Citation Nr: 1827263 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 12-20 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for a lumbar spine disability, rated as 10 percent disabling based on orthopedic manifestations for the period prior to February 7, 2012, and 20 percent thereafter. 2. Entitlement to an increased rating for the neurologic manifestations of the service-connected lumbar spine disability, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from October 1976 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a June 2012 rating decision, a 20 percent rating was granted for the Veteran's low back disability, effective February 7, 2012. However, as that increase does not represent a total grant of the benefit sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In September 2016, the appeal was remanded for additional development to consist of obtaining pertinent VA treatment records, and a VA examination to determine the severity of the service-connected low back disability. Those objectives have been properly completed. See Stegall v. West, 11 Vet. App. 268 (1998). The case has since returned for an appellate disposition. FINDINGS OF FACT 1. Prior to February 2012, the Veteran did not have forward flexion of the thoracolumbar spine greater than 30 degrees but no 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. Thereafter, he did not have forward flexion of the thoracolumbar spine 30 degrees or less; or joint ankylosis. 2. The Veteran did not have more than mild left side radiculopathy. 3. The Veteran has mild radiculopathy on the right side. CONCLUSIONS OF LAW 1. The criteria are not met to establish an increased rating for a lumbar spine disability, rated at 10 percent prior to February 7, 2012, and 20 percent since then, are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 2. The criteria are not met to establish an increased rating for the neurologic manifestations of the service-connected lumbar spine disability, left side, currently rated as 10 percent disabling. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria are met for a 10 percent rating for right side radiculopathy. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In its April 2018 brief, the Veteran's representative argues that his sciatica is a neurological manifestation of his service-connected lumbar spine disability, and that he should be afforded a separate peripheral neurological examination. The Board finds that the last VA examination of record from January 2017 sufficiently delineates the service-connected neurological impairment associated with the lumbar spine disability such that the disability may be properly adjudicated. The January 2017 examination report contains a section dedicated to radiculopathy. Neither the Veteran nor his representative have raised any other 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). Applicable Rating Criteria Under VA law, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. For purpose of evaluating all service-connected orthopedic disabilities, below, when a musculoskeletal disability is evaluated based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id.; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) provides for the assignment of a 20 percent rating when there is forward flexion of the thoracolumbar spine greater than 30 degrees but no 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. The next higher available 40 percent rating requires forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5237. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). For VA compensation purposes, unfavorable ankylosis is a condition in which 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. Id. at Note (5). Intervertebral Disc Syndrome (IVDS) is evaluated under the General Rating Formula or otherwise based upon the frequency and severity of its incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The relevant rating formula provides that: If there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks, a 10 percent rating is warranted; if at least 2 weeks but less than 4 weeks, a 20 percent rating; if at least 4 weeks but less than 6 weeks, a 40 percent rating is warranted; and where there are incapacitating episodes with a total duration of at least 6 weeks during the past 12 months, the assignment of a maximum 60 percent rating is warranted. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). With regard to radiculopathy, generally, neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. A note to 38 C.F.R. § 4.124a states that the term "incomplete paralysis" where involving peripheral nerve injuries, 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. Also, when peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. The provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8520 pertain to impairment involving the sciatic nerve. Under that Diagnostic Code, a maximum 80 percent evaluation is assignable for complete paralysis to this nerve group, where the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Further evaluations may be assigned for incomplete paralysis of this nerve group, when severe in degree, with marked muscular atrophy, warranting a 60 percent rating; moderately severe, warranting a 40 percent rating; moderate, a 20 percent rating; and mild, a 10 percent rating. Lumbar Spine Disability Reviewing the evidence of record, on October 2010 VA examination of the spine, the Veteran stated that his low back pain was worse and he had spasms and stiffness. The course since onset was progressively worse. There were symptoms that included pain around the bilateral paraspinal muscles at the upper lumbar / lower thoracic level. There were no incapacitating episodes of spine disease. Posture, head position, and symmetry were all normal. Gait was normal. There were no abnormal spinal curvatures including gibbus, kyphosis, and lumbar lordosis. There was no thoracolumbar spine ankylosis. There were objective abnormalities of the thoracolumbar sacrospinalis consisting of guarding on both sides. The muscle spasm, localized tenderness, and guarding were not severe enough to be responsible for abnormal gait or abnormal spinal contour. The range of motion findings with regard to the thoracolumbar spine consisted of flexion to 90 degrees, extension to 35 degrees, right and left lateral flexion to 30 degrees, right and left lateral rotation to 30 degrees. There was objective evidence of pain on active range of motion and on repetitive motion. An x-ray showed an impression of degenerative changes of the lumbar spine with degenerative disc disease at multiple levels. Another study indicated an impression of extremely minimal mid lumbar spondylosis. The diagnosis was mechanical low back pain with degenerative changes of the lumbar spine. Upon VA examination in February 2012, the diagnoses at outset were lumbosacral spondylosis, scoliosis, and sciatica. The pain was severity level 4 out of 10. Range of motion testing indicated that there was present forward flexion to 60 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right and left lateral rotation to 30 degrees. The Veteran was able to perform repetitive testing use with three repetitions. There was no diminution of joint mobility on repetition. There was functional impairment of the thoracolumbar spine. The Veteran had localized tenderness and pain to palpation of the joints and soft tissue of the thoracolumbar spine. There was tenderness over the L1 vertebrae. The Veteran had guarding or muscle spasm of the thoracolumbar spine. Guarding and muscle spasm were present, but did not result in abnormal gait or spinal contour. The straight leg raising test was positive on the left side, negative on the right side. Further indicated was that the Veteran had radicular pain and/or symptoms due to radiculopathy. There was present mild level paresthesias / dysesthesias of the left lower extremity, otherwise no constant pain, intermittent pain, or numbness. Neurology clinic progress notes showed neurogenic bladder and neurogenic bowel. The Veteran did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. He did not use any assistive devices as a normal mode of locomotion. Imaging studies of the thoracolumbar spine did not show arthritis. There was no vertebral fracture. There were diffuse degenerative changes throughout the lumbar spine. There was mild compression of the L1 vertebral body and likely related prior trauma. The Veteran's thoracolumbar spine disability impacted his ability to work. The opinion was that he may have been limited to performance of sedentary work with limited walking, lifting, standing. Subsequently, on May 2016 VA examination of the peripheral nerves, the diagnosis at outset was sciatic nerve injury. The Veteran reported that when driving he would get a "tickling" feeling on his back which would go down his left leg. He reported he would get randomly sharp pain since he had been on therapy for pelvic floor dysfunction. He took gabapentin 800mg three times a day. The Veteran did not have muscle atrophy. Sensation testing for light touch was normal throughout. The Veteran did not have trophic changes attributable to peripheral neuropathy. His gait was normal. The sciatic nerve left side had mild incomplete paralysis. The Veteran did not use any assistive devices as a normal mode of locomotion. An EMG study had not been performed. There was no stated impact on ability to work. The January 2017 VA examination report showed that the most recent MRI from August 2016 indicated mild degenerative disc disease. The Veteran had diagnosis of degenerative arthritis of the spine; lumbosacral spondylosis with history of left leg sciatica, bowel and bladder dysfunction. Since May 2016, the Veteran was no longer being treated with a pain clinic or physical therapy. The lower back condition caused intermittent left and right leg sciatic pain to the right buttock to lateral hip with a prickly sensation to a zinging type pain. The pain was triggered by stair use, laying on his side, or shoveling snow. His back pain was constant and located along the lumbosacral area, of both sides. It was aggravated by prolonged standing or sitting. Due to right sided muscle spasms it woke him up. If he was bending over for a prolonged time he had difficulty standing up. He denied additional injury or trauma to the back. Today was a normal day for his back pain and he rated it as 3-4/10 on the pain scale. The Veteran now reported increased pain to level 8/10. He described functional impairment that limited mobility, repetitive motion, climbing, shoveling or heavy lifting. Range of motion testing revealed as follows, there being forward flexion to 40 degrees; extension to 25 degrees; right lateral flexion to 25 degrees; left lateral flexion to 30 degrees; right and left lateral rotation to 30 degrees. Pain was notated on examination but did not cause functional loss. There was no change in range of motion with three repetitions during the examination. The Veteran had guarding or muscle spasm of the thoracolumbar spine. There was guarding not resulting in abnormal gait or abnormal spinal contour. According to the VA examiner, this caused there to be "guarded motion" for range of motion testing. The Veteran did not have muscle atrophy. There was no ankylosis of the spine. Sensory exam of the lower extremities was normal. Straight leg raising test was negative on both sides. There was radicular pain. The Veteran had mild intermittent (dull) radicular pain, and mild paresthesias and/or dysesthesias. The Veteran did not have any other signs or symptoms of radiculopathy. The Veteran had involvement of both sciatic nerve roots. The severity of radiculopathy was mild on both sides. With regard to bowel dysfunction, the Veteran indicated that he had constipation caused by pelvic floor dysfunction. The Veteran did not have IVDS of the thoracolumbar spine. The Veteran did not use any assistive devices for purpose of locomotion. Otherwise, the Veteran had the right sacroiliac joint anteriorly positioned. There was impact upon the Veteran's ability to work. With a physical occupation, the back condition limited prolonged standing or sitting, limits repetitive bending/twisting/stoop and heavy lifting. There were no sedentary occupational limitation. Having reviewed the above, the Board finds that the current disability rating provisions for the Veteran's lumbar spine disability should remain in effect. Namely, prior to February 7, 2012, the Veteran did not manifest objectively or reportedly any of the symptomatology that under the applicable VA General Rating Formula warrants a higher 20 percent evaluation. Under the rating standard, a 20 percent rating requires the following: forward flexion of the thoracolumbar spine greater than 30 degrees but no 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. On the last VA examination prior to February 2012, the Veteran's level of forward flexion was actually at a full 90 degrees, with no further diminution due to pain, weakness, fatigue, or other factors as set forth in 38 C.F.R. §§ 4.40 and 4.45. Thereafter, since February 7, 2012, the Veteran's back disability did not manifest limitation of motion that reasonably indicated the requirements for the next higher 40 percent evaluation were met. His disability picture is not more closely described as thoracolumbar spine flexion limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. This is again including taking into appropriate account the impact of any and all functional loss. Nor at any time has the Veteran demonstrated joint ankylosis of the thoracolumbar spine, the condition of ankylosis being defined as the total absence of motion. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). Accordingly, the criteria are not met for an increased evaluation for the orthopedic disability involving the lumbar spine disorder, and the claim must be denied. Claim for Increased Rating for Neurologic Manifestations, Lumbar Spine Applying the rating standard, first, the Board finds that left lower extremity radiculopathy remains at mild levels, based on minimal sensory impairment and pain, with no apparent motor or other functional difficulties. At the January 2017 VA examination, the examiner found that the Veteran had mild intermittent (usually dull) pain and paresthesias and/or dysesthesias in his left lower extremity. The examiner found that he did not have constant pain or numbness. The examiner found that there were no other signs and symptoms of radiculopathy. For these reasons, a 20 percent rating for the left lower extremity is denied. However, on the right side there have been similar symptoms of radiculopathy since the January 2017 VA examination. Accordingly, a 10 percent evaluation is granted for right side radiculopathy. However, a 20 percent rating is not warranted because the examiner made the same findings for the right lower extremity as for the left. Specifically, found that the Veteran had mild intermittent (usually dull) pain and paresthesias and/or dysesthesias in his right lower extremity. The examiner found that he did not have constant pain or numbness. The examiner found that there were no other signs and symptoms of radiculopathy. Therefore, a 20 percent rating for the right lower extremity is denied. ORDER The claim for increased rating for a lumbar spine disability, rated as 10 percent disabling based on orthopedic manifestations for the period prior to February 7, 2012, and 20 percent thereafter, is denied. The claim for increased rating for the neurologic manifestations of the service-connected lumbar spine disability, left side, currently rated as 10 percent disabling, is denied. A separate 10 percent rating for right sided radiculopathy is granted, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs