Citation Nr: 1807688 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 12-10 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for lumbar spine degenerative arthritis with intervertebral disc syndrome. 2. Entitlement to a rating in excess of 10 percent from August 17, 2015 to July 11, 2017 and in excess of 20 percent thereafter for right lower extremity neuropathy. 3. Entitlement to a rating in excess of 10 percent from August 17, 2015 for left lower extremity neuropathy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Solomon, Associate Counsel INTRODUCTION The Veteran had active service from February 1959 to April 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for degenerative joint and disc disease involving the lumbosacral spine, status post laminectomy surgery, and assigned an initial 20 percent disability rating effective November 30, 2007. The Board previously remanded the claim in March 2017 for further development. Also, in May 2016 the Board remanded the claim in compliance with an April 2016 Joint Motion for Remand (JMR) by the United States Court of Appeals for Veterans Claims (Court). There has been substantial compliance with the Board's most recent remand directives. Therefore, the Board will proceed to adjudicate the claims. The rating criteria for the spine disabilities specifically contemplate neurological manifestations as part of a spine condition that could be rated separately. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Therefore, the Board will consider whether a higher rating than assigned is warranted for neurological abnormalities as parts and parcel of the claim for increase disability rating for lumbar spine. The Board's August 2015 decision-which was appealed to the Court- assigned a separate 10 percent rating for the Veteran's right and left radiculopathy. That decision was not disturbed by the JMR as the Veteran did not appeal the issue to the Court. Therefore, the Board need not consider the rating for the Veteran's neuropathy that was covered by its August 2015 decision. In other words, the Board will only consider whether a higher rating for the Veteran's bilateral neuropathy is warranted for the period after August 17, 2015 as the ratings continue to be part of the larger issue of the appropriate rating for the service-connected back disability which was remanded by the Court; subsequently obtained evidence relates to the appropriate ratings for these associated neurologic abnormalities. Notably, the RO has increased the rating for the Veteran's right lower extremity to 20 percent effective July 11, 2017. This rating, however, does not constitute the maximum benefit available under the schedular. Therefore, the Board will proceed to adjudicate whether a higher rating is warranted. See A.B. v. Brown, 6 Vet. App. 35 (1993). In November 2014, the Veteran testified at a Travel Board hearing and transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACTS 1. The Veteran's lumbar spine degenerative arthritis is not manifested by a forward flexion limited to less than 30 degrees or favorable ankylosis. 2. The Veteran had mild radiculopathy in the right lower extremity before July 11, 2017. 3. The Veteran's right lower extremity is productive of symptoms that reflect impairment consistent with moderate incomplete paralysis after July 11, 2017. 4. The Veteran's left lower extremity is manifested by mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for lumbar spine degenerative arthritis with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242 (2017). 2. The criteria for a rating higher than 10 percent for neuropathy of the right lower extremity from August 17, 2015 to July 10, 2017 have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for a rating higher than 20 percent for neuropathy of the right lower extremity from July 11, 2017 have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for a rating higher than 10 percent for neuropathy of the left lower extremity from August 17, 2015 have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), the VA has a duty to notify claimants about requirements to substantiate a claim for VA benefits, and assist in the development of their claim. 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). VA satisfied the duties to notify and assist in this appeal and neither the Veteran nor his representative has asserted any error as to these duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Veteran was provided VA examinations in August 2008, May 2009, October 2011, March 2014, April 2015 and July 2017; as discussed in greater details below, the Board finds these examinations adequate upon which to adjudicate the merits of this appeal. II. Increase Rating The VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10 (2017). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). A. Lumbar Spine The Veteran contends that he is entitled to an increase disability rating for his back disability. The Veteran's lumbar spine condition is rated as 20 percent disabling DC 5242. Review of the record reflects that the Veteran's condition was rating under DC 5243 for a period of time in light of his intervertebral disc syndrome (IVDS) diagnosis. Both DC 5242 and DC 5243 are part of the General Rating formal. However, DC 5243 allows assignment of rating based on incapacitating episodes if it would result in a more favorable rating for the Veteran. Pursuant to the General Rating Formula, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine that is 30 degrees or less; or where favorable ankylosis of the entire thoracolumbar spine is present. A higher 50 percent rating is assigned, where there is unfavorable ankylosis of the entire thoracolumbar spine. The maximum 100 percent is assigned if there is unfavorable ankylosis of the entire spine. Ordinarily, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45 (2016); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding that, to adequately portray the functional loss of musculoskeletal disabilities, a medical examination must "express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time"). As noted above, under DC 5243, a disability rating maybe assigned based on consideration of incapacitating episodes. To that end, a 40 percent evaluation is assigned if incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the last 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. In this case, the Board finds that the evidence of record does not support a rating in excess of 20 percent. The Veteran was provided a VA examination in August 2008, May 2009, October 2011, and March 2014, where his range of forward flexion was well over 30 degrees. There was also no favorable ankylosis noted in any of these examinations. Therefore, results from these examinations do not support a rating higher than 20 percent. During the April 2015 VA examination, the Veteran had all normal range of motion. However, abnormal range of motion was observed after repetitive use test. That is, the Veteran's range of motion after repetition was 70 degrees forward flexion, 30 degree extension. He also had 20 degrees of right and left lateral flexion, as well as 20 degrees of right and left lateral rotation. The examination found guarding that resulted in abnormal gait or abnormal spinal contour. But, there was no ankylosis found. It is noteworthy that the Board recognizes that this examination did not adequately reflect the Veteran's functional loss during flare-ups. The Board is only considering this examination to the extent it reflects the range of the Veteran's motion after repetitive use. On the other hand, the July 2017 VA examination was conducted while the Veteran was experiencing flare-ups, and thereby reflects his functional loss during flare-ups. This exam shows that the Veteran has pain, weakness, and lack of endurance during flare-ups, which limit his range of motion. He had a forward flexion of 50 degrees, an extension of 5 degrees, right latera flexion of 10 degrees, left lateral flexion of 20 degrees, right lateral rotation of 25 degrees, and left lateral rotation of 25 degrees. The examination report reflects that the Veteran was not able to perform repetitive-use test because of an increased risk of injury. The report, however, does this increased risk of injury in tantamount to inability or provides a basis for finding that range of motion was 30 degrees or less. There was no ankylosis or guarding noted. The examiner stated that his back condition cause functional limitation to the extent his condition prevents heavy lifting, pushing, puling, prolong standing, or prolong sitting. As documented, the Veteran's range of motion has been tested on multiple occasions after various points throughout the appeal period. The Board, in VA's judgment, has made all reasonable attempts to capture the Veteran's range of motion when it is at is most severe, to include this 2017 examination conducted during a flare-up. After careful and sympathetic review of this evidence, however, the Board cannot find a basis for granting a higher rating. The Board has also considered the Veteran's lay statements that his pain limits his daily activities. However, the objective medical evidence of record does not reflect impairment consistent with a rating higher than 20 percent, even when accounting for his pain during flare-ups that causes additional functional loss. Overall, the medical evidence does not reflect that the Veteran's range of motion is less than 30 degrees even when accounting for pain, weakness, and lack of endurance during flare-ups. Nor does the evidence show favorable ankylosis. Therefore, the preponderance of the evidence of record weighs against a rating in excess of 20 percent. In addition, the Board has considered whether a higher rating is possible based on incapacitating episodes under DC 5243. However, the medical evidence does not establish nor does the Veteran contend that his back disability resulted in incapacitating episode. Absent a showing of incapacitating episodes, a compensable rating is not warranted under DC 5243. Therefore, a rating higher than 20 percent based on incapacitating episodes is not warranted under DC 5243. B. Radiculopathy The Veteran's radiculopathy of the right lower extremity and left lower extremity are assigned disability rating under DC 8520. DC 8520 provides ratings based on paralysis of the sciatic nerve. The minimum 10 percent rating is warranted for incomplete mild paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. The maximum 80 percent rating is warranted for complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520 (2017). Terms such as "mild," "moderate" and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. The use of such terms by VA examiners or other physicians will be considered, but are not dispositive when assigning an evaluation. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. i. Right Lower Extremity The right lower extremity neuropathy is rated as 10 percent disabling from August 17, 2015 to July 11, 2017 and in excess of 20 percent thereafter under DC 8520. The Board finds that the evidence does not establish that a rating higher than assigned is warranted. That is, in January 2017, the Veteran underwent an examination, where there was no radiculopathy of the lower extremity noted. At that time, his muscle strength test, his reflex exam, and sensory exam all found normal results. This examination does not show entitlement to a rating higher than 10 percent. Therefore, a rating higher than 10 percent is not warranted before July 11, 2017 because the evidence does not show that the Veteran had moderate impairment. On the other hand, the July 2017 VA examination reflects that the Veteran's right lower extremity radiculopathy is manifested by moderate intermittent pain and mild numbness. He had active movement against some resistance during the muscle strength test. But, there was no muscle atrophy noted. The Veteran also had decreased sensation to light touch in the foot/toes. Based on this examination, the Veteran's impairment approximates the level contemplated by a 20 percent rating but not higher. Thus, the evidence does not establish moderately severe symptoms after July 11, 2017 for a rating in excess of 20 percent to be appropriate. ii. Left Lower Extremity The Veteran's neuropathy of the left lower extremity is rated as 10 percent disabling. As noted above, the January 2017 VA examination found no radiculopathy. However, the July 2017 VA examination reflected symptoms that are consistent with a level of impairment contemplated by a 10 percent rating, but not higher. That is, the exam found that radiculopathy of the left lower extremity resulted in mild numbness. There was decreased sensation in the foot/toes and the muscle strength test found active movement against some resistance in the left lower extremity. This examination does not demonstrate a level of impairment that approximates what is contemplated by a 20 percent rating. Rather, it shows that the Veteran's condition is consistent with a mild level of impairment, which warrants a 10 percent rating, but not higher. ORDER A rating in excess of 20 percent for the Veteran's lumbar spine degenerative arthritis with intervertebral disc syndrome is denied. A rating in excess of 10 percent from August 17, 2015 to July 11, 2017 for right lower extremity neuropathy is denied. A rating in excess of 20 percent from July 11, 2017 for right lower extremity neuropathy is denied. A rating in excess of 10 percent from August 17, 2015 for left lower extremity neuropathy is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs