Citation Nr: 21072957 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-35 025 DATE: December 7, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc disease during the period prior to October 9, 2013, is denied. Entitlement to an increased rating from 10 to 20 percent for lumbar spine degenerative disc disease during the period of October 9, 2013, to August 3, 2021, is granted. Entitlement to a 10 percent rating for lower left extremity sciatic nerve radiculopathy for the period of January 17, 2007, to August 3, 2021, is granted. Entitlement to a 10 percent rating for lower right extremity sciatic nerve radiculopathy for the period of February 19, 2009, to August 3, 2021, is granted. Entitlement to an increased rating from 20 to 40 percent for lower left extremity sciatic nerve radiculopathy during the period beginning August 3, 2021, is granted. Entitlement to an increased rating from 20 to 40 percent for lower right extremity sciatic nerve radiculopathy during the period beginning August 3, 2021, is granted. REMANDED Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease for the period beginning August 3, 2021, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis for the period prior to July 21, 2021, is remanded. FINDINGS OF FACT 1. The Veteran's lumbar spine degenerative disc disease was manifested by guarding and localized tenderness that did not result in abnormal gait or spinal contour during the period of February 3, 2006, to October 9, 2013. 2. The Veteran's lumbar spine degenerative disc disease was manifest by forward flexion of greater than 30 degrees but not greater than 60 degrees, and a combined range of motion not greater than 120 degrees during the period beginning October 9, 2013. 3. The Veteran's left lower extremity radiculopathy was manifested by mild incomplete paralysis during the period of January 17, 2007, to August 3, 2021. 4. The Veteran's right lower extremity radiculopathy was manifested by mild incomplete paralysis during the period of February 19, 2009, to August 3, 2021. 5. The Veteran's left lower extremity radiculopathy was manifested by moderately severe paralysis during the period beginning August 3, 2021. 6. The Veteran's right lower extremity radiculopathy was manifested by moderately severe paralysis during the period beginning August 3, 2021. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran's lumbar spine degenerative disc disease have not been met for the period of October 9, 2013, to August 3, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a rating of 20 percent for the Veteran's lumbar spine degenerative disc disease have been met for period beginning October 9, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 3. The criteria for a disability rating of 10 percent for left lower extremity radiculopathy have been met for the period of January 17, 2007, to August 3, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for a disability rating of 10 percent for right lower extremity radiculopathy have been met for the period of February 19, 2009, to August 3, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for a disability rating of 40 percent for left lower extremity radiculopathy have been met for the period beginning August 3, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520, 8620, 8720. 6. The criteria for a disability rating of 40 percent for right lower extremity radiculopathy have been met for the period beginning August 3, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520, 8620, 8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to August 1985 and from January 2003 to January 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in January 2021. A transcript of the hearing is associated with the Veteran's claims folder. This case was previously before the Board in June 2021, on which occasion the claims were remanded. 1. Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc disease during the period prior to October 9, 2013. 2. Entitlement to an increased rating from 10 to 20 percent for lumbar spine degenerative disc disease during the period of October 9, 2013, to August 3, 2021. The Veteran contends that she is entitled to an initial rating in excess of 10 percent for a lumbar spine disability. Her lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Following a review of the record, the Board finds that the preponderance of the evidence does not support a rating in excess of 10 percent for lumbar spine degenerative disc disease during the period prior to October 9, 2013. In this regard, in an October 2006 pain management medical report tenderness with minimal guarding and "almost near full range of motion." (1/29/2007, Medical Treatment Record, p. 1-3). Additionally, in a VA lumbar spine examination conducted in February 2007, the Veteran's forward flexion was to 95 degrees, extension was to 30 degrees, lateral rotation was 45 degrees bilaterally, left lateral flexion was to 25 degrees, and right lateral flexion was to 35 degrees. Her total range of motion was 265 degrees. (2/15/2007, VA Examination, p. 5). However, during the period of October 9, 2013, to August 3, 2021, the Board finds that the preponderance of the evidence supports a grant of a 20 percent rating for lumbar spine degenerative disc disease. In this regard, an October 9, 2013, rheumatology consultation report noted "tense, tender, paralumbar spinal muscles," and forward lumbar shift with reduced lumbar lordosis. Additionally, the examiner noted a reduction in range of motion with "almost no lumbar extension . . .." (8/17/2018, CAPRI, p. 757). Further, during a March 2016 Florida Health examination, the Veteran's forward flexion was measured at 45 degrees during active motion. (6/14/2021, Medical Treatment Records, p. 236). Ankylosis was not observed, and the Veteran's range of motion was not consistent with functional ankylosis. A higher disability rating of 40 percent is not warranted during the period in question, as the evidence does not demonstrate that the Veteran has ankylosis of the spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. In sum, the totality of the evidence is against a rating in excess of 10 percent for the period prior to October 9, 2013. However, the evidence supports a 20 percent rating for the period of October 9, 2013, to August 3, 2021. Moreover, in reaching this conclusion the Board acknowledges the revisions to the rating schedule effective February 7, 2021. The changes involved the evaluation of intervertebral disc syndrome, which has not been shown in this case. 3. Entitlement to a 10 percent rating for lower left extremity sciatic nerve radiculopathy for the period of January 17, 2007, to August 3, 2021. 4. Entitlement to a 10 percent rating for lower right extremity sciatic nerve radiculopathy for the period of February 19, 2009, to August 3, 2021. While the Veteran was not service connected for radiculopathy prior to March 12, 2018, the Board has jurisdiction to consider granting a rating for that period as radiculopathy is part and parcel of a claim for a lumbar spine disability. When evaluating a lumbar spine disability, Note 1 to the General Rating Formula for Diseases and Injuries of the Spine directs VA to evaluate any objective associated neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71A. Therefore, when considering an increased rating for a lumbar spine disability, all associated neurologic abnormalities, including radiculopathy, are at issue as well. Radiculopathy effecting the sciatic nerve is rated in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with foot dangle and drop, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating that may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Board finds that there is objective evidence of left leg radiculopathy as of January 17, 2007. In this regard, on January 17, 2007, there was a positive straight leg lift test of the left leg. (1/17/2007, Medical Treatment Record, p. 8). Likewise, on February 19, 2009, there was a positive straight leg lift test of the right leg. (8/17/2018, CAPRI, p. 1053). The Veteran's radiculopathy was evaluated during an October 2018 VA peripheral nerves disability examination. The examination revealed bilateral mild intermittent pain, bilateral mild paresthesias, and bilateral numbness. Reflexes and sensation were normal bilaterally. Strength was reduced in knee extension, ankle plantar flexion, and ankle dorsiflexion at 4/5. (10/4/2018, C&P Exam, p. 2-3). Based on the above, the Board finds that the disability is primarily manifested by mild intermittent pain, mild paresthesias, mild numbness, and slightly reduced strength. There was no evidence of muscle atrophy or foot drop. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. In conclusion, the Board finds that a 10 percent rating is warranted for left lower extremity radiculopathy effective January 17, 2007, and for right lower extremity radiculopathy effective February 19, 2009. 5. Entitlement to an increased rating from 20 to 40 percent for lower left extremity sciatic nerve radiculopathy during the period beginning August 3, 2021. 6. Entitlement to an increased rating from 20 to 40 percent for lower right extremity sciatic nerve radiculopathy during the period beginning August 3, 2021. As noted in the preceding section, the Veteran was granted bilateral 10 percent ratings for radiculopathy in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8520, for the period prior to August 3, 2021. Thereafter, the Board finds that the preponderance of the evidence supports a 40 percent rating for bilateral lower extremity radiculopathy. In this regard, the Veteran was afforded a VA examination in August 2021. This examination revealed bilateral severe intermittent pain, bilateral severe paresthesias, and bilateral moderate numbness. Reflexes were hypoactive in the knee and ankle bilaterally, at 1+. Sensation was normal bilaterally. Strength was reduced to 4/5 bilaterally in hip flexion, knee extension, ankle flexion, ankle dorsiflexion, and great toe extension. (8/9/2021, C&P Exam, p. 9-9-11). Based on the above, the Board finds that as of August 3, 2021, the Veteran's disabilities were primarily manifested by severe intermittent pain, severe paresthesias, moderate numbness, hypoactive reflexes, and slightly reduced strength. There was no evidence of muscle atrophy or foot drop. The Board thus finds that the level of impairment is most analogous to moderately severe incomplete paralysis. In conclusion, the Board finds that the preponderance of the evidence supports a 40 percent rating for bilateral lower extremity radiculopathy for the period beginning August 3, 2021. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease for the period beginning August 3, 2021, is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In a recent decision, the United States Court of Appeals for Veterans' Claims (Court) noted that when evaluating a disability under VA's General Rating Formula, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Therefore, ankylosis can be shown via functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Ankylosis is defined as the "immobility and consolidation" of a joint due to disease, injury, or surgical procedure. Chavis, 34 Vet. App. at 13. See also Steadman's Medical Dictionary 95 (28th ed. 2006) ("Stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint."); Churchill's Illustrated Medical Dictionary 91 (1989) ("A stiffening or immobilization of a joint as a result of injury, disease, or surgical intervention."). In an August 2021 VA back examination a VA examiner estimated that the Veteran's range of motion during flare-ups was 20 degrees during flexion. However, the examiner did not opine on whether the Veteran's immobility during flare-ups constitutes the functional equivalent of ankylosis. The Board finds that an addendum opinion regarding whether the Veteran's immobilization during flare-ups is the functional equivalent of ankylosis is needed. The VA examiner should opine on whether the August 2021 range of motion findings shows the functional equivalent of favorable, unfavorable, or extremely unfavorable ankylosis. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis for the period prior to July 21, 2021. Remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration for the period prior to July 21, 2021. For the period in question, the Veteran had the following service-connected disabilities: migraine headaches (10 percent from February 20, 2009, and 30 percent from December 18, 2020), degenerative disc disease of the lumbar spine (10 percent from February 3, 2006, and 20 percent from October 9, 2013), left lower extremity radiculopathy (10 percent from January 17, 2007), right lower extremity radiculopathy (10 percent from February 19, 2009), gastroesophageal reflux disease (10 percent from February 3, 2006), and female sexual arousal disorder (zero percent from February 3, 2006). Her combined rating during this period did not exceed 60 percent. Based on the foregoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider her claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, as there is a reasonable possibility that she was unemployable during this period by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from July 2021 to the present. 2. Obtain an addendum opinion from the August 2021 VA examiner, if possible, on whether the August 2021 range of motion findings shows the functional equivalent of favorable, unfavorable, or extremely unfavorable ankylosis. 3. Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.