Citation Nr: 21073257
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 17-41 666
DATE:       December 8, 2021

ORDER

Entitlement to a disability rating of 20 percent prior to April 14, 2021 for thoracolumbar strain with degenerative changes is denied.

Entitlement to a disability rating of 40 percent, but no higher, for thoracolumbar strain with degenerative changes is granted from April 14, 2021.

Entitlement to service connection for major depressive disorder (MDD) is granted.

REMANDED

Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is remanded.

Entitlement to service connection for a disability resulting in urinary urgency, to include as secondary to service-connected disabilities, is remanded.

Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right sciatic nerve prior to February 22, 2021, and in excess of 20 percent thereafter, is remanded.

Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left sciatic nerve prior to February 22, 2021, and in excess of 20 percent thereafter, is remanded.

Entitlement to an initial compensable disability rating for radiculopathy of the right femoral nerve prior to February 22, 2021, and in excess of 20 percent thereafter, is remanded.

Entitlement to an initial compensable disability rating for radiculopathy of the left femoral nerve prior to February 22, 2021, and in excess of 20 percent thereafter, is remanded.

Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) prior to February 22, 2021, is remanded.

FINDINGS OF FACT

1. Prior to April 14, 2021, the Veteran's thoracolumbar strain with degenerative changes (back disability) manifested in forward flexion to, at worst, 40 degrees. 

2. From April 14, 2021, the Veteran's back disability manifested in severe pain causing impairment most nearly approximating forward flexion to less than 30 degrees, but not favorable or unfavorable ankylosis of the thoracolumbar spine. 

3. The Veteran's MDD is caused by his service-connected back disability and associated radiculopathy. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating of 40 percent, but no higher, for a back disability from April 14, 2021, but no earlier, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2020).

2. The criteria for entitlement to service connection for MDD as secondary to service-connected disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1982 to December 1987, and from February 2003 to May 2004, to include service in Southwest Asia.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by a Department of Veterans Affairs (VA) regional office, which is the agency of original jurisdiction. In September 2020, the Veteran testified before a Veterans Law Judge (VLJ). Because the VLJ who conducted the hearing is no longer employed by the Board, in June 2021 the Veteran was offered the chance to have a new hearing in front of the VLJ deciding his appeal. June 2021 BVA Letter. As the Veteran did not respond to the letter or otherwise request an additional hearing, the Board may proceed with adjudication.

New evidence has been added to the claims file by VA since the last adjudication of the claims by the AOJ. In September 2021, the Veteran informed that Board that he wished to waive AOJ review of this evidence, as such, the Board may proceed with adjudication. September 2021 Correspondence.

1. Entitlement to a disability rating in excess of 20 percent for a back disability.

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3.

The Veteran is currently assigned a 20 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237, for lumbosacral strain. This claim stems from a September 2011 increased rating claim. 

Under the General Rating Formula for Diseases and Injuries of the Spine, 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. 

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. The Veteran's associated neurological abnormalities, both service-connected and claimed, are addressed in the remand portion of this decision. 

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. 

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 Veteran first underwent VA examination in connection with this claim in September 2011. September 2011 VA Examination. He reported that he had attempted physical therapy, but was unable to tolerate it due to an aggravation of pain. With respect to flare-ups, he indicated his back usually flared once per week. He described a recent flare-up that occurred after he was on his feet at a concert, and said that it had lasted for four days and required him to schedule an extra chiropractor appointment. Range of motion testing revealed forward flexion to 45 degrees and extension to 5 degrees. Lateral flexion and rotation were not tested due to the Veteran's pain, nor was he able to complete repetitive-use testing. The Veteran's back was tender to palpation, but he did not demonstrate guarding or spasm. Muscle strength and reflexes were not tested due to pain. The Veteran indicated that he occasionally used a brace and a cane.

In April 2012, the Veteran underwent examination by a private physician, Dr. M.N. June 2013 Medical Treatment Records  Furnished by SSA. He reported constant aching in the mid and low back radiating into both legs and feet. He described severe pain range from a 3 on a scale of 1 to 10 to a 10 with increase physical activity. He found some relief with narcotics, but disliked the side effects including memory loss and somnolence. The Veteran complained of increased weakness and more frequent exacerbations of pain over the previous year, and indicated that he was only able to sit for about 45 minutes before he had to stand due to increased pain and numbness in the legs. Similarly, he was able to stand for about one hour. He used a cane to ambulate and could lift and carry only two to three pounds. Forward flexion was to 60 degrees, extension to 0 degrees, and bilateral lateral flexion to 10 degrees.

The Veteran next underwent VA examination in June 2017, at which time he reported midthoracic pain that extended around his ribs and down both legs to his toes, as well as a constant, sharp midback pain. He also described radiating sharp pain to both legs and numbness that can occur with normal walking or forward bending. He indicated that he could only drive for 10 to 15 minutes due to narcotics use, and that he had to use a cane constantly for ambulation. With respect to flare-ups, the Veteran reported they occurred when hitting bumps or stopping short in a car. He stated that he was no longer able to grocery shop, cut the grass, fix anything, climb stairs, cook, hunt or fish, fix his car, or shovel snow due to back pain. Upon examination, forward flexion was to 45 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. The examiner opined that the range of motion itself did not contribute to functional loss. The Veteran was able to perform repetitive-use testing with no additional loss of range of motion. The examiner indicated that there was no evidence of muscle spasm, and that guarding was present but did not result in abnormal gait or spinal contour. Passive range of motion testing was not completed because the examiner indicated that it was not appropriate for the thoracolumbar spine. 

The Veteran submitted a March 2021 Disability Benefits Questionnaire completed by a private physician, Dr. N.G. Range of motion testing revealed forward flexion to 45 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 15 degrees, and Dr. N.G. opined that the abnormal range of motion did contribute to functional loss. The Veteran was able to perform repetitive-use testing with essentially the same results, with the exception that flexion was limited to 40 degrees. 

The Veteran was most recently afforded a VA back examination in April 2021, at which time he reported sharp and throbbing pain radiating around the flanks and down both legs into his toes. He stated that the pain was constant and had worsened in the past year. With respect to flare-ups the Veteran reported that they occurred approximately once per week and lasted from 20 minutes to three hours. During flare-ups, he indicated that back pain was a 10 out of 10, his legs became numb and tingly, and he felt an increased urge to urinate. He said that flare-ups were precipitated by moving a certain way or pushing himself to do yardwork or housework and were alleviated by increased dosage and frequency of pain medications, ice, and heat. The examiner was unable to test range of motion as a result of the Veteran's severe pain with any movement and fear that he would be unable to drive himself home following these exertions. In that regard, the examiner noted that there was objective evidence of severe pain, as the Veteran became tachycardic and diaphoretic on examination. There was evidence of pain with weightbearing, non-weightbearing, active motion, passive motion, and on rest. There was no objective evidence of crepitus, but there was severe localized tenderness on palpation at L1-S1. The examiner opined that there would be functional loss due to pain with repeated use over time and with flare-up, and that muscle spasm and guarding resulted in abnormal gait. Specifically, muscle spasm was noted during examination and the Veteran was unable to walk until it passed. Further, he was unable to take complete strides due to his muscles guarding, and walked with a significantly reduced stride width and a disrupted stride pattern. There was no ankylosis or intervertebral disc syndrome. The Veteran constantly used a cane to walk. He reported that he could not walk for long distances or stay in a seated position for a long time, nor was he able to reach or twist. He could not drive for longer than 20 minutes and typically required assistance. He also indicated that his severe pain impacted his ability to sleep well or keep attention and focus. The examiner opined that the Veteran was unable to twist, reach, or bend without risking further injury. 

Upon review, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's back disability at any point prior to April 14, 2021, the date of the most recent VA examination. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran has relatively infrequent flare-ups with increased pain that would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. In that regard, during this period of time the Veteran's forward flexion was noted to be, at worst, 40 degrees, even considering additional impairment as a result of repeated use over time or flare-up. While the Veteran has reported a high degree of pain and limitation of function, the Board finds this is appropriately contemplated by the assigned rating, which accounts for a relatively high degree of disability. As such, the Board finds that a rating in excess of 20 percent is not warranted prior to April 14, 2021.

From April 14, 2021, however, the Board finds the preponderance of the evidence demonstrates that the Veteran's back disability manifested in impairment more closely approximating the criteria for a 40 percent rating. In that regard, during the April 2021 VA examination, the Veteran was unable to complete any range of motion testing due to severe pain and spasms that the examiner found to be corroborated by objective evidence. As such, while the evidence does not show that the Veteran's forward flexion was ever limited to 40 degrees or less, as he could not complete range of motion testing due to pain in April 2021, the Board finds that, from that date, the Veteran's back disability more closely approximated the criteria for a 40 percent rating, but no higher.

The Board acknowledges the Veteran's severe pain and recent inability to complete range of motion testing. However, even when considering the functional limitation during a flare-up, the Veteran's symptoms do not more nearly approximate fixation of a spinal segment in neutral position (zero degrees) such that a 50 or 100 percent rating would be warranted at any point during the period on appeal. In that regard, while the Veteran could not complete testing due to pain, he was able to drive to appointments and to sit in chair, reflecting that his back was not functionally fixated in any one position.

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, the record does not demonstrate that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 

Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for his back disability at any point prior to April 14, 2021. 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. However, the evidence does reflect that, from April 14, 2021, the Veteran's back disability manifested in impairment more closely approximating forward flexion of the thoracolumbar spine to 30 degrees or less. As such, a 40 percent rating, but no higher, is warranted from April 14, 2021, and, to that extent, the claim is granted.

2. Entitlement to service connection for MDD.

The Veteran contends that he suffers from an acquired psychiatric disorder as a result of the chronic pain caused by his service-connected disabilities, including his back disability and associated radiculopathy. 

The record reflects that the Veteran has a current disability of MDD. See June 2013 Medical Treatment Records  Furnished by SSA; September 2020 Medical Treatment Record  Non-Government Facility. With respect to whether it is caused by his service-connected disabilities, there is evidence for and against the claim. 

Evidence against the claim includes an October 2011 VA opinion, in which a VA examiner opined that the Veteran had a history of mild depression secondary life stressors most consistent with an adjustment disorder unrelated to military service, and that there was no evidence to suggest that thoracolumbar strain could cause depression. October 2011 VA Examination. In June 2017, a VA examiner opined that the Veteran did not have a diagnosable acquired psychiatric disorder, despite the fact that he had developed a pattern of frustration, anger, and sadness related to his chronic pain. June 2017 C&P Exam. 

Evidence for the claim includes a March 2013 psychiatric evaluation in which a private clinician, Dr. D.M., diagnosed the Veteran with MDD and opined that "the significant difficulties [the Veteran] has with functioning due to his physical pain also contribute a great deal to his problems with depression and anger." June 2013 Medical Treatment Records  Furnished by SSA. Dr. D.M. also completed a Disability Benefits Questionnaire in April 2013 and opined that the Veteran's constant significant physical pain led to his "significant problems with depression." Id. In September 2020, Dr. D.M. again evaluated the Veteran and noted that he continued to present with symptoms of MDD. Dr. D.M. indicated that all of the factors the Veteran identified as relating to his depression were problems with physical functioning. September 2020 Medical Treatment Record  Non-Government Facility. As a result, Dr. D.M. opined that it was much more likely than not that the Veteran's depression relates to the physical injuries that he suffered during military service. 

Upon review, the Board finds the opinions of Dr. D.M. that the Veteran suffers from MDD as a result of chronic pain related to his service-connected disability more probative than the negative opinions described above. In that regard, Dr. D.M. evaluated the Veteran over a number of years and provided an explanation for the opinions stated, whereas the VA examiners provided conclusory opinions that the Veteran did not suffer from an acquired psychiatric disorder related to his pain without explaining why the Veteran's symptoms did not meet diagnostic criteria. Furthermore, lay statements and treatment records throughout the period on appeal reflect that the Veteran's suffered from psychiatric symptoms related to his physical pain. See, e.g., January 2012 Medical Treatment Record  Government Facility. For example, the Veteran, his wife, and his daughter all submitted statements describing how the Veteran used to be very positive and cheerful, but as his pain increased he became moodier and more depressed. October 2011 Buddy / Lay Statements. During his September 2020 hearing, the Veteran described that, due to his pain, he had to give up enjoyable activities including fixing his car, cutting the grass, playing with grandchild, and that his mental health state also suffered as a result of difficulty sleeping and losing his job as a truck driver due to prescription narcotic use. September 2020 Hearing Transcript.

Upon review of the record, the Board finds the Veteran's current MDD is proximately due to his service-connected back disability and associated radiculopathy. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for MDD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for erectile dysfunction, to include as secondary to a back disability.

The Veteran asserts that he has erectile dysfunction due to his service-connected back disability. While VA opinions have been obtained with respect to whether the Veteran's erectile dysfunction is due to a neurological abnormality associated with his back disability, the Board finds these opinions to be insufficient. In that regard, in June 2017, the Veteran reported that he was unable to maintain an erection due to back pain, but the examiner opined only that erectile dysfunction was not caused by or the result of the service-connected back disability without discussing whether pain alone causes dysfunction. June 2017 C&P Exam. As such, the Board finds remand is warranted so that a new opinion may be obtained which specifically addresses whether the Veteran's erectile dysfunction is caused or aggravated by pain caused by his service-connected disabilities or, alternatively, by medications prescribed to manage his service-connected disabilities. 

2. Entitlement to service connection for a disability resulting in urinary urgency, to include as secondary to a back disability.

The Veteran also asserts that he has a disability resulting in urinary urgency related to his service-connected back disability. While a VA opinion was obtained in September 2011, the examiner noted only that there was no pathology on MRI to account for urgency or an overactive bladder. September 2011 VA Examination. However, the record is rife with references to the Veteran's urinary urgency over the entire period on appeal. See, e.g., July 2012 CAPRI; September 2014 Medical Treatment Records  Furnished by SSA; April 2021 C&P Exam. Furthermore, the examiner did not address the suggestion in the record that urinary urgency may be related to the medications the Veteran is prescribed to manage his back pain. See July 2012 CAPRI. Accordingly, the Board finds remand is warranted so that a new VA opinion may be obtained.

3. Entitlement to disability ratings in excess of 10 percent each for radiculopathy of the bilateral sciatic nerves prior to February 22, 2021, and in excess of 20 percent each thereafter.

4. Entitlement to compensable disability ratings for radiculopathy of the bilateral femoral nerves prior to February 22, 2021, and in excess of 20 percent each thereafter.

As a result of the April 2021 VA examination, the Veteran was awarded increased ratings for radiculopathy of the bilateral sciatic nerves as well as additional ratings for radiculopathy of the bilateral femoral nerves. Upon review, however, the Board finds clarification is necessary before the proper rating or ratings may be determined for radiculopathy associated with the Veteran's service-connected back disability. Specifically, in March 2021, Dr. N.G. completed a DBQ and indicated that the Veteran had moderate incomplete paralysis of every lower extremity nerve listed, with the exception of the sciatic nerve and external cutaneous nerve of the thigh, which Dr. N.G. opined were subject to moderately severe and mild incomplete paralysis, respectively. Subsequently, in April 2021, a VA examiner opined that "all of the veteran's peripheral nerve complaints are a direct result of radiculopathy involving nerve roots L2/L3/L4/L5/S1/S2/S3," but noted only moderate involvement of the bilateral sciatic and femoral nerves without addressing the March 2021 DBQ. Accordingly, the Board finds remand is warranted so that a new VA examination and opinion may be obtained which address the current and historical severity of the Veteran's sciatic and femoral nerve radiculopathy, as well as whether he has radiculopathy of any other lower extremity nerves related to his service-connected back disability.

4. Entitlement to a TDIU prior to February 22, 2021.

The matter of entitlement to a TDIU prior to February 22, 2021, has been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). See, e.g., February 2021. VA 21-8940 Veterans Application for Increased Compensation Based on Disability. As the outcome of the above claims has direct bearing on the Veteran's claim for a TDIU, the Board finds the matters are inextricably intertwined and, as such, entitlement to a TDIU must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991).

Additionally, the Veteran does not currently meet the schedular threshold for a TDIU prior to February 22, 2021. 38 C.F.R. § 4.16(a) (2020). If, following readjudication of the above claims and the assignment of an initial disability rating for MDD, the Veteran does not meet the schedular criteria for a TDIU for any part of the period on appeal, the Board finds referral to the Director, Compensation Service, for extraschedular consideration is appropriate. 38 C.F.R. § 4.16(b); Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). 

Updated VA treatment records, as well as any relevant private treatment records identified by the Veteran, should also be obtained and associated with the claims file.

The matters are REMANDED for the following actions:

1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e) (2020)), to include notifying the Veteran of the unavailability of the records.

2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinions as to whether it is at least as likely as not (50 percent probability or greater) that any current erectile dysfunction and/or disability resulting in urinary urgency are at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected the Veteran's back disability or associated radiculopathy, to include as a result of pain or any medications used to manage these conditions.

The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 

3. After records development is completed, schedule the Veteran for an appropriate VA examination to determine the current symptoms, level of severity, and functional impairment associated with his bilateral sciatic and femoral radiculopathy. The claims file should be reviewed by the examiner. 

The examiner should specifically comment on whether these radiculopathies have been present throughout the period on appeal and, if so, to what extent. 

The examiner should also specifically address whether the Veteran suffers from any other radiculopathies related to his back disability; in doing so, the examiner must comment specifically on the March 2021 DBQ noting multiple radiculopathies. 

4. If, after readjudicating the above issues and assigning an initial rating for MDD, the Veteran continues to fail to meet the schedular criteria for a TDIU for any portion of the period on appeal, refer the matter of entitlement to a TDIU prior to February 22, 2021, on an extraschedular basis to the Director, Compensation Service.

 

 

J. B. FREEMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. D. Bruce, 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.