Citation Nr: 21061981 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 14-09 046 DATE: October 6, 2021 ORDER From September 18, 2012, a rating of 20 percent for degenerative disc disease of the thoracolumbar spine with intervertebral disc syndrome (low back disability) is granted. From February 14, 2017, a rating of 20 percent for left lower extremity radiculopathy is granted. From February 14, 2017, a rating of 20 percent for right lower extremity radiculopathy is granted. REMANDED Entitlement to service connection for a disability manifested by pain of the pelvis and/or hips, to include as secondary to a low back disability, is remanded. Entitlement to a rating in excess of 20 percent for a low back disability is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. From September 18, 2012, the Veteran's low back disability has been productive of at least forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. From February 14, 2017, the Veteran's left lower radiculopathy has been manifested symptoms that more closely approximate at least moderate incomplete paralysis of the sciatic nerve. 3. From February 14, 2017, the Veteran's right lower radiculopathy has been manifested symptoms that more closely approximate at least moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. From September 18, 2012, the criteria for a rating of at least 20 percent for a low back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. From February 4, 2017, the criteria for a rating of at least 20 percent for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8520. 3. From February 4, 2017, the criteria for a rating of at least 20 percent for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1998 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In November 2015, January 2018, and September 2019, the Board remanded this matter for additional development. In July 2021, the Veteran testified at a virtual hearing before the undersigned. The Board has bifurcated the appeal so as to permit a partial grant of benefits without delay. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an issue is generally within the Board's discretion). The Board acknowledges that the Veteran filed a separate claim for arthritis of the spine, lumbar intervertebral disc syndrome (IVDS), and lumbar radiculitis, and that she has stated that she should be compensated for low back disabilities other than lumbar strain. See, e.g., March 2021 Correspondence; May 2019 VA Form 21-526EZ; May 2017 Third Party Correspondence; May 2017 VA Form 21-4138. The Veteran is currently in receipt of service connection for degenerative disc disease of the lumbar spine with IVDS, as the AOJ determined that this was a progression of her service-connected lumbar strain. See January 2021 Rating Decision. Moreover, the AOJ has determined that the Veteran has bilateral lower extremity radiculopathy due to her service-connected low back disability. See id. The Board has added the issues of entitlement to increased ratings for radiculopathy, as these are part of the increased rating claim on appeal. See Chavis v. McDonough, 34 Vet. App. 1 (2021); 38 C.F.R. § 4.71a, General Rating Formula for the Spine, Note 1. As discussed below, the record does not support rating IVDS and degenerative disc disease separately, as the symptoms from these conditions are overlapping and thus separate ratings would result in impermissible "pyramiding" of disabilities. See 38 C.F.R. § 4.14. However, the issue of service connection for a disability productive of pelvic and/or hip pain, to include as secondary to degenerative disc disease with IVDS, is raised by the record and is part of the increased rating claim on appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (the Board may need to explore schedular rating tools such as secondary service connection as part of an increased rating claim). 1. From September 18, 2012, a rating of 20 percent for a low back disability is granted. The Veteran asserts that she is entitled to a higher rating for her low back disability. The Board agrees. The Veteran initially sought an increased rating for her service-connected lumbar strain. She is currently in receipt of service connection for degenerative disc disease of the thoracolumbar spine with IVDS, as the evidence shows that this diagnosis is a progression of her lumbar strain. Prior to January 18, 2021, she is in receipt of a 10 percent rating under Diagnostic Code 5237 (lumbar strain), and thereafter she is in receipt of a 20 percent rating. The period on appeal is from October 13, 2012, the date of claim, plus the one-year lookback period. Initially, the Board observes that the Veteran's low back disability is properly rated under Diagnostic Code 5243 (IVDS), as the Veteran has a diagnosis of IVDS and as Diagnostic Code 5243 allows the use of alternative rating criteria that could potentially result in a higher rating. Accordingly, the Board will consider ratings under 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. Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Here, the evidence shows disc bulging and nerve root involvement. See January 2021 Back Examination Report at 8C (IVDS present with nerve root involvement); March 2017 Private MRI Report (disc bulging). Accordingly, Diagnostic Code 5243 remains appropriate. 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. Here, the evidence does not show that the Veteran requires bed rest prescribed by a physician. Thus, a rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not appropriate, and the Board will rate the Veteran's low back disability under the General Rating Formula for Diseases and Injuries of the Spine. 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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). Here, the January 2021 examiner noted that the Veteran was being examined after repeated use over time and forward flexion of the thoracolumbar spine was limited to 50 degrees. Additionally, the examiner opined that during a flare-up, the Veteran would also manifest forward flexion of the thoracolumbar spine limited to 50 degrees. See January 2021 Back Examination Report at 10, 12, 13. This level of impairment is consistent with a rating of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine. With respect to the effective date of this 20 percent rating, the Veteran competently and credibly asserted that the October 2018 examiner only "did an eyeball test" and did not use a goniometer during the examination. See May 2019 VA Form 21-4138. Thus, the October 2018 VA examination report is inadequate. See 38 C.F.R. § 4.46 (use of a goniometer is indispensable in VA examinations). Indeed, the September 2019 Board Remand determined that the October 2018 examination did not substantially comply with the January 2018 Board remand directives to secure an adequate examination. See September 2019 Board Remand. Moreover, the January 2018 Board Remand determined that the December 2015 examination report is inadequate, as the examination report does not show that all necessary testing was performed, and as the examiner stated that the Veteran's flare-ups could not be described in terms of range of motion because she was not being examined during a flare-up. See January 2018 Board Decision and Remand at 13-14. Furthermore, the Board observes that the December 2015 examiner inaccurately stated that no diagnostic imaging had been performed or was available, notwithstanding that the Veteran had x-rays taken of her lower back in March 2015. See, e.g., June 17, 2015 VA Treatment Note. Thus, the examiner did not have a complete and accurate history of the Veteran's disability, and the examination report is inadequate. Additionally, the February 2013 examination report notes the presence of flare-ups, but the examiner did not estimate range of motion during a flare-up. Thus, this report is not adequate for rating purposes. Thus, as the January 2021 examination report is the only adequate examination report of record, the Board resolves any reasonable doubt as to the severity of flare-ups in favor of the Veteran and finds that a 20 percent rating is warranted throughout the appeal. Furthermore, the increased 20 percent rating is warranted from September 18, 2012, the date that her private treatment records show an increase in the Veteran's low back disability. See October 5, 2012 Private Treatment Note (indicating follow up from an encounter date of September 18, 2012). As discussed below, additional development is necessary in connection with related issues in this appeal. Thus, the Board will defer action on the issue of entitlement to a rating in excess of 20 percent for a low back disability. Finally, with respect to the Veteran's claims seeking service connection for additional low back disabilities, the Veteran is advised that VA regulations prohibit "pyramiding" of disabilities. "Pyramiding" is simultaneously rating one set of symptoms or functional impairments under multiple Diagnostic Codes. Here, while the Veteran has multiple service-connected low back disabilities, the evidence does not show differentiable impairment that can be rated separately. In this regard, IVDS and degenerative disc disease are both rated under the General Rating Formula for the Spine, and as discussed above no separate rating for IVDS is warranted. Furthermore, even if a higher rating was warranted under the IVDS formula, this would be in place of the Veteran's rating under the Spine Formula as well as her separate ratings for radiculopathy. Moreover, ratings for arthritis are based on painful motion of the joints, which overlaps with the criteria for ratings based on the Spine Formula. However, as discussed below, additional development is necessary with respect to the Veteran's reported symptoms of pelvic pain, which may show an additional disability subject to service connection that is productive of non-overlapping symptomatology / functional impairment. 2. From February 14, 2017, a rating of 20 percent for left lower extremity radiculopathy is granted. 3. From February 14, 2017, a rating of 20 percent for right lower extremity radiculopathy is granted. The Veteran is in receipt of service connection for radiculopathy of the bilateral lower extremities. Prior to January 18, 2021, she is in receipt of a 10 percent rating under Diagnostic Code 8520 (paralysis of the sciatic nerve) for left lower extremity radiculopathy, and a 20 percent rating thereafter. Her separate rating for right lower extremity radiculopathy is identical. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve, with marked muscle atrophy. A maximum schedular 80 percent rating is warranted for complete paralysis of the sciatic nerve. Initially, the Board acknowledges that the Veteran's lower extremity neurological symptoms have been variously characterized as radiculopathy and radiculitis. See January 2021 Examination Report; June 2017 Private Treatment Record (MRI report diagnosing lumbar IVDS and lumbar radiculitis). The Board will continue employing the rating criteria based on radiculopathy, as opposed to radiculitis, as this approach permits the possibility of a higher rating than the maximum rating that can be assigned under the criteria for radiculitis. See 38 C.F.R. § 4.123. The January 2021 examiner diagnosed the Veteran with "moderate" radiculopathy of the bilateral lower extremities. See January 2021 Back Examination Report. Moreover, the examiner opined that the Veteran's radiculopathy has not progressed beyond the baseline symptoms noted in 2017. See January 2021 Medical Opinion. Accordingly, her current 20 percent rating is warranted from at least February 14, 2017, the date of onset of her current level of symptomatology following being struck by a car. With respect to entitlement to compensation for radiculopathy prior to February 14, 2017, the present record does not show radiculopathy or radicular symptoms prior to this date. In this regard, VA and private treatment notes prior to this date affirmatively indicate the absence of radiculopathy or radicular symptoms. See, e.g., April 3, 2013 Private Treatment Note (no radiculopathy); February 12, 2015 VA Treatment Note (no radiculopathy); October 12, 2016 VA Treatment Note (chronic back pain with no radicular symptoms). When lower extremity pain is noted, this is attributed to the Veteran's service-connected knee disability. See, e.g., June 14, 2012 Private Treatment Note. However, as additional development is necessary, the Board is not at present adjudicating entitlement to a rating for radiculopathy prior to February 14, 2017. The Veteran may submit any additional evidence that she believes is relevant to this issue. REASONS FOR REMAND 4. Entitlement to service connection for a disability manifested by pain of the pelvis and/or hips, to include as secondary to a low back disability, is remanded. The Veteran has consistently reported pelvic pain, see, e.g., Board Hearing Transcript at 5-6, and the record indicates a possible association between pelvic pain and her low back disability. See, e.g., April 3, 2013 Private Treatment Note (anterior pelvic tilt); December 2013 VA Form 21-4138 (reporting that clinician informed her that back has caused problems with her pelvis). This raises the issue of whether this pain etiologically related to the increased rating claim on appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). On remand, she should be afforded an examination and a medical opinion should be secured as to the nature and etiology of any disability of the pelvis and/or hips. 5. Entitlement to a rating in excess of 20 percent for a low back disability is remanded. 6. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. 7. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. The Veteran reported outstanding relevant treatment records that have not been secured. See, e.g., May 2021 Correspondence (noting that Veteran is scheduled to undergo PET scan). On remand, complete VA treatment records and any outstanding relevant private treatment records should be secured. Then, she should be afforded an examination by an examiner who has a complete and accurate history of her disability. The matters are REMANDED for the following actions: 1. Obtain complete VA treatment records. 2. With any necessary assistance from the Veteran, secure any outstanding relevant private treatment records, to include any report of the May 2021 PET scan noted by the Veteran. See May 7, 2021 Correspondence. 3. After completing #1 and #2, schedule the Veteran for an examination to determine the current nature and severity of her low back disability. The claims file should be made available to and be reviewed by the examiner. All findings should be reported in detail. The examiner should assess the severity of the Veteran's low back disability and lower extremity radiculopathy. The examiner should discuss the relevance, if any, of the cysts noted on the Veteran's MRI reports. See, e.g., June 2018 VA MRI Report; March 29, 2021 MRI Report (received May 7, 2021). A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After completing #1 and #2, schedule the Veteran for an examination to determine the current nature and etiology of any disability manifested by pelvic and/or hip pain. The claims file should be made available to and be reviewed by the examiner. Any necessary testing should be performed. The examiner should address the following: (a) Diagnose all current disabilities productive of pain in the pelvis and/or hips. For the purposes of this question, a disability includes pain that is productive of a functional impairment, even in the absence of diagnosed pathology. Moreover, a current disability for VA compensation purposes includes any disability or functional impairment present since September 2012, even if subsequently resolved. The examiner's attention is invited to the Veteran's consistent report of pelvic pain since at least 2013. See, e.g., December 2013 VA Form 21-4138; April 3, 2013 Private Treatment Note (received March 6, 2014); July 13, 2017 VA Treatment Note; May 31, 2019 VA Primary Care Secure Messaging. (b) For each disability or functional impairment diagnosed in sub-part (a), opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in or is otherwise etiologically related to the Veteran's active service. (c) For each disability or functional impairment diagnosed in sub-part (a), opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability is proximately due to the Veteran's service-connected degenerative disc disease and IVDS. (d) For each disability or functional impairment diagnosed in sub-part (a), opine as to whether it is at least as likely as not (50 percent or greater probability) that such has been aggravated (worsened beyond natural progression) by the Veteran's service-connected degenerative disc disease and IVDS. In addressing this question, please address the Veteran's statement that her chiropractor told her of a possible relationship between her back and pelvic disabilities. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.