Citation Nr: 20021815 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-19 181 DATE: March 27, 2020 ORDER A rating of 40 percent for lumbar spine degenerative disc disease is granted. A separate 10 percent rating for left sciatic radiculopathy is granted. Service connection for erectile dysfunction is granted. REMANDED The appeals for service connection for heart disease and sleep apnea are remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s low back symptomatology more nearly approximates forward flexion of his thoracolumbar spine limited to 30 degrees or less; ankylosis of the entire thoracolumbar spine, intervertebral disc syndrome. 2. Resolving reasonable doubt in the Veteran’s favor, a separate 10 percent rating is warranted for left sciatic radiculopathy. 3. The Veteran’s erectile dysfunction is secondary to his service-connected low back disability. CONCLUSIONS OF LAW 1.The criteria for a rating of 40 percent for lumbar spine degenerative disc disease, but no higher are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5010-5237. 2.The criteria for a separate rating of 10 percent for left sciatic radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.124a, Diagnostic Code 8520. 3.The criteria for service connection for erectile dysfunction secondary to lumbar spine degenerative disc disease are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to November 1981. 1. Entitlement to a higher rating for lumbar spine degenerative disc disease Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. 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 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran appeals for a higher rating for his service connected lumbar spine degenerative disc disease, which is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237. His current claim is being treated as filed in or about September 2014, based in part on information received at that time. Under 38 C.F.R. § 4.71a’s General Rating Formula for Diseases and Injuries of the Spine, a 20 percent 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 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 warranted when there is forward flexion of thoracolumbar spine to 30 degrees or less; or favorable ankylosis of his entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under Diagnostic Code 8520, pertaining to paralysis of the sciatic nerve, mild incomplete paralysis warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Resolving reasonable doubt in the Veteran’s favor, the Board concludes that a rating of 40 percent is warranted for the Veteran's service connected lumbar spine degenerative disc disease as well as a separate 10 percent rating for left sciatic radiculopathy throughout the rating period. On VA examination in July 2015, thoracolumbar spine forward motion was to 60 degrees, extension was to 10 degrees, and right and left lateral flexion and rotation was to 10 degrees, with pain beginning at those points. There was no additional limitation in range of motion on repetitive-use testing. Clearly, given the range of motion shown, the Veteran did not have ankylosis of his entire thoracolumbar spine. Furthermore, the Veteran's muscle strength testing was normal, with no atrophy. The examiner indicated that the Veteran did not have intervertebral disc syndrome of his thoracolumbar spine, and that his reflexes and sensory were normal, with no radicular pain. However, the examiner noted that the Veteran mentioned subjective complaints of intermittent paresthesia and numbness “sciatic left” although the Veteran was asymptomatic during the examination. The examiner also concluded “the diagnosis is changed and it is a progression of the previous diagnosis intermittent sciatic pain and tingling left despite physical therapy.” The examiner also noted that the Veteran had moved from being a certified nurse’s assistant and then moved to kitchen work “and then change[d] to driving truck but frequent flare ups and lost that job 3 years ago . . . .” The examiner also noted the Veteran’s report of limitation with outside work and chores, that he started using a cane 2 years previously “full time for ambulation and support and balance” and that he sold his boat and camper due to difficulties getting inside the camper without assistance. While the March 2017 VA examination report showed thoracolumbar spine range of motion on that examination actually exceeded that shown on the July 2015 VA examination, the Veteran was unable to perform repetitive-use testing with at least 3 repetitions due to pain, balance, peripheral neuropathy, and deconditioning. The Veteran had reported that he has difficulty picking up a 25 pound bag; that if he stands anywhere from 5-10 minutes he will develop pain in the center portion of his low back and will have to sit down, sometimes being able to get up and work after 5 minutes and other times having to take off for the rest of the day; that he has similar episodes when he walks; and that he has to use picker-uppers to pick things up off the ground. Additionally, the VA examiner indicated that the examination was medically consistent with his statements describing functional loss with repetitive use over time. The Veteran reported flare-ups without specific triggers. Reflex and sensory findings were related to moderately severe diabetic peripheral neuropathy. As to functional impact, the examiner noted that the Veteran had “[l]imited ability to ambulate or stand for any time or distance[] [n]o bending, kneeling, stooping, crawling or climbing[] [n]o lifting above 25 pounds when not having a flare up.” The Board has considered the treatment records show that in an April 2017 report of a routine VA medical visit, the Veteran reported having no complaints and he was in no apparent distress, reporting that he felt good. His spine had a full range of motion with no pain, tenderness, or contractures, and it was aligned and symmetric. His strength was equal and adequate. When he was seen for a routine medical visit in October 2017, his low back pain level was zero. In January 2018, low back pain was reported, and medication reconciliation was performed. Affording the Veteran the benefit of the doubt and with consideration of pain during flare-ups and functional impairment, the Board finds that a 40 percent rating for his low back is warranted in addition to a separate 10 percent rating for mild left radiculopathy based on the 2015 VA examination report. The preponderance of the evidence including the July 2015 and March 2017 VA examination reports indicates affirmative findings that the Veteran does not have ankylosis of his entire thoracolumbar spine or intervertebral disc syndrome. Additionally, apart from the separate rating for left sciatic radiculopathy, no other associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are shown. Sensory findings on 2017 VA examination were attributed to diabetic peripheral neuropathy, and it was affirmatively noted that there were no signs or symptoms of radiculopathy on both the 2015 and 2017 examination reports. 2. Service connection for erectile dysfunction Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. A 2004 VA examination report concluded that the Veteran’s low back disability “causes erectile dysfunction.” Accordingly, service connection is warranted on a secondary basis. REASONS FOR REMAND Service connection was previously denied for heart disease by the Board in June 2000. That decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. However, in April 2016, the Veteran appears to have argued that his heart disease is related to a period of reserve service in the 1990s. It also appears that in September and October 2014, additional relevant reserve service treatment records were received from that time period. In light of this, the claim is going to be reconsidered pursuant to 38 C.F.R. § 3.156(c). Prior to reconsideration of the claim, however, the agency of original jurisdiction should attempt to ascertain the Veteran's types of reserve service and dates thereof. This had been attempted in the past, but the attempts were unsuccessful. In a December 1994 VA report of contact, it was surmised that the lack of a response from the Yakima, Washington Army Reserve Center was due to a Christmas stand down of employees there. And in September 1997, it was reported that repeated attempts to reach the Reserve Center found only an answering machine that advised that no full-time employees worked there, and which referred to another number that nobody answered. The appearance of reserve service treatment records recently suggests that his reserve service information may be obtainable now also. Accordingly, attempts to verify the dates and types of reserve service should be accomplished. As for the claim for service connection for sleep apnea, it is possible that reserve service record development on remand will shed light on and/or enhance this claim. Since an appellate decision on this claim is being be deferred, attempts to further develop it, as indicated below, it will be performed on remand, to attempt to afford the Veteran every consideration. We thank him for his honorable service. The matters are REMANDED for the following action: 1. Please obtain updated VA and non-VA treatment records. Please attempt to obtain, after any necessary authorization from the Veteran, records leading up to and the sleep study by Dr. Greenberg which may have occurred in or around late 2006 or 2007. 2. Contact the U.S. Army Reserve Center in Yakima, Washington, or any other necessary source, and request confirmation of the Veteran's types of reserve service and the dates thereof. Any additional pertinent medical documentation associated with such periods of service should also be requested. Any records obtained should be associated with the Veteran's claims folder. 3. If any further development is indicated as a result of the additional materials received on remand, such development should be accomplished. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.