Citation Nr: 21066230 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 09-03 386 DATE: October 29, 2021 ORDER Entitlement to a 20 percent disability evaluation, but no higher, for spondylolisthesis with mild degenerative changes (hereinafter "spondylolisthesis"), from July 11, 2007, to September 25, 2012, is granted. Entitlement to a 40 percent disability evaluation, but no higher, for right lower extremity radiculopathy associated with spondylolisthesis, from July 11, 2007, to September 25, 2012, is granted. Entitlement to a 20 percent disability evaluation, but no higher, for left lower extremity radiculopathy associated with spondylolisthesis, from July 11, 2007, to September 25, 2012, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From July 11, 2007, to September 25, 2012, the Veteran's lumbar spine disability resulted in forward flexion of greater than 30 degrees but not greater than 60 degrees. 2. From July 11, 2007, to September 25, 2012, the Veteran's right lower extremity radiculopathy resulted in moderately severe incomplete paralysis. 3. From July 11, 2007, to September 25, 2012, the Veteran's left lower extremity radiculopathy resulted in moderate incomplete paralysis. CONCLUSIONS OF LAW 1. From July 11, 2007, to September 25, 2012, the criteria for a disability evaluation of 20 percent, but no higher, for spondylolisthesis have been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5239, 5242. 2. From July 11, 2007, to September 25, 2012, the criteria for a disability evaluation of 40 percent, but no higher, for right lower extremity radiculopathy have been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 3. From July 11, 2007, to September 25, 2012, the criteria for a disability evaluation of 20 percent, but no higher, for left lower extremity radiculopathy have been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1978 and from February 1982 to February 1998. This matter comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision that denied service connection for right sacroiliitis (claimed as low back condition) because new and material evidence had not been received to reopen a previously final decision. A March 2010 rating decision granted service connection for right sacroiliitis and assessed a disability evaluation of 10 percent, effective July 11, 2007. In August 2012, the Board remanded for further development the matter of a disability evaluation in excess of 10 percent for right sacroiliitis. A January 2013 rating decision granted a disability evaluation of 20 percent for right sacroiliitis, effective September 25, 2012. The rating decision also granted service connection for right lower extremity radiculopathy and left lower extremity radiculopathy and assessed a disability evaluation, respectively, of 40 percent and 20 percent, effective September 25, 2012. In November 2014, the Board remanded for further development the matters of a disability evaluation in excess of 10 percent prior to September 25, 2012, and in excess of 20 percent thereafter, for right sacroiliitis. The Board also found that the evidence of record raised a claim of a TDIU and remanded it for further development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A March 2015 rating decision continued a 20 percent disability evaluation for spondylolisthesis (previously rated as right sacroiliitis) and denied a TDIU. In September 2016, the Board remanded for further development the matters of a disability evaluation in excess of 10 percent prior to September 25, 2012, and in excess of 20 percent thereafter, for spondylolisthesis, and a TDIU. A May 2017 rating decision continued a 20 percent disability evaluation for spondylolisthesis. In October 2017, the Board remanded for further development the matters of a disability evaluation in excess of 10 percent prior to September 25, 2012, and in excess of 20 percent thereafter, for spondylolisthesis, and a TDIU. In May 2019, the Board denied a disability evaluation in excess of 20 percent as of September 25, 2012, for spondylolisthesis (diagnosed as right sacroiliitis prior to March 3, 2014). The Board remanded for further development the matters of a disability evaluation in excess of 10 percent for spondylolisthesis prior to September 25, 2012, and a TDIU. Accordingly, the disability evaluation of spondylolisthesis as of September 25, 2012, is no longer before the Board. In April 2021, the Board remanded for further development the matters of a disability evaluation in excess of 10 percent for spondylolisthesis prior to September 25, 2012, and a TDIU. Specifically, the Board instructed the agency of original jurisdiction (AOJ) to update the Veteran's VA treatment records and obtain a medical opinion from a VA examiner. The examiner was instructed to estimate the range of motion lost due to flare-ups at the time of the December 2009 VA examination; comment on the functional impairment resulting from right sacroiliitis prior to September 25, 2012; and clarify the diagnosis of the Veteran's low back disability. The Board finds that the AOJ substantially complied with the April 2021 remand directives by updating the Veteran's VA treatment records and obtaining a medical opinion that estimated the range of motion lost due to flare-ups at the time of the December 2009 VA examination and clarified the diagnosis of Veteran's low back disability. Accordingly, the Board can adjudicate the matter of a disability evaluation in excess of 10 percent for spondylolisthesis prior to September 25, 2012. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). However, for reasons explained below, the AOJ did not substantially comply with the April 2021 remand directive to obtain a medical opinion that commented on the functional impairment resulting from the Veteran's spondylolisthesis prior to September 25, 2012. Accordingly, the Board must remand for further development the matter of a TDIU. The Board notes that the March 2010 rating decision did not assign an evaluation for right and left lower extremity radiculopathy associated with spondylolisthesis. However, evaluation of spondylolisthesis must consider any associated neurological abnormalities. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Accordingly, the Board has jurisdiction over the evaluations of right and left lower extremity radiculopathy because they are part and parcel of the evaluation of spondylolisthesis. Evidence of Record The period on appeal in this case began on July 11, 2007, the day the Veteran filed a claim of service connection for spondylolisthesis, and ended on September 25, 2012. This period also includes the Veteran's lower extremities because they are part and parcel of the claim of service connection for spondylolisthesis. In October 2006, the Veteran reported lower back pain that radiated to the right buttock and thigh to mid-calf. While he reported intermittent numbness or tingling in the lower extremities for the past several years, he reported that his symptoms had worsened in the past two weeks. He reported that his pain affected his ability to go to work. He had right-sided lumbar discomfort with side bends and hyperflexion, and a straight leg raise test was positive on the right. In February 2007, the Veteran reported that his symptoms had worsened since October 2006. A January 2007 MRI showed multilevel spondylosis and mild diffuse disk bulging at L4-5 and L5-S1, with potential L5 nerve root impingement. While an EMG and nerve conduction study of the lower extremities were normal, the Veteran continued to report radicular pain down both legs with numbness and tingling of the feet. In February 2009, the Veteran reported low back pain that radiated to both extremities and resulted in numbness. A June 2009 treatment record noted complaints of back pain with a burning sensation down the left leg. In September 2009, Dr. F.T. reviewed the evidence of record at the request of the Veteran and opined that the Veteran had constant back pain that radiated down both legs to his ankles, with no feeling on the bottom of the feet. At a December 2009 VA examination, the Veteran reported back pain that began during service in 1995 and became worse over time. He reported moderate flare-ups approximately every five to six months, with each flare-up lasting one to two days. He reported no leg or foot weakness. The Veteran had forward flexion to 90 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, left lateral rotation to 30 degrees, right lateral flexion to 30 degrees, and right lateral rotation to 30 degrees. Dr. H.X. observed pain with motion, but noted no additional limitation in motion after observed repeated use. Dr. X. stated that the Veteran's symptoms, to include muscle spasms, were not severe enough to be responsible for an abnormal spinal contour. Dr. X. provided no opinion as to lower extremity radiculopathy. A May 2010 treatment record noted abnormal lumbar spine flexion. A July 2010 MRI showed mild degenerative disc disease and broad-based disc bulges at L1-2 and L5-S1. Treatment records in 2010 and 2011 at the Florida Spine Institute showed restricted and painful lumbar spine flexion and extension as well as moderate bilateral spasms; while the Veteran reported back pain that radiated to his legs in July 2010, he denied radiation at other sessions. According to a Work History Report filed in connection with a Social Security Disability claim, the Veteran reported that he worked as a quality control manager from August 2007 to April 2008, was unemployed from April 2008 to March 2009, worked as a quality control manager from March 2009 to August 2009, and was unemployed since that time. In a Disability Report Adult form, the Veteran stated that his back pain was hindering his job performance and that he was counseled several times by his supervisor. As a result of his back pain, he reported that he had difficulty completing small tasks, such as changing a light bulb, reaching above his head for a glass, or tying his shoes. In an August 2011 letter, P.C. stated that he worked with the Veteran for five months in 2009. Mr. C. stated that the Veteran was in constant back pain. On two occasions, Mr. C. assisted the Veteran with his job duties because the Veteran was on the ground trying to stop spasms and pain in his lower back. An April 2012 treatment record noted complaints of back pain that radiated to the right lower extremity. The Veteran reported weakness and tingling sensation in his lower extremities. He was able to stand or walk without pain for less than 10 minutes and lying down sometimes eased the pain. He had painful range of motion with forward bending and extension. A May 2012 MRI showed bilateral L5 spondylolysis and severe neuroforaminal narrowing bilaterally with compression of both L5 nerve roots. At a September 2012 VA examination, the Veteran reported worsening back pain that radiated to both lower extremities. He reported flare-ups twice per week, with each flare-up lasting a few hours. He reported severe intermittent pain; severe paresthesias and/or dysesthesias; and moderate numbness in the right lower extremity. He reported moderate intermittent pain; moderate paresthesias and/or dysesthesias; and moderate numbness in the left lower extremity. The Veteran had forward flexion to 50 degrees, left lateral flexion to 10 degrees, left lateral rotation to 15 degrees, right lateral flexion to 10 degrees, and right lateral rotation to 15 degrees; testing for extension was not recorded. The Veteran had the same range of motion after observed repeated use. The Veteran had no atrophy. The Veteran had IVDS of the thoracolumbar spine that did not result in any incapacitating episodes. Dr. J.S. opined that the Veteran had severe right lower extremity radiculopathy and moderate left lower extremity radiculopathy. In December 2020, Dr. T.D. reviewed the evidence of record and provided a VA medical opinion. Dr. D. stated that the Veteran had normal range of motion at the December 2009 VA examination. Based on the Disability Benefits Questionnaire, the general history, and the findings at the time of the examination, Dr. D. opined that there would be minimal loss of motion during flare-ups, to include five to 10 degrees for flexion and extension and five degrees for the other planes. In June 2021, Dr. D. provided an addendum opinion. Dr. D. stated that no imaging documented sacroiliitis and that the correct diagnosis was degenerative spine disease. Dr. D. restated the December 2020 opinion and indicated that there was limited objective data to apply to a baseline predating 2009. Increased Evaluation for Spondylolisthesis The Veteran's spondylolisthesis is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Intervertebral Disc Syndrome Rating Formula (IVDS Rating Formula), whichever formula results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5239, 5242. Under the General Rating Formula, a 20 percent evaluation 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. See 38 C.F.R. § 4.71a, General Rating Formula. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See id. Under the IVDS Rating Formula, a 40 percent evaluation is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, IVDS Rating Formula. 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. See 38 C.F.R. § 4.71a, IVDS Rating Formula, Note (1). The percentage ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the veteran's disability picture more nearly approximates the criteria for the higher evaluation. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Entitlement to a 20 percent disability evaluation, but no higher, for spondylolisthesis, from July 11, 2007, to September 25, 2012, is granted. While the Veteran asserts that the evidence of record warrants a higher evaluation for spondylolisthesis prior to September 25, 2012, he has not asserted that this disability warrants a specific disability evaluation. In the August 2021 informal hearing presentation, the Veteran's representative asserts that Dr. D. did not address flare ups that are productive of additional functional loss of movement and motion that would warrant an evaluation in excess of 10 percent. This disability is currently evaluated at 10 percent, effective July 11, 2007, and at 20 percent, effective September 25, 2012. As noted above, the 20 percent disability evaluation is not before the Board. As a preliminary matter, the Board notes that the correct diagnosis during the period on appeal is spondylolisthesis. Dr. D. stated that no imaging documented sacroiliitis, and the Veteran has not contested this diagnosis. The Board finds that a 20 percent evaluation is warranted for spondylolisthesis. The lay and medical evidence indicates that the Veteran's symptoms fall between a 10 percent and 20 percent evaluation. While isolated evidence showed normal range of motion during the period on appeal, the Board assigns more probative weight to other medical evidence showing restricted range of motion. While Dr. X. stated that the Veteran's symptoms, to include muscle spasms, were not severe enough to be responsible for an abnormal spinal contour, the Board accords more probative weight to the Florida Spine Institute records showing moderate bilateral spasms and to Mr. C.'s observations that muscle spasms resulted in significant functional impairment for the Veteran, and ultimately resulted in the end of the Veteran's employment. The Board also notes that the evidence of record, to include the Veteran's lay statements and Dr. T.'s opinion, showed complaints of back pain during the period on appeal similar to the complaints at the September 2012 VA examination. In giving the Veteran the benefit of the doubt, the Board finds that the September 2012 VA examination range of motion results better reflect the Veteran's disability picture for the period on appeal. See 38 C.F.R. §§ 4.3, 4.7. The September 2012 VA examination showed forward flexion to 50 degrees, which demonstrates a 20 percent disability evaluation. See 38 C.F.R. § 4.71a, General Rating Formula. Therefore, a 20 percent disability evaluation is warranted, effective July 11, 2007. The Board accords little probative weight to Dr. D.'s opinions. While the Veteran's representative asserts that Dr. D. did not properly consider flare-ups, the Board notes that Dr. D. provided an estimate of the loss of motion during flare-ups. The Board instead gives probative weight to the other evidence of record consistent with the September 2012 VA examination, to include the Veteran's lay statements, Dr. T.'s opinion, Mr. C.'s observations, and multiple notations of restricted range of motion. A 40 percent evaluation under the General Rating Formula or IVDS Rating Formula is not warranted because the evidence of record did not show forward flexion of the thoracolumbar spine limited to 30 degrees or less; favorable ankylosis or the functional equivalent of favorable ankylosis of the entire thoracolumbar spine; or prescribed bed rest of at least 4 weeks but less than 6 weeks during the past 12 months. See id.; 38 C.F.R. § 4.71a, IVDS Rating Formula. For the reasons stated above, the Board grants a 20 percent disability evaluation for spondylolisthesis, effective July 11, 2007. Increased Evaluation for Lower Extremity Radiculopathy The Veteran's right and left lower extremity radiculopathy are evaluated under the rating schedule for neurological conditions and convulsive disorders. See 38 C.F.R. § 4.124a, DC 8520. Under DC 8520, a 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy; a 40 percent evaluation is warranted for moderately severe incomplete paralysis; and a 20 percent evaluation is warranted for moderate incomplete paralysis. See 38 C.F.R. § 4.124a, DC 8520. The terms "severe," "moderately severe," and "moderate" are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all evidence to the end that decisions will be equitable and just. See 38 C.F.R. § 4.6. The percentage ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the veteran's disability picture more nearly approximates the criteria for the higher evaluation. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Entitlement to a 40 percent disability evaluation, but no higher, for right lower extremity radiculopathy associated with spondylolisthesis, from July 11, 2007, to September 25, 2012, is granted. Neither the Veteran nor his representative has raised any assertions regarding a disability evaluation for right lower extremity radiculopathy prior to September 25, 2012. This disability is currently evaluated at 40 percent, effective September 25, 2012. The Board finds that a 40 percent evaluation is warranted for right lower extremity radiculopathy. While Dr. X. provided no opinion on this disability, the Veteran reported complaints of right lower extremity radiculopathy during the period on appeal similar to the complaints at the September 2012 VA examination. The Veteran also reported functional limitation of standing and walking difficulties as a result of this disability. Moreover, Dr. T. opined that the Veteran had bilateral radicular pain with no feeling on the bottom of the feet. The Board accords probative weight to Dr. S.'s opinion that the Veteran had severe right lower extremity radiculopathy and, in giving the Veteran the benefit of the doubt, finds that this opinion best reflects the Veteran's lay statements and Dr. T.'s opinion. See 38 C.F.R. §§, 4.3, 4.7. A 60 percent evaluation is not warranted because the evidence of record did not show marked muscular atrophy. Therefore, the Board grants a 40 percent disability evaluation for right lower extremity radiculopathy, effective July 11, 2007. Entitlement to a 20 percent disability evaluation, but no higher, for left lower extremity radiculopathy associated with spondylolisthesis, from July 11, 2007, to September 25, 2012, is granted. Neither the Veteran nor his representative has raised any assertions regarding a disability evaluation for left lower extremity radiculopathy prior to September 25, 2012. This disability is currently evaluated at 20 percent, effective September 25, 2012. The Board finds that a 20 percent evaluation is warranted for the Veteran's left lower extremity radiculopathy. While Dr. X. provided no opinion on this disability, the Veteran reported complaints of left lower extremity radiculopathy during the period on appeal similar to the complaints at the September 2012 VA examination. The Veteran also reported functional limitation of standing and walking difficulties as a result of this disability. Moreover, Dr. T. opined that the Veteran had bilateral radicular pain with no feeling on the bottom of the feet. The Board accords probative weight to Dr. S.'s opinion that the Veteran had severe left lower extremity radiculopathy and, in giving the Veteran the benefit of the doubt, finds that this opinion best reflects the Veteran's lay statements and Dr. T.'s opinion. See 38 C.F.R. §§, 4.3, 4.7. A 40 percent evaluation is not warranted because the evidence of record did not show moderately severe incomplete paralysis. Therefore, the Board grants a 20 percent disability evaluation for left lower extremity radiculopathy, effective July 11, 2007. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Board cannot make a fully-informed decision at this time. The April 2021 remand directed the AOJ to obtain a medical opinion on the functional impairment resulting from the Veteran's spondylolisthesis prior to September 25, 2012. Dr. D., however, did not provide such an opinion. The Board, therefore, cannot determine whether a TDIU is warranted for service-connected disabilities or a single service-connected disability. However, as the Veteran had a total disability evaluation due to service-connected esophageal adenocarcinoma, effective August 4, 2011, the VA examiner on remand should provide an opinion regarding the functional impairment on employment caused by spondylolisthesis prior to August 4, 2011. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician, other than the December 2020/June 2021 VA examiner, regarding the functional impairment on employment caused by spondylolisthesis prior to August 4, 2011. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.