Citation Nr: 1807765 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 12-34 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for radiculopathy of the left lower extremity sciatic nerve. 2. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability. 3. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity sciatic nerve. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Ahmad, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2004 to June 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2010 and September 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned at a November 2015 hearing at the RO. A transcript of that hearing is of record. In December 2016, the Board remanded the claim for further development. In light of the medical examination conducted, and the further adjudicatory actions taken by the RO, the Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The issues of entitlement to service connection for radiculopathy of the left lower extremity and entitlement to an increased rating for radiculopathy of the right lower extremity are REMANDED to the Agency of Original Jurisdiction. FINDING OF FACT The Veteran's lumbar spine disability has manifested in thoracolumbar spine forward flexion of between 80 and 90 degrees during the entire appeal period. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file. While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification requirements were met in correspondence to the Veteran dated in October and December of 2009. The Board also finds that VA's duty to assist has been satisfied. VA has done everything reasonably possible to assist the Veteran with respect to the claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA and private health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When VA provides an examination, that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided with multiple VA examinations, most recently in September 2017. The examiners reviewed the record, considered the Veteran's contentions, and provided an explanation and rationale for all opinions. The Board concludes that the VA examination reports are adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). 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 service and the residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In regard to rating claims involving the musculoskeletal system, a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2017). The factors of disability reside in reductions of normal excursion of movements in different planes and ratings should consider (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.), (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.), (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.), (d) excess fatigability, (e) incoordination or impaired ability to execute skilled movements smoothly, and (f) pain on movement, swelling, deformity or atrophy of disuse and instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. 38 C.F.R. § 4.45 (2017). Functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded. Schafrath v. Derwinski, 1Vet. App. 589 (1993). Pain itself does not rise to the level of functional loss as contemplated by VA regulations, but pain may result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's lumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated 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 rating when all disabilities are combined under 38 C.F.R. § 4.25 (2017). The General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the cervical spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour. A 20 percent rating is assigned 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 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. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is awarded for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2017). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Notes (2), (4) (2017). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (2017). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2017). The criteria are applied with and 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. 38 C.F.R. § 4.71a (2017). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2017). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3) (2017). The Veteran contends that the disability rating assigned for the lumbar spine disability does not accurately compensate the severity of the disability. The present claim for an increased rating arises from service connection for lumbar strain that was originally established in an April 2010 rating decision. An April 2008 MRI of the lumbar spine found central right paracentral disc extrusion at L5-S1 causing significant impingement of the right S1 nerve in the right lateral recess. At a March 2010 VA examination, the Veteran reported mild lower back pain occurring every few days, decreased range of motion, stiffness, and spasms. The Veteran reported going to a chiropractor previously, which improved the pain slightly. The Veteran was not undergoing any current treatment. The Veteran stated he had been a construction contractor for over a year, and had to call out of work several times due solely to back pain. The Veteran currently worked in a sedentary job. The Veteran reported that the back condition limited his walking to a half mile, and standing to four to five minutes. The Veteran also reported that he experienced tenderness with sitting longer than 30 minutes. On examination of the thoracolumbar spine, forward flexion was to 90 degrees, with pain starting at 80 degrees. Extension was to 30 degrees. Lateral flexion was to 30 degrees, bilaterally. Lateral rotation was to 30 degrees, bilaterally. There was no additional loss of motion on repetitive use noted. The examiner noted mild spasm and pain with motion of the sacrospinalis, bilaterally. There was no evidence of guarding, tenderness, weakness, or atrophy. There was no evidence of ankylosis of the spine. Posture, head position, and gait were all normal. There was no evidence of intervertebral disc syndrome. The examiner diagnosed lumbar strain and mild degenerative disc disease of the lumbar spine. In March 2010 VA medical records, the Veteran reported intermittent back pain, but denied current back pain. He reported that he had not received any health care except an emergency room visit one and a half years prior. In a June 2014 VA emergency medical record, the Veteran reported severe pain in the lower back after working with concrete, which radiated into the right buttock and down the right leg. The Veteran described the pain as sharp, and burning, and rated the pain ten out of ten. On examination, there was a moderate degree of tenderness in the midline at L4-S1, with a mild to moderate degree of paralumbar spasm. Straight leg raise tests were positive on the right greater than 30 degrees, and negative on the left. Reflexes were symmetrical, and motor and sensory functions were intact to the lower extremities. There was no evidence of foot drop. The examiner noted that the pain was consistent with a history of L5-S1 nerve root impingement, which was found in the April 2008 MRI. X-rays showed minimal degenerative changes at L1-L2, with some loss of disc space. The remainder of the spine and curvature were normal. The examiner assessed acute exacerbation of lumbar disc disease and lumbar radiculopathy. In September 2014 VA chiropractic medical records, the Veteran complained of lower back pain, which he described as sharp and shooting at times, and dull and aching at other times. The Veteran also reported stiffness and swelling in the lower back. He rated the pain a four to an eight out of ten. On examination of the thoracolumbar spine, forward flexion was to 90 degrees, with pain as a limiting factor, extension was to 30 degrees, with pain as a limiting factor, lateral flexion was to 45 degrees, bilaterally, and lateral rotation was to 30 degrees, bilaterally. There was pain on palpation with associated spasms at the lumbar region of the spine. Gain and ambulation were normal. At a November 2015 hearing, the Veteran reported increased pain in the lower back. The Veteran reported he could not move as much as he used to be able to, and had difficulty with daily activities, such as putting socks on, or lifting his child. The Veteran reported he experienced more flare-ups, during which he experienced shooting pain down the legs, and muscle spasms in the back. The Veteran reported he switched from a construction job to a light construction job due to back pain. He reported he sometimes missed work or left work early due to the back condition. The Veteran reported no current treatment for the back condition. In March 2016 VA medical records, the Veteran complained of lower back pain, greater in the right side, with radiation down to the right lateral leg. The Veteran reported he worked in construction. He did not want medication. The examiner assessed lumbar radiculopathy and lumbar pain. At a September 2017 VA examination, the Veteran reported constant lower back pain, which he rated as a four out of ten, with pain radiating down to the right posterior leg and into the calf. The Veteran stated he could not stand longer than 10 to 15 minutes, or sit longer than 15 to 20 minutes due to back pain. He also reported limitation in flexion and rotation. The Veteran was unable to perform range of motion testing due to reported severity of pain in the lower back. The examiner noted that the Veteran attempted forward flexion, and was only able to reach 10 degrees before he stated the pain was too severe to continue. The Veteran did not attempt extension, rotation, or lateral flexion. On examination of the thoracolumbar spine, there was objective evidence of localized tenderness or pain on palpation of the joint and associated tissue of the lumbar spine. There was no guarding or muscle spasm, and no evidence of muscle atrophy, or ankylosis of the spine. The Veteran did not use any assistive devices. There was no evidence of intervertebral disc syndrome. The examiner diagnosed lumbar spine degenerative disc disease. The examiner opined that the range of motion testing should not be considered in the rating for the lumbar spine disability due to inaccuracy. Specifically, the examiner noted that the Veteran had not sought care for the back condition in over a year, and that when he was last seen in March 2016, he did not seek any medication or treatment for the back condition. The Board finds that a rating in excess of 10 percent for lumbosacral strain is not warranted. The March 2010 VA examination showed that the lumbar spine disability manifested in forward flexion of greater than 60 degrees, but not greater than 85 degrees. Subsequent VA medical records found forward flexion to 90 degrees. At the September 2017 VA examination, the Veteran refused to perform range of motion testing due to pain, but the examiner noted that was inconsistent with the evidence of record, and specifically stated that the range of motion testing was inaccurate and should not be used for rating. The Veteran has a duty to cooperate with VA examinations. The duty to assist is not a one-way street. If a Veteran wants help in developing a claim, the Veteran cannot passively wait for it in those circumstances where the Veteran may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran's reports of pain and functional loss were adequately considered by the VA examination reports and findings of motion limitation. There is no evidence of guarding, and the September 2017 VA examiner found that the guarding shown was inaccurate and not to be considered for rating purposes. Muscle spasm, when present, did not result in an abnormal gait. There is no evidence of abnormal spinal contour. There is no evidence of unfavorable ankylosis of the entire thoracolumbar spine, even considering other functionally limiting factors. Additional symptoms experienced by the Veteran have been attributed to lower extremity radiculopathy, for which the Veteran currently has separate claims pending. Therefore, a rating in excess of 10 percent for a lumbar spine disability is not warranted. The Board has considered whether the application of another diagnostic code may enable a higher rating, including Diagnostic Code 5003 for degenerative arthritis. However, after review, the Board finds that no other diagnostic code provides for a higher or separate rating. 38 C.F.R. §§ 4.3, 4.7, 4.71(a) (2017). Further, there is no evidence of incapacitating episodes resulting from intervertebral disc syndrome, and thus a higher rating cannot be assigned using the criteria for rating intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). In making a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which is found to be persuasive or unpersuasive, and provide the reasons for the rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms, such as pain, because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence does not demonstrate symptoms that more nearly approximate a higher rating under the schedule of ratings for the musculoskeletal system during the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for a lumbar spine disability during the appeal period. Therefore, the claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is denied. REMAND The Board finds that further evidentiary development is necessary before the claims of entitlement to service connection for radiculopathy of the left lower extremity, and to an increased rating for radiculopathy of the right lower extremity, can be adjudicated. The Veteran submitted a timely November 2017 notice of disagreement with a September 2017 rating decision that denied service connection for radiculopathy of the left lower extremity, and assigned a 10 percent rating for radiculopathy of the right lower extremity. No statement of the case addressing that claim has been issued. Therefore, the Board is required to remand the claims for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case on the issues of entitlement to service connection for radiculopathy of the left lower extremity and entitlement to an increased rating for radiculopathy of the right lower extremity. Notify the Veteran of his appeal rights and that he must submit a timely substantive appeal to receive appellate review of that issue. If a timely substantive appeal is received, return that claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs