Citation Nr: 20043667 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 16-15 765 DATE: June 29, 2020 ORDER For the rating period on appeal prior to June 10, 2019, a 20 percent rating, but not higher, for a lumbar spine disability, is granted. For the entire rating period on appeal, a rating higher than 20 percent for a lumbar spine disability is denied. Beginning June 10, 2019, a separate 10 percent rating, but not higher, for lumbar radiculopathy of the right lower extremity, is granted. Beginning June 10, 2019, a separate 10 percent rating, but not higher, for lumbar radiculopathy of the left lower extremity, is granted. REMANDED Entitlement to a rating higher than 10 percent for residuals of ligamentous surgery of the right thumb is remanded. Entitlement to a total disability evaluation based on individual unemployability due to the veteran’s service- connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the entire rating period on appeal, the lumbar spine disability more nearly approximates forward flexion of the thoracolumbar spine to 35 degrees at worst, without evidence of favorable ankylosis or at least four weeks of incapacitating episodes of IVDS in the previous 12-month periods. 2. Resolving all doubt in the Veteran’s favor, beginning June 10, 2019, the lumbar spine disability resulted in neurological impairment of the right and left lower extremities that was analogous to mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the rating period on appeal prior to June 10, 2019, the criteria for a 20 percent rating, but not higher, for a lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5237 (2019). 2. For the entire rating period on appeal, the criteria for a rating higher than 20 percent for a lumbar spine disability are not met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5237 (2019). 3. Beginning June 10, 2019, the criteria for a separate 10 percent rating, but no higher, for right lumbar radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520 (2019). 4. Beginning June 10, 2019, the criteria for a separate 10 percent rating, but no higher, for left lumbar radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2001 to January 2005. This appeal stems from a January 2013 rating decision that denied a rating higher than 10 percent for a right thumb disability and a rating higher than 10 percent for a lumbar spine disability. In September 2018, the Board remanded the case to obtain outstanding records and provide the Veteran with new VA examinations. Subsequently, in a March 2020 rating decision, the RO increased the lumbar spine disability rating to 20 percent, effective June 10, 2019, the date of the VA examination. Nevertheless, the Board notes that the 20 percent rating does not constitute a full grant of the benefit sought by the Veteran and that higher ratings are available. As such, the Veteran’s claim for a lumbar spine disability remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating – Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbar Spine – Rating Criteria When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine 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. 38 C.F.R. § 4.71a. A 20 percent rating is provided for forward flexion of the thoracolumbar spine 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Intervertebral disc syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined as 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. Id. at Note (1). Lumbar Spine – Rating Analysis As discussed above, the RO rated the Veteran’s lumbar spine disability as 10 percent disabling prior to June 10, 2019, and 20 percent disabling thereafter. Prior to June 10, 2019 For the reasons expressed below, the Board finds that the criteria for a 20 percent rating are met for this entire rating period on appeal. Turning to the evidence, according to a May 2012 Report of General Information, the Veteran called to file a claim for increased rating, at which time he indicated that his back pain was so severe that he missed weeks of work. According to June 2012 VA treatment records, the Veteran reported having chronic low back pain but denied any lower extremity numbness and weakness or bowel and bladder dysfunction. Thereafter, according to a July 2012 VA physical medicine rehabilitation consult, the Veteran complained of chronic low back pain. He indicated that he could not stand or sit for more than 20 minutes, could not perform fast movements, and had a hard time putting on his socks in the morning. The pain at the time of the visit was described as 3 out of 10 in severity and the worse pain was described as 9 out of 10 in severity. The pain was managed with fair effect by Motrin. Functional limitations included difficulty with dressing and bathing the lower extremities, difficulty standing with decreased core stability and endurance, poor posture awareness and left sacroiliac joint dysfunction. Range of motion testing showed that flexion was “25%,” extension “100%,” and side bend “100%” on the right and “50%” on the left. The Veteran denied having numbness and tingling. X-rays of the lumbar spine were negative. In December 2012, the Veteran underwent a VA back examination, at which time the examiner rendered a diagnosis of central diffuse disc bulges at L4-5 and L5-S1 with mild facet hypertrophy. The Veteran complained of low back pain that “comes and goes.” He noted that he went to the emergency room earlier that year after an assault at work that caused a back injury. He was provided with Lidoderm patches. For treatment, he used Ibuprofen 800 mg, muscle relaxers, and ice packs. The Veteran reported having flare-ups that were described as swelling. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 70 degrees; extension to 15 degrees; lateral flexion to 15 degrees, bilaterally; and, lateral rotation to 25 degrees, bilaterally. There was no additional loss in range of motion following repetitive use testing. Functional loss/impairment was described as less movement than normal and pain on movement. There was evidence of guarding and/or muscle spasm that did not result in abnormal gait or spinal contour. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout with straight leg raising test negative, bilaterally. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. The Veteran had IVDS with at least two weeks but less than four weeks of incapacitating episodes requiring bed rest in the previous 12 months. X-rays were normal and showed no evidence of arthritis. The examiner noted that the Veteran worked as a security guard and could not sit or stand for prolonged periods of time nor participate in exercising. In the April 2016 substantive appeal (VA Form 9), the Veteran indicated that he had been dealing with excruciating back pain and have put limitation on my range of motion. He indicated that he missed many days of work and had to receive treatment at the VA hospital for muscle spasms. According to May 2016 VA treatment records, the Veteran came into the clinic with guarded gait. He was unable to sit without using his arms to offload wright and stood with the left trunk leaning to offload the side of trunk. Straight leg raising and even just dorsiflexion of the right foot resulted in sharp shooting pain into the eight lower back and buttock. The medical professional noted that the increase in pain prevented the Veteran from participating in physical training or even completing physical therapy without severe pain. Thereafter, in July 2016, MRI of the lumbar spine was unremarkable. Sensory examination was normal. No major gait deviation was noted. Range of motion of the lumbar spine was “100%” throughout. The medical professional noted that the Veteran presented with adequate strength of his lower extremities and lumbar spine with range of motion within normal limits. The medical professional concluded that the Veteran had an impaired posture, and that given his functional status at the time, no further appointments were needed. Subsequent VA treatment records from 2016 to 2019 showed continuous treatment for low back pain. On review, the Board resolves all doubt in the Veteran’s favor in finding that a 20 percent rating, but not higher, is warranted during this rating period on appeal. During the December 2012 VA examination, forward flexion of the lumbar spine was to 70 degrees, which warrants a 10 percent disability rating; however, despite the Veteran’s reported flare-ups, the examiner did not take those into consideration. Moreover, the examiner noted that the Veteran had IVDS with at least two weeks but less than four weeks of incapacitating episodes requiring bed rest in the previous 12 months, which warrants a 20 percent rating. Although the VA treatment records do not document the prescribed bed rest by a physician, the VA examiner, a physician concluded that the Veteran’s IVDS resulted in incapacitating episodes that required bed rest of at least two weeks but less than four weeks in the previous 12 months. In addition, given the recorded limitation of motion, the Board finds that the evidence at the very least approximates the criteria for a 20 percent disability rating. Accordingly, a 20 percent disability rating, but not higher, is warranted. From June 10, 2019, Forward On June 10, 2019, the Veteran underwent a VA back examination, at which time the examiner confirmed a diagnosis of central diffuse disc bulges at L4-5 and L5-S1 with mild facet hypertrophy. The Veteran reported chronic low back pain that was described as a stabbing sensation that radiated to the left shoulder and bilaterally to the hips. The symptoms exacerbated with physical activity and relieved with rest. The Veteran denied having flare-ups and described functional loss/impairment as exacerbation of pain with prolonged standing, walking, and sitting, as well as inability to bend and exercise. He experienced some relief using Lidocaine ointment, doing daily stretching, and taking Ibuprofen; however, these did not provide sustained relief. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 45 degrees; extension to 15 degrees; lateral flexion to 15 degrees, bilaterally; and lateral rotation to 15 degrees, bilaterally. The examiner noted that range of motion itself contributed to a functional loss. In this regard, the examiner noted the Veteran’s reports of exacerbation of ain with prolonged standing, sitting, and walking. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was unable to perform repetitive use testing due to fear of pain. The examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. Though, the examiner noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time. The examiner estimated that after repetitive-use over a period of time, range of motion of the spine would reveal flexion to 35 degrees; extension to 10 degrees; lateral flexion to 10 degrees, bilaterally; and lateral rotation to 10 degrees, bilaterally. The Veteran had muscle spasm that resulted in abnormal gait. Additional factors contributing to the disability included instability of station, disturbance of locomotion, and interference with sitting and standing. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout. Straight leg raising test was positive, bilaterally. The examiner indicated that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis or IVDS. The Veteran stated that he missed five to six days of work in the previous year as a result of his lumbar spine disability. Upon review, the Board finds that the criteria for a rating higher than 20 percent are not met or approximated at any point during the pendency of the appeal. At worst, the Veteran’s range of lumbar spine motion approximated forward flexion to 35 degrees after repetitive use over time and/or during flare-ups as noted by the June 2019 VA examiner. In other words, even taking into consideration the Veteran’s subjective and credible reports of flare-ups and functional loss after repetitive use over time, limitation of flexion to no more than 30 degrees must be demonstrated or approximated to the meet the next-higher rating of 40 percent under the General Rating Formula, and such has not been met. Moreover, while the Board recognizes that the Veteran is also diagnosed with IVDS, such does not result in any incapacitating episodes of at least six weeks, which is required for rating purposes under DC 5243. Accordingly, there is no basis to support a rating higher than 20 percent for the Veteran’s lumbar spine disability at any point during the pendency of the appeal. Neurological Impairment In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (1) (2019). Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” See Sellers v. Wilkie, 30 Vet. App. 157 (2018). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. On review, the Board finds that beginning June 10, 2019, the evidence supports the assignment of a separate 10 percent rating for right and left lumbar radiculopathy. Prior to June 10, 2019, the Veteran did not report any radicular pain and sensory and reflex examinations were normal. However, although the June 2019 examiner noted that the Veteran had no signs of radiculopathy, the Veteran specifically reported radiating pain to bot hips and straight leg raising test was positive, bilaterally. The Veteran is competent to report these symptoms as they are observable by a layperson. Accordingly, resolving all doubt in the Veteran’s favor, the Board finds that, based on the lay and medical evidence, he has had neurologic impairment in his right and left legs associated with lumbar spine disability beginning June 10, 2019. This pain is shown to be analogous to mild, at worst, radiculopathy of the sciatic nerve. Notably, the Veteran reported only occasional radiating pain. As such, the Board concludes that beginning June 10, 2019, the evidence supports a 10 percent rating under DC 8520 for right and left lumbar radiculopathy. Neither the Veteran nor the medical evidence suggest that he had symptoms of radiculopathy that more nearly approximate moderate incomplete paralysis. The competent evidence does not reflect any other objective neurologic abnormalities associated with the lumbar back disability, such as bladder, or bowel problems, so as to warrant any additional separate ratings. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). REASONS FOR REMAND A remand is necessary to provide the Veteran with additional comprehensive VA neurological and orthopedic examinations to help determine the current severity of the right thumb disability and to further develop the newly raised claim for entitlement to a TDIU. Right Thumb A review of the record raises questions regarding the nature of the Veteran’s right thumb disability. Specifically, it appears that the Veteran reported symptoms other than painful limitation of motion. For example, swelling, instability, numbness, and weakness. The record further suggests perhaps some nerve involvement; however, it is not clear whether there is a neurological involvement and whether all symptoms are associated with the service-connected right thumb injury. Accordingly, the Board finds that a new VA examination is necessary prior to deciding the claim on the merits. TDIU The Court has held that a request for TDIU is part and parcel of a higher rating when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds that the evidence subsequent to the Board’s previous remand again raises the issue of entitlement to a TDIU. Specifically, the most recent VA examinations showed that the Veteran failed his rifle certification test due to his inability to grip his gun, which impacted his ability to work in his position as a security guard. The matters are REMANDED for the following action: 1. Implement the Board’s decision herein. 2. Ensure all outstanding VA treatment records are associated with the claims file. 3. Send the Veteran the appropriate notice as to how to substantiate his request for a TDIU, and send him a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the RO. 4. Thereafter, provide the Veteran with a comprehensive right thumb examination that would address both neurological and orthopedic disabilities related to the service-connected residuals of ligamentous surgery of the right thumb. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all current right thumb disabilities, to include but not limited to: residuals of ligamentous surgery of the right thumb, Gamekeeper’s thumb, instability, MCP/PIP joint prosthetic replacement, degenerative arthritis, status-post ligamentous surgery of the right thumb with residuals, and right thumb metacarpophalangeal joint fusion with autograft. (b) Identify all orthopedic residuals associated with the Veteran’s right thumb disability. (c) Identify all neurological residuals associated with the Veteran’s right thumb disability. A complete rationale should be provided for all opinions. 5. Thereafter, readjudicate the remanded claim, to include entitlement to a TDIU. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.