Citation Nr: 21002808 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 15-40 990 DATE: January 15, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to September 21, 2015 for service-connected multiple lower back strains with facet arthrosis, and in excess of 20 percent thereafter, for lumbosacral strain with degenerative arthritis and intervertebral disc syndrome is denied. Prior to September 21, 2015, entitlement to a separate 10 percent rating for left lower extremity femoral nerve damage secondary to service-connected lumbosacral strain with degenerative arthritis and invertebral disc syndrome is granted. Prior to September 21, 2015, entitlement to a separate 10 percent rating for right lower extremity femoral nerve damage secondary to service-connected lumbosacral strain with degenerative arthritis and intervertebral disc syndrome is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected carpal tunnel syndrome, left is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected carpal tunnel syndrome, right is remanded. FINDINGS OF FACT 1. Prior to September 21, 2015 the Veteran’s multiple lower back strains with facet arthrosis has not been limited to flexion to 30 degrees or less or combined range of motion to 120 degrees or less. 2. On and after September 21, 2015 the Veteran’s lumbosacral strain with degenerative arthritis and intervertebral disc syndrome not been limited to flexion to 60 degrees or less or combined range of motion to 120 degrees or less. 3. Since September 21, 2015, the Veteran’s service-connected left lower extremity femoral nerve damage has resulted in mild incomplete paralysis. 4. Since September 21, 2015, the Veteran’s service-connected right lower extremity femoral nerve damage has resulted in mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior September 21, 2015 for service-connected multiple lower back strains with facet arthrosis, and in excess of 20 percent thereafter, for lumbosacral strain with degenerative arthritis and intervertebral disc syndrome have not been meet. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243 (2019). 2. From September 21, 2015, the criteria for a separate 10 percent rating left leg radiculopathy are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8526. 3. From September 21, 2015, the criteria for a separate 10 percent rating right leg radiculopathy are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to September 1968. He has additional periods of service with the Oregon National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2018, the Veteran appeared at a Board hearing, and testified before the undersigned Veterans Law Judge. The appeal was remanded in April 2019 for additional development. It has since been returned to the Board for further appellate consideration. In a September 2020 rating decision, the RO granted service connection for bilateral lower extremity femoral nerve damage secondary to the service-connected lumbosacral strain with degenerative arthritis and intervertebral disc syndrome, effective September 15, 2020. The Board will thus consider the assigment of separate evaluations prior to that time only. Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). 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 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2019). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2019). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran filed his claim for service connection in October 2002 and continuously prosecuted that claim until service connection was granted in a February 27, 2013 rating decision. Prior to September 21, 2015, the Veteran’s spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5239. On and after that date, it is rated under DC 5242-5243. The former is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), wherein a 20 percent rating is warranted 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, 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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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; 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 criteria.”). Under 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). DC 5242-5243 is rated under the General Rating Formula, unless DC 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under that Formula, a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. 1. Entitlement to an initial disability rating in excess of 10 percent prior to September 21, 2015 for service-connected lumbosacral strain with degenerative arthritis and intervertebral disc syndrome. The Veteran was afforded a VA examination in May 2012. The Veteran reported he can only walk about ½ mile before his back pain makes him stop. He reported some stiffness in the early morning with average pain of 5 to 6 out of 10. He sometimes used a back support, takes Vicodin and Aleve, and has 6 to 8 drinks per day. Initial range of motion testing showed forward flexion to 90 degrees or greater. There was no painful motion during forward flexion noted. There was extension to 20 degrees, with pain at 20 degrees; and right lateral flexion to 15 degrees, with pain at 15 degrees; and left lateral flexion to 30 degrees, with no painful motion noted. There was right and left lateral rotation to 30 degrees, with no painful motion noted. The Veteran was able to perform repetitive use testing and forward flexion ended at 90 degrees; there was no additional loss of motion. The examiner determined the Veteran’s functional impairment of the thoracolumbar spine included less movement than normal and atrophy of disuse due to smaller than normal paraspinal muscles. The examiner found no localized tenderness or pain to palpitation. The examiner did not find guarding or back spasms. There was 5/5 muscle strength and normal reflexes. The examination showed normal muscle strength and evidence of muscle atrophy. There examination did not show evidence of intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The examination noted the Veteran did not use an assistive device. The examiner indicated the Veteran’s back did not cause functional impairment. The Board affords part of this May 2012 VA examination low probative weight. First, at the October 2018 Board hearing, the Veteran testified that during his examination, the examiner only asked him to cursory stand on his feet and bend. Next, the Veteran stated that he reported flare-ups of the back with twisting during the examination, and further noted that he told the examiner he experienced pain shooting down his left leg, left hip pain, lower back pain, and sciatica type stuff. Lastly, the Veteran testified that his problems with radiculopathy and sciatica was what was causing him the severe pain, even though his range of motion testing was pretty good. The examiner did not address the impact of the Veteran’s flare-ups. Also, the examiner did not discuss the Veteran’s reported problems with radiculopathy and his private records showing diagnoses of radiculopathy. In September 2012 the Veteran submitted private imaging reports. A September 2012 private treatment MRI imaging record noted a diagnosis constant aching back pain with radiculopathy. The range of motion testing showed full range of motion for lumbar flexion and extension. Lumbar rotation to the right and left was full. Straight leg raising test was negative. The clinician noted there were no neurological or motor deficits. The Veteran submitted a December 2013 private examination. MRI imagining showed mild prominent dorsal epidural fat. The Veteran reported stabbing, sharp, and unbearable pain. There was no significant ligamentum flavum hypertrophy or facet arthropathy; and no significant neural foraminal narrowing. The clinician noted severe central canal stenosis at L2-L3, L3-L4, and L4-L5 from combination of disc bulges and prominent dorsal epidural fat, likely representing epidural lipomatosis. A January 2014 private examination reported noted the Veteran reported constant sharp pain located in the center of low back. The Veteran’s symptoms did not include urinary incontinence, fecal incontinence, saddle anesthesia, weakness or numbness. The range of motion testing showed full range of motion for lumbar flexion and extension. Lumbar rotation to the right and left was full. Straight leg raising test was negative. A July 2015 private record, the Veteran reported intense pain that prohibits him from activities and is miserable. An April 2015 private treatment record noted possible lumbar radiculopathy. Private treatment records in May 2015 and July 2015 noted degenerative disc disease of the lumbar spine with lumbar radiculopathy. The Board finds an initial rating in excess of 10 percent prior to September 21, 2015 is not warranted. The evidence does not show forward flexion to in between 30 and 60 degrees, a 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. At the May 2012 VA examination the Veteran had forward flexion of the thoracolumbar spine to 90 degrees, with a normal gait and no evidence of muscle spasm, tenderness, and no abnormal spinal contour or muscle atrophy. Repetitive use did not cause additional loss of range of motion. And although the Veteran reported functional impairment, there was also full muscle strength and normal reflexes. On balance, this does not warrant an increased evaluation due to additional functional loss. 2. Evaluation in excess of 20 percent on and after September 21, 2015 The Veteran received a September 2015 VA examination. The Veteran reported flare-ups. The examiner noted the Veteran described flare-ups with activities, requiring him to ice his back. During the examination, the Veteran reported that he can walk one block at a time, but then needs to rest for a few hours before he is able to walk another block. The Veteran also stated that it was very difficult to get upright from a flexed position and twisting was uncomfortable. The Veteran also reported that he limits his lifting to no more than 25 pounds, because more than that would increase his back pain. The Veteran reported flare-ups of the thoracolumbar spine, but the examiner stated that because the Veteran was not examined during a flare-up, she was unable to say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. Initial range of motion testing showed flexion ended at 40 degrees. There was extension to 20 degrees; right and left lateral flexion to 15 degrees; and right and left lateral rotation to 25 degrees. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. Pain caused functional loss and there was pain with wight bearing. The examiner did not find localized tenderness or pain on palpation. There was no evidence of muscle spasm or guarding and muscle strength testing was normal. There were normal reflexes. The examiner found no radiculopathy or other neurologic abnormalities. The examiner noted the Veteran had IVDS of the thoracolumbar spine. The examiner noted the Veteran did not have any episodes of acute signs and symptoms of IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner noted the Veteran occasionally used a cane. The examiner stated the Veteran’s spine disability impacted his ability to work. The Board affords part of the September 2015 examination low probative weight. Similar to the May 2012 examination, the examiner noted the Veteran showed no signs of radiculopathy; however, the Veteran’s private treatment records show diagnoses of radiculopathy. Furthermore, the examination report did not test for evidence of pain on non-weight bearing, passive, and active motion as required by Correia. The examiner also failed to obtain all relevant information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran before stating that she could not estimate functional loss due to flare-ups or explain why she could not do so as required by Sharp. A May 2017 private treatment record noted multilevel degenerative changes causing variable degrees of spinal canal and neural foraminal narrowing. A July 2017 private treatment record showed upon physical examination poor distal lower extremity vibratory sense, possibly suggesting a component of peripheral neuropathy. The examiner noted the Veteran’s lumbar range of motion was performed fairly well. There was flexion to 70 degrees and extension to 10 degrees. He reported lifting, recreation and personal care aggravate his pain, and wakes about once per night with pain. He reports weakness bilaterally in the lower extremities when he gets sharp back pains, which is about twice a week. He denied any numbness or tingling. The Veteran received a September 2020 VA examination. The Veteran reported he continues to have back pain with intermittent radiating pain to both thighs and was told he is a candidate for redo of his back surgery. The examiner diagnosed intervertebral disc syndrome, explaining the diagnosis of multiple lower back strains with facet arthrosis, degenerative arthritis and intervertebral disc syndrome the diagnosis is changed and it is a progression of the previous diagnosis. The examiner further explained, the condition has worsened requiring surgery in 2015 and the Veteran is a candidate for a redo of his back surgery. Initial range of motion testing showed flexion to 50 degrees. There was extension to 15 degrees; right lateral flexion to 10 degrees and left lateral flexion to 15 degrees; and right lateral rotation to 30 degrees and left lateral rotation to 35 degrees. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing and there was no additional loss of motion. Flare-ups also did not cause additional loss of motion. The range of motion itself did not contribute to functional loss. The examiner did not find localized tenderness or pain to palpitation. The examiner found muscle spasms not resulting in abnormal gait or abnormal spinal contour, but there was no guarding. The examiner found pain, weakness, fatigability or incoordination over time. The examination showed normal muscle strength, no evidence of muscle atrophy, and negative straight leg testing. The examination noted symptoms due to radiculopathy; intermittent pain of right lower extremity moderate and left lower extremity severe; paresthesias and/or dysesthesias right and left lower extremity mild; and numbness of the right and lower left extremity. The examiner determined involvement of the femoral nerve in right and left leg mild in severity. The examination showed evidence of intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The Veteran did not have any episodes of acute signs of symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examination did note the use of an assistive device. The examiner indicated the Veteran’s back impacts his ability to work, describing that the impact of each of the Veteran’s thoracolumbar spine because he can’t walk more than a half a block at a time. The examiner found no evidence of pain on passive range of motion testing and no evidence of pain on non-weight bearing. The Board finds a rating in excess of 20 on and after September 21, 2015 is not warranted. On and after September 21, 2015 the Veteran’s flexion was to 50 degrees. This is in excess of 30 degrees and does not demonstrate ankylosis. This is true even when considering additional functional loss. For example, after repetitive use testing, range of motion testing did not show flexion to 30 degrees. Additionally, the Veteran reported flare-ups. At the 2020 VA examination, flareups only resulted in flexion to 50 degrees. Although the Veteran reported functional limitations, such as general limitations on walking and there was no use of assistive devices noted in the 2020 examination, the other findings do not demonstrate additional functional loss such that an increased evaluation is warranted. At the 2020 VA examination, there was full muscle strength. The examiner determined there were muscle spasms, but it did not result in abnormal gait or abnormal spinal contour. On balance, this does not warrant an increased evaluation due to additional functional loss. The Board has contemplated assigning a disability rating based on incapacitating episodes throughout the appeal period. There is no showing of physician-prescribed bed rest having a total duration of at least 6 weeks during any 12 months of either appeal period. Therefore, a favorable rating based on incapacitating episodes is not warranted. 3. Entitlement to separate evaluations for right and left lower extremity radiculopathy prior to September 15, 2020 Lastly, the Board finds that separate evaluations are for assigment prior to September 15, 2020. On VA examination in September 2020, the examiner diagnosed mild bilateral lower extremity radiculopathy affecting the femoral nerve. The evidence of record documents a prior diagnosis of radiculopathy, and the Veteran complained of radicular symptoms prior to the September 2020 VA examination. At the October 2018 Board hearing the Veteran testified at the May 2012 VA examination he reported he experienced radicular symptoms, describing pain shooting pain down his left leg, left hip pain, lower back pain, and sciatica type stuff. He further testified that his problems with radiculopathy and sciatica was what was causing him the severe pain, even though his range of motion testing was pretty good. The Veteran’s private treatment records from September 2012, April 2015, and May 2015 show diagnoses of radiculopathy. A September 2012 private treatment MRI imaging record noted a diagnosis of constant aching back pain with radiculopathy. An April 2015 private treatment record noted possible lumbar radiculopathy. Private treatment records in May 2015 and July 2015 noted degenerative disc disease of the lumbar spine with lumbar radiculopathy. A July 2017 private treatment record showed upon physical examination poor distal lower extremity vibratory sense, possibly suggesting a component of peripheral neuropathy. The treatment record also documented the Veteran reported weakness bilaterally in the lower extremities occurring about twice a week. Accordingly, separate evaluations prior to September 15, 2020 is warranted. In summary, the Board concludes that the preponderance of the evidence is against the claim for increased ratings for the Veteran’s service-connected degenerative arthritis of the lumbar spine for any period of time on appeal. The benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected carpal tunnel syndrome, left is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected carpal tunnel syndrome, right is remanded. Regarding the claim for increased evaluations for bilateral carpal tunnel syndrome, remand is required for an addendum opinion, or a new VA examination if necessary. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The RO did not fully comply with the Board’s prior remand directive to obtain the Veteran’s private treatment records. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The April 2019 remand directed to the RO to secure an adequate VA addendum opinion and if needed a VA examination. The Board instructed that the examiner must address whether the documented arthritis in both wrists, found in the May 2012 VA examination report, is part and parcel of the Veteran’s service-connected bilateral carpal tunnel syndrome. A September 2020 VA examination was conducted. The examiner addressed the Veteran’s right hand arthritis but failed to address the arthritis found in the left hand. Accordingly, remand is required. The matters are REMANDED for the following action: Obtain an addendum opinion, or if deemed necessary, provide the Veteran with an appropriate examination, to determine the severity of the service-connected bilateral carpal tunnel syndrome. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner must address whether the documented arthritis in both wrists, found in the May 2012 VA examination report, is part and parcel of the Veteran’s service-connected bilateral carpal tunnel syndrome. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.