Citation Nr: 21075414 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-13 488 DATE: December 20, 2021 ORDER Entitlement to an initial rating in excess of 40 percent for a lumbar spine disability is denied. REMANDED Entitlement to a separate compensable rating for right lower extremity neurological impairment, to include sciatica is remanded. Entitlement to a separate compensable rating for left lower extremity neurological impairment, to include sciatica is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's lumbar spine disability has manifested without favorable or unfavorable ankylosis. CONCLUSION OF LAW The criteria for an initial rating in excess of 40 percent for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1980 to December 1981. This matter is on appeal from an August 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, a hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in October 2019 when it was remanded for further development. In an August 2020 rating decision, the RO granted entitlement to a total disability rating based on individual unemployability (TDIU) from April 24, 2012; thus, the matter is no longer before the Board for appellate consideration. Increased Rating The Veteran contends that she is entitled to an initial rating in excess of 40 percent for her service-connected degenerative disc disease with lumbar strain. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Note (5) provides that unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). It is the intent of the Rating Schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 4-5. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The only substantive change for the criteria for evaluating lumbar spine disabilities was that a distinction was made to clarify that Diagnostic Code 5243 should only be applied where there is disc herniation with compression and/or irritation of the adjacent nerve root. For all other disc diagnoses, Diagnostic Code 5242 is to be applied. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In this case, the Veteran was provided with a VA examination in July 2012 in which the Veteran reported intermittent pain worsening in the past 10 years. The examiner noted no flare-ups. Initial range of motion testing showed forward flexion to 80 degrees with pain at 80 degrees, extension to 25 degrees with pain at 25 degrees, right and left lateral flexion to 30 or greater degrees with pain at 30 or greater degrees, and right and left lateral rotation to 30 or greater degrees with pain at 30 or greater degrees. The Veteran was able to perform repetitive-use testing with three repetitions with no additional loss in range of motion. The examiner noted less movement than normal and pain on movement. The examiner also noted that guarding and/or muscle spasms were present but did not result in abnormal gait or spinal contour. The examiner noted that the Veteran does not use any assistive device as a normal mode of locomotion. The examiner noted functional impairment in the Veteran's ability to work due to pain. The Veteran did not have intervertebral disc syndrome or neurological abnormalities related to a thoracolumbar spine condition, including bowel or bladder problems. Further, in a July 2012 addendum, the clinician stated that "to quantify the level of disability for each of the conditions is highly speculative." As this examination report does not reflect adequate consideration of the flare-ups discussed below, the Board assigns little to no probative value to these findings. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). May 2013 private treatment records note that the Veteran reported pain with difficulty lifting, squatting, bending, standing, walking, sitting, kneeling, and climbing stairs. In the February 2016 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran reported daily back pain and stated "that was a good day" during the July 2012 VA examination. During the June 2019 hearing, the Veteran reported that her back condition had worsened since the last VA examination. She also stated that she did not remember whether the VA examiner had used a measuring device to record range of motion. 38 C.F.R. § 4.46 ("The use of a goniometer in the measurement of limitation of motion is indispensable in examinations.") She stated that her back pain causes functional impairment which makes her unable to sit or stand for long. She also provided credible and competent statements describing significant pain. In February 2020, the Veteran was provided with an additional VA examination in which the Veteran reported severe, daily flare-ups. She reported that they are precipitated by standing, sitting, and moving in certain directions. She reported use of a cane and walker when walking and standing. Initial range of motion testing showed forward flexion to 40 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 30 degrees. The examiner noted pain on forward flexion, extension, right lateral flexion, and left lateral rotation which did not result in or cause additional functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss in range of motion. The examiner noted pain with repeated use over time and estimated forward flexion to 30 degrees, extension to 20 degrees, right and left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. The examiner estimated that pain during flare-ups results in forward flexion to 30 degrees, extension to 20 degrees, right and left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. The examiner noted guarding resulting in abnormal gait or abnormal spinal contour. There was no ankylosis of the spine. The examiner noted no intervertebral disc syndrome or neurological abnormalities due to the spine disability, including bowel or bladder impairment. The examiner noted occasional use of a cane and walker for locomotion. As this examination report reflects thorough consideration of the extent of the functional impairment caused by the Veteran's lumbar spine disability, the Board assigns a high degree of probative value to these findings. In a May 2021 written brief, the Veteran's representative stated that the February 2020 examination was inadequate as the examiner did not address statements regarding sciatic pain and requested a remand for a new examination. The examiner completed all necessary range of motion testing and provided findings regarding functional impairment based on the Veteran's competent lay statements. The evidence does not reflect, and the Veteran has not contended, that the range of motion noted in the examination report does not reflect the full severity of her disability, and there is no evidence which otherwise suggests the presence of ankylosis. Thus, the Board finds the examination is adequate to evaluate the spine disability. However, as explained below, the examination does not adequately address whether there is neurologic impairment in the lower extremities related to the spine condition, and the matters of entitlement to separate compensable ratings for bilateral lower extremity neurological impairment are being remanded for further examination. Upon review of the record, the Board finds that the record does not reflect that the Veteran's lumbar spine disability manifested by favorable or unfavorable ankylosis at any point during the appeal period. The evidence reflects functional impairment during flare-ups which results in additional limitation, as discussed above. However, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MED. DICTIONARY 94 (32nd ed. 2012). Unfavorable ankylosis is a condition in which the entire cervical spine, 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. As explained above, the VA examiners noted that ankylosis was not present, and the record otherwise contains no evidence indicating the presence of ankylosis, even when considering such impairment during flare-ups. Regarding neurological impairment, the weight of the evidence is against a finding that the Veteran has any bowel or bladder impairment related to the spine disability. Thus, a separate rating under Note (1) for such impairment is not warranted. As noted above, the Board is remanding the matter of whether separate compensable ratings are warranted for neurological impairment in the lower extremities and will discuss that in the Reasons for Remand portion below. The Board has considered whether evaluation under Diagnostic Code 5243, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, would be appropriate; however, the evidence does not reflect that the Veteran has intervertebral disc syndrome or that she has experienced incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. As such, this rating formula would not provide for a rating in excess of 40 percent. Accordingly, the preponderance of the evidence is against a finding that the Veteran is entitled to an initial rating in excess of 40 percent for the lumbar spine disability; there is no benefit of the doubt to be resolved, and the claim is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5237. (CONTINUED ON NEXT PAGE) REASONS FOR REMAND 1. Entitlement to a separate compensable rating for right lower extremity neurological impairment, to include sciatica. 2. Entitlement to a separate compensable rating for left lower extremity neurological impairment, to include sciatica. Pursuant to Note (1) of the General Rating Formula, VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1). In this case, it is unclear from the evidence of record whether the Veteran has neurologic impairment of either lower extremity that is caused or aggravated by her service-connected lumbar spine disability. Specifically, on February 2020 VA examination, the examiner noted a diagnosis of bilateral sciatica and noted that on sensory examination the Veteran had decreased sensation in the lower extremities. However, the examiner noted that there was no radicular pain or other signs or symptoms due to radiculopathy and stated that there was no neurological impairment associated with the spine disability. Given the conflicting nature of this evidence, a remand is required to obtain an examination to determine the nature and etiology of any bilateral lower extremity neurological impairment. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file updated VA treatment records from August 2020 to the present. 2. After completing the development requested in item 1, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to determine the nature, extent, and etiology of any bilateral lower extremity neurological impairment, including sciatica. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a) Is it at least as likely as not (50 percent or greater probability) that any neurological impairment in the right or left lower extremity, including sciatica, is caused by her service-connected lumbar spine disability? (b) Is it at least as likely as not (50 percent or greater probability) that any neurological impairment in the right or left lower extremity, including sciatica, is aggravated (i.e., any increase in the severity beyond its natural progression) by her service-connected lumbar spine disability? A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.