Citation Nr: 20045033 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 10-20 833 DATE: July 7, 2020 ORDER For the period prior to December 18, 2019, entitlement to a disability evaluation in excess of 10 percent for service-connected lumbar spine degenerative joint disease (DJD) is denied. For the period from December 18, 2019, entitlement to a disability evaluation of 20 percent, but no higher, for service-connected lumbar spine DJD is granted. For the period from December 18, 2019, entitlement to a separate disability evaluation of 20 percent, but no higher, for bilateral lower extremity radiculopathy is granted. REMANDED Entitlement to a separate disability evaluation for bilateral lower extremity radiculopathy, for the period prior to December 18, 2019, is remanded. Entitlement to service connection for a kidney disorder is remanded. FINDINGS OF FACT 1. For the period prior to December 18, 2019, the Veteran’s service-connected lumbar spine DJD was not productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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. 2. For the period from December 18, 2019, the Veteran’s service-connected lumbar spine DJD was productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 3. For the period from December 18, 2019, the Veteran’s lumbar spine DJD has caused bilateral lower extremity radiculopathy, which has been productive of moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the period prior to December 18, 2019, the criteria for an evaluation in excess of 10 percent for lumbar spine DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. For the period from December 18, 2019, the criteria for an evaluation of 20 percent, but no higher, for lumbar spine DJD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. For the period from December 18, 2019, the criteria for a separate evaluation of 20 percent, but no higher, for bilateral lower extremity radiculopathy associated with lumbar spine DJD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, a Travel Board hearing was held before a Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In an October 2018 letter, the Veteran was advised that the VLJ who conducted the June 2015 hearing was no longer employed at the Board and, therefore, he had the right to an additional hearing before a different VLJ. subsequently responded that he did not want to attend another hearing before the Board. See November 2018 Correspondence. The Board previously remanded this matter in October 2015 and January 2019. The case has been returned to the Board for further appellate consideration. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and their residual conditions. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Pain which does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 may still result in functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Pursuant to 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). A veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. When the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 19 (1990). 1. For the period prior to December 18, 2019, entitlement to a disability evaluation in excess of 10 percent for service-connected lumbar spine DJD is denied. 2. For the period from December 18, 2019, entitlement to a disability evaluation of 20 percent, but no higher, for service-connected lumbar spine DJD is granted. Applicable here, under Diagnostic Code 5003, arthritis established by x-ray findings is rated based on limitation of motion of the affected joints. When, however, the limited motion of the specific joint or joints involved would be non-compensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability 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. A 20 percent disability rating is assigned 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 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 the entire spine. 38 C.F.R. § 4.71a. During the Veteran’s June 2007 examination, he was noted to have lumbar flexion to 90 degrees, and a combined range of motion of thoracolumbar spine was recorded at 240 degrees. The examiner found that repeat flexion and extension of the back produced no indication of pain, weakness, or fatigue and he had normal flexion and extension against force. The Veteran was able to rise out of a chair without use of his hands or arms and walked without any indication of a limp. He exhibited normal posture and no indication of muscle spasm or spinous or paraspinous tenderness was noted. The examiner found he had a negative straight leg lift bilaterally and no indication of radiculopathy or sensory deprivation in the bilateral lower extremities. The examination report did not reflect quadriceps or hamstring muscular atrophy and the Veteran exhibited normal strength in the quadriceps and hamstring muscles bilaterally. Additionally, the Veteran’s reflexes were noted to be normal. When the Veteran was again examined for his back condition in December 2009, he reported weekly flare-ups of the spine, lasting approximately 1-2 days and precipitated by bending, standing, twisting, cold weather, and overhead activities. He stated that his flare-ups were alleviated by medication, rest, TENS, and a heat pad. On range of motion testing, the Veteran was noted to have forward flexion of the lumbar spine to 80 degrees, and a combined range of motion of the lumbar spine to 200 degrees. The examiner found that the Veteran did not have ankylosis of the spine but had normal muscle strength. The Veteran also had a normal sensory examination and normal reflexes. The Veteran was again examined in April 2018, at which time he reported he did not experience flare-ups of the back. However, he reported difficulty sleeping, chronic aching, difficulty standing for long periods, but no radicular symptoms. Initially, the Veteran’s forward flexion of the lumbar spine was measured to 70 degrees with a combined range of motion of the lumbar spine to 220 degrees. The Veteran exhibited pain on forward flexion, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissues. On repetitive use testing, the Veteran’s range of motion did not change. The examiner found neither pain, weakness, fatigability, nor incoordination significantly limited his functional ability with repeated use over a period of time. The Veteran exhibited normal muscle strength with no muscle atrophy. Additionally, the Veteran’s reflexes and sensory examinations were normal. The examination report reflected no signs or symptoms of radiculopathy or ankylosis of the spine. The examiner also concluded that the Veteran did not exhibit intervertebral disc syndrome (IVDS) and although he used a walker regularly as an assistive device, the examiner noted that the use of a walker was mostly for the Veteran’s knees and only somewhat for his back. During the Veteran’s most recent examination in December 2019, he stated that he did not experience flare-ups of the back, but that he had chronic pain, difficulty with stairs, difficulty sleep, and slow and limited ambulation. His initial forward flexion of the lumbar spine was limited to 60 degrees with a combined range of motion to 210 degrees. The Veteran exhibited pain on forward flexion; however, there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. When testing the Veteran’s repetitive use of the back, the examiner found no changes to his range of motion and that neither pain, weakness, fatigability, nor incoordination significantly limits functional ability with repeated use over a period of time. The examiner also found that the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. The examination report reflects that the Veteran’s muscle strength was normal with no muscle atrophy and that his reflexes and sensory examinations were normal. Furthermore, the examiner found that the Veteran did not have ankylosis or IVDS of the spine. However, the examiner noted that the Veteran regularly used a walker as an assistive device due to his back disability. The Board finds that, prior to December 18, 2019, the Veteran’s spine condition did not meet the criteria for a rating in excess of 10 percent. During each of his examinations prior to December 2019, the Veteran was noted to not have any muscle spasm or guarding of the spine, forward flexion at 60 degrees or less, or a combined range of motion 120 degrees or less. The Veteran did, however, exhibit painful motion. Accordingly, the criteria in DeLuca and Mitchell regarding painful motion are encompassed in the Veteran’s 10 percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. at 43. Before December 18, 2019, there is no indication that the Veteran’s painful motion resulted in functional limitations of reduced range of motion or muscle spasms or guarding. The Board notes that during the Veteran’s December 2019 examination, the Veteran exhibited forward flexion to 60 degrees. Accordingly, the Board finds the criteria for a 20 percent evaluation effective December 18, 2019, have been met, as the Veteran’s forward flexion of the lumbar spine was limited to 60 degrees. See 38 C.F.R. § 4.124a, General Rating Formula. The rating criteria for an evaluation of disability of the spine are disjunctive, and, as such, the Veteran need only meet one criterium to be entitled to an increased rating. See Johnson v. Brown, 7 Vet. App. 95 (1994). The Board also acknowledges that the December 2019 VA examiner reviewed an x-ray from August 2018 exhibiting arthritis of the spine. However, the Board finds that the limited motion the Veteran showed during his various examinations were compensable pursuant to his current ratings under the diagnostic code for his lumbar DJD. Therefore, the Board finds that the Veteran is not entitled to a separate and/or higher evaluation under DC 5003. To warrant a 40 percent disability evaluation, the Veteran must exhibit forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the thoracolumbar spine. None of the Veteran’s examination reports reflect this symptomatology. Accordingly, the Veteran is not entitled to an evaluation in excess of 20 percent for his lumbar spine DJD. In sum, the Board finds that the criteria for a rating in excess of 10 percent for the Veteran’s lumbar spine DJD prior to December 18, 2019, have not been met; however, the criteria for a rating of 20 percent, but no higher, have been met effective December 18, 2019. 3. For the period from December 18, 2019, entitlement to a separate disability evaluation of 20 percent, but no higher, for bilateral lower extremity radiculopathy is granted. Radiculopathy of the sciatic nerve is governed by DC 8520. According to the rating schedule, mild incomplete paralysis warrants a 10 percent rating, moderate incomplete paralysis corresponds to a 20 percent rating, and severe incomplete paralysis with marked muscular atrophy results in a 60 percent rating. An 80 percent rating is assigned for complete paralysis of the sciatic nerve, in which the foot dangles and drops, no active movement of muscles below the knee is possible, and flexion of the knee is weakened or lost. 38 C.F.R. § 4.124a, DC 8520. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 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. Here, during the Veteran’s December 2019 examination, he was noted to have L5 bilateral lower extremity radiculopathy, which manifested as sharp pain and was caused by his service-connected lumbar spine DJD. The examiner found that the Veteran exhibited moderate intermittent pain (usually dull) to both lower extremities, involving the L4/L5/S1/S2/S3 nerve roots. The examiner concluded that the Veteran’s radiculopathy was of moderate severity bilaterally. Furthermore, the examiner found that the Veteran’s muscle strength was normal and that he did not exhibit any muscle atrophy. Accordingly, pursuant to DC 8520, the Board finds that the Veteran is entitled to a separate evaluation of 20 percent for bilateral lower extremity radiculopathy, as he was found to have experienced moderate radicular pain but did not exhibit muscle atrophy that would warrant an evaluation higher than 20 percent. REASONS FOR REMAND The Board sincerely regrets the additional delay, but further evidentiary development is necessary before the below-listed issues can be adjudicated on the merits. 1. Entitlement to a separate disability evaluation for bilateral lower extremity radiculopathy, for the period prior to December 18, 2019, is remanded. With respect the Veteran’s entitlement to a separate evaluation for his bilateral lower extremity radiculopathy for the period prior to December 18, 2019, the Board notes that the Veteran’s private treatment records indicate that his lumbar spine DJD caused radiculopathy long before the December 2019 VA examiner noted such on evaluation. See, e.g., May 2010 Records from Spine Care Consultants; September 2010 Records from Texas Orthopedic and Physical Medicine. Accordingly, the Board finds that remand is necessary in order to obtain a retrospective medical opinion to help determine the severity of the Veteran’s lower extremity radiculopathy prior to December 18, 2019. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain time period, a retrospective medical evaluation may be warranted). 2. Entitlement to service connection for a kidney disorder is remanded. The Veteran asserts that his kidney condition is due to either his active service, or, alternatively, to medications taken for his service-connected lumbar spine DJD. He was scheduled for a VA examination in January 2020 but failed to report. See January 2020 CAPRI. However, review of the record does not show that any attempt was made to contact the Veteran or notify him of the scheduled examination. Based on the foregoing, the Board finds that he has shown good cause for his failure to report for the January 2020 VA examination. Accordingly, a remand is necessary in order to obtain an addendum opinion with respect to the nature and etiology of the Veteran’s current kidney disorder. Should the VA examiner determine that a new examination is warranted, one is to be arranged. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any private care providers who may possess new or additional evidence pertinent to the remaining issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Return the claims file to the examiner who conducted the December 2019 examination of the Veteran’s lumbar spine disability. The examiner should provide a medical opinion, if possible and as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, including the Veteran’s private treatment records, as to the severity of his bilateral lower extremity radiculopathy prior to December 18, 2019. 4. Forward the claims file to an appropriate clinician to determine the nature and etiology of the Veteran’s kidney disorder. If the examiner determines that an examination would be beneficial, one is to be provided. If the Veteran is scheduled for a new examination, ensure that the Veteran receives notice of the date and time of his examination. Any contact or notice should be documented in the record. If the examiner determines that an examination is necessary, and an in-person examination is not feasible, the examiner should evaluate the Veteran based on either a telehealth interview or a complete review of the record and provide an opinion regarding the Board’s below-listed inquiries. (a) Provide diagnoses for any kidney disorders that the Veteran has had at point during or proximate to the appeal period; (b) For EACH kidney disorder so diagnosed, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in or is otherwise related to the Veteran’s active duty service. In rendering the above opinion, the examiner must specifically consider and discuss the Veteran’s service treatment records below: (i) January 1994 separation medical history report of kidney stones/blood in urine; (ii) March 1993 symptoms of nocturia, impression of horseshoe kidney, urolithiasis, and hematuria; (iii) February 1988 uretero lithiasis and right distal ureteral calculus; (iv) December 1987 reenlistment examination note of microscopic hematuria. (c) For EACH kidney disorder so diagnosed, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that said disorder was either (i) caused or (ii) aggravated (i.e. worsened beyond the normal progression of the disease) by his service-connected disabilities, to specifically include the medication therapy for his lumbar spine degenerative joint disease. NOTE: With respect to the question concerning aggravation, the examiner is advised that aggravation under 38 C.F.R. § 3.310(b) does not require “permanent worsening” of the nonservice-connected disability. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation. If the examiner determines that the Veteran’s kidney condition(s) is/are less likely than not caused by his active service, or less likely than not caused and/or aggravated by his service-connected disabilities, the examiner should discuss what other factor(s) caused the disorder(s). A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the remaining issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.