Citation Nr: 21004535 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-27 988 DATE: January 27, 2021 ORDER Entitlement to an initial rating for herniated nucleus pulposus with intervertebral disc syndrome (IVDS) status post diskectomy, lumbosacral spine in excess of 10 percent from November 26, 2011 to August 9, 2019, and in excess of 20 percent, thereafter, is denied. Entitlement to service connection for right lower extremity radiculopathy associated with herniated nucleus pulposus with intervertebral disc syndrome status post diskectomy, lumbosacral spine, is granted. FINDINGS OF FACT 1. From November 26, 2011 to August 9, 2019, the Veteran’s lumbosacral spine has been manifested by IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months or 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. 2. Since August 9, 2019, the Veteran’s lumbosacral spine is manifest by IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months or 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. 3. Medical evidence from July 2013 indicates the Veteran has suffered from bilateral lower extremity radiculopathy associated with his lumbar spine disability. CONCLUSIONS OF LAW 1. From November 26, 2011 to August 9, 2019, the criteria for a rating in excess of 10 percent for herniated nucleus pulposus with intervertebral disc syndrome status post diskectomy, lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. From August 9, 2019, the criteria for a rating in excess of 20 percent for herniated nucleus pulposus with intervertebral disc syndrome status post diskectomy, lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 3. The criteria for service connection for right lower extremity radiculopathy associated with herniated nucleus pulposus with intervertebral disc syndrome status post diskectomy, lumbosacral spine have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from April 1990 to February 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife appeared before the undersigned Veterans’ Law Judge at a February 2017 hearing. A March 2020 rating decision increased the Veteran’s disability rating to 20 percent, effective August 9, 2019, representing a partial grant of the benefit sought on appeal. A separate disability rating of 10 percent was also assigned for left lower extremity radiculopathy, effective January 26, 2017. In September 2018, the Board remanded these matters to the RO for additional development, specifically a medical examination. The claim was again remanded in June 2020 for compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Finding there has been substantial compliance with the Board’s remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. Entitlement to a disability rating in excess of 10 percent from November 26, 2011 to August 9, 2019, and 20 percent thereafter, for lumbar spine disability. The Veteran testified during his February 2017 hearing that his symptoms had worsened since his April 2013 spine examination. He asserts that given the severity of his back condition and his ongoing treatment; an increase in his disability rating is warranted (5/04/2020 Appellate Brief). The Veteran has described that his back injury has left him unable to participate in many activities with his family and friends. He finds walking, climbing stairs, and standing to be painful and difficult. He cannot coach or play with his daughter. The Veteran explained at the time of the filing of the claim he was self-employed and financially unable to miss work for long periods of time. The Veteran asserts that the fact that he was self-employed and unable to miss work was omitted from the initial evaluation. The Veteran explained that rather than miss work when in pain, he would have someone drive him to work and help him get around the facilities. Since filing his original claim, he contends he has had incapacitating episodes exceeding two weeks and on occasion lasting four weeks. He has had to endure spinal injections in order to function (8/06/2015 Form 9). At the February 2017 Board hearing, the Veteran testified that in September 2013 he experienced bladder control problems that his physician indicated may have been related to his service-connected back disability (2/09/2017 Hearing Transcript, pg. 7). The Veteran’s herniated nucleus pulposus with intervertebral disc syndrome status post diskectomy, lumbosacral spine is assigned a 10 percent disability rating from November 26, 2011 and 20 percent from August 9, 2019. He is also service connected for associated left lower extremity radiculopathy at a disability rating of 10 percent from January 26, 2017 (3/17/2020 Rating Decision – Codesheet). The Veteran’s herniated nucleus pulposus with intervertebral disc syndrome status post diskectomy, lumbosacral spine is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. Note 2 provides if IVDS is present in more than one spinal segment, provided that the effects in each segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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 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, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran was afforded a VA examination in April 2013. At that time, range of motion testing showed flexion of 90 degrees or greater, extension of 30 degrees or greater, right lateral flexion of 30 degrees or greater, left lateral flexion of 30 degrees or greater, right lateral rotation of 30 degrees or greater, and left lateral rotation of 30 degrees or greater, with a combined range of motion of at least 240 degrees. No objective evidence of painful motion was noted. No loss of range of motion, functional loss or impairment was noted upon repetitive use. A tingling sensation at L4-5 was reported upon palpitation. No guarding or muscle spasm, muscle atrophy, or radiculopathy was reported. Although the Veteran reported problems with bowel control from 1991 to 1994, outside the rating period on appeal, that condition was no longer reported. IVDS was noted, with the total duration of all incapacitating episodes over the prior 12 months being at least one week, but less than 2 weeks. The Veteran reported occasional use of a walker during flare ups and he kept a walker near his bed for when he needs to go to the restroom. The examiner confirmed the Veteran’s back condition impacted his ability to work, describing having loss 10 days of work, due to remaining in bed with an ice pack on his back. At that time, the Veteran described flare ups as occurring about 3-4 days a month, lasting 5-6 hours (4/12/2013 VA Examination). July 3, 2013 private medical records describe the Veteran’s 22-year history of low back pain, noting bilateral radiculopathy, worse on the left. Difficulty with all activities of daily living due to pain was noted (10/16/2017 Medical Treatment Record - Non-Government Facility, pg. 3). The Veteran was afforded an August 2019 VA examination. At that time, he had flexion to 60 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to15 degrees, and left lateral rotation to 15 degrees, with a combined range of motion of 135 degrees. Range of motion was found to contribute to functional loss. Pain was noted to cause functional loss. Additional range of motion, or additional functional loss or impairment was not noted upon repetitive use. Pain at L4-5 was noted upon palpitation. No/guarding or muscle spasm, muscle atrophy. Mild left lower extremity radiculopathy was identified. No ankylosis or other neurologic abnormalities were noted. IVDS was noted with episodes of bedrest having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Use of assistive devices was not indicated. The examiner indicated the Veteran’s thoracolumbar disability impacts his ability to work, preventing prolonged standing, walking, or bending due to back pain. At this time flare ups were described as severe and occurring 2-3 times a month, lasting more than one day (9/25/2019 C&P Exam). The August 2019 did not address functional loss due to pain or during flareups, therefore an additional examination was required. The July 2020 examination indicated worsening of the Veteran’s condition, noting constant shooting and squeezing type pain, radiating down the sides of both legs. During flare ups, the Veteran described muscle spasm preventing him from standing erect, occurring once a week, lasting from 3 hours to 5 days. The Veteran’s back disability prevents him from standing or sitting for longer than 30 minutes. At that time, the Veteran’s had flexion to 40 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees, with a combined range of motion of 135 degrees. Factors of pain, fatigue, weakness, and lack of endurance were identified as causing functional loss described in terms of range of motion as flexion to 35 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees, with a combined range of motion of 105 degrees. The Veteran’s range of motion during flareups was assessed the same as the above described functional loss. IVDS was not indicated and no use of assistive devices was noted. The Board finds the preponderance of the evidence is against a rating in excess of 10 percent for herniated nucleus pulposus with intervertebral disc syndrome status post diskectomy, lumbosacral spine prior to August 9, 2019, based on incapacitating episodes. Indeed, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. The Board acknowledges the Veteran’s lay reports of symptoms and complaints of functional loss due to pain and pain during flare-ups, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating 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. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Since August 9, 2019, the medical evidence reflects symptoms of limitation of motion more nearly approximating 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. There is no indication that the Veteran’s described functional loss approximates favorable ankylosis of the entire cervical spine. The Board finds the Veteran is not entitled to an initial rating of herniated nucleus pulposus with intervertebral disc syndrome status post diskectomy, lumbosacral spine in excess of 10 percent from November 26, 2011 to August 9, 2019, and in excess of 20 percent. The Veteran has been awarded a separate disability rating of 10 percent for left lower extremity radiculopathy, effective January 26, 2017. The Board notes that private medical evidence from July 3, 2013 suggests the Veteran has been suffering from bilateral radiculopathy as a result of his lumbar spine disability since that date. Although right lower extremity radiculopathy was not noted during the April 2013 and August 2019 VA examinations, the July 2013 medical notes are by a provider with a longer history of working with the Veteran and place the medical evidence at least in equipoise as to whether the Veteran has right lower extremity radiculopathy. Resolving doubt in favor of the Veteran, the Board finds Veteran is entitled to service connection for right lower extremity radiculopathy. The initial rating assignment will be addressed by the AOJ in the implementing decision. Moreover, regarding the already service-connected radiculopathy in the left leg, the evidence does not support a higher evaluation. Indeed, there is no showing of symptoms commensurate with moderate incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In this case, examination reveals normal muscle strength, normal reflexes, and normal sensory testing except for the lower left leg, with was decreased on examination in 2019 and a positive straight leg raise at the same examination. There was mild numbness and in the overall assessment, the radiculopathy was deemed mild in degree. Findings on examination in 2013 were normal. Accordingly, there is no basis for an increase in the rating for left lower extremity radiculopathy as a component of the present claim. The Board has considered entitlement to a separate rating for bladder and bowel problems in light of the Veteran’s contention that he experienced bladder control problems in September 2013 related to his back. Conflicting with the Veteran’s contention, the August 2019 and July 2020 VA examinations contain findings that the Veteran does not have other neurologic abnormalities to include bowel or bladder problems (9/25/2019 C&P Exam; 8/06/2020 C&P Exam, pg. 9). The April 2013 examination cited to the Veteran’s complaints of past bladder and bowel problems; specifically, that he was having problems with bowel control from initial injury February 1991 until 1994. The Veteran indicated he no longer had this condition (4/12/2013 VA Examination, pg. 11). While the Veteran is competent to describe his symptoms, and has done so credibly, both the probative lay and medical evidence of record preponderates against a finding that the Veteran had a current bladder or bowel disability warranting a separate rating at any time during the rating period. Accordingly, a separate rating for bowel or bladder problems is not appropriate in this case. In summary, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for herniated nucleus pulposus with intervertebral disc syndrome status post diskectomy, lumbosacral spine from November 26, 2011 to August 9, 2019, and 20 percent thereafter. Furthermore, for the reasons discussed above, service connection for right lower extremity radiculopathy associated with herniated nucleus pulposus with intervertebral disc syndrome status post diskectomy, lumbosacral spine, is granted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.