Citation Nr: 21064241 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-41 700 DATE: October 19, 2021 ORDER An initial rating in excess of 10 percent for lumbar strain with degenerative disc disease (DDD) is denied. An initial rating of 20 percent, but no higher, for right lower extremity radiculopathy is granted. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's lumbar strain is manifested by forward flexion to 80 degrees at worst, and a combined range of motion of 180 degrees at worst; but not by abnormal gait or spinal contour, forward flexion to 60 degrees or less, a combined range of motion of 120 degrees or less, ankylosis or incapacitating episodes. 2. The Veteran's right lower extremity radiculopathy has been manifested by symptoms that more nearly approximate moderate symptoms. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for lumbar strain with degenerative disc disease (DDD) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 20 percent rating, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to November 1972. These matters come before the Board of Veterans' Appeals (the Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded these matters in April 2019 for further development. The case is now returned to the Board for further appellate consideration. In light of the Veteran's assertions in a September 2017 Informal Hearing Presentation (IHP) that he is no longer able to work due to his service-connected disabilities, the Board finds that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38C.F.R. §3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an initial rating in excess of 10 percent for lumbar strain with degenerative disc disease (DDD) The Veteran's service-connected lumbar spine disability is currently rated under Diagnostic Code 5242 for degenerative arthritis of the spine. 38 C.F.R. § 4.71a. The Veteran contends that he is entitled to an increased rating because his lumbar spine disability and its associated symptoms are more severe than contemplated by his currently-assigned disability rating. Diagnostic Code 5242 is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, which stipulates, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, that the following ratings will apply: A 10 percent rating is assigned where there is 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 contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned where there is 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 assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable 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 the entire spine. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity, or atrophy of disuse. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during periods of flare-up. See DeLuca, 8 Vet. App. at 206; see also Johnson v. Brown, 9 Vet. App. 7 (1996). In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. § 4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38C.F.R. §§4.40, 4.45, that actually limited motion. Id. at 37. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38C.F.R. §4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. 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 lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. Unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id. The Veteran was provided with VA spine examinations in July 2015, and December 2019. In July 2015 on examination, the Veteran was capable of full forward flexion to 90 degrees, full extension to 30 degrees, full right and left lateral flexion to 30 degrees and right and left lateral rotation to 30 degrees. The Veteran reported chronic middle and right-sided low back pain. The Veteran reported that sitting or standing more than 4-5 hours, bending, lifting, walking, and running all cause increased pain. The Veteran reported flare-ups and that when experiencing one he has to change positions or lie down if it is a severe episode which limits his ability to mobilize, bend, and twist. Pain was noted on initial range of motion (ROM) testing, but the pain did not result in additional functional loss. Repetitive testing did not result in any loss in range of motion. There was evidence of pain with weightbearing. The examiner noted functional loss of weakened movement, excess fatigability, and interference with sitting. The examiner noted a range of ROM loss from 5 to 15 degrees or greater on all planes during flare-ups, depending on the severity of the flare. The examiner noted objective evidence of moderate localized tenderness or pain on palpation in the TTP mid-lumbar spine and right-side. Radiculopathy was noted on exam. The examiner also noted evidence of guarding or muscle spasms of the thoracolumbar spine, and intervertebral disc syndrome, with no incapacitating episodes over the prior 12 months. There was no finding of ankylosis. In a September 2017 statement, the Veteran asserted that a higher rating is warranted because he had to stop working since he could no longer do his job. He frequently had to go to the emergency room due to chronic pain. See September 2017 Informal Hearing Presentation (IHP). In a March 2019 statement, the Veteran asserted that he warrants a higher rating because the July 2015 VA examination findings show that when suffers a flare-up, it causes guarding, muscle weakness, altered gait, fatigue, weakness, lack of endurance, incoordination, inability to stand, sit, or ambulate and results in painful forward flexion. See March 2019 IHP. In December 2019, the Veteran reported that his lumbar disability has worsened since onset. He reported low back discomfort with bending and lifting; intermittent sharp, shooting pain down his right leg to his foot by report; he denied any radicular symptoms to the left lower extremity. On initial ROM testing, the Veteran was capable of forward flexion to 80 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20. Pain was noted on initial ROM testing on forward flexion and extension and results in additional functional loss. Repetitive testing did not result in any ROM loss. There was no objective evidence of pain with weightbearing or on non-weightbearing. The examiner stated that the Veteran was significantly limited by pain, weakness, fatigability or incoordination during periods of flare-up or on repetitive use. The Veteran did not report flare-ups. The examiner noted that there was no evidence of guarding or muscle spasms of the thoracolumbar spine, no intervertebral disc syndrome (IVDS), and no ankylosis. There is no evidence that the above examiners were either not competent or credible. Further, both examiners based their assessments of the Veteran's disability on the Veteran's own account of his symptoms and their own objective evaluations. As such, the Board finds that each examination report is entitled to significant probative weight as to the severity of the Veteran's lumbar disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The findings provided in the examination reports are adequate to decide the claim. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). VA treatment records from the period on appeal reflect that the Veteran presented to the emergency room in April 2015, May 2016, and September and October 2017 with complaints of low back pain. The Veteran was discharged the same day on each of these occasions. VA treatment records otherwise generally reflect on-going reports of, and treatment for, lumbar pain, but no further range of motion testing is of record. Throughout treatment records from the period on appeal, the Veteran was noted to have a normal gait. Based on the foregoing, the preponderance of the evidence is against a finding that an increased rating in excess of 10 percent is warranted at any time during the period on appeal. Throughout the period on appeal, the evidence clearly reflects that the Veteran was capable of forward flexion well in excess of the 60 degrees or less contemplated by higher ratings. Further, based on the measurements in the July 2015 examination the Veteran had a combined range of motion in excess of the 120 degrees or less contemplated by a 20 percent rating. The July 2015 VA examination report did not reflect that the Veteran's disability was manifested by ankylosis of the spine of any kind. The December 2019 VA examination report shows that the Veteran was capable of forward flexion of 80 degrees at worst. Similarly, treatment records are silent for ankylosis of the spine. Accordingly, the Board finds that the preponderance of the evidence is against finding that a rating in excess of 10 percent for lumbar strain is warranted. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, while neurologic abnormalities in the Veteran's right lower extremity have been noted as being associated with the Veteran's lumbar disability, he is compensated for these symptoms under Diagnostic Code 8720. As such, additional separate compensable ratings are not warranted. Id. With respect to the possibility of assigning a higher rating under 38 C.F.R. § 4.40 and § 4.45, the Board has considered whether the Veteran has demonstrated additional functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include on repetitive-use or during flare-ups, that would warrant the assignment of a higher rating. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07. Only the July 2015 examiner noted pain resulting in functional loss on active and passive ROM testing, on repeated use over time and during flare-ups, with the examiner estimating a varying loss in all planes of motion during flare-ups from 5 to 15 degrees or greater. Although the Veteran has subjectively reported functional loss due to pain, limited ability to bend and twist, and limited mobility, during flare-ups, the only additional loss of function or range of motion noted by the December 2019 examiner was estimated based on the Veteran's statements during repeated use over time and during flare-ups, for which the Veteran is already afforded a 10 percent disability rating under D.C. 5242. Accordingly, the Board finds that the overall level of disability demonstrated by the Veteran throughout the period on appeal is not commensurate with assigning a higher schedular rating under the Deluca criteria. Although the Board acknowledges that the Veteran has reported pain, there is nothing in the record that suggests the pain resulted in functional loss beyond what is already contemplated by the assigned 10 percent rating. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07. Likewise, even when considering the estimates concerning additional ROM loss during flare-ups, and particularly that provided by the July 2015 VA examiner, the evidence of record throughout the period on appeal reflects that the Veteran was still capable of a substantial degree of motion in all planes. Therefore, the Veteran does not have the functional equivalent of ankylosis due to pain, weakness, fatiguability or other factors or during flare-ups. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). In reaching the above conclusions, the Board acknowledges that the Veteran sincerely believes his symptoms to be more severe than contemplated by his currently-assigned disability rating. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of pain and other symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, he is not competent to report that his lumbar spine disability is of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must rely on the medical evidence of record to assign the appropriate disability rating in this case and, therefore, accords the objective medical findings greater weight than the Veteran's subjective complaints of increased symptomatology. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor his representative have raised any other issues, nor have any issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). Accordingly, the Board finds that the preponderance of the evidence is against finding that an initial rating in excess of 10 percent for the Veteran's lumbar spine disability is warranted. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an initial 20 percent rating, but no higher, for right lower extremity radiculopathy is granted. The Veteran asserts that he is entitled to a higher rating for his right lower extremity radiculopathy because his condition more closely represents a condition that is moderate to moderately-severe in nature. He asserts that he is unable to work due to this condition and that he gets pain down his leg 3-4 times per day. See September 2017 and March 2019 IHPs. The Veteran's radiculopathy of the right lower extremity is rated under Diagnostic Code 8720 for neuralgia of the sciatic nerve. Under DC 8720, a 10 percent evaluation is warranted for mild incomplete paralysis; a 20 percent evaluation is warranted for moderate incomplete paralysis; a 40 percent evaluation is warranted for moderately severe incomplete paralysis; a 60 percent evaluation is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent evaluation is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8720. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. According to MERRIAM WEBSTER, "mild" means "moderate in action of effect." See www.merriam-webster.com/dictionary/mild. "Moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree." See www.merriam-webster.com/dictionary/severe. It should also be noted that use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Based on a careful review of the subjective and clinical evidence, the Board finds that resolving all reasonable doubt in favor of the Veteran, throughout the appeal period, an initial 20 percent rating for the Veteran's right lower extremity radiculopathy is warranted. In other words, the Veteran's right lower extremity radiculopathy more closely approximates moderate symptoms with incomplete paralysis. At a July 2015 VA examination, the Veteran was diagnosed with radiculopathy of the right lower extremity. Upon examination, the Veteran was found to have moderate numbness of the right lower extremity affecting the sciatic nerve. The level of severity of his radiculopathy was specifically noted by the examiner to be moderate. The examiner noted intermittent pain in the right lower extremity as severe. The Veteran had mild paresthesias and/or dysesthesias. Reflex and sensory examinations of the right lower extremity yielded normal findings. No muscle atrophy was noted. There were no other neurological abnormalities found upon examination. In a September 2017 statement, the Veteran reported experiencing pain down his leg 3-4 times per day. See September 2017 IHP. At a December 2019 VA examination, the Veteran was noted to be experiencing mild intermittent pain, paresthesias and/or dysesthesias, and numbness in his right lower extremity. Reflex and sensory examinations of the lower right extremity were normal. The Veteran reported current symptoms of intermittent sharp, shooting pain down his right leg to his foot. No muscle atrophy was noted. There were no other neurological abnormalities found upon examination. Throughout the period on appeal, the Veteran's radiculopathy of the right lower extremity is manifest by mild to moderate numbness in his right lower extremity, mild to severe intermittent shooting pain, mild paresthesias and/or dysesthesias, with no muscle or motor deficit, but with reported radiating pain down the leg 3-4 times per day. The July 2015 VA examiner specifically noted the Veteran's radicular symptoms to be moderate in nature, while the December 2019 VA examiner noted the severity of the Veteran's radiculopathy as mild in nature. In consideration of the foregoing, the Board finds that the Veteran's radiculopathy of the right lower extremity is manifest by no worse than moderate neuritis, neuralgia, or incomplete paralysis of the sciatic nerve. At no time did the Veteran's symptoms more nearly approximate moderately severe neuritis, neuralgia, or incomplete paralysis of the sciatic nerve. Based on the foregoing, the Board finds that an initial 20 percent rating, but no higher, is warranted for the Veteran's radiculopathy of the right lower extremity. REASONS FOR REMAND Unfortunately, the claim remaining on appeal must be remanded because the RO did not substantially comply with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand). Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Veteran generally contends that his bilateral hearing loss is more severe than contemplated by his current rating. Pursuant to the April 2019 remand, the Board instructed the RO to schedule the Veteran for a contemporaneous VA examination in light of complaints of worsening bilateral hearing loss since the July 2015 VA examination. In the September 2020 Supplemental Statement of the Case (SSOC), the RO stated that the VA contract examiner informed the RO on January 10, 2020 that the Veteran was unavailable to attend the scheduled exam and unavailable for the subsequent attempt to reschedule. However, the Board notes that there are no notification letters in the Veteran's file indicating that the Veteran was provided notice of the January 2020 bilateral hearing loss VA examination, or any subsequent attempt to reschedule. In light of the lack of documentation, the Board will give the Veteran another opportunity to participate in a VA examination. However, the Board advises the Veteran that failure to report for this VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. The Veteran is advised that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). His cooperation in VA's efforts to develop his claim, including reporting for the scheduled VA examination is critical. Entitlement to a TDIU is remanded. The Board finds that the issue of TDIU is inextricably intertwined with the bilateral hearing loss increased rating issues on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the matters are REMANDED for the following actions: 1. Send the Veteran a VCAA notice for TDIU and request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Then, schedule the Veteran for a VA audiological examination to determine the current severity of his service-connected bilateral hearing loss by an appropriately qualified examiner. The examiner must review the claims file in its entirety and the review should be noted in the report. The examiner should provide current findings regarding all symptoms associated with the service-connected bilateral hearing loss and should opine as to its severity. The examiner should comment on the extent of any functional impairment caused by the Veteran's service-connected bilateral hearing loss, to include in an occupational setting and in performing ordinary, daily activities. All findings should be fully documented in the examination report. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.