Citation Nr: 1815017 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 12-22 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased rating for lumbar spinal stenosis, evaluated as 20 percent disabling prior to March 25, 2013 and from June 1, 2013. 2. Entitlement to an increased rating for left lumbar radiculopathy, evaluated as 10 percent disabling. 3. Entitlement to an increased rating for right lumbar radiculopathy, evaluated as 20 percent disabling prior to June 1, 2013, and 10 percent disabling thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1989 to December 1993. These matters come before the Board of Veterans' Appeals (Board) from a March 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In February 2017, the Board remanded this matter for further development which has been completed, and the case has been returned for appellate consideration. During the pendency of the appeal, in an August 2017 rating decision, the RO assigned a disability rating of 20 percent for the lumbar spine disability from November 16, 2009 to March 25, 2013, 100 percent from March 26, 2013 to May 31, 2013, and 20 percent from June 1, 2013. Outside of the 100 percent rating period, the RO did not assign the maximum disability rating possible. Thus, the appeal for a higher disability evaluation remains before the Board as reflected on the previous page. AB v. Brown, 6 Vet. App. 35 (1993). The Board has reviewed the Veteran's electronic records maintained in Virtual VA and the Veterans' Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. Prior to March 26, 2013 and from June 1, 2013, the Veteran's lumbar spine was not manifested by flexion greater than 30 degrees or ankylosis. 2. The Veteran's left lumbar radiculopathy has been manifested by mild incomplete paralysis. 3. For the entire period on appeal, the Veteran's right lumbar radiculopathy has been manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to March 26, 2013 and from June 1, 2013, the criteria for a disability rating in excess of 20 percent for the Veteran's lumbar spinal stenosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5238 (2017). 2. The criteria for a disability rating in excess of 10 percent for left lumbar radiculopathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 3. Prior to June 1, 2013, the criteria for a disability rating in excess of 20 percent for right lumbar radiculopathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 5. From June 1, 2013, the criteria for a 20 percent disabling rating, but not higher, for right lumbar radiculopathy have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As noted above, the Board remanded this claim in February 2017 to afford the Veteran another examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was afforded an examination in May 2017 in accordance with the Board's remand and his claim was readjudicated in an August 2017 Supplemental Statement of the Case. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran has not raised any issues with the duty to notify or the 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). II. Increased Ratings Claims for Spinal Stenosis of the Lumbar Spine The Veteran asserts entitlement to an increased evaluation for his lumbar spinal stenosis. 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 (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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3 (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 the evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45 (2017). The Veteran's lumbar spinal stenosis has been evaluated under Diagnostic Code 5238. Under Diagnostic Code 5238, a rating of 10 percent is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine of greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. 38 C.F.R. § 4.71a, Diagnostic Code 5238 (2017). A 20 percent rating is warranted with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine of mot greater than 170 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. Id. A 30 percent rating is warranted with forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted with unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted with unfavorable ankylosis of the entire thoracolumbar spine. Id. A maximum rating of 100 percent is warranted with unfavorable ankylosis of the entire spine. Id. 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. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. See also 38 C.F.R. § 4.71a, Plate V (2017). For VA 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. 38 C.F.R. § 4.71a, Diagnostic Code 5238, Note (5) (2017). The spine codes permit evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IDVS) Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 month period; 40 percent for incapacitation episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; 60 percent for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2017). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated 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). 1. Increased Rating for the period of November 16, 2009 until March 26, 2013 Private medical records during the time on appeal demonstrate that the Veteran was seen for medical intervention for his lumbar spine pain, including lumbar facet injections which demonstrated improvement in his lumbar pain. See Private treatment records, December 2008-October 2009. The Veteran was provided with a VA examination in January 2010. The January 2010 VA examination revealed the Veteran's lumbar spine motion to be: flexion to 70 degrees, extension to 30 degrees, left and right lateral flexion to 40 degrees bilaterally, left lateral rotation to 40 degrees and right lateral rotation to 50 degrees. The results were the same after repetitive testing. The Veteran's thoracolumbar spine examination revealed pain at the end range of forward flexion, as well as with extension left and right lateral flexion. No pain was noted with thoracolumbar rotation. An inspection of the Veteran's lumbosacral spine revealed no evidence of an abnormal curvature or abnormal musculature. There was no objective evidence of painful motion, muscle spasm, weakness, tenderness, atrophy, or muscle guarding in the lumbosacral spine. The Veteran demonstrated normal lower extremity strength throughout, with normal reflexes and a normal sensory evaluation. Based upon the evidence of record, the preponderance of the evidence is against a finding that the Veteran's lumbar spinal stenosis more nearly approximates the level of severity contemplated by a 40 percent rating. The evidence demonstrates that the Veteran's lumbar spine flexion is in excess of 30 degrees and there is no evidence of ankylosis of the spine. Moreover, repetitive use testing did not result in any additional loss of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that the Veteran has complained of decreased ability to perform functional skills, as activity increased his pain. See Private Medical Treatment Records, dated December 2008 through October 2009. However, private treatment records report normal gait and the VA examination reflects that the Veteran did not require an assistive device and reported walking for up to a mile at a time. Id.; See also VA Examination, dated January 2010. The January 2010 examination also reported the Veteran had normal strength, normal sensation, and that any guarding did not result in an abnormal gait. In light of this functional skills assessment, the medical evidence of record, and the Veteran's statements, the Board finds that the Veteran's lumbar spinal stenosis does not more nearly approximate the level of severity contemplated by a 40 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5238 (2017). Additionally, while the Veteran reported an incapacitating episodes of three days, there is no evidence of any episode up to four weeks to warrant a higher disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5243. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable as to that period. 38 C.F.R. § 4.3 (2017). For these reasons, the claim is denied. 2. From June 1, 2013 The Veteran was provided with a VA examination in May 2017. The VA examination revealed that the Veteran's lumbar spine range of motion was: flexion to 65 degrees, extension to 20 degrees, left lateral flexion to 25 degrees, right lateral flexion to 20 degrees, and left and right lateral rotation to 30 degrees bilaterally. After three repetitions of motion, the Veteran's lumbar spine range of motion was: flexion to 60 degrees, extension to 25 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees bilaterally. The Veteran was found to have functional loss caused by pain, fatigue, weakness, and lack of endurance. The Veteran was found to have guarding and muscle spasm but it did not result in an abnormal gait or spinal contour. Based upon the evidence of record, the preponderance of the evidence is against a finding that the Veteran's lumbar spine stenosis more nearly approximates the level of severity contemplated by a rating of 40 percent. There is no medical evidence of ankylosis or forward flexion less than 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5238 (2017). Moreover, his functional loss and repetitive use testing showing that forward flexion decreased to 60 degrees does not nearly approximate the criteria for a 40 percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, a disability rating in excess of 40 percent is not warranted. As to consideration of IVDS, the 2017 examiner specifically indicated that the Veteran did not have IVDS. Therefore, consideration under this criteria is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable as to that period. 38 C.F.R. § 4.3 (2017). For these reasons, the claim is denied. III. Lumbar Radiculopathy The Board has also considered whether the Veteran's neurological manifestations warrant higher ratings. In this regard, the Veteran is service-connected for left lumbar radiculopathy evaluated as 10 percent disabling during the period on appeal and for right lumbar radiculopathy evaluated as 20 percent disabling prior to June 1, 2013, and 10 percent thereafter. The Veteran's disabilities have been rated under Diagnostic Code 8520 for disabilities of the sciatic nerve. Per this Diagnostic Code, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is assigned for "complete" paralysis, where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a (2017). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Treatment records show that the Veteran demonstrated inconsistent results regarding his reflexes during this time, ranging from hypoactive to normal in bilateral lower extremities. During these visits, the Veteran was assessed to have normal muscle bulk, normal tone, normal strength, normal sensation, and normal gait. The January 2010 VA examiner noted that neurological evaluation of the bilateral lower extremities showed that strength was 5/5 for both the distal and proximal lower extremities. The patellar and ankle jerk reflexes were normal at 2+ and there was a normal sensory examination to light touch, pinprick, and vibration. On VA examination in May 2017, muscle strength testing was normal and there was no muscle atrophy bilaterally. Deep tendon reflexes were normal and sensory evaluation was normal except there was decreased sensation in the right lower leg/ankle, and foot/toe. Straight leg rating was positive bilaterally. The examiner indicated that there was moderate bilateral paresthesia/ dysesthesia and numbness. The examiner concluded moderate right radiculopathy and mild left radiculopathy. Based on the evidence above, the Board finds that the Veteran is entitled to a 20 percent rating for his right lumbar radiculopathy for the entire period on appeal as he has demonstrated moderate radiculopathy. However, as his left lumbar radiculopathy has consistently been mild in nature a rating in excess of the current 10 percent rating is not warranted. 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, 369-370 (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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for lumbar spinal stenosis, evaluated as 20 percent disabling prior to March 25, 2013 and from June 1, 2013 is denied. Entitlement to an increased rating for left lumbar radiculopathy, evaluated as 10 percent disabling is denied. Entitlement to an increased rating for right lumbar radiculopathy, evaluated as 20 percent disabling prior to June 1, 2013 is denied. Entitlement to an increased rating of 20 percent, but not higher, from June 1, 2013 is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs