Citation Nr: 1808821 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-28 975A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for degenerative joint disease of the lumbar spine in excess of 10 percent prior to April 1, 2012, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran had active duty service from June 1969 to August 1998. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 20011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The RO in Columbia, South Carolina currently has jurisdiction of this case. The issue of service connection for pancreatic cancer has been raised by the record in a November 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. For the rating period prior to April 1, 2012 (excluding the period of a temporary total rating), the Veteran's lumbar spine disability more nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, to include during flare-ups. 2. For the entire rating period on appeal (excluding a period of a temporary total rating), the Veteran's lumbar spine disability does not more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 3. For the rating period beginning April 1, 2012, the Veteran had left lower extremity radiculopathy of moderate severity, at worst. CONCLUSIONS OF LAW 1. For the rating period prior to April 1, 2012 (excluding a period of a temporary total rating), the criteria for a 20 percent rating, but no higher, for lumbar spine degenerative joint disease have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 2. For the rating period beginning April 1, 2012, the criteria for a rating in excess of 20 percent for lumbar spine degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 3. For the rating period beginning April 1, 2012, the criteria for a separate 20 percent rating, but no higher, for left lower extremity radiculopathy, secondary to lumbar spine disability, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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 a duty to assist argument). Laws and Analysis Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The Veteran maintains that his currently diagnosed lumbar spine disability is more severe than what is contemplated by the currently assigned 10 percent and 20 percent ratings. The Board notes that the Veteran was assigned a temporary total rating for surgical treatment of his lumbar spine disability from February 10, 2012 to March 31, 2012. Beginning April 1, 2012, the Veteran was assigned a 20 percent rating. The Board finds that the Veteran's lumbar spine disability, diagnosed as degenerative joint disease has been appropriately rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under Diagnostic Code 5242 (degenerative arthritis of the spine), 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 30 degrees or less; or, 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 assigned for unfavorable ankylosis of entire spine. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 (effective September 26, 2003) provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The evidence includes an October 2010 VA spine examination. During the evaluation, the Veteran complained of constant back pain, worse with bending and prolonged walking or standing. The pain was described as moderate to severe. It was also noted that the pain radiated to the right leg and calf. There were no incapacitating episodes noted. The Veteran's gait was normal and there were no abnormal spinal curvatures. There were no muscle spasms or guarding severe enough to be responsible for an abnormal gait or abnormal spinal contour. Range of motion testing revealed flexion limited to 75 degrees, extension was to 15 degrees, bilateral lateral flexion was to 25 degrees, and bilateral rotation was to 25 degrees. Repetitive use testing did not additionally limit motion. The examiner diagnosed the Veteran with DJD of the lumbar spine with right lower extremity radiculopathy. VA treatment records include a November 2010 radiology report. The reason for the study was noted as low back pain with right-sided radiculopathy. The Veteran also had selective nerve root injection on the right. VA treatment records also include surgical notes from the Veteran's lumbar spine surgery in February 2012. At that time, the Veteran was noted to have severe lumbar spondylosis. Following the February 2012 surgery, the Veteran was afforded an October 2012 VA examination. During the evaluation, the Veteran reported worsening pain into his back, hips, and thighs. Physical therapy and steroid injections were noted to have provided minimal relief. In February 2012, the Veteran underwent bilateral L4-5 partial hemilaminectomies and a placement of an interspinous process clamp. Flare-ups were described as "constant" pain in the lower back and "heavy legs" that interfered with walking. The Veteran also reported trouble bending over. The examiner indicated that range of motion testing was aborted as the Veteran was in considerable pain. The examiner further noted that the Veteran did not have IVDS. Radiculopathy was noted on both extremities and was indicated by the examiner to be of "moderate" severity, bilaterally. During a May 2013 VA examination, the examiner noted that there were no changes since the history taken during the October 2012 VA examination. The examiner was able to perform range of motion testing, which showed flexion limited to 45 degrees, with pain at 45 degrees. Repetitive-use testing did not additionally limit motion of the thoracolumbar spine. The examiner also noted that the Veteran had severe symptoms of pain, paresthesia, and numbness, but did not indicate which nerve root was involved or the severity of the Veteran's bilateral lower extremity radiculopathy. The evidence also includes a July 2013 Back Conditions Disability Benefits Questionnaire from Dr. B. F. Flare-ups were noted to occur with prolonged walking, standing, and sitting. Upon range of motion testing, flexion was limited to 15 degrees, with pain starting at 5 degrees. Upon repetitive use testing, flexion was limited to 10 degrees. The doctor did not address radiculopathy or whether the Veteran had ankylosis of the spine. The remaining sections of the report were mostly left blank. The Veteran was most recently afforded a VA examination in September 2017. During the evaluation, the Veteran indicated that he had some improvement following his back surgery in February 2012. Specifically, the Veteran reported that his back disability was "about 20 % better" than it was before the surgery. However, the Veteran continued to report intermittent locking episodes lasting about an hour. Currently, the Veteran complained of daily pain aggravated by prolonged walking, standing, and bending. The Veteran indicated that, prior to his surgery, he had shooting pains down both legs, but that resolved after surgery. Currently, however, the Veteran still complained of constant numbness and tingling in both feet. Upon range of motion testing, flexion was limited to 50 degrees. There was no evidence of pain on weight bearing. Repetitive use testing did not additionally limit motion. The Veteran was noted to have generalized muscle atrophy in the lower extremities. There was no ankylosis of the spine and the examiner indicated that the Veteran did not have radiculopathy or IVDS. Further, the examiner noted that the Veteran had "peripheral neuropathy" affecting the bilateral lower extremities which was the cause of sensory loss, weakness, and muscle atrophy. Although the Veteran had bilateral lower extremity radiculopathy, this was noted to have resolved after the lumbar decompression surgery. decompression surgery Regarding the rating period prior to April 1, 2012 (except for the period of a temporary total rating), the evidence is in equipoise as to whether the Veteran's lumbar spine symptoms more nearly approximate the criteria for a 20 percent disability evaluation. Although range of motion testing during the October 2010 VA examination was to 75 degrees, there was no indication as to where pain began. This is especially problematic given that the Veteran has reported considerable difficulty and pain with bending. Moreover, the September 2017 VA examiner indicated that the Veteran had some improvement following his back surgery in February 2012. Specifically, the Veteran reported that his back disability was "about 20 % better" than it was before the surgery. This suggests to the Board that the Veteran's symptoms were more severe prior to his February 2010 surgery. Therefore, and in consideration of the Veteran's pain and functional impairment during flare-ups, including with bending and prolonged standing and walking, the Board finds that a 20 percent rating more nearly approximates the Veteran's symptoms for the period prior to April 1, 2012 (except for the period of a temporary total rating). The Board next finds that a rating in excess of 20 percent is not warranted for the entire rating period on appeal. The Board acknowledges that the July 2013 Back Conditions DBQ from Dr. B. F. noted that the Veteran exhibited flexion limited to 15 degrees. However, this one piece of evidence appears to be inconsistent and unsupported by the other clinical findings of record. It does not accurately depict the severity of the Veteran's lumbar spine disability throughout the entire appeal period. Notably, only two months prior to the July 2013 DBQ, the Veteran was able to flex to 45 degrees, even after repetitive-use testing. Moreover, during the most recent September 2017 VA examination, the Veteran specifically reported that his back disability had improved since his surgery. For these reasons, the Board finds the July 2013 DBQ to be of reduced probative value. The evidence of record throughout the entire rating period on appeal also does not show favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes as a result of IVDS. Further, and even considering additional limitation of motion or function of the lumbar spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the lumbar spine disability more nearly approximates the criteria for the next-higher disability rating of 40 percent. Such factors that may additionally limit motion and function were considered and assessed by the VA examiners. The VA examinations of record reflect, at worst, flexion to 45 degrees even after repetitive motion testing. The evidence also does not show unfavorable ankylosis of the entire thoracolumbar spine as required by a 40 percent disability rating. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted. Radiculopathy In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve, 20 percent for moderate incomplete paralysis, 40 percent for moderately severe incomplete paralysis, 60 percent for severe incomplete paralysis, and 80 percent for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a (2017). The Veteran has been assigned a 20 percent rating for right lower extremity radiculopathy, secondary to his lumbar spine disability, throughout the entire increased rating period on appeal, and there is no evidence of such radiculopathy being more than moderate in severity. Upon review of the evidence of record however, the Board finds that a separate rating for left lower extremity radiculopathy is warranted beginning April 1, 2012. Notably, during the October 2012 VA examination, the Veteran reported pain into his back, hips, and thighs. Radiculopathy was noted on both extremities and was indicated by the examiner to be of "moderate" severity, bilaterally. The Board recognizes that the September 2017 VA examiner indicated that the Veteran's lower extremity symptoms were as a result of his peripheral neuropathy, and not bilateral lower extremity radiculopathy. However, the Board finds the September 2017 VA medical opinion to be inconsistent with the evidence of record, and therefore of limited probative value. Specifically, the October 2012 VA examination report shows that the Veteran was diagnosed with moderate radiculopathy only months after the spinal surgery. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a separate 20 percent rating of left lower extremity radiculopathy is warranted beginning April 1, 2012. Prior to the Veteran's February 2012 surgery, there was no indication of left-sided radiculopathy; as such, an earlier effective date is not warranted. Moreover, the evidence does not demonstrate that the Veteran's right or left lower extremity radiculopathy were more than moderate in severity. Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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). ORDER For the rating period prior to April 1, 2012 (excluding a period of a temporary total rating), a 20 percent rating, but no higher, for lumbar spine degenerative joint disease is granted. For the rating period beginning April 1, 2012, a rating in excess of 20 percent for lumbar spine degenerative joint disease is denied. For the rating period beginning April 1, 2012, but not before, a separate 20 percent rating of left lower extremity radiculopathy, secondary to the lumbar spine disability, is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs