Citation Nr: 21068677 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 14-22 742 DATE: November 12, 2021 ORDER A rating in excess of 60 percent for post-operative herniated nucleus pulposus lumbosacral spine with radiculopathy of the left lower extremity is denied. REMANDED Entitlement to a compensable rating for pseudofolliculitis is remanded. FINDING OF FACT The weight of the evidence is against finding ankylosis or fixation of the thoracolumbar spine or severe impairment with marked muscle atrophy or complete paralysis of the sciatic nerve of the left lower extremity. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for post-operative herniated nucleus pulposus lumbosacral spine with radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, 4.124a, Diagnostic Codes (DC) 5243, 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1973 to September 1995. 1. A rating in excess of 60 percent for post-operative herniated nucleus pulposus lumbosacral spine (back) with radiculopathy of the left lower extremity The Veteran receives a 60 percent rating under Diagnostic Code 5243 based on the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, which has a maximum 60 percent rating. Alternatively, spine disabilities can be rated 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. 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. 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. Left lower extremity radiculopathy would be rated under the diagnostic code for the affected nerve or nerves. Disabilities affecting the sciatic nerve are assigned a 10 percent rating for mild, 20 percent for moderate, 40 percent for moderately severe, and 60 percent for severe incomplete paralysis, which is marked by muscular atrophy. Complete paralysis, defined as the foot dangles and drips, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost, warrants an 80 percent rating. 38 C.F.R. § 4.124a, DC 8520. 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). The Board finds the preponderance of the evidence is against assignment of a combination of ratings for the Veteran's back disability and left lower extremity radiculopathy that could allow for a rating in excess of 60 percent under the rating criteria for the spine. See 38 C.F.R. §§ 4.71a, 4.124a, DC 5243, 8520. The Veteran has reported pain, swelling, stiffness, flare-ups, and functional impairment, including limitations in standing, walking, and daily activities. However, the evidence does not show ankylosis or fixation of the thoracolumbar spine. The September 2011 examiner recorded flexion to 50 degrees, the July 2012 examiner recorded flexion to 65 degrees, the August 2019 examiner recorded flexion to 60 degrees and to 40 degrees during flares, and the July 2021 examiner recorded flexion to 55 degrees and to 50 degrees during flares. Even resolving doubt in the Veteran's favor and assuming flare-ups reduced his flexion to 30 degrees, there is no evidence of ankylosis or the functional equivalent to fixation of the thoracolumbar spine. None of the examiners found the Veteran had ankylosis of the thoracolumbar spine, the Veteran's demonstrated motion disproves fixation of the spine, and the Veteran has not reported being diagnosed with ankylosis or fixation of the spine. Thus, the maximum rating the Veteran could be afforded for his back under the General Rating Criteria would be 40 percent. Under the Combined Ratings Table, two 40 percent ratings combine for a 60 percent rating. See 38 C.F.R. § 4.25. Therefore, in order to receive a rating in excess of 60 percent for his back disability, the Veteran would need a 50 percent or higher rating for his left lower extremity radiculopathy to combine with the 40 percent rating based on limitation of motion of the thoracolumbar spine. See id. There is some conflicting evidence as to which nerve or nerves in the left lower extremity are affected by the back disability. The September 2011 examiner identified the external cutaneous nerve of the thigh, sciatic nerve, tibial nerve, superficial peroneal nerve, and deep peroneal nerve. The July 2012 examiner identified the external popliteal nerve, superficial peroneal nerve, and anterior tibial nerve. The August 2019 and July 2021 examiners identified the sciatic nerve only. The Board finds the greater weight of these evaluations supports involvement of the sciatic nerve. Additionally, the rating criteria for the sciatic nerve is the only to provide for a rating in excess of 40 percent. See 38 C.F.R. § 4.124a, DC 8520-8529. More importantly, the criteria for diseases of the peripheral nerves broadly address the severity of impairment, the evidence does not show symptoms or impairment that could be separated and attributed to one nerve group over another, and assigning duplicate ratings for the same symptoms under multiple codes for the nerves would be impermissible pyramiding. See 38 C.F.R. § 4.14. As such, the Board will evaluate the left lower extremity radiculopathy using the Diagnostic Code for impairment of the sciatic nerve. The weight of the evidence is against finding marked muscular atrophy in the Veteran's left lower extremity or complete paralysis of the sciatic nerve to warrant a rating in excess of 40 percent under Diagnostic Code 8520. The September 2011 examiner noted atrophy and diminished strength in the left lower extremity. However, the July 2012, August 2019, and July 2021 examiners found no evidence of muscle atrophy. Additionally, VA treatment records from 2014 to 2019 include notations of normal motor function in the left lower extremity. At a minimum, the Board finds these later indications of no atrophy demonstrate that the Veteran did not have muscle atrophy that would be classified as marked. Although the September 2011, July 2012, and August 2019 examiners noted foot drop and the Veteran reported foot drop during the Board hearing, the Board finds the weight of the evidence is against finding complete paralysis of the sciatic nerve. The examiners classified the involvement as incomplete paralysis, and examinations and treatment records show the Veteran had active movement of the muscles below the knee and full or near-full strength on knee flexion. Therefore, a rating in excess of 40 percent for left lower extremity radiculopathy is not appropriate. Finally, the weight of the evidence is against finding any other neurologic abnormalities associated with the back disability for which separate ratings could be assigned. While the Veteran reported bowel and bladder problems during the September 2011 examination, the remainder of the evidence weighs against finding bowel or bladder impairment from the back disability. The July 2012, August 2019, and July 2021 examiners found no neurologic abnormalities other than radiculopathy of the left lower extremity. VA treating providers noted no difficulty with bowel function in May 2020, no urinary incontinence in January 2020, and no bowel or bladder incontinence in February 2019. VA examiners and treating providers also did not document right lower extremity neurologic abnormalities. Accordingly, the evidence does not support a rating in excess of 60 percent for the back disability. REASONS FOR REMAND 1. Entitlement to a compensable rating for pseudofolliculitis is remanded. Unfortunately, the Board finds additional remand is needed for the Veteran's skin disability claim. In the June 2021 remand, the Board requested a medical opinion on the topical medications the Veteran used and to determine if eczema and tinea versicolor, which were found to cover 60 percent of the Veteran's body, were at least as likely as not part of the disability picture for service-connected pseudofolliculitis. The July 2021 examiner addressed the topical medications and tinea versicolor but did not provide an opinion on eczema. Remand is required to obtain a medical opinion in compliance with the Board's prior directives. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. (Continued on the next page) 2. Request a medical opinion to address whether tenia versicolor and/or eczema, found on the September 2011 examination, are at least as likely as not part or a progression of service-connected pseudofolliculitis. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the expert should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.