Citation Nr: 21073327 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-23 582 DATE: December 8, 2021 ORDER Entitlement to an initial 20 percent rating, but no more, for degenerative joint disease (DJD) of the thoracic spine, prior to January 29, 2020, is granted. REMANDED Entitlement to a rating in excess of 20 percent for thoracic spine DJD from January 29, 2020, is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy, left lower extremity, femoral nerve associated with thoracic spine DJD, is remanded. Entitlement to an initial rating in excess of 10 percent radiculopathy, right lower extremity, femoral nerve associated with thoracic spine DJD, is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy, right lower extremity, sciatic nerve, is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy, left lower extremity, sciatic nerve, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT Prior to January 29, 2020, and affording the Veteran the benefit of the doubt, the Veteran's service-connected thoracic spine DJD has been manifested by subjective complaints of pain and guarding and muscle spasms severe enough to result in abnormal gait or abnormal spinal contour. CONCLUSION OF LAW Prior to January 29, 2020, the criteria for an initial rating of 20 percent for thoracic spine DJD have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1971 and May 1971 to May 1992. In March 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In August 2019, the Board remanded the claim for further development. In June 2020, the Board denied the Veteran's claims for entitlement to an initial rating in excess of 10 percent for thoracic spine DJD prior to January 29, 2020, entitlement to a rating in excess of 20 percent for thoracic spine DJD from January 29, 2020, and entitlement to initial ratings in excess of 10 percent for bilateral lower extremity radiculopathy associated with thoracic spine DJD. However, in August 2021, the United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Partial Remand (JMPR) vacating the Board's decision and remanding the claims for further development. The parties agreed that the Board failed to adequately explain its reliance on two VA examinations. The parties stated that in the January 2020 examination report, the examiner first noted that the Veteran did not suffer from pain on weightbearing, but then, found that the Veteran had increased pain in the lower back precipitated by weightbearing and bending. Additionally, the parties agreed that the Board must address whether the March 2012 VA back examination adequately addressed flare-ups. Regarding the Veteran's bilateral upper and lower extremity radiculopathy, the parties stated that the Board did not address the Veteran's now service-connected sciatica although it is inextricably intertwined with the Veteran's issue(s) on appeal. The Board also failed to address favorable evidence, i.e., the March 2012 VA examiner noted that the Veteran's radiculopathy left femoral nerve was "severe." The parties also noted that the record documented sciatic nerve impairment prior to January 29, 2020. Additionally, the Board did not define the terms of DC 8726 when it found that the Veteran's radiculopathy is "mild," particularly in light of the favorable evidence of the March 2012 VA examiner describing radiculopathy as "severe." The parties also agreed that the Board noted that the Veteran's femoral nerve was mild in severity; however, these findings pertained to the sciatic nerve as opposed to his femoral nerve. They stated that, on remand, the Board must accurately address the contents of the January 2020 VA back examination in determining whether the level of severity of the Veteran's current femoral nerve radiculopathy warrants an increased rating. The parties noted that the January 2020 examiner found that the Veteran's back condition impacted his ability to safely perform physical occupational tasks and impaired his ability to perform sedentary work, and the Veteran reported that he would have worked longer but his service-connected tremors got worse, and he had to stop working in November 2010; however, the Board failed to address whether the evidence reasonably raised the issue of entitlement to TDIU. Based on the JMPR, the Court remanded the claims for further development. The Board notes that a February 2020 rating decision granted service connection for sciatic nerve impingement of the left and right lower extremity associated with the thoracic spine DJD, and awarded 10 percent ratings for each sciatic nerve, effective January 29, 2020. As the left and right lower extremity sciatic nerve impingement ratings are part and parcel of the Veteran's claim for an increased rating for his thoracic spine DJD, the Board has jurisdiction over these ratings. Thus, they are among the issues currently before the Board. Entitlement to a rating in excess of 10 percent for thoracic spine DJD prior to January 29, 2020 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. Disabilities must be reviewed in relation to their history. Where there is a question as to which of two evaluations apply, the Board assigns the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Accordingly, separate ratings may be assigned for separate periods of time based on the facts found, which is a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans' Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The spine is rated under 38 C.F.R. § 4.71a, DCs 5235-5243 according to a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless DC 5243 is evaluated under the Formula for Rating IVDS based on incapacitating episodes. During the pendency the Veteran's appeal, VA amended criteria for rating musculoskeletal disabilities. The new regulation applies to claims received on or after February 7, 2021 or previously filed claims that are pending on February 7, 2021 if the new regulation will render more favorable result for the Veteran. As such, the Board will evaluate the Veteran's disability under both old and new regulations for the entire appeal period and choose the more favorable result. The new regulation revises the rating criteria for DCs 5242 for degenerative arthritis, degenerative disc disease other than IVDS. It notes that the rater should also see either DC 5003 or 5010. Diagnostic Code 5243, IVDS, was also revised. The revision states that 5243 is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. Under the old regulation, DC 5003 was assigned to evaluate degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a. Diagnostic Code 5003 is now assigned to evaluate degenerative arthritis (other than post-traumatic). Under both regulations, degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. The lumbar vertebrae are considered groups of minor joints, rated on a parity with major joints. 38 C.F.R. § 4.45. NOTE (1) states that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. The Board notes that the other DCs remain unchanged. Normal ROM of the thoracolumbar spine is 90 degrees of flexion, and 30 degrees for each of extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, Plate II. Under the General Formula, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine was greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Under the IVDS Formula, a 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. Under the General Formula, a 40 percent rating contemplates forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Alternatively, under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Under the General Formula, a 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. There is no equivalent rating under the IVDS Formula. Under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There is no equivalent rating under the General Formula. Under the General Formula, a 100 percent rating contemplates unfavorable ankylosis of the entire spine. There is no equivalent rating under the IVDS Formula. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 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 ROM measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a (General Formula, Note 1). Analysis The Veteran contends that his disability is more severe than the rating depicts. In March 2012, the Veteran was afforded a VA examination to determine the severity of his thoracic spine DJD. The Veteran stated that his low back pain began suddenly. He was unable to bend. The examiner confirmed the Veteran's DJD with radiculopathy status post (s/p) lumbar fusion. The Veteran reported experiencing flare-ups two to three time a week. The flare-ups lasted for four to five hours. The Veteran's forward flexion was to 85 degrees with painful motion beginning at 80 degrees; extension to five degrees with no objective evidence of painful motion; right and left lateral flexion and right and left lateral rotation were all to 30 degrees or greater with evidence of painful motion beginning at 30 degrees or greater. The Veteran was able to perform repetitive-use testing with three repetitions with no additional limitation in ROM following repetitive-use testing. After repetitive use, the Veteran experienced functional loss of the thoracolumbar spine, to include, less movement than normal and pain on movement. The Veteran experienced tenderness and muscle spasm over low back around L2 to L4 area. The examiner noted guarding and/or muscle spasms; however, the guarding and/or muscle spasms did not result in abnormal gait or spinal contour. Muscle strength testing was normal with no muscle atrophy. Reflex and sensory exams were normal. The Veteran experienced radicular pain or other signs or symptoms due to radiculopathy. The examiner noted moderate constant pain in the bilateral lower extremity, and mild numbness in the bilateral lower extremity. The examiner noted that the nerve roots involved were L2/L3/L4 femoral nerve of the right and left lower extremity. The examiner noted that the disability was mild in severity. There were no other signs or symptoms of radiculopathy. The Veteran did not have any other neurological abnormalities or findings related to his thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). The Veteran did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The Veteran stated that, occasionally, during flare-ups, he used a cane. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran, and there were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars related to the Veteran's condition. The examiner noted that the Veteran's thoracolumbar spine condition impacted his ability to work, i.e., the Veteran had difficulty with walking for long periods of time, bending over, and taking stairs. In January and April 2017, the Veteran saw his private physician for low back pain. The examiner diagnosed the Veteran with low back pain. The Veteran's thoracic spine ROM was normal with no pain with truncal extension or flexion. During his March 2019 hearing, the Veteran testified that he experienced muscle spasms about three or four times a month. He stated that the spasms interfered with his ability to walk straight. The Veteran's spouse also testified that, due to muscle spasms, the Veteran walked with "crooked back." The Veteran stated that he experienced back pain about four times a month and because of this, his medical provider increased the frequency of injections to twice a month. He also testified that he could not bend his back at all, and physical therapy did not improve his condition. He also reported having difficulties with prolonged driving and standing, doing house chores, and using the stairs. Upon review of the record, the Board finds that, prior to January 29, 2020, a rating of 20 percent is warranted. Under the general formula, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine was greater than 30 degrees but not greater than 60 degrees; or, the combined ROM of the thoracolumbar spine is not greater than 120 degrees; or, when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board notes that during the period on appeal, ROM testing performed during the 2012 VA examination revealed ROM to no less than 85 degrees and combined ROM was 200 degrees or greater. However, the VA examiner noted that the Veteran had muscle spasm and/or guarding. Although the examiner stated that the muscle spasm/guarding did not result in abnormal gait or spinal contour, during his Board hearing, the Veteran and his wife testified that the Veteran not only experienced muscle spasms and pain, but the spasms interfered with his ability to walk straight and/or walked with "crooked back." The Board finds that the Veteran and his spouse are competent to report physical symptoms such as spasms and abnormal gait. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Based on the foregoing, and after resolving all doubt in the Veteran's favor, the Board finds that a 20 percent rating is warranted prior to January 29, 2020. The Board notes that the parties to the JMPR agreed that the Board did not address whether the opinion is an adequate opinion regarding additional functional impairment that may exist during flare-ups as the examination did not describe the ROM estimates or precipitating and alleviating factors of the Veteran's flares. In this regard, the Board notes that the 2012 VA examiner noted, at worse, the Veteran's flexion was to 85 degrees even considering repetitive-use testing with three repetitions. Additionally, the Veteran's 2017 private examiner noted that the Veteran had full ROM. Although the Veteran's flexion does not meet the criteria for a 20 percent rating, given the examiner's notations of flare-ups two to three time a week lasting four to five hours, and affording the Veteran the benefit of the doubt, the Board finds that a 20 percent may be assigned for the entire period of the claim. However, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's disability. As noted above, a 40 percent rating contemplates forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Here, at worst, even considering the Veteran's subjective complaints of pain and other symptoms described in DeLuca, his forward flexion was from zero to 85 degrees and combined ROM was 270 degrees. Additionally, he did not have ankylosis. See 38 C.F.R. § 4.71a, DC 5235-5243. Therefore, the Board finds that a rating in excess of 20 percent is not warranted. See id. Additionally, the Board finds that a higher rating is not warranted under the IVDS formula. Under the old IVDS formula, the evidence of record must demonstrate incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243. Under the new regulation, 5243 is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. In this case, the Veteran did not have IVDS. Accordingly, a higher rating is not warranted under the IVDS formula. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). The Board has also considered the effect of pain and weakness in evaluating the Veteran's disability. 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, 8 Vet. App. 202 (1995). The Board notes that the Veteran had some functional loss/impairment which resulted in less movement than normal and pain on movement. Although the Veteran experienced additional functional limitation, the loss in ROM is not commensurate with that for the next higher rating. Based on the evidence, the Board finds that the current 20 percent evaluation adequately portrays any functional impairment, pain, and limitation of motion that the Veteran experienced due to his back disability. See DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that the Veteran has a current diagnosis of lumbar spine DJD, as confirmed by X-ray imaging. As noted above, the 20 percent rating based on X-ray findings will not be combined with ratings based on limitation of motion. As the Veteran has already been assigned a rating for lumbar degenerative arthritis to compensate for painful motion, a separate compensable disability cannot be awarded for arthritis. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable DC. 38 C.F.R. § 4.71a, General Formula, Note 1. The Board notes that the Veteran is already service connected for radiculopathy of the left and right lower extremities. With respect to neurological findings of bladder or bowel impairment, the Veteran did not have any neurologic abnormalities or findings related to a lumbar spine condition. Additionally, the Veteran did not have scars that were painful, unstable, or had a total area equal to or greater than 39 square cm (6 square inches) or located on the head, face, or neck. Therefore, a separate rating under 7800, 7801, 7802, 7804, 7805, or 7806 is not warranted. With respect to conducting a rating examination relative to joint dysfunction, the Court held that a VA examination of the joints must, wherever possible, include the results of the ROM testing described in the final sentence of § 4.59 which are tests as to pain on active and passive motion, including weight-bearing and non-weight-bearing and, if possible, with range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168-70. Here, the spine is a single group of joints and, as such, there is no opposite joint, much less an undamaged opposite joint. Thus, the holding in Correia is not applicable. In sum, the Board finds that an evaluation of 20 percent, but no more, is warranted for the Veteran's thoracic spine disability prior to January 29, 2020. REASONS FOR REMAND From January 29, 2020, the Veteran's thoracic spine DJD is rated at 20 percent disabling. As noted above, the parties to the JMPR agreed that the 2020 VA examiner noted that the Veteran did not suffer from pain on weightbearing, but then, found that the Veteran has increased pain in the lower back precipitated by weightbearing and bending. Based on the inconsistency, the Board finds that a remand is necessary to provide the Veteran with a new exam to determine the severity of his thoracic spine DJD. The Board finds that clarification is required with respect to conflicting evidence as to the nature and severity of the Veteran's bilateral lower extremity radiculopathy disabilities. In a March 2012 VA examination, the examiner diagnosed the Veteran with bilateral lower extremity radiculopathy involving nerve roots L2/L3/L4 (femoral nerve). No sciatic nerve impairment was noted. Comparatively, in the September 2020 VA examination, the examiner listed only sciatic nerve impairment. The examiner noted that the femoral nerve was normal. The examiner did not provide a rationale as to the conflicting evidence. The determination of whether the femoral nerve branch, the sciatic nerve branch, or both are affected is a foundational issue in the instant adjudication, as such, a remand is required. Regarding the Veteran's TDIU, the evidence of record raises a claim of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, a remand is required prior to adjudication of the claim for TDIU. The Veteran has not been provided adequate notice of the requirements to substantiate TDIU, nor has the agency of original jurisdiction addressed TDIU in the first instance. Additionally, the issue of TDIU is inextricably intertwined with the increased rating claims being remanded. The matters are REMANDED for the following action: 1. Obtain and associate all outstanding VA and private treatment records with the claims file. 2. Issue a notice letter to the Veteran concerning the claim for TDIU. Ask him to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Upon receipt of the form, complete any additional development. 3. Schedule a VA examination to determine the current severity of the Veteran's thoracic spine DJD. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The examination report must include a notation that this record review took place. All clinical findings should be reported in detail to include the functional impact on daily activities and employment. All indicated studies, including x-rays, ROM studies in degrees must be conducted, and all findings must be reported in detail. To the extent possible, the examiner is asked to opine as to the ROM and note any pain (and the point during ROM that pain is reported), pain on use, weakness, incoordination, or excess fatigability. In accordance with Correia v. McDonald, 28 Vet. App. 158 (2016), the ROM for the Veteran's lumbar spine disability should be tested on active and passive motion, in weight-bearing and non-weight-bearing, and after repetitive use. The examiner should consider the Veteran's lay statements regarding his decreased ROM. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should further assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional ROM loss. The examiner should consider all procurable and assembled data by obtaining all tests and records that might reasonably illuminate the medical analysis, to include the Veteran's statements regarding the extent of functional loss during flare-ups. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 4. Schedule the Veteran for a VA neurologic examination to determine the severity of his service-connected radiculopathy, bilateral lower extremity disabilities. All testing deemed necessary to rate the radiculopathy of the lower extremities under the criteria of the VA rating schedule must be conducted, and the results reported in detail. Document all signs and/or symptoms necessary for evaluating the Veteran's radiculopathy, bilateral lower extremity, including whether such neurologic manifestation results in complete or incomplete paralysis of the affected nerve. If incomplete paralysis is identified, the examiner must provide an opinion as to whether it is mild, moderate, or severe. The examiner is asked to clarify which nerves are impaired by the Veteran's radiculopathy, bilateral lower extremity. Note, the Veteran has been diagnosed with both femoral and sciatic nerve impairment. Femoral nerve impairment was the only diagnosis documented on March 2012 VA examination and sciatic nerve impairment was the only diagnosis documented on the September 2020 examination. If the Veteran no longer suffers from a particular nerve impairment, the examiner is asked to address the conflicting findings. 5. Then, readjudicate the issues on appeal, to include TDIU. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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.