Citation Nr: 21076589 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-00 184A DATE: December 27, 2021 ORDER Service connection is granted for right hip arthritis secondary to a service-connected lumbosacral spine disability. Service connection is granted for left hip arthritis secondary to a service-connected lumbosacral spine disability. An initial 40 percent rating, but no higher, is granted for left lower extremity radiculopathy. A 40 percent rating, but no higher, is granted for a service-connected lumbosacral spine disability. FINDINGS OF FACT 1. The Veteran's bilateral hip arthritis is caused by his service-connected lumbosacral spine disability. 2. For the entire period on appeal, the Veteran's left lower extremity radiculopathy has manifested by no more than moderate severe incomplete paralysis. 3. The Veteran's lumbosacral spine disability is manifested by objective evidence of painful motion, showing forward flexion limited to 10 degrees, and forward flexion of the thoracolumbar spine limited to 30 degrees during repetitive use and flare-ups. CONCLUSIONS OF LAW 1. The criteria have been met for service connection of right hip arthritis secondary to service-connected lumbosacral spine disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria have been met for service connection of left hip arthritis secondary to service-connected lumbosacral spine disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria have been met for an initial 40 percent rating for left lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria have been met for a 40 percent rating for the service-connected lumbosacral spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to April 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In May 2021, the Veteran presented testimony at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). These issues were previously before the Board in January 2019 and July 2020, when they were remanded for further development. That development was completed and the case has since been returned to the Board for appellate review. Service Connection- Bilateral Hip Legal Criteria Establishing secondary service connection requires evidence: (1) of a current disability (for which secondary service connection is sought); (2) of a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995). Factual Background The Veteran filed an April 2011 claim for service connection. The Veteran stated his bilateral hip disability was secondary to his back disability. The Veteran's claim was denied in a January 2019 Board decision. The Veteran appealed the January 2019 Board decision to the United States Court of Appeals for Veterans Claims (Veterans Court), and through a Joint Motion for Partial Remand, the claim was remanded in February 2020. During the May 2021 Board hearing the Veteran explained that his hips were more prone to flare-ups after service. The Veteran explained that, after his first back surgery, his hip pain became a constant problem. Analysis First there is a current disability. A July 2011 VA examination diagnosed bilateral arthritis of the hip. Accordingly, the first element has been met. Second, the Veteran is service connected for a lumbosacral spine disability. Accordingly, the second element has been met. Lastly, the lumbosacral spine disability caused the bilateral hip arthritis. The Veteran gave competent and credible testimony regarding his bilateral hip pain and the fact that this observable symptom increases at the same time his observable back symptoms are worse. The Veteran's attorney submitted a July 2021 private medical opinion in which the private provider (an orthopedic surgeon specializing in musculoskeletal disorders who detailed the course of the Veteran's bilateral hip treatment) opined that the Veteran's bilateral hip arthritis was caused by his back condition. The private provider explained the Veteran's symptoms were a direct consequence of the Veteran's back surgery. The private provider noted the Veteran's hips became painful after back surgery. The Board affords significant probative weight to the July 2021 opinion and the Veteran's competent and credible testimony. Accordingly, service connection is established. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects ability to function under the ordinary conditions of daily life, including employment, by comparing the symptoms that the Veteran experiences with the criteria in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. 1. Left Lower Extremity Radiculopathy Legal Criteria Diagnostic Code 8620 provides ratings for neuritis of the sciatic nerve. Under this diagnostic code, mild incomplete paralysis of the affected nerve is rated as10 percent disabling; moderate incomplete paralysis of the affected nerve is rated as 20 percent disabling; moderately severe incomplete paralysis of the affected nerve is rated as 40 percent disabling; severe incomplete paralysis of the affected nerve with marked muscular atrophy is rated as 60 percent disabling; and complete paralysis of the affected nerve is rated as 80 percent disabling. 38 C.F.R. § 4.124a, DC 8620. The words "mild," "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence. 38 C.F.R. § 4.6. In addition, use of terms such as "severe" by VA examiners and others, although an element of evidence to be considered, is not dispositive. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 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 complete paralysis, regardless of cause. When the symptoms are wholly sensory and do not include paralysis, then the disability rating assigned should not be higher than for mild (or moderate, at most) symptoms. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. Factual Background The Veteran filed an April 2011 claim for pain radiating down his legs. Left lower extremity radiculopathy was granted in a March 2012 rating decision with a 10 percent rating. A January 2015 rating decision granted a 20 percent increase effective December 29, 2014. The Veteran's claim for increased rating was denied in a January 2019 Board decision. The Veteran appealed the January 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC), and through a Joint Motion for Partial Remand, the claim was remanded in February 2020. In an August 2021 statement, the Veteran's attorney argued the left lower extremity radiculopathy has been severe since 1973. During the May 2021 Board hearing the Veteran stated he had constant pain and numbness. The Veteran stated the left lower extremity becomes stiff and difficult to bend. The Veteran received a September 2012 VA spine examination. The examiner described the Veteran's medical history and reported severe sciatica. The Veteran's reflex examination should hypoactive left knee and hypoactive left ankle. The sensory exam showed decreased sensation in left lower leg/ankle and left foot/ toes. Intermittent pain and tingling were noted as mild and overall severity was noted at mild. The Veteran received a December 2014 VA examination. The examiner observed moderate intermittent pain and tingling. Muscle strength testing showed 4/5 strength in the left knee and ankle. The reflex exam showed hypoactive left ankle. The sensory exam showed decreased sensation in left lower leg/ankle and left foot/ toes. The examiner assessed moderate incomplete paralysis of the left lower extremity. The examiner noted the Veteran was not suited for prolonged standing, prolonged walking, lifting, pushing, pulling, or carrying heavy objects. The Veteran's received a May 2019 VA spine examination but indicated no evidence of radiculopathy. The Veteran received a September 2020 VA spine examination. The examiner observed moderate intermittent pain and mild numbness. Muscle strength testing showed 4/5 strength in the left hip and knee. The reflex exam was normal. The sensory exam showed decreased sensation in left upper anterior thigh. The examiner assessed mild incomplete paralysis of the left lower extremity. The Veteran submitted a July 2021 private treatment record. The private provider stated the Veteran's left lower extremity radiculopathy was moderately severe. The private provider indicated that the Veteran experiences constant pain and numbness. The Veteran reported that his leg is stiff and does not bend well, that he struggles to walk any distance, and that he must use a cane or a walker. Analysis The Board finds an initial 40 percent rating is warranted for the entire period on appeal. First, there was evidence of moderately severe radiculopathy in the initial VA examination. The September 2012 VA examiner described the Veteran's sciatic as severe. Additionally, the September 2012 VA examination showed reduced reflexes and decreased sensation. Second, the December 2014 VA examination showed reduced reflexes, decreased sensation, and muscle weakness. The September 2012 VA examiner assessed mild, and the December 2014 VA examiner assesses moderate. However, neither examiner considered all the symptoms. Notably, the September 2012 examiner's initial description as severe was in vast contrast to the final assessment. The mild and moderate assessments did not factor in left lower extremity weakness and abnormal reflexes. Second, the July 2021 private provider based their assessment on a review of the prior VA examinations. As noted above, the July 2021 private provider is an orthopedic surgeon and a specialist. Based on the expertise in the field the Board affords significant probative weight to the July 2021 assessment of the Veteran's radiculopathy. Lastly, the Board finds 40 percent is warranted for the entire period on appeal. The Board notes the "moderately severe" assessment was in July 2021. However, the combined effects of the Veteran's symptoms in the initial September 2012 VA examination make it clear his symptoms were more than mild. The subsequent VA examinations continued to show reduced reflexes, strength, and sensation. The Board affords no probative weight to the May 2019 VA examination as it failed to adequately assess the Veteran's previous diagnosis of left lower extremity radiculopathy. Accordingly, a 40 percent rating is warranted for left lower extremity radiculopathy. The Board finds a higher 60 percent rating is not warranted. Although the September 2012 VA examiner described the Veteran's left lower extremity radiculopathy as "severe" there was no evidence of marked muscular atrophy. The 60 percent rating criteria requires the symptoms to be severe in conjunction with marked muscular atrophy. Additionally, there is no evidence of complete paralysis. Accordingly, a higher disability rating of 60 percent is not warranted. 2. Lumbosacral spine Legal Criteria The Veteran's lumbosacral spine disability has been rated under Diagnostic Code (DC) 5237, for lumbosacral strain, and the General Rating Formula for Diseases and Injuries of the Spine, which provide the criteria for rating the disability with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71(a), DC 5237. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. All measured ranges of motion are to be rounded to the nearest five degrees. Id. at Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Id. at Note (5). Factual Background The Veteran filed an April 2011 claim for an increased rating of his lumbosacral spine disability. During the May 2021 Board hearing the Veteran stated he had difficulty bending, twisting, doing yard work, and doing housework. The Veteran received a September 2012 VA examination. The VA examiner assessed flexion limited to 60 degrees with objective evidence of painful motion at 10 degrees. The Veteran reported flare-ups with extreme stiffness and more intense pain. The VA examiner did not provide an assessment on range of motion during flare-ups. The Veteran received a December 2014 VA examination. The Veteran reported flare-ups at night and with prolonged walking. Range of motion testing showed forward flexion limited to 60 degrees and evidence of pain with weight bearing. Flare-ups were reported weekly, with moderate severity and lasting for hours. Flare-ups were not described using range of motion limitation. There was evidence of muscle spasms and guarding but no evidence of ankylosis. During, January 2017 and April 2018 VA treatment, the Veteran continued to complain of back pain. An August 2018 private treatment record opined the Veteran's spine disability should be rated at 60 percent with radiculopathy. However, the record did not contain range of motion testing. The Veteran received a May 2019 VA examination. Initial range of motion testing showed forward flexion limited to 90 degrees. The examiner indicated the Veteran as in too much pain for repetitive use testing. The examiner did not provide any information for repeated use over time or flare-ups. The examiner stated there was no further range of motion loss anticipated during these scenarios only increased pain and thus no range of motion estimate is warranted. There was no evidence of ankylosis. The Veteran received a September 2020 VA examination. Initial range of motion testing showed forward flexion limited to 35 degrees. There was objective evidence of pain with weight bearing and tenderness. With repeated use over time and during flare-ups forward flexion was limited to 30 degrees. The examiner noted a brace was used occasionally during flare-ups. The Veteran submitted a July 2021 private opinion. The private provider stated a 40 percent rating is warranted based on the findings in the medical records which document limited flexion and based on the Veteran's statements. The private provider cited to extensive private treatment records. The private provider stated the limited flexion was based on the Veteran's instrumented spinal arthrodesis (ankylosis) from L3 to sacrum. The private provider noted there are only three thoracolumbar segments where motion can occur after the fusion. The private provider cited to a June 2015 private operation note. Analysis The Board finds a 40 percent rating is warranted. The Board affords significant probative weight to the September 2012 VA examination and the September 2020 VA examination. First, the September 2012 VA examination showed objective evidence of painful motion at forward flexion limited at 10 degrees. Second, the September 2020 VA examination adequately assessed the impact of the Veteran's flare-ups and with use over time. The examiner described the impact in terms of range of motion. The Board affords low probative weight to the December 2014 VA examination. The examiner noted the Veteran's flare-ups and evidence of pain on examination, but the examiner did not describe either in terms of range of motion. The Board affords no probative weight to the May 2019 VA examination. The examiner stated no additional range of motion loss was "anticipated." The examiner is not the fact finder and should not determine when testing is warranted based on an assumption. Additionally, the initial range of motion testing was extremely different from the other VA examinations. Lastly, as noted above, this examiner failed to assess the Veteran's radiculopathy. Lastly, the Board affords significant probative weight to the July 2021 private opinion. First, the private provider had access to extensive private treatment records not submitted to VA. Second, the private provider cited to the medical records and provided pertinent objective findings, including MRI results. Lastly, the private provider is an orthopedic surgeon, that is, a specialist in the relevant medical field. Accordingly, the Board finds a 40 percent rating is warranted based on objective evidence of painful motion with forward flexion limited to 10 degrees, and forward flexion limited to 30 degrees during repetitive use over time and flare-ups. A higher 50 percent evaluation is not warranted. The July 2021 private opinion confirmed the Veteran has ankylosis. However, the ankylosis is not of the entire thoracolumbar spine. Additionally, the evidence does not demonstrate the functional equivalent of ankylosis of the entire thoracolumbar spine. See Chavis v. McDonough 34 Vet. App. 1 (2021). Notably, the July 2021 private provider explained that there is some movement of the thoracolumbar spine at three segments. The private provider was equipped with much more additional medical information and yet did not conclude that the Veteran's limitations of motion equaled ankylosis of the entire thoracolumbar spine. Essentially, the private provider made a distinction that there was movement at segments T-12-L-1, L1-L2, and L2-L3. Accordingly, a higher 50 percent rating is not warranted. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bruton, C. 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.