Citation Nr: 1807322 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 11-29 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for residuals of a compression fracture of the lumbar spine, status post discectomy (back disability). 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1970 to June 1973. This matter is before the Board of Veterans' Appeal (Board) on appeal of a May 2009 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2017, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's range of motion testing has not been shown to functionally limit the Veteran's forward flexion of his thoracolumbar spine to 30 degrees or less; nor is there favorable ankylosis of the entire thoracolumbar spine. 2. The evidence does not show that the Veteran's radiculopathy of the left lower extremity causes more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for the Veteran's back disability are not met. 38 C.F.R. § 4.71a Diagnostic Code (DC) 5242 (2017). 2. The criteria for an initial rating in excess of 10 percent are not met. 38 C.F.R. § 4.124a DC 8623 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). A standard December 2008 letter satisfied the duty to notify provisions. Neither the Veteran nor his representative has raised any issues with the duty to assist, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). II. Increased Ratings for Lumbar Spine Disability, including Associated Radiculopathy of the Left Lower Extremity Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242 (2017). In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40 (2017). Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. See 38 C.F.R. § 4.45 (2017). When assigning a disability rating, it is necessary to consider functional loss due to flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). The prohibition against "pyramiding" as stated in 38 C.F.R. § 4.14 does not preclude consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability. The facial expression, wincing, etc., on pressure or manipulation should be carefully noted and definitely related to the affected joints. Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, and a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology, is possible. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures, should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Pain must affect some aspect of the normal working movements of the body in order to constitute functional loss. Although pain may cause functional loss, pain itself does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The General Rating Formula for diseases and injuries of the spine provides that, 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, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2017). Intervertebral disc syndrome (IVDS) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See also 38 C.F.R. § 4.71a, Diagnostic Code 5243. There is no indication that the Veteran suffers, or has suffered for the pendency of this appeal, from incapacitating episodes as due to his back disability. As such, this criterion does not apply. Separate ratings for neurological manifestations may be warranted under 38 C.F.R. § 4.124a if supported by objective medical evidence. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. See 38 C.F.R. § 4.120. 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 will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. See 38 C.F.R. § 4.123 (2017). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The Veteran's left lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a DC 8623. DC's 8520-8730 address ratings for paralysis, neuritis, and neuralgia of the peripheral nerves affecting the lower extremities. DC's 8523, 8623, and 8723 provide ratings for paralysis, neuritis, and neuralgia of the anterior tibial nerve. Complete paralysis of the anterior tibial nerve, which is 30 percent disabling, contemplates compete loss of dorsal flexion of the foot. Disability ratings of 0 percent, 10 percent, and 20 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the anterior tibial nerve. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 4.2, 4.6 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks a rating in excess of 20 percent for his service-connected back disability and a rating in excess of 10 percent for his service-connected radiculopathy of his left lower extremity. The Veteran contends that his back disability warrants a higher rating due to the findings of an MRI conducted after the May 2009 rating decision and that his symptoms of radiculopathy are worse than what was suggested at the VA examination. The Veteran underwent a VA examination in December 2008. The Veteran reported a constant numbing sensation that radiated down his left leg into his foot but stated he had no flare ups or incapacitating episodes. Upon physical examination, the VA examiner noted the Veteran did not have ankylosis, spasms, atrophy, weakness, or guarding. However, pain with motion and tenderness was observed. The Veteran's sensory exam noted his left lower extremity was impaired for pain (pinprick) and light touch; however, the rest of the sensory examination was normal. Range of motion (ROM) testing for his thoraco-lumbar spine revealed flexion to 72 degrees, extension to 5 degrees, left lateral flexion to 17 degrees, right lateral flexion to 20 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 14 degrees. There was objective evidence of pain on active ROM but it did not cause additional limitations. The Veteran had imaging of his spine, which showed mild degenerative disc disease (DDD) and small marginal osteophytes with minor facet arthropathy in the lower lumbar spine. The Veteran received a diagnosis of DDD and degenerative arthrosis lumbar spine. In March 2016, the Veteran attended another VA examination. He alleged constant moderate back pain, stiffness, and pain radiating down his bilateral lower extremities that worsened with long car rides. He also reported flare ups that are worse with prolonged sitting or activity. Upon ROM testing for his thoraco-lumbar spine, his flexion was up to 60 degrees, extension to 5 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees and right and left lateral rotation to 15 degrees. Pain was noted on examination but did not cause additional limitations. The VA examiner reported that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time; nor did the Veteran did have guarding or muscle spasms. The Veteran underwent imaging of his lumbar spine, which showed mild discogenic degenerative changes that had progressed since the previous study. His disability caused interference with prolonged standing, walking, and driving. The Veteran also reported mild constant pain and moderate intermittent pain with moderate parasethesias and/or dysethesias and mild numbness in his lower extremities. The sensory examination revealed decreased sensation to light touch in the lower left leg and foot. The VA examiner noted radiculopathy, specifically mild incomplete paralysis of the sciatic nerve but did not indicate any paralysis of the anterior tibial nerve. The VA examiner opined the Veteran's back disability and radiculopathy impacted his ability to work because it interfered with prolonged standing, walking, and driving. The Veteran attended another VA examination in June 2017. He reported persistent lower back pain; however, he stated he did not have any pain radiating to the lower extremities and did not experience flare ups. He reported being unable to lift or bend. Upon ROM testing for his thoraco-lumbar spine, his flexion was up to 40 degrees, extension to 20 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees and right and left lateral rotation to 30 degrees. Pain was noted during forward flexion and extension and reported to cause functional loss but the VA examiner was unable to describe in terms of ROM. The VA examiner did note that the Veteran's back disability caused interference with sitting and standing. The Veterans sensory examination to light touch yielded normal results and his straight leg raise test was negative. The VA examiner found the Veteran did not have radiculopathy based on the Veteran's report that he does not have pain radiating to his left lower extremity and his medical history of a discectomy in 2006 that resolved the condition. VA treatment records note the Veteran's continuing treatment for his service connected back disorder from 2008 to present. The records show that the Veteran had an MRI in November 2009 that showed multilevel degenerative changes of the lumbar spine with moderate right neural foramen stenosis. Review of the VA treatment records reveal no further imaging of the spine. The records also contain the Veteran's complaints of pain and difficulty with bending, lifting, and standing. However, these records do not contain objective detailed measurements of the Veteran's ROM. Entitlement to the next higher rating of 40 percent for the Veteran's back disability requires that the evidence shows forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a DC 5242. As discussed above, the Veteran's forward flexion has been greater than 30 degrees during ROM testing at all three of his VA examinations and the evidence does not establish that the Veteran had favorable ankylosis of his entire thoracolumbar spine. While the Veteran had pain during ROM testing that caused functional loss, there is not sufficient evidence to warrant the next higher rating. Therefore, the Board finds the Veteran's back disability does not warrant a rating in excess of 20 percent. For the Veteran to be entitled to a disability rating in excess of 10 percent for radiculopathy the evidence must show severe incomplete paralysis of the anterior tibial nerve. See 38 C.F.R. § 4.124a DC 8623. The Veteran's sensory examination in April 2009 revealed impairment in the left lower extremity to pain and light touch, but had normal responses to vibration and position sense. In June 2016, the VA examiner noted mild incomplete paralysis of the sciatic nerve and made no response as to the anterior tibial nerve. Significantly, in the most recent VA examination the Veteran reported that he did not have radiating pain in his left lower extremity and his sensory examination was normal. The evidence establishes that the Veteran's radiculopathy results in no more than mild incomplete paralysis. As such, the Veteran's radiculopathy does not warrant the next higher rating as the evidence does not establish that the Veteran has severe incomplete paralysis. The Board has considered whether other rating codes could apply to the back disability and radiculopathy and finds that none would result in entitlement to a higher disability rating. The Board observes that the March 2016 VA examiner indicated that the sciatic nerve was affected to a mild degree, but did not find any decreased sensation in the anterior tibial nerve. A rating under the sciatic nerve would warrant no more than a 10 percent rating. 38 C.F.R. § 4.124a DC 8520. Thus a higher rating under another nerve code is not shown. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating in excess of 20 percent for residuals of a compression fracture of the lumbar spine, status post discectomy (back disability) is denied. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs