Citation Nr: 21008157 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 11-25 400 DATE: February 11, 2021 ORDER Entitlement to an initial 40 percent rating, but no higher, for lumbar degenerative disease with dextroscoliosis/IVDS is granted prior to May 25, 2016; a rating in excess of 40 percent for lumbar degenerative disease with dextroscoliosis/IVDS is not warranted at any point during the appeal period. Entitlement to an initial 10 percent rating, but no higher, from May 3, 2012 for left lower extremity radiculopathy is granted. Entitlement to a rating in excess of 10 percent from May 25, 2016 to March 2, 2020, for left lower extremity radiculopathy is denied. Entitlement to a rating in excess of 20 percent from March 3, 2020, and thereafter, for left lower extremity radiculopathy is denied. Entitlement to an initial 20 percent rating, but no higher, from May 3, 2012 for right lower extremity radiculopathy is granted. FINDINGS OF FACT 1. The Veteran has at least as likely as not had forward flexion of the thoracolumbar spine of 30 degrees or less since the date of her service-connection claim for a lumbar spine disability, but the preponderance of evidence is against a finding that she has had unfavorable ankylosis of the entire thoracolumbar spine/entire spine or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during a 12-month period at any point during the appeal period. 2. From May 3, 2012 to May 24, 2016, the Veteran at least as likely as not had mild incomplete paralysis of the left sciatic nerve. 3. The preponderance of the evidence is against a finding that the Veteran experienced moderate incomplete paralysis of the left sciatic nerve, or a higher disability, prior to March 3, 2020. 4. The preponderance of evidence is against a finding that the Veteran has experienced moderately severe incomplete paralysis of the left sciatic nerve or a higher level of disability from March 3, 2020. 5. The Veteran at least as likely as not had moderate incomplete paralysis of the right sciatic nerve since May 3, 2012, but the preponderance of the evidence is against a finding that she had moderately severe incomplete paralysis of the right sciatic nerve at any point during the appeal period. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for lumbar degenerative disease with dextroscoliosis/IVDS have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes 5242, 5243. 2. For the period from May 3, 2012 to May 24, 2016, the criteria for a 10 percent rating, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. For the period from May 25, 2016 to March 2, 2020, the criteria for a rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. For the period from March 3, 2020, and thereafter, the criteria for a rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 5. The criteria for a 20 percent rating, but no higher, for right lower extremity radiculopathy have been met for the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1981 to December 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in February 2016, October 2017, and February 2020. The case has been returned to the Board at this time for further appellate review. This matter was most recently before the Board in February 2020, when it was remanded to obtain a VA examination. The Veteran was afforded a VA examination in March 2020. Although the VA examiner did not properly address the Veteran’s flare-ups, the Board will resolve reasonable doubt in the Veteran’s favor regarding this material issue and will grant an increase to the highest rating available based on limitation of motion. Where a veteran is in receipt of the maximum schedular rating based on limitation of motion, as here, and a higher rating requires ankylosis, a remand for evidence based on additional functional loss due to pain is inappropriate. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997); 38 C.F.R. § 4.40, 4.45. For these reasons, the Board finds that any error in not fully addressing the Veteran’s flare-ups is not prejudicial to the Veteran and that there has been substantial compliance with its prior remand directives. Stegall v. West, 11 Vet. App. 168 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 1. Entitlement to an initial 40 percent rating, but no higher, for lumbar degenerative disease with dextroscoliosis/IVDS is granted. The Veteran’s lumbar degenerative disease with dextroscoliosis/IVDS (hereinafter “lumbar spine disability”) is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The present lumbar spine disability is rated on the basis of limitation of motion using the General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 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. 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. 38 C.F.R. § 4.71a at Note 5. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45 for disabilities evaluated on the basis of limitation of motion. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability is manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The Veteran’s lumbar spine disability is rated as 20 percent disabling from May 3, 2012, to May 24, 2016, and as 40 percent disabling effective May 25, 2016. Initially, the Board notes that the Veteran was afforded VA examinations in May 2016 and February 2018 which the Board previously found to be inadequate for rating purposes as to the Veteran’s lumbar spine disability. See October 2017 Board Remand; February 2020 Board Remand. The Veteran was afforded a VA examination in October 2013 which the Board finds is inadequate for rating purposes regarding the Veteran’s range of motion for her lumbar spine disability because the VA examiner did not adequately address additional range of motion loss during flare-ups. The October 2013 VA examination reflects no neurological abnormalities and no diagnosis of intervertebral disc syndrome. The Board finds an October 2014 disability benefits questionnaire (DBQ) to be inadequate for rating purposes regarding the Veteran’s range of motion for her lumbar spine disability because the information provided regarding range of motion measurements is internally inconsistent. Specifically, the DBQ reflects that the examiner was unable to perform initial range of motion measurements, but also reflects that the Veteran’s right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were limited to less than 15 degrees. The October 2014 DBQ reflects that the Veteran has radiculopathy, but no other neurological abnormalities or ankylosis. Finally, the report reflects a diagnosis of intervertebral disc syndrome with incapacitating episodes over the past twelve months that were noted to last more than one week, but less than two weeks. The Board also finds a July 2015 VA examination, as amended in September 2015, to be inadequate for rating purposes regarding the Veteran’s range of motion for her lumbar spine disability because the information provided regarding range of motion measurements is internally inconsistent. Specifically, the examination report reflects that there is additional limitation to the Veteran’s range of motion after repetitive use testing, but when asked to specify the range of motion after repetitive use testing, the examination does not reflect any additional limitation to range of motion. The July 2015 VA examination reflects that the Veteran does not have radiculopathy, other neurological abnormalities, or intervertebral disc syndrome. A February 2016 DBQ reflects that the examiner was unable to take initial range of motion measurements but estimated that, during a flare up, the Veteran’s flexion was limited to 10 degrees, extension limited to 5 degrees, right lateral flexion and left lateral flexion each limited to 5 degrees, and right lateral rotation and left lateral rotation each limited to 10 degrees. The Board notes that the February 2016 DBQ does not completely comply with DeLuca and Correia, however, compliance would not change the outcome here as the range of motion measurements provided result in the Veteran being assigned the maximum rating allowed based on limitation of range of motion under the General Rating Formula for Disease and Injuries of the Spine. See Johnston, 10 Vet. App. at 84-85. The February 2016 DBQ reflects that the Veteran has radiculopathy, but no other neurological abnormalities, ankylosis, or intervertebral disc syndrome. Finally, a March 2020 VA examination reflects the Veteran’s initial range of motion of 30 degrees in flexion, 10 degrees in extension, and 15 degrees in right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The VA examiner noted no additional limitation of motion after repetitive use testing or repeated use over time. In addition, the March 2020 VA examination reflects that the Veteran did not report experiencing flare-ups. Although this is contradicted by the medical evidence of record, the Board finds that remand is not warranted because doing so would not change the outcome here as the initial range of motion measurements provided result in the Veteran being assigned the maximum rating allowed based on limitation of range of motion under the General Rating Formula for Disease and Injuries of the Spine. See id. The March 2020 VA examination reflects that the Veteran has radiculopathy and intervertebral disc syndrome, but no other neurological abnormalities or ankylosis. Given the inadequacies of the VA examinations and DBQs described above, the Board finds that the February 2016 DBQ and March 2020 VA examination constitute the most probative evidence with respect to the Veteran’s level of functional impairment throughout the appeal period. Accordingly, an initial rating of 40 percent is warranted for Veteran’s service-connected lumbar spine disability. However, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran’s service-connected lumbar spine disability at any point in the appeal period. As previously stated, under the General Rating Formula for Disease and Injuries of the Spine, a rating in excess of 40 percent requires either unfavorable ankylosis of the entire thoracolumbar spine (60 percent rating) or the entire spine (100 percent rating). See 38 C.F.R. § 4.71a. The Veteran has been examined several times during the appeal period and there is no evidence of ankylosis in this case. In addition, the Veteran’s treatment records are silent as to any evidence of ankylosis. Thus, a rating in excess of 40 percent is not warranted under the General Rating Formula for Disease and Injuries of the Spine. The alternate Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 60 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. As previously stated, the October 2014 DBQ reflects that the Veteran was diagnosed with intervertebral disc syndrome and that the Veteran had incapacitating episodes over the past twelve months, however, they were noted to last more than one week, but less than two weeks. In addition, the May 2016, February 2018, and March 2020 VA examiners acknowledged the Veteran has intervertebral disc syndrome but reported the Veteran has not had acute symptoms of intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. There are no treatment records that suggest the Veteran had acute symptoms of intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician at any point in the appeal period. As a result, the Board finds the preponderance of evidence is against a finding that the Veteran has had intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during a 12-month period at any point in the appeal period. In sum, the Board finds that an initial rating of 40 percent is warranted for the Veteran’s service-connected lumbar spine disability based on limitation of range of motion. Thus, the appeal of this issue is granted, to this extent. However, a rating in excess of 40 percent is not warranted for the Veteran’s service-connected lumbar spine disability because the preponderance of evidence is against a finding that she has had unfavorable ankylosis of the entire thoracolumbar spine/entire spine or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during a 12-month period at any point in the appeal period. Finally, as previously stated, associated neurological impairments are an element of the rating assigned for the Veteran’s service-connected lumbar spine disability. Here, the Veteran has been assigned separate ratings for service-connected radiculopathy of the right and left lower extremities. Therefore, the Board will discuss the ratings assigned for her service connected left and right lower extremities. 2. Entitlement to an initial 10 percent rating, but no higher, from May 3, 2012 for left lower extremity radiculopathy is granted. 3. Entitlement to a rating in excess of 10 percent from May 24, 2016 to March 3, 2020, for left lower extremity radiculopathy is denied. 4. Entitlement to a rating in excess of 20 percent from March 3, 2020, and thereafter, for left lower extremity radiculopathy is denied. 5. Entitlement to an initial 20 percent rating, but no higher, from May 3, 2012 for right lower extremity radiculopathy is granted. The Veteran’s bilateral lower extremity radiculopathy is evaluated under Diagnostic Code 8520, which relates to paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a. A staged rating is currently assigned for the left and right lower extremity radiculopathy with each disability being rated 10 percent disabling prior to March 3, 2020, and 20 percent disabling thereafter. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is reserved for complete paralysis. The Veteran’s VA treatment records reflect that symptoms of lumbar radiculopathy were first noted in April 2012 and she was diagnosed with lumbar radiculopathy in January 2013. The October 2013 and July 2015 VA examinations reflects that the Veteran does not have radiculopathy, however, the Board finds these VA examinations to be inadequate for rating purposes as to this issue, because the findings reflected in these examinations are contradicted by the medical evidence of record. The October 2014 DBQ notes the Veteran’s radiculopathy, and notes that the Veteran experienced mild incomplete paralysis of the left lower extremity and moderate incomplete paralysis of the right lower extremity. The February 2016 DBQ notes the Veteran’s radiculopathy, but does not adequately assess the neurological impairment of the Veteran’s lower extremities in accordance with the terms used in 38 C.F.R. § 4.124a. The May 2016 VA examination reflects the Veteran’s radiculopathy of the right and left lower extremities were mild in severity. The February 2018 VA examination reflects that the Veteran’s right lower extremity radiculopathy was mild in severity and her left lower extremity was not affected by radiculopathy. Finally, the March 2020 VA examination reflects the Veteran’s radiculopathy of the right and left lower extremities were mild in severity. The first examiner to adequately assess the neurological impairment of the Veteran’s lower extremities in accordance with the terms used in 38 C.F.R. § 4.124a was the examiner who performed that October 2014 DBQ. However, the record reflects that the symptomatology of the Veteran’s lumbar radiculopathy first appeared in April 2012 and was diagnosed in January 2013. Because associated neurological impairments are an element of the rating assigned for the Veteran’s service-connected lumbar spine disability and the Veteran’s lower extremity radiculopathy was noted prior to the Veteran’s service connection claim for her lumbar spine disability, the Board finds an earlier effective date of May 3, 2012 is warranted for the Veteran’s ratings for her left lower extremity radiculopathy and right lower extremity radiculopathy. As to the initial rating warranted for the Veteran’s radiculopathy of the left lower extremity, as previously stated, the October 2014 DBQ reflects that the Veteran experienced mild incomplete paralysis of the left lower extremity. The Board finds the preponderance of evidence is against a finding that the Veteran has experienced moderate incomplete paralysis of the left sciatic nerve or a higher level of disability prior to the March 2020 increased rating. None of the VA examinations or DBQs of record describe the Veteran’s left lower extremity radiculopathy as moderate in severity. In addition, the Veteran’s treatment records during this time period do not suggest a level of impairment beyond that discussed in VA examination reports and DBQs. As a result, the Board finds a rating in excess of 10 percent prior to March 3, 2020 is not warranted for the Veteran’s left lower extremity radiculopathy. (Continued on the next page)   As to the initial rating warranted for the Veteran’s radiculopathy of the right lower extremity, as previously stated, the October 2014 DBQ reflects that the Veteran experienced moderate incomplete paralysis of the right lower extremity. Thus, the Board finds that an initial rating of 20 percent is warranted for the Veteran’s radiculopathy of the right lower extremity. The Board finds the preponderance of evidence is against a finding that the Veteran has experienced moderately severe incomplete paralysis of the left and/or right sciatic nerve or a higher level of disability at any point in the appeal period. The Board notes that, none of the VA examiners or DBQ reports described the Veteran’s lower extremity radiculopathy as moderately severe. In addition, the Veteran’s treatment records do not suggest a level of impairment beyond that discussed in the various examination reports. As a result, the Board finds a rating in excess of 20 percent is not warranted for the Veteran’s left lower extremity radiculopathy and right lower extremity radiculopathy at any point in the appeal period. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.