his service.

The Veteran's additional lay statements and testimony describing symptoms in service are cumulative, and not new, evidence.  His reports of continuing complaints postservice likewise are also cumulative and not new evidence.  To the extent that he may be seeking to relate his current depression to service or to treatment after service by his own assertions to that effect, such assertions likewise are cumulative (and not new) evidence.  

In summary, the evidence received since September 2005 pertaining to the Veteran's depression is cumulative and duplicate, and is not new evidence that tends to support that such disability is related to his service.  Therefore, the Board must find that the additional evidence received since September 2005 is not material evidence that addresses an unestablished fact necessary to substantiate the claim of service connection for depression, i.e., nexus of the disability to service; does not raise a reasonable possibility of substantiating such claim; and is not new and material.  Accordingly, even the low threshold for reopening endorsed by the CAVC in Shade is not met, and the claim of service connection for depression may not be reopened.

Rating for low back disability

Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. § 1155.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  Reasonable doubt regarding degree of disability is to be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation over the life span of the claim, warranting the assignment of "staged" ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2009).  In a claim for increase the relevant temporal focus is on the state of the disability from one year preceding the filing of the claim to the present.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  

When an evaluation of a disability is at least partly based on the extent it causes limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Code, any additional functional loss the Veteran may have by virtue of factors described in 38 C.F.R. §§ 4.40, 4.45, and 4.59.  These factors include more or less movement than normal, weakened movement, premature or excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Under 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  Pettiti v. McDonald, 27 Vet. App. 415, 425 (2015).  

A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant, although such behavior may be reported by a layperson.  Pettiti, 27 Vet. App. at 425.  Moreover, where the Code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply.  Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85.

The VA Rating Schedule provides for the following ratings for spine disabilities, 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.  

According to the General Rating Formula for Diseases and Injuries of the Spine, the following ratings are to be assigned:  [The ratings listed below apply to Codes 5235 through 5243 (unless a disability rated under Code 5243 is evaluated under the "Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes").]

1) 40 percent - Forward flexion of the thoracolumbar spine is 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine;

2) 50 percent - Unfavorable ankylosis of the entire thoracolumbar spine; and

3) 100 percent - Unfavorable ankylosis of the entire spine.
Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.  Id. n. 1.

IVDS may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25 (combined ratings table).

The Formula for Rating IVDS Based on Incapacitating Episodes provides for disability ratings based on the frequency and duration of incapacitating episodes.  An incapacitating episode is defined by regulation as "a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Code 5243.  If a claimant remains in bed without a physician prescribing bed rest, the regulatory criteria are not met. Id.

On April 2007 VA examination, the Veteran reported that a January 2007 MRI revealed disc disease and arthritis of the lumbar spine.  He reported moderate constant pain of the low back, with constant burning pain radiating to the left leg.  He denied any weakness or fatigue of his left lower extremity.  He denied any functional loss in regards to the left leg.  He walked with a moderately slow antalgic gait using a cane.  He denied use of a lumbosacral brace, crutches, or wheelchair.  He reported difficulty with sitting for more than 2 hours, standing and walking for more than 1 hour, bending and lifting more than 30 pounds due to low back pain.  

On physical examination, lumbar flexion was from 0 to 60 degrees, lateral flexion was from 0 to 30 degrees bilaterally, rotation was from 0 to 20 degrees bilaterally, and extension was from 0 to 20 degrees.  There was moderate lumbar pain with flexion from 50 to 60 degrees, lateral flexion from 20 to 30 degrees bilaterally, rotation from 10 to 20 degrees bilaterally, and extension from 10 to 20 degrees; there was moderate pain of the lumbar spine with moderate spasm and moderate tenderness but no weakness.  With repetitive use, the range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance.  The Veteran reported flare-ups once every two months, lasting two to three hours in duration.  The neurological examination revealed moderate decreased sensory to monofilament testing.  Motor function was decreased, at 3/5 for the left lower extremity.  The decreased sensory to monofilament testing was noted to be mild to moderate, upper left leg to the knee.  The diagnoses included lumbar strain and sprain with superimposed disc disease by history, moderately at the time of examination; and left lower extremity radiculopathy, mild to moderately active at the time of examination.

Based on this evidence, the July 2007 rating decision on appeal granted service connection for left lower extremity radiculopathy of the sciatic nerve, rated 10 percent.

At the August 2012 Board hearing, the Veteran testified that he had problems keeping problems due to his back disability, and he was looking into having surgery.  He testified that the partial paralysis was going further down his leg and had caused him to fall at times, and he had stiffness in the left knee.  He testified that he had limited movement and bending of his back; some days his back would go out and he could not move at all.

On November 2016 VA examination, the Veteran reported low back pain with lower extremity radiculopathy; the pain fluctuated with activity level with current left leg pain of 4/10 with occasional flare-ups.  He reported that the pain had progressed over the years and interferes with movement.  On examination, he reported pain, numbness, and tingling.  He received Lidocaine injections twice a week and took Percocet, Flexeril, meloxicam and physical therapy.  He reported that some days are better than others and he cannot get out of bed sometimes. 

On physical examination, forward flexion was to 45 degrees, extension was to 20 degrees, lateral flexion was to 20 degrees bilaterally, and rotation was to 20 degrees bilaterally.  The range of motion contributed to functional loss in that the Veteran was unable to bend down to lift or squat.  Pain was noted in all ranges of motion and caused functional loss.  There was moderate objective evidence of localized tenderness or pain on palpation of the lumbosacral joint.  There was evidence of pain with weight bearing.  There was no additional loss of function or range of motion after three repetitions.   Regarding Correia criteria, pain was noted when the Veteran was sitting and laying on the exam table; there was pain with passive range of motion with limited flexion at 45 degrees, extension at 20 degrees, right and left lateral flexion at 20 degrees and right and left lateral rotation at 20 degrees.  There was guarding or muscle spasm of the thoracolumbar spine not resulting in abnormal gait or abnormal spinal contour.  Additional contributing factors of disability included less movement than normal, disturbance of locomotion, and interference with sitting and standing.  Muscle strength was 5/5 bilaterally and there was no atrophy.  Deep tendon reflexes were normal bilaterally.  Sensory to light touch testing was decreased at the left upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1) and foot/toes (L5).  Straight-leg-raising was positive on the left and negative on the right.  Symptoms of radiculopathy included constant moderate pain in the left lower extremity, mild intermittent pain in the right lower extremity, paresthesias and/or dysesthesias (moderate in the left lower extremity, mild in the right lower extremity), and numbness (moderate in the left lower extremity, mild in the right lower extremity).  Involvement was indicated for the left femoral nerve and bilateral sciatic nerve.  The examiner determined that the severity of radiculopathy was mild in the right lower extremity and moderate in the left lower extremity.  The spine was not ankylosed.  There were no other neurologic abnormalities or findings related to a thoracic spine condition.  There was no IVDS of the thoracolumbar spine.  The Veteran reported regular use of a brace and cane for lumbosacral strain.  The examiner opined that the Veteran's back condition impacts his ability to work in that he is unable to bend or squat, is unable to stand or sit or walk for a prolonged period of time, ambulates with antalgic gait using a cane for support, and will not be able to function at the occupational setting with these limitations.

Based on this evidence, a September 2017 rating decision granted service connection for right lower extremity radiculopathy of the sciatic nerve, and left lower extremity radiculopathy of the femoral nerve, rated 10 percent each.  The Veteran has not expressed disagreement with this decision.

On September 2017 VA examination, the Veteran reported chronic back pain that had worsened with time.  He reported seeing pain management specialists and taking pain medication, steroid injections, and muscle relaxants.  He denied flare-ups of the thoracolumbar spine.  He reported difficulty with prolonged sitting/standing and walking, and that he could not tie shoelaces as bending was difficult.

On physical examination, forward flexion was to 45 degrees, extension was to 20 degrees, lateral flexion was to 20 degrees bilaterally, and rotation was to 20 degrees bilaterally.  Pain was noted on exam in all ranges of motion and caused functional loss.  No pain was noted with passive range of motion with weight bearing and non weight bearing.  There was no evidence of pain with weight bearing.  There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue.  There was no additional loss of function or range of motion after three repetitions.  Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time.  There was no guarding or muscle spasm of the thoracolumbar spine.  Additional contributing factors of disability included slow gait.  Muscle strength testing was 5/5 bilaterally with no atrophy.  Deep tendon reflexes were normal bilaterally.  Sensation to light touch testing was decreased in the left upper anterior thigh (L2), left thigh/knee (L3/4), left lower leg/ankle (L4/L5/S1), and left foot/toes (L5).  Straight-leg-raising was negative bilaterally.  Radiculopathy symptoms included mild intermittent pain to both lower extremities, mild paresthesias and/or dysesthesias bilaterally, and mild numbness bilaterally.  Involvement of the left femoral nerve and the right sciatic nerve was indicated, and mild radiculopathy was noted bilaterally.  The spine was not ankylosed.  There were no other neurologic abnormalities or findings related to the thoracolumbar spine condition.  The Veteran was noted to have intervertebral disc syndrome but no episodes of acute signs and symptoms that required bed rest prescribed by a physician in the previous 12 months.  The Veteran reported constant use of a cane and occasional use of a walker for his back condition.  May 2012 lumbar MRI results were noted to show multilevel degenerative changes, most severe at the L4/L5 and L5/S1 levels, disc material extending into the left lateral recess at the L5/S1 level, and central canal stenosis at the L4/L5 and L5/S1 levels.  The diagnoses included chronic lumbosacral strain/sprain syndrome, radiculopathy of the left lower extremity involving the femoral nerve, and radiculopathy of the right lower extremity involving the sciatic nerve.

In an October 2017 addendum opinion, the VA examiner noted the Veteran's service connected disabilities and clarified the diagnoses on September 2017 VA examination as radiculopathy left lower extremity femoral nerve and radiculopathy left lower extremity sciatic nerve.

Additional VA treatment records 2017 show complaints of back pain and symptoms similar to those found on the examinations described above.

The Board finds that the evidence of record supports the assignment of a 40 percent rating for the Veteran's low back disability but provides no support for the assignment of the next higher (50 percent) rating.  Such rating requires unfavorable anklyosis of the thoracolumbar spine.  There is no indication of any ankylosis of any segment of the spine, much less the unfavorable ankylosis required for a 50 percent rating, at any time during the appeal period.  Consequently, a higher rating under the General Rating Formula is not warranted.

There is no evidence (and he does not allege otherwise) that the Veteran was ever on bedrest prescribed by a physician for his low back disability.  Therefore, there is no basis for applying the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes.  As was noted above, lower extremity neurological manifestations of the low back disability are service connected (and separately rated, one of which ratings is on appeal).  Additional compensable neurological manifestations of the low back disability are not shown.  Therefore further separate ratings for neurological manifestations of the low back disability are not warranted.  

The matter of entitlement to a TDIU rating (raised by the evidence

Rating for left sciatic nerve radiculopathy 

Sciatic nerve radiculopathy is rated under Code 8520.  A 10 percent rating is warranted when there is mild incomplete paralysis of the sciatic nerve.  A 20 percent rating is warranted when there is moderate incomplete paralysis of the sciatic nerve.  A 40 percent rating is warranted when there is moderately severe incomplete paralysis of the sciatic nerve.  A 60 percent rating is warranted when there is severe incomplete paralysis of the sciatic nerve with marked muscular atrophy.  An 80 percent rating is warranted when there is complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of the muscles below the knee, flexion of the knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a.

The medical evidence and factual background regarding the Veteran's left lower extremity radiculopathy involving the sciatic nerve are described above.

The reports of the VA examinations reasonably show that the Veteran's left sciatic nerve radiculopathy is manifested by moderate incomplete paralysis of the nerve (VA examiners have described the impairment as moderate).  Accordingly, the disability warrants a 20 percent rating under Code 8520.  Moderately severe incomplete paralysis of the left sciatic nerve has not been noted on examination, or in treatment records.  Accordingly, the next higher (40 percent) rating under Code 8520 is not warranted.  


ORDER

The appeal to reopen a claim of service connection for depression is denied.

A rating in excess of 40 percent for low back disability is denied.

A 20 percent rating is granted for left sciatic nerve radiculopathy, subject to the regulations governing payment of monetary awards.





REMAND

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims held, in essence, that when the matter of entitlement to a TDIU rating is raised by the record in a claim for increase, such matter becomes part of the increased rating claim.  Here, entitlement to a TDIU rating has been raised by the record.  On November 2016 VA examination, the examiner opined that the Veteran's back condition impacts his ability to work in that he is unable to bend or squat, he is unable to stand or sit or walk for a prolonged period of time, he ambulates with antalgic gait using a cane for support, and he will not be able to function at the occupational setting with these limitations.  

Notably, the Veteran's combined disability rating is 60 percent, and the disabilities result from common etiology; therefore, the schedular requirements for a TDIU rating are met.  38 C.F.R. § 4.16.  The matter of entitlement to a TDIU rating has not been developed or adjudicated.  Therefore, it must be remanded for such action. 

Accordingly, the case is REMANDED for the following:

The AOJ should [with the Veteran's co-operation by filing the appropriate application] fully develop and adjudicate the matter of the Veteran's entitlement to a TDIU rating.  If it is denied, the Veteran should be so advised, and advised of his appellate rights.  If he files a notice of disagreement and a substantive appeal after a SOC is issued, such matter should be returned to the Board, if in order, for appellate review.  He should be advised that this matter will not be fully before the Board unless he initiates, and perfects, an appeal as to any negative determination by the AOJ regarding his entitlement to a TDIU rating.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  
This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs