Citation Nr: 21068804 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-30 003 DATE: November 12, 2021 ORDER Entitlement to an increased disability evaluation for lumbar spine degenerative arthritis with intervertebral disc syndrome (IVDS), currently rated as 40 percent disabling, is denied. REMANDED Entitlement to an initial disability evaluation in excess of 10 percent for right leg sciatica due to service-connected lumbar spine is remanded. Entitlement to an initial disability evaluation in excess of 10 percent for left leg sciatica due to service-connected lumbar spine is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes requiring prescribed bed rest during any 12 month time period. CONCLUSION OF LAW The criteria for an evaluation in excess of 40 percent for lumbar spine degenerative arthritis with IVDS have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes Diagnostic Codes 5003, 5242, 5235-5243 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from December 1976 to November 1979. The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing is of record. In November 2020, the Board remanded the above issues for further development. As will be discussed below, the issues of higher evaluations for left and right lower sciatica and the TDIU need further development. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Diseases and injuries to the spine are to be evaluated under diagnostic codes 5235 to 5243 as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine: 100 percent Unfavorable ankylosis of the entire thoracolumbar spine: 50 percent Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine: 40 percent Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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: 20 percent Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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: 10 percent The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: With incapacitating episodes having a total duration of at least six weeks during the past 12 months 60 percent With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months 40 percent With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months 20 percent With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months 10 percent Note (1): For purposes of evaluations under 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating for Formula and Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59 (2020). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. In this case, the Board finds that the medical evidence of record is sufficient to decide the case and is compliant with prevailing caselaw. When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In conjunction with his claim, the Veteran was afforded a VA examination in October 2015. At that time, a diagnosis of degenerative disc disease of the lumbar spine was rendered. Physical examination revealed flexion to 20 degrees, extension to 0 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 15 degrees. Range of motion remained the same after repetitive testing and with repeated use over time. Functional loss resulted from pain, weakness. fatigue, and lack of endurance. There was no localized tenderness and the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength was 5/5 throughout. There was no muscle atrophy. The Veteran was noted to not have IVDS. At the time of a March 2016 VA examination, a diagnosis of degenerative arthritis of the lumbar spine was rendered. Physical examination revealed flexion to 20 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. Range of motion remained the same after repetitive testing. With repeated use over time and with flareups, range of motion was estimated as follows: flexion to 15 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. Localized tenderness resulted in abnormal gait or spinal contour. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength was 5/5 throughout. There was no muscle atrophy. The Veteran was noted to have IVDS but this had not resulted in episodes of physician prescribed bedrest. In conjunction with the November 2020 remand, the Veteran was afforded an additional VA examination in January 2021. At the time of the examination, a diagnosis of IVDS was rendered. Physical examination revealed flexion to 10 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, and right and left lateral rotation to 20 degrees. The Veteran did not have localized tenderness which resulted in abnormal gait or spinal contour but had muscle spasm and guarding resulting in abnormal gait or abnormal spinal contour. Muscle strength was 5/5 throughout. There was no muscle atrophy. There was no ankylosis. The Veteran was noted to have IVDS, but this had not resulted in episodes of physician prescribed bedrest. An evaluation in excess of 40 percent is not warranted as the Veteran has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine. There has been no demonstration of unfavorable ankylosis at the time of any VA examination or in any treatment records. As such, no more than a 40 percent disability evaluation based upon limitation of motion would be warranted. The evidence reflects consideration of the Veteran's complaints of pain, weakness, and fatigability by medical professionals. Even when considering any pain, fatigue, weakness and flare-ups, neither the actual range of motion nor the functional limitation warrants an evaluation in excess of 40 percent for limitation of motion based upon the governing limitation of motion. As to incapacitating episodes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. The Veteran does not meet the criteria, as defined by regulation, that would allow for a 60 percent disability evaluation, the next higher evaluation, based upon incapacitating episodes, based upon the current record. Moreover, the most recent VA examiner specifically indicated that while the Veteran did have IVDS, it had not resulted in any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. As such, a 60 percent evaluation, based upon incapacitating episodes, is not warranted at any time. REASONS FOR REMAND As it relates for increased evaluations for right and left lower extremity radiculopathy, the Board notes that as part of the November 2020 remand, the examiner was to indicate which nerves were involved, and the extent of the impairment (mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerve). The examiner was to also indicate whether the Veteran had bowel or bladder impairment as a result of his back disability, and, if so, to describe the current severity of any such neurological manifestations. The requested examination was performed in January 2021. At that time, the examiner indicated that the Veteran had sciatic radiculopathy. The examiner also noted that the Veteran had severe intermittent pain but no constant pain; paresthesias and/or dysesthesias; or numbness. The examiner did not render an opinion as to the overall severity of the bilateral sciatic neuropathy, to include whether it was mild, moderate, moderately severe, or severe incomplete, or complete; nor did the examiner indicate whether the Veteran had bowel or bladder impairment as a result of his back disability. The Board errs as a matter of law when it fails to ensure compliance with the instructions of its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). The matter must be remanded for compliance with the directives of the prior Board remand. As to the issue of a TDIU, the Board notes that this issue is inextricably intertwined with the bilateral lower extremity radiculopathy increased evaluation issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). In addition, the examiner was to obtain evidence as to the functional effects of the service-connected disabilities on his ability to obtain or maintain substantially gainful employment in light of his work history and level of education. In the January 2021 report, the examiner noted that the Veteran retired at 55 due to pain related to this condition. It was noted that the Veteran was unable to sit/stand for more than a few minutes at a time or carry more than small weights for short periods of time. The examiner did not address the Veteran's ability to obtain or maintain substantially gainful employment in light of his work history and level of education. The matters are REMANDED for the following action: 1. If available, return the file to the examiner who performed the January 2021 orthopedic and neurological examination. Following review of the file, the examiner is requested to render the following opinions: What is the overall severity of the Veteran's right and left lower extremity radiculopathy, to include whether it is mild, moderate, moderately severe, or severe incomplete, or complete? The examiner is to also opine as to whether the Veteran has bowel or bladder impairment as a result of his back disability. The examiner is also requested to comment on the Veteran's ability to obtain or maintain substantially gainful employment in light of his work history and level of education. Complete detailed rationale is requested for each opinion that is rendered. If the examiner is not available to review the file and render the above opinions, schedule the Veteran for an appropriate VA examination, with the examiner providing detailed opinions to the above rendered questions. 2. If the Veteran is found to not meet the schedular criteria for a TDIU under the provisions of 38 C.F.R. § 4.16(a) following the above actions, refer the Veteran's claim to the Director of Compensation and Pension Service for consideration of entitlement to TDIU under the provisions of 38 C.F.R. § 4.16(b). A response must be obtained. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.