Citation Nr: 21003326 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 06-38 193 DATE: January 21, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for chronic mechanical low back syndrome is denied. Entitlement to separate 20 percent evaluation for right lower extremity sciatic nerve radiculopathy is granted. Entitlement to separate 20 percent evaluation for left lower extremity sciatic nerve radiculopathy is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s low back condition manifested as painful motion, with combined range of motion limited to no less than 170 degrees. 2. Throughout the applicable period, neuropathy of the left lower extremity has manifested by moderate incomplete paralysis of the sciatic nerve. 3. Throughout the applicable period, neuropathy of the right lower extremity has manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for chronic mechanical low back syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for a separate evaluation of 20 percent, but no greater, for right leg radiculopathy have been met. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 4.1 , 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for a separate evaluation of 20 percent, but no greater, for left leg radiculopathy have been met. 38 U.S.C. §§ 1155 , 5107; 38 C.F.R. §§ 4.1 , 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1978 to November 1980. He died in July 2016. The appellant is the Veteran’s surviving spouse who has been substituted as the claimant for these claims pending at the time of the Veteran’s death. See 38 U.S.C. § 5121A. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In September 2009, the Veteran testified at a video conference hearing in the Roanoke RO before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript of the hearing is available in the record (see document erroneously entitled September 2009 VA Memo). This matter has previously come before the Board. Most recently, in January 2020, the Board remanded this issue for updated VA medical records to be associated with the Veteran’s claim file. Subsequently, the RO attached VA medical records for the period on appeal. Thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to separate evaluations for radiculopathy of the bilateral lower extremities has been raised by the record based on the Veteran’s reports of symptoms, as well as objective findings, indicative of a diagnosis of radiculopathy as discussed below. As the Board retains jurisdiction over such issue as part and parcel of the Veteran’s increased rating claim for his lumbar spine disability, it is included in this decision. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 1. Entitlement to an initial rating in excess of 10 percent for chronic mechanical low back syndrome is denied. The appellant seeks an increased rating for the Veteran’s service-connected low back disability. Disability ratings 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, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1995). A veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. The General Rating Formula for Diseases and Injuries of the Spine provides for 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. A 20 percent 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. 38 C.F.R. § 4.71a. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). Unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. In January 2010, the Veteran underwent a VA examination of his lower back. The examiner confirmed past diagnosis of slight L5 disc bulge. The examiner documented the Veteran’s reports of daily severe, constant pain, which limited the Veteran’s ability to walk to approximately 100 yards before he required rest. The Veteran did not experience flare-ups. The examiner documented forward flexion from 0-90 degrees, which is a normal range of motion. However, the examiner indicated being unable to measure the Veteran’s range of extension because the Veteran could not stand independently for such a measurement. The examiner declined to provide any estimate of the Veteran’s extension. Left lateral flexion was measured at 0-20 degrees, with left lateral rotation 0-42 degrees. Right lateral flexion was measured at 0-22 degrees, with right lateral rotation at 0-43 degrees. No incapacitating episodes of spinal disease were shown. See January 2010 VA Examination. The Board observes that the above measurements for left and right lateral rotation exceed the normal ranges of 0-30 degrees. See 38 C.F.R. § 4.71a. Because the examiner declined to provide the complete series of range of motion measurements in his report, the Board affords the examination low probative value. However, even if a medical examination is inadequate to decide a claim, it does not necessarily follow that the examination is entitled to absolutely no probative weight. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). In this case, the Board affords probative value to the measurements that were obtained. Because the examiner did not estimate the Veteran’s lower back extension, however, a combined range of motion cannot be established from this examination under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. In December 2012, the Veteran underwent another VA examination for his lower back conditions. The examiner documented diagnoses of posterior annulus tear with a small central disk herniation; mild degenerative disk disease L5-S1; and disc bulge T4-T5. The examiner documented that the Veteran did not experience flare-ups of his condition. Forward flexion was recorded at 70 degrees, but with painful motion starting at 30 degrees. Extension was recorded at the maximum 30 degrees, with painful motion starting at 20 degrees. Right lateral flexion was 30 degrees, with right lateral rotation at 30 degrees. Left lateral flexion was 30 degrees, with left lateral rotation at 30 degrees. The Board observes that the combined range of motion given the above measurements was 170 degrees before the Veteran was limited by pain. The examiner found no additional limitations due to the Veteran’s lower back condition. Intervertebral disc syndrome (IVDS) was shown, but the record did not show any incapacitating episodes in the past 12 months. See December 2012 VA Examination. The Board affords this examination high probative value based on the thorough measurements obtained. In May 2014, the Veteran underwent another VA examination for his lower back. The examiner confirmed diagnoses of degenerative disc disease and a herniated lumbar disc. Flare-ups were not reported. The examiner documented limited forward flexion at 75 degrees. Extension was limited to 15 degrees. Left and right lateral flexion were each limited to 20 degrees, while left and right lateral rotation were shown at a full 30 degrees or greater. None of the above measurements were limited by evidence of painful motion. The examiner indicated the Veteran did not have IVDS of the thoracolumbar spine, nor any incapacitating episodes. See May 2014 VA Examination. The Board observes that the combined range of motion from this examination was 190 degrees. The Board affords the examination high probative value based on the thorough measurements obtained for the Veteran’s condition. Generally, the Veteran’s regular VA treatment records show a history of treatment for low back pain, including steroid injections, throughout the period on appeal. However, the medical records do not show any clear documentation of limitations of the Veteran’s range of motion aside from the measurements taken at his VA examinations, above. Weighing the probative evidence of record, the Board concludes the 10 percent evaluation assigned for the Veteran’s lower back condition is appropriate. Throughout the period on appeal, the Veteran’s low back condition manifested as painful motion, with combined range of motion limited to no less than 170 degrees. Thus, a 10 percent evaluation is appropriate. A higher evaluation of 20 percent is not appropriate because the Veteran’s forward flexion was not shown to be less than 60 degrees; or combined range of motion limited to less than 170 degrees. While the record shows the Veteran experienced IVDS during the period on appeal, the evidence does not show that the Veteran suffered incapacitating episodes. Accordingly, the preponderance of evidence does not support a rating in excess of 10 percent for the Veteran’s lower back condition. The claim for an increased rating is denied. 2. Entitlement to separate 20 percent evaluations for sciatic nerve impairment of the bilateral lower extremities is granted. The Veteran has argued for entitlement to separate evaluations for bilateral radiculopathy caused by his service-connected low back condition. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires a showing of complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. At his VA examination in January 2010, the examiner commented that the Veteran experienced a weakened gait and difficulties with stability related to neuropathy of his lower extremity. However, the examiner also indicated that the Veteran’s low back pain did not radiate into his extremities. The examiner made no specific finding regarding radiculopathy. See January 2010 VA Examination. At the VA examination in December 2012, the examiner annotated a finding of radiculopathy due to involvement of the L4 / L5 / S1 / S2 / S3 nerve roots (sciatic nerve). The examiner assessed the condition as moderate radiculopathy bilaterally. See December 2012 VA Examination. The VA examiner in May 2014 discussed the Veteran’s lower extremity weakness. The examiner wrote that the Veteran’s weakness was caused by metabolic polyneuropathy. Because the Veteran had stated his pain radiated upward from his ankle to his back, and not down from his back to the ankle, the examiner opined that “this is the opposite of and not physiologic for radicular symptoms.” Later in the report, the examiner again indicated the Veteran did not have a radiculopathy condition. See May 2014 VA examination. Numerous anesthesia procedure notes in the Veteran’s regular medical treatment records discussed leg pain in relation to lower back pain. One note indicated that “it is hard to discern whether he has a radicular component to his pain or not due to some peripheral vascular disease he has of his lower legs.” The nurse anesthetist indicated MRI studies had shown a slight bulge at L5 three years prior. See October 2011 VA Medical Treatment Record. A year later, the same practitioner indicated the Veteran’s lower back pain had “no radicular component.” See October 2012 VA Medical Treatment Record. The anesthetist echoed that finding in February and May 2013 as well. In 2014, the same nurse anesthetist reversed his opinion, and stated that the Veteran’s pain in his sacral area did most likely have a radicular component, but it was difficult to be sure because of the Veteran’s continuous peripheral vascular disease. See February 2014 VA Medical Treatment Record. The Board finds the evidence is at least in equipoise that the Veteran’s service-connected lower back condition caused radiculopathy due to involvement of the L4 / L5 / S1 / S2 / S3 nerve roots (sciatic nerve), as found by the VA examiner in December 2012. Accordingly, separate ratings for radiculopathy are appropriate. Because the diagnosing examiner found the Veteran’s radiculopathy condition to be “moderate” bilaterally, a 20 percent evaluation is appropriate for each lower extremity. A higher evaluation is not appropriate as the Veteran’s radicular impairment of his sciatic nerve is not shown to be moderately severe or complete at any time during the period on appeal. 38 C.F.R. § 4.124a, DC 8520. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board finds that a remand is required for the referral of consideration of an extraschedular TDIU for entitlement to TDIU prior to the Veteran’s death in July 2016. The Veteran did not meet the schedular requirements for consideration of a TDIU prior to his death in July 2016. See 38 C.F.R. § 4.16 (a). However, the record contains evidence suggesting that the Veteran’s service-connected low back disability prevented him from maintaining substantially gainful employment prior to that date. See December 2015 Medical Treatment Record – Non-Government Facility (private medical opinion indicating pain and weakness in his legs and back caused the Veteran to discontinue work in 1999). The Board may not assign an extraschedular rating in the first instance because the authority for doing so is vested in VA’s Director of Compensation Service. The Board may, however, consider whether remand to the RO for referral to the Director of Compensation Service is warranted. See 38 C.F.R. § 4.16 (b). Because there is evidence suggesting that the Veteran was unable to work due to his service-connected disabilities and he did not meet the schedular criteria for a TDIU, the Veteran’s TDIU claim must be referred for extraschedular consideration of TDIU. The matters are REMANDED for the following action: 1. After reviewing the record and conducting any additional development deemed necessary, in accordance with 38 C.F.R. § 4.16 (b), refer the issue of entitlement to a TDIU to VA’s Director of Compensation Service for adjudication. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.