Citation Nr: 20009687 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 18-35 678 DATE: February 5, 2020 ORDER Entitlement to a rating in excess of 40 percent for spondylolisthesis and spondylitis of L5-S1, with degenerative changes of L2-L5, with bruxism (hereinafter lumbar spine disability) is denied. Entitlement to a separate and compensable rating for bruxism is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to an effective date earlier than March 20, 2017 for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to an effective date earlier than March 20, 2017 for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. Throughout the entire appellate period, the preponderance of the evidence shows that the Veteran’s lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine or entire spine, or intervertebral disc syndrome (IVDS) productive of incapacitating episodes. 2. The Veteran’s bruxism is a symptom of his service-connected lumbar spine disability; his bruxism symptoms are adequately contemplated by the underlying condition for which he is being compensated. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239. 2. The criteria for entitlement to a separate and compensable rating for bruxism have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.150. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to November 1972. The matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for the Veteran’s bilateral lower extremity radiculopathy and assigned a 20 percent rating, effective March 20, 2017. As these grants do not represent a total grant of benefits sought on appeal, the claims for an increased rating remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Moreover, the Board notes that while the Veteran’s representative was afforded the opportunity to submit an informal hearing presentation (IHP) as to the claims addressed herein, an IHP was not submitted. However, because the Veteran was afforded this opportunity to submit an IHP and, through his representative, effectively declined to submit one, the Board will proceed with this appeal. Lastly, the Board notes that the Veteran’s claims for entitlement to an increased rating for bilateral hip, thigh, and knee disabilities; entitlement to service connection for left upper extremity numbness and cervical spine condition; and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) will be addressed in a later Board decision, as the Veteran has not yet been provided a Board hearing concerning those claims. See July 2019 substantive appeal. Evidence has recently been added by VA to the record. Review of this evidence reveals that it is cumulative or duplicative of evidence previously of record or related to other disabilities. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 126–27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). Throughout the appellate period, the Veteran’s lumbar spine disability has been in receipt of a 40 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5239. Diagnostic Code 5239 is part of the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: 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 the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Note (1) of the General Rating Formula provides that VA should evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. The Veteran was afforded a VA examination in March 2016. The Veteran did not report flare-ups of the thoracolumbar spine. Range of motion testing revealed forward flexion to 25 degrees, extension to 0 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 20 degrees, with pain. The examiner noted that range of motion and pain contributed to the Veteran’s functional loss. No additional functional loss of motion was noted upon repetitive use testing. The examiner opined that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted that the Veteran had localized tenderness resulting in abnormal gait or abnormal spine contour. No muscle atrophy, radiculopathy, ankylosis, IVDS, or neurological abnormalities were noted. The Veteran underwent a VA examination in May 2016, in which he reported flare-ups and functional impairment of the thoracolumbar spine that prohibited his ability to bend or extend his back. Range of motion testing revealed forward flexion to 20 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 20 degrees, with pain. The examiner indicated that the noted pain during the examination caused functional loss. The Veteran was unable to perform repetitive-use testing with at least three repetitions due to pain. The examiner stated that pain significantly limited functional ability with repeated use over a period of time and during flare-ups. However, the examiner stated that he was unable to describe the Veteran’s functional ability in terms of range of motion because he was not examined during a flare-up or after repeated use over time. No muscle atrophy, radiculopathy, ankylosis, IVDS, or neurological abnormalities were noted. The Veteran was afforded another VA examination in July 2017, in which he reported functional loss or functional impairment of the thoracolumbar spine that limited his ability to bend or lift and carry objects. The Veteran also reported that his ambulatory capacity was limited to less than one block. The Veteran did not report flare-ups of the thoracolumbar spine. Range of motion testing revealed forward flexion to 15 degrees, extension to 0 degrees, bilateral lateral flexion to 0 degrees, and bilateral lateral rotation to 5 degrees, with pain. The Veteran was unable to perform repetitive use testing due to pain. The examiner stated that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time. The examiner indicated that the Veteran had guarding and muscle spasms resulting in abnormal gait or abnormal spinal contour. Muscle atrophy, IVDS, or other neurologic abnormalities were not noted during the examination. The examiner indicated that the Veteran had bilateral lower extremity radiculopathy, noting moderate numbness and paresthesias and/or dysesthesias as well as severe intermittent pain. The examiner concluded that the severity of the Veteran’s bilateral lower extremity radiculopathy was moderate. The Board finds that the Veteran’s lumbar spine disability does not warrant a rating in excess of 40 percent. To warrant a rating higher than 40 percent under the General Rating Formula the Veteran’s lumbar spine disability must manifest in unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. In this case, the VA treatment records and VA examination reports do not indicate the presence of ankylosis in the Veteran’s spine at any point. Therefore, a rating higher than 40 percent is not warranted under the General Rating Formula. Additionally, that as a 40 percent evaluation is the highest schedular rating for limitation of motion of the spine the regulatory provisions pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, the Board notes it has also considered whether the Veteran is entitled to additional separate ratings for associated neurologic conditions, other than the radiculopathies addressed in the remand portion below. However, the record does not reflect that the Veteran has had neurologic abnormalities, to include bowel or bladder impairments, associated with his service-connected lumbar spine disability. Therefore, a separate evaluation for associated additional neurologic conditions is not warranted. The Veteran’s representative has raised the issue of whether the Veteran’s lumbar spine disability should be evaluated on an extraschedular basis. See June 2017 notice of disagreement. Ordinarily, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115–16 (2008). With respect to the Veteran’s claim for a higher rating for his lumbar spine disability, the evidence does not show an exceptional or unusual disability picture that renders the available schedular criteria inadequate. Specifically, the rating criteria provides for ratings based on limitation of motion of the spine including due to pain and other orthopedic factors and incapacitating episodes. 38 C.F.R. §§ 4.40, 4.45, 4.59. The symptomology and impairment caused by the Veteran’s lumbar spine disability, to include pain, weakness, fatigue, and decreased range of motion is contemplated by the pertinent schedular rating criteria. According, as the schedular rating currently assigned contemplates the Veteran’s level of disability and symptomatology for the entire appellate period, referral for extraschedular consideration is not warranted. Furthermore, the Veteran contends that he is entitled to a separate and compensable rating for his bruxism. Service connection for compensation or treatment purposes is available only for certain types of dental disorders. See 38 C.F.R. §§ 3.381, 4.150. Bruxism is involuntary, nonfunctional, rhythmic, or spasmodic gnashing, grinding, and clenching of teeth, usually during sleep, sometimes leading to occlusal trauma. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 257 (32 ed., 2012). Unfortunately, the Veteran’s bruxism does not constitute an injury for which compensation may be granted. 38 C.F.R. § 3.381. In this case, the Veteran has not identified evidence which documents a dental disability due to his bruxism for which compensation may be paid under VA regulation. Additionally, the Board notes that during the pendency of this appeal, a Final Rule prohibiting bruxism as a stand-alone disability was issued in August 2017, which became effective on September 10, 2017. See 82 Fed. Reg. 36080, 36081 (Aug. 3, 2017). Thus, the Veteran’s bruxism, in and of itself, is not a disability for which service connection can be granted; instead, it is a symptom of the Veteran’s service-connected lumbar spine disability. The Board notes that the Veteran’s bruxism symptoms are adequately contemplated by the underlying condition for which he is being compensated. REASONS FOR REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. With regards to the Veteran’s claims of entitlement to an earlier effective date and initial increased rating for his bilateral lower extremity radiculopathy, the Board notes that a May 2018 rating decision granted service connection for the Veteran’s bilateral lower extremity radiculopathy and assigned a 20 percent rating, effective March 20, 2017. The March 2016 and May 2016 VA examination reports indicated that the Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. During the July 2017 VA examination, the Veteran reported pain in his lower extremities with sharp shooting episodic pains with numbness and some weakness. The July 2017 VA examiner indicated that the Veteran had moderate bilateral lower extremity radiculopathy. The Board notes that the Veteran’s December 2014 and March 2015 VA treatment records indicated treatment for lumbar radiculopathy. Additionally, a September 2016 VA treatment note revealed that the Veteran reported lumbar back and neck pain with bilateral lower and upper extremity radicular symptoms. Thus, the Board finds that the Veteran’s VA treatment records suggest that his radiculopathy was present earlier than March 20, 2017. Accordingly, on remand, a medical opinion shall be obtained as to when the Veteran’s bilateral lower extremity radiculopathy first manifested. Moreover, the Veteran contends that his condition has worsened since his July 2017 VA examination to the point where he is in constant pain, and has increased numbness, weakness, and instability in his lower extremities. See May 2019 notice of disagreement. When a veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Given the foregoing, the Veteran should be scheduled for a VA examination to determine the current nature and severity of his service-connected bilateral lower extremity radiculopathy. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate medical professional to determine the current nature and severity of the Veteran’s bilateral lower extremity radiculopathy. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to review the medical record and provide an opinion as to when the Veteran’s bilateral lower extremity radiculopathy first manifested. The examiner is asked to conduct a thorough examination and provide an opinion as to whether the Veteran’s bilateral lower extremity radiculopathy is moderate, moderately severe, or severe with marked muscular atrophy. All necessary diagnostic testing should be conducted. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.