Citation Nr: 21069642 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-54 636 DATE: November 19, 2021 ORDER For the appeal period prior to May 18, 2021, a 40 percent rating, but no higher, for a lumbar strain with sacroiliitis and thoracic back strain is granted. Beginning May 18, 2021, a rating in excess of 40 percent for a lumbar strain is denied. A separate 20 percent rating, but no higher, for right lower extremity radiculopathy is granted. A separate 20 percent rating, but no higher, for left lower extremity radiculopathy is granted. REMANDED Entitlement to service connection for a left upper extremity disorder, characterized as numbness and tingling, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the entire rating period on appeal, the evidence is at least in equipoise as to whether the Veteran's spine disability, to include during periods of flare-ups, was manifested by flexion limited to 30 degrees, but has not resulted in ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS). 2. The Veteran's intermittent radicular pain and numbness in the right and left leg more closely approximate moderate lumbar radiculopathy. CONCLUSIONS OF LAW 1. For the appeal period prior to May 18, 2021, the criteria for a 40 percent rating, but no higher, for a lumbar strain with sacroiliitis and thoracic back strain, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400 (o), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, General Rating Formula for Diseases and injuries of the Spine (General Formula), Diagnostic Code (DC) 5237. 2. Beginning May 18, 2021, the criteria for a rating in excess of 40 percent for a lumbar strain with sacroiliitis and thoracic back strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400 (o), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, General Rating Formula for Diseases and injuries of the Spine (General Formula), Diagnostic Code (DC) 5237. 3. The criteria for a separate 20 percent rating, but no higher, for lumbar radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520. 4. The criteria for a separate 20 percent rating, but no higher, for lumbar radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1994 to August 1994. This matter comes on appeal before the Board of Veterans' Appeals (Board) from the August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. In January 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge regarding all the issues currently on appeal. The hearing transcript is of record. In March 2021, the Board remanded the issues of (1) entitlement to service connection for a bilateral hand disorder, characterized as hand numbness; (2) entitlement to a rating in excess of 10 percent for a lumbar strain disability; and (3) entitlement to a separate compensable rating for right and/or left lower extremity radiculopathy, secondary to the service-connected low back disability. Thereafter, the RO granted a 40 percent rating for the lumbar spine disability, but only for the period beginning May 18, 2021. The RO also granted service connection for carpal tunnel syndrome and tendonitis of the right upper extremity, but service connection for left hand numbness was not awarded. Accordingly, the issues have been recharacterized as listed above. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. In November 2016, the Veteran filed a formal claim for a TDIU. Additionally, the medical evidence of record has raised the issue of unemployability. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claims and has accordingly listed the raised TDIU claim as an issue on appeal. Disability Ratings-General Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria."). It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Lumbar Spine Disability Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula)). The Veteran is currently in receipt of a 10 percent rating for his lumbar spine strain with sacroiliitis and thoracic back strain for the appeal period prior to May 18, 2021, and a 40 percent rating thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5237. 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 rating 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. 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. 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. The IVDS Formula provides a 10 percent rating 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 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 for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is defined as "a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Code 5243, Note (1). Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38C.F.R. §4.71a). Nonetheless, the changes do not have any significance to the rating of the Veteran's low back disability under Code 5237. There were changes to how degenerative disc disease (DDD) is rated, specifically in terms of whether as DJD (arthritis) under Code 5242 versus, instead, as IVDS under Code 5243. Turning to the evidence of record, the Veteran was afforded a VA spine examination in June 2016. Upon review, the Board finds this examination to be of reduced probative value as the report did not contain any meaningful discussion of the frequency, duration, characteristics, or overall severity of the Veteran's flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Moreover, although the Veteran reported having muscle spasms during the evaluation, the examiner checked "NO" as to whether the Veteran had muscle spasms of the thoracolumbar spine. The examiner also indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy; however, the Veteran specifically reported during the evaluation that he had numbness and tingling in his legs. Pursuant to the Board's remand directive, the Veteran was afforded another VA spine examination in May 2021. At that time, the Veteran reported having flare-ups of his back every 3 months and described them as "severe." He also reported being unbale to lift over 10 pounds. The examiner estimated that, at its worst (i.e., during flare-ups), the Veteran spine would be limited to 10 degrees in flexion. Upon review of the evidence of record, the Board finds that a 40 percent rating, but no higher, is warranted for the appeal period prior to May 18, 2021. As indicated above, the 2016 VA examination is of reduced probative value as the examiner did not address the Veteran's spine disability during periods of flare-ups. Moreover, the Veteran's pain has remained relatively consistent throughout the rating period on appeal. Compare June 2016 VA examination report to May 2021 VA examination report (Veteran reported in 2016 that his pain with sitting was a 7/10 and an 8-9/10 with walking. In 2021, he reported that back pain ranged from 6 to 8/10 most days). For these reasons, and in consideration of the Veteran's pain and limitation of motion during flare-ups, the Board finds that a 40 percent rating is warranted for the appeal period prior to May 18, 2021. The Board next finds that a rating in excess of 40 percent for the entire rating period on appeal is not warranted. The medical evidence of record does not show that the Veteran was prescribed bed rest for his spine disability by his physicians. Moreover, ankylosis of the spine is also not documented or approximated in the treatment records and VA examinations discussed above. As such, a higher rating in excess of 40 percent is not warranted for the entire appeal period. Associated Neurological Impairment In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Under DC 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. A 40 percent rating is assignable for moderately severe incomplete paralysis. A 60 percent rating is assignable for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is assignable for complete paralysis of the sciatic nerve, in which the foot dangles and drops and there is no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The terms "mild," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124 (a). In this case, the Veteran has reported numbness and tingling in the lower extremities throughout the rating period on appeal. See e. g., VA treatment record dated in December 2010 (noting that the Veteran had numbness in legs following a recent fall); see also June 2016 VA examination (Veteran reported that numbness and tingling occurred off and on throughout the day); see also May 2021 VA nerves and spine examination reports (Veteran indicated that he had intermittent numbness in both lower extremities). In an August 2009 VA orthopedic note, the Veteran was seen for right hip arthritis (another service-connected disability). At that time, it was noted that the Veteran had undergone x-rays of the right hip and of the lumbar spine, which showed "increasing sclerosis at the L5-S1 region at the level of the facets" with some "mild narrowing at this region." A diagnosis of "right S1 lumbosacral radiculopathy with decreased sharps sensation" was noted. In a January 2010 VA neurology note, the Veteran was noted to have undergone an MRI of the lumbar spine, which only showed some "minimal degenerative changes." A 2009 EMG also showed normal results. See September 2009 VA treatment record. During the June 2016 VA spine examination, the examiner indicated that the Veteran "exhibits exaggerated pain behavior" as imaging of his lumbar spine did not indicate or show and condition sufficiently severe to impact his ability to stand up-right or account for his decreased range of motion. It does not appear that the examiner reviewed the 2009 diagnosis showing "right S1 lumbosacral radiculopathy with decreased sharps sensation." The May 2021 VA spine and nerve examination reports did not objectively diagnose the Veteran with lumbar spine radiculopathy. However, the examiner noted neurological manifestations, including decreased sensation to light touch in the bilateral thigh/knees and feet/toes, upper anterior of the right thigh, and right lower leg/ankle. Muscle strength and reflex testing was entirely normal in the lower extremities. Notably, however, the examiner indicated that the Veteran had "severe" intermittent pain in the left lower extremity and "moderate" paresthesias and/or dysesthesias in the bilateral lower extremities. Consequently, the Board finds that the Veteran's neurological symptoms associated with the lumbar spine disability are shown to be wholly sensory and intermittent. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124 (a) (when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree). As such, the Board finds that the evidence more nearly approximates moderate radiculopathy of the lower extremities. Accordingly, separate 20 percent ratings are warranted for moderate lumbar radiculopathy of the right and left lower extremities. REASONS FOR REMAND Left Upper Extremity Disorder As noted above, the Veteran has been awarded service connection for right upper extremity carpal tunnel syndrome and right hand tendonitis. Despite persistent complaints by the Veteran of left hand numbness, service connection for the left extremity has not been awarded. A May 2021 VA examination report and medical opinion indicated that there were "numerous conditions that can cause numbness and tingling." No diagnosis was provided for the Veteran's left upper extremity numbness and the examiner noted that a cause for the Veteran's subjective complaints had not been found. The Board finds this opinion inadequate. In this regard, although the examiner noted that there were numerous conditions that could cause numbness and tingling in the upper extremities, no examples of such conditions were provided. Moreover, the examiner did not opinion as to whether the Veteran's service-connected chronic pain syndrome could (at least in part) either cause or aggravated his left upper extremity symptoms. A new medical opinion is required. TDIU The Veteran last submitted a TDIU application in 2016, noting that he had last worked in 2011. Subsequent lay and medical evidence indicates that the Veteran may have been employed during some portion of the appeal period. See e. g., January 2021 Board Hearing Transcript at pg. 12 (Veteran noted that he was working full time at GE); see also May 2021 VA examination report (Veteran indicated working nights); see January 2017 VA examination (Veteran reported being employed at a pizza establishment as a cook). On remand, the Veteran should be asked to complete a new application for a TDIU in order to obtain her more recent employment history, if any. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Provide the Veteran with a new VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and ask him to complete and return the form. 3. Obtain a medical opinion from an appropriate examiner as pertains to the etiology of the Veteran's left upper extremity numbness and tingling. The Veteran is not required to undergo a physical examination unless deemed necessary. The claims file must be provided to the examiner. The examiner is asked to address the following: (a.) State whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's left upper extremity numbness and tingling was either caused or aggravated by his service-connected chronic pain syndrome or other service-connected disabilities. (b.) The VA examiner must provide separate findings and rationales relating to causation and aggravation. **Aggravation under 38 C.F.R. § 3.310 (b) DOES NOT require that there be "permanent" worsening of the nonservice connected disability. 4. Then, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.