Citation Nr: 1809046 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-01 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability rating for degenerative disc disease of the lumbar spine (lumbar spine disability), currently evaluated as 10 percent disabling from July 26, 2010 and 20 percent disabling from June 3, 2015. 2. Entitlement to an initial disability rating in excess of 10 percent for osteoarthritis of the right knee. 3. Entitlement to a disability rating in excess of 20 percent for right knee postoperative repair of anterior cruciate ligament and medial meniscectomy. 4. Entitlement to an effective date earlier than July 26, 2010, for the grant of service connection for osteoarthritis of the right knee. 5. Entitlement to an effective date earlier than July 26, 2010, for a 20 percent rating for right knee postoperative repair of anterior cruciate ligament and medial meniscectomy. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to December 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of May 2011 and July 2011 rating decisions of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the issue of entitlement to TDIU was raised in a January 2018 appellate brief. Accordingly, the issue is before the Board. This appeal was previously remanded by the Board in February 2015 and is again REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Effective May 14, 2016, the Veteran's forward flexion of the lumbar spine was limited to 30 degrees. 2. Effective May 14, 2016, the Veteran's lumbar spine disability has been productive of radiculopathy of the sciatic nerve of the right lower extremity that results in at least mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Effective May 14, 2016, the criteria for at least a 40 percent rating for service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. § 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2017). 2. Effective May 14, 2016, the criteria for at least a 10 percent rating for radiculopathy of the right lower extremity associated with the lumbar spine disability have been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Codes 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is currently rated 10 percent disabling from July 26, 2010 and 20 percent disabling from June 3, 2015 for his lumbar spine disability. Under the general rating formula for diseases and injuries of the spine, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is 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. A 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is 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 is 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 warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. The Veteran was afforded a VA examination on May 14, 2016. The examination report reveals that the Veteran had forward flexion of the lumbar spine to 30 degrees. Pursuant to the general rating formula for disease and injuries of the spine, at least a 40 percent rating is warranted effective May 14, 2016. Note (1) of the general rating formula for diseases and injuries of the spine states that any associated objective neurologic abnormalities are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71a, Note (1). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate, or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. The May 2016 VA examination report also shows that the Veteran had mild radiculopathy of the sciatic nerve of the right lower extremity. Pursuant to 38 U.S.C.A. § 4.124a, diagnostic code 8520, at least a 10 percent rating is warranted effective May 14, 2016. As discussed below, a rating in excess of 40 percent for lumbar spine disability and a rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded to the AOJ. ORDER Effective May 14, 2016, at least a 40 percent rating for lumbar spine disability is granted, subject to the laws and regulations governing the payment of monetary benefits. Effective May 14, 2016, at least a 10 percent rating for radiculopathy of the right lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND In July 2015, the Veteran identified additional treatment from the Henry Ford Health System. He specifically identified treatment from 2000 to 2015. Although some treatment records from this facility are associated with the claims file, the complete treatment records from this facility have not been associated with the claims file. Moreover, since the Veteran identified treatment at this facility from 2000, the potentially outstanding records could impact all of the Veteran's claims and therefore, remand is required. In light of the potentially outstanding treatment records, the Board finds that upon remand the Veteran should be afforded contemporaneous VA examinations for his lumbar spine and right knee disability. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Moreover, it appears that although the May 2016 examination was conducted during a flare-up of the right knee, the examination report does not adequately consider the Veteran's reports of flare-ups regarding the lumbar spine. Specifically, the examination report did not adequately consider the Veteran's reports of flare-ups in terms of limitation of motion, nor was an adequate explanation provided as to why an estimation of limitation of motion lost during flare-ups could not be provided. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, the appeal must be remanded in order to obtain an adequate VA examination that contains such information. Additionally, since the June 2015 supplemental statement of the case, November 2015 and May 2016 VA examination reports have been associated with the claims file. Upon remand, the AOJ should consider all evidence associated with the claims file since the June 2015 supplemental statement of the case. The issue of entitlement to TDIU was raised in a January 2018 appellate brief. As the higher rating claims and entitlement to TDIU are intertwined, the TDIU claim must be remanded as well. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Upon remand, the AOJ send the Veteran VA Form 21-8940. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file records of VA treatment dated since May 2016. 2. Afford the Veteran an additional opportunity to submit any other information that is not evidenced by the current record. The AOJ should take appropriate action to associate with the claims file records from Henry Ford Health System dated from 2000 to the present. Any negative response should be associated with the claims file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent, and severity of his lumbar spine and knee disability. He should be provided an appropriate amount of time to submit this lay evidence. 4. Send the Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940. 5. Schedule the Veteran for an appropriate VA examination to determine the current nature, extent, and severity of his lumbar spine disability and his right knee disability. The claims file should be made available to and reviewed by the examiner. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. The lumbar spine and right knee should be tested in active motion, passive motion, weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences and the extent of functional impairment he experiences during a flare-up. The examiner should provide an opinion estimating any additional degree of limited motion caused by functional loss during a flare-up. If the examiner cannot estimate the degree of additional range of motion loss during flare-ups, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should also discuss the severity of the Veteran's lumbar spine disability and right knee disability. The severity of any radiculopathy of the lower extremities and any instability of the right knee should be discussed. 6. Then readjudicate the appeal, to specifically include the evidence associated with the claims file dated since the June 2015 supplemental statement of the case. The AOJ should include the adjudication of a higher rating in excess of 10 percent for bilateral radiculopathy. If any of the benefits sought on appeal are denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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 of Veterans' Appeals 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs