Citation Nr: 21072995 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-04 980 DATE: December 7, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for service-connected degenerative disc disease and degenerative joint disease of lumbosacral spine is denied. Entitlement to a 40 percent disability rating, but no higher, for service-connected left lower extremity radiculopathy is granted. Entitlement to a 40 percent disability rating, but no higher, for service-connected right lower extremity radiculopathy is granted. Entitlement to an effective date earlier than October 26, 2015, for the grant of service connection for bilateral lower extremity radiculopathy is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected left knee patellofemoral syndrome is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's service-connected degenerative disc disease and degenerative joint disease of lumbosacral spine disability is manifest by IVDS or unfavorable ankylosis for any portion of the period on appeal. 2. The Veteran's right and left lower extremity radiculopathies are manifested by moderately severe incomplete paralysis, without findings of marked muscular atrophy. 3. The preponderance of the evidence of record is against finding that the Veteran's left and right lower extremity radiculopathies manifested prior to October 26, 2015. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for service-connected degenerative disc disease and degenerative joint disease of lumbosacral spine have not been met. 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 40 percent disability rating, but no higher, for right and left lower extremity radiculopathies have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 3. The criteria for an effective date earlier than October 26, 2015, for the grant of service connection for bilateral lower extremity radiculopathy have not been met. 38 C.F.R. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from September 1972 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018 and May 2021, the Board remanded these claims for further development. Most recently, the Veteran's claims were remanded by the Board in May 2021 to acquire outstanding private treatment records, as well as retrospective medical opinions. Now associated with the Veteran's claims file are September 2021 VA addendum medical opinions addressing the same. Here, the Board finds that there has been substantial compliance with its May 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. Entitlement to a disability rating in excess of 40 percent for service-connected degenerative disc disease and degenerative joint disease of lumbosacral spine The Veteran's service-connected degenerative disc disease and degenerative joint disease of lumbosacral spine is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 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. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. 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. 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 that the preponderance of the evidence is against a rating in excess of 40 percent based on incapacitating episodes. 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. See June 2019 VA examination report; October 2015 VA examination report; August 2013 VA examination report. The preponderance of the evidence is also against a rating in excess of 40 percent under the General Rating Criteria, as there is no evidence of record that the Veteran suffers unfavorable ankylosis of the entire thoracolumbar spine. See June 2019 VA examination report; October 2015 VA examination report; August 2013 VA examination report. Importantly, the Board notes that the criteria for the currently assigned 40 percent rating includes compensation for favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 40 percent rating currently assigned presently contemplates any episodes in which the Veteran believes his disability is so severe that he cannot move his back. Unfavorable ankylosis, as contemplated in the 50 percent and 100 percent ratings, however, is a condition in which 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board does not find that the medical evidence or the Veteran's lay description of the functional impairment he experiences during such flare-ups demonstrates the level of disability associated with unfavorable ankylosis of the thoracolumbar spine, which is the criteria associated with the next higher rating of 50 percent. Additionally, the retrospective findings made by the September 2021 VA examiner upon remand also do not indicate that the Veteran ever suffered from IVDS or unfavorable ankylosis of the entire thoracolumbar spine during any portion of the period on appeal. Thus, for the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 20 percent for service-connected left lower extremity radiculopathy 3. Entitlement to a rating in excess of 20 percent for service-connected right lower extremity radiculopathy At the outset, the Board notes that upon remand the Veteran was requested to complete and submit VA Form 21-4142 in order to obtain outstanding private treatment records, of which the Board determined were pertinent to his increased rating claims. See May 2021/June 2021 Subsequent Development Letter(s). The Veteran did not complete the authorization or otherwise submit the records on his own behalf. The United States Court of Appeals for Veterans Claims (Court) has held that the "duty to assist is not always a one-way street" and that "[i]f [an Appellant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that VA has satisfied its duty to assist regarding obtaining available private treatment records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that only substantial, and not strict, compliance with the terms of the remand order is required). Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, 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 the foot dangles and drops, 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 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 picture 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). During the October 2015 VA examination, the VA examiner opined that the Veteran suffered from severe constant pain, paresthesias and/or dysesthesias, and numbness of the left and right lower extremities. Here, the Board finds that based on these findings a 40 percent disability rating for moderately severe incomplete paralysis of the left and right lower extremities is the more appropriate disability rating to be assigned as contemplated under DC 8620; although the VA examiner indicated that the Veteran's symptoms were indeed severe, there is no indication that he also suffers muscular atrophy as contemplated/required by the next highest 60 percent disability rating under DC 8620. See June 2019 VA examination report. The Veteran's disability was also examined by VA in June 2019. The VA examiner found that the Veteran suffers from moderate paresthesias and/or dysesthesias of the left and right lower extremities, as well as moderate numbness in those same extremities. Relative to the Veteran's sciatic nerve, the VA examiner indicated that the Veteran suffers moderate incomplete paralysis of both the left and right lower extremities. The Board also notes that the Veteran's VA treatment records indicate that the pain associated with his radiculopathy is managed with high dose opiod pain medication. See August 2021 VA treatment record. Here, the Board may not consider the ameliorative effects of medication unless specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As the rating criteria for incomplete paralysis of the sciatic nerve does not contemplate the use of medication, the Board may not consider the ameliorative effects of the prescribed high dose opiod pain medication. Therefore, the alleviation of the Veteran's radiculopathy symptoms reflected by the June 2019 VA examination do not necessarily reflect actual improvement, but rather effective treatment of the Veteran's symptoms. Thus, while the June 2019 VA examination noted only moderate symptoms, the Board notes that this was after the Veteran had been taking high dose opiod pain medication. Therefore, it appears that the effective pain management treatment may have translated into improved radiculopathy results on the VA examination. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds the evidence of record to be in favor of awarding increased 40 percent disability ratings for the Veteran's service-connected left and right lower extremity radiculopathies, but no higher, for the entire period on appeal given findings of severe symptomatology. 4. Entitlement to an effective date earlier than October 26, 2015, for the grant of service connection for bilateral lower extremity radiculopathy Upon remand, the Board acquired an addendum medical opinion addressing whether the Veteran's service-connected left and right lower extremity radiculopathies manifested prior to the October 26, 2015 VA examination in which they were formally diagnosed by VA; the date of examination represents the currently assigned effective date for the grant of service connection. The September 2021 VA examiner opined that based upon a review of the evidence of record, there is no evidence to support an earlier diagnosis for an earlier effective date. In so stating, the VA examiner relied upon the prior August 2013 VA examination of record, as well as the private treatment notes from March 2013 and May 2013 in which no diagnosis of radiculopathy was found. See also August 2020 VA examination report (indicating that the diagnosis of left lateral femoral cutaneous neuropathy in July 2008 relates to the cervical spine and is not a radiculopathy). An effective date is assigned based on when entitlement arose or the date the claim was received, whichever is later. In this case, the date that entitlement arose was the date of diagnosis in October 2015, and is the later of the two dates, as the Veteran initially filed for an increased rating for his associated and service-connected spine disability on October 18, 2012. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2018). Therefore, as the preponderance of the evidence of record is against finding that the Veteran's left and right lower extremity radiculopathies manifested prior to October 26, 2015, under the laws and regulations pertaining to effective dates, the one currently assigned is the appropriate effective date for the grant of entitlement to service connection for left and right lower extremity radiculopathy in this case. REASONS FOR REMAND 3. Entitlement to a disability rating in excess of 10 percent for service-connected left knee patellofemoral syndrome is remanded. Upon review of the Veteran's most recent June 2019 VA examination assessing the severity level of his service-connected left knee, the Board notes that the VA examiner indicated that the Veteran experiences pain in the left knee with weightbearing; however, the VA examiner did not provide range of motion measurements relative to those findings, and therefore, unfortunately, an additional remand is required here pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), wherein the Court held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Additionally, the Board notes the examination report indicates the Veteran experienced pain on flexion; however, the examination report does not indicate the degree at which pain occurred. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, on remand, the Veteran should be afforded a new VA examination. The examination must include the degree at which pain occurs during range of motion tests of the left knee. These findings are necessary to adequately rate the Veteran's disability according to DeLuca. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination for his left knee disability. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's disability. *All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the left knee and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) pursuant to DeLuca. *Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH active and passive motion AND in weight-bearing and nonweight-bearing. *If the left knee cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. *In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.