Citation Nr: 21010981 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-00 047A DATE: February 26, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine for the time period prior to September 21, 2020 is denied. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the lumbar spine since September 21, 2020 is denied. Entitlement to a 10 percent rating for left leg radiculopathy is granted for the time period prior to September 21, 2020. Entitlement to a rating in excess of 20 percent for left leg radiculopathy since September 21, 2020 is denied. REMANDED Entitlement to service connection for a left leg disorder, claimed as a lengthening of one leg, is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for varicose veins is remanded. FINDINGS OF FACT 1. Prior to September 21, 2020, the Veteran’s degenerative arthritis of the lumbar spine manifested as, at worst, a normal forward flexion and a combined range of motion of the thoracolumbar spine of 220 degrees even with considering functional impairment during flares or repetitive use. 2. The Veteran’s degenerative arthritis of the lumbar spine has not resulted in ankylosis for any time during the appeal period. 3. Prior to September 21, 2020, the Veteran’s left lower extremity radiculopathy was manifested by mild intermittent pain as well as mild paresthesias and/or dysesthesias absent sensory, reflex or motor abnormality. 4. Since September 21, 2020, the Veteran’s left lower extremity radiculopathy has been manifested by moderate intermittent pain as well as moderate paresthesias and numbness of the lower leg and foot, but absent reflex or motor abnormality, atrophy or trophic changes. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine prior to September 21, 2020, and in excess of 40 percent since September 21, 2020 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5242. 2. For the time period prior to September 21, 2020, the criteria for a 10 percent rating for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 3. For the time period since September 21, 2020, the criteria for a rating in excess of 20 percent rating for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from April 1954 to April 1956 as well as the Navy from July 1958 to July 1962, October 1962 to October 1968, and January 1969 to April 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of April 2014 and February 2015 rating decisions issued by an agency or original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at a September 2017 hearing before the undersigned Veterans Law Judge, a transcript of which has been attached to the record. The Board previously remanded this matter to the AOJ for further development in March 2018 and September 2020. This case was previously advanced on the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c). The September 2020 Board decision remanded the claims and instructed the AOJ to afford the Veteran a VA examination in order to determine the nature and etiology of his respiratory disorders. A November 2020 VA examiner opined that the Veteran’s respiratory disorders were more likely than not caused or aggravated by his active service. Subsequently, prior to certification of the issues for appeal, the AOJ granted entitlement to service connection for emphysema and COPD. As the November 2020 rating decision constitutes a full grant of the benefits sought, these issues have become moot, the appeals are terminated. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine with left leg radiculopathy prior to September 21, 2020, and in excess of 40 percent for degenerative arthritis of the lumbar spine and 20 percent for left leg radiculopathy thereafter In pertinent part, a November 2003 AOJ rating decision awarded service connection for degenerative arthritis of the lumbar spine, and assigned a 20 percent rating under DC 5010-5242 effective June 17, 2003. Effective September 23, 2002, intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) was rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. A 40 percent rating was assigned under the former DC 5293 for incapacitating episodes having a total duration of at least 4 weeks but less than six weeks during the past 12 months. A 60 percent rating was assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5293 (effective September 23, 2002). For the purpose of evaluations under the former DC 5293, an incapacitating episode was a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. VA revised the criteria for rating General Diseases and Injuries of the Spine effective September 26, 2003. 68 Fed. Reg. 51,454 (Aug. 27, 2003). The revised rating criteria effective September 26, 2003, provide that IVDS can be evaluated either under a General Rating Formula for Diseases and Injuries of the Spine (DC’s 5235-5242) or under the Formula for Evaluating IVDS Based on Incapacitating Episodes (DC 5243), whichever method results in the higher evaluation. The Board observes that VA recently revised DC 5242 to encompass “Degenerative arthritis, degenerative disc disease other than IVDS” while revising DC 5243 as IVDS only when there is disc herniation with compression and/or irritation of the adjacent nerve root. 85 Fed. Reg. 76453 (Nov. 30, 2020). VA considers these non-substantive changes which clarify the meaning of IVDS. See 82 Fed. Reg. 35719, 35720 (Aug. 1, 2017). This change has no substantive effect to the claim at hand, and does not require AOJ review in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran submitted an August 2013 claim for an increase in the rating of his service-connected lumbar spine degenerative arthritis. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The general rating formula for the spine provides a 10 percent disability rating for forward thoracolumbar flexion not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DCs 5235-5243. A 20 percent disability rating is warranted upon evidence of forward thoracolumbar flexion 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. Id. Forward thoracolumbar flexion to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is rated as 40 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, Plate V. Further, for VA compensation purposes, 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. 38 C.F.R. § 4.71a, DCs 5235-5243. The Board notes the Veteran’s associated lumbar radiculopathy was originally included in his 20 percent disability rating but is now separately compensated under the Schedule. Per Note 1 of the general formula for the spine, associated neurological abnormalities are rated separately under the appropriate diagnostic code. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. DC 8520 evaluates paralysis of the sciatic nerve. Under this DC, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Finally, complete paralysis of the sciatic nerve warrants an 80 percent rating. 38 C.F.R. § 4.124a. Descriptive words, such as “mild,” “moderate” and “severe,” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Private treatment records in August 2013 include a magnetic resonance imaging (MRI) scan of the lumbar spine, to evaluate complaint of back pain, was interpreted as showing acute to subacute compression fracture of the superior end-plate of L2 with a 5 to 10% loss of anterior vertebral body height as well as multi-level spondylosis. Notably, service treatment records reflect that the Veteran reported a fall which occurred during service reportedly resulted in a coccyx fracture. X-rays demonstrated narrowing of L5-S1 and an old callus fracture of the sacral-coccygeal junction. The examiner indicated diagnoses of coccydynia and lumbosacral strain. The Veteran was afforded a VA spine examination in March 2014. The Veteran described chronic lower back pain but did not report any flareups or decreased functionality on repetitive use. The examiner noted full range of motion with no objective evidence of painful motion or ankylosis but recorded that the lumbar spine was tender to palpation. There was no additional motion loss with repetitive testing. The Veteran’s reflex and sensory examinations were normal, with negative straight leg tests. However, the examiner noted mild intermittent pain as well as mild paresthesias and/or dysesthesias in the left lower extremity due to involvement of the sciatic nerve. The examiner concluded that pain, weakness or incoordination should not limit the Veteran’s functional ability, including during flareups or after repetitive use. An August 2013 VA MRI, conducted for purposes of evaluating low back pain with bilateral leg pain, was interpreted as showing severe degenerative changes at L4-L5 leading to severe central canal stenosis and L2 compression fractures. A rheumatology consult provided opinion that the Veteran’s back pain was more consistent with lumbago due to sacroiliac (SI) joint dysfunction plus L2 compression fracture. In a January 2015 statement, the Veteran reported problems with his back and legs since an in-service accident. February 2015 private treatment records indicate there was no significant change in the Veteran’s thoracic degenerative disease since December 2013. December 2015 VA treatment records noted there was no evidence of ankylosing spondylitis. A June 2016 medical statement indicated that the Veteran had a known compression fracture of L2 and lumbar spinal stenosis with severe degenerative changes at L4-5 caused by a fall during service “according to the patient.” At a hearing in June 2017, the Veteran testified to a shorter left leg due to injury during service. He experienced back pain ranging from 5-10/10 severity when doing physical work. He did not consider himself totally disabled, but was limited in lifting, washing dishes, and yardwork. The Veteran was afforded an additional VA spine examination in December 2019. He stated, “I can’t bend over for a long time or sit or stand for a long time because of pain.” Upon examination, the Veteran exhibited full forward flexion, with a combined range of thoracolumbar spine motion of 220 degrees and no ankylosis. He reported no radiculopathy symptoms in the past one to two years and exhibited normal sensory and reflex examination results with negative straight leg tests. The examiner described the functional impact of the Veteran’s lumbar spine disability as “pain in the lower back with prolonged sitting, standing and forward bending.” Per the Board’s remand instructions, the Veteran was afforded an additional VA examination in September 2020. The examiner noted the Veteran reported pain in his lower back since a 1961 fall with worsening radiculopathy symptoms. The Veteran described daily flareups, characterized as moderately severe, caused by increased standing or walking and alleviated by rest. Upon examination he exhibited forward flexion of 50 degrees, decreasing to an estimated 45 degrees after repetitive use and an estimated 30 degrees during flareups, with no ankylosis. The Veteran’s radiculopathy was described as decreased sensation in the lower left leg and foot, characterized by moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. There was 5/5 strength throughout the lower extremities, no muscle atrophy, and normal (2+) reflexes. The left lower extremity demonstrated decreased sensation in the lower leg ankle and does (L4/L5/S1 or sciatic nerve). The Veteran did not use an assistive device to ambulate. The Board first addresses the orthopedic aspects of the Veteran’s thoracolumbar spine disability and finds that he is not entitled a rating in excess of 20 percent for the time period prior to September 21, 2020. During this time, the Veteran exhibited, at worst, full forward flexion with a 220-degree combined range of motion of the thoracolumbar spine which falls well short of the criteria for even a 20 percent rating. The Board further notes that the loss of vertebral disc height does not warrant a separate rating, but is part of the criteria for a 10 percent rating. The Board has considered functional impairment during use or during flares. The VA examiner found no additional motion loss on repetitive testing, and concluded that pain, weakness or incoordination should not limit the Veteran’s functional ability, including during flareups or after repetitive use. The Veteran did describe some impairment with physical exertion including increased pain, but there is no lay or medical evidence of functional impairment to the point of forward flexion being limited to 30 degrees. The Board finds that effective to the date of the VA examination on September 21, 2020, the Veteran’s forward flexion more nearly approximated 30 degrees of motion loss when considering functional impairment on use. This has supported the currently assigned 40 percent rating. In this respect, the VA measured forward flexion of 50 degrees and estimated 45 degrees after repetitive use and estimated 30 degrees during flareups. The Veteran reported daily flares. The Board finds finds that it cannot be factually ascertained from the lay and medical evidence when the Veteran’s daily flares occurred as there is no lay or medical evidence of when these flares, first reported at the VA examination, began. As such, it is not factually ascertainable that the Veteran was entitled to a 40 percent rating prior to September 21, 2020. The Board finds no further basis for a higher rating for the orthopedic aspects of thoracolumbar spine disability as there is no lay or medical evidence of ankylosis, which is specifically defined at Note (5) as fixation of motion, for any time during the appeal period. The Board next finds that, since the inception of the appeal, the Veteran has been entitled to a separate 10 percent rating for his left lower extremity radiculopathy. The AOJ phrased the severity as “mild” which, per regulation, warrants a separate rating. The Board finds that, for the time period prior to September 21, 2020, the Veteran’s left lower extremity radiculopathy was no more than mild in degree. In this respect, the lay and medical evidence was limited to only subjective sensations – which were not chronic as evidenced by the Veteran’s own report – absent any motor, reflex or sensory deficit. There is no indication it resulted in functional impairment or necessitated the use of an ambulatory aide. The Board further finds that, since September 21, 2020, the Veteran is not entitled to a rating in excess of 20 percent. The Veteran reports moderate intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness. There was objective evidence of decreased sensation in the lower left leg and foot along the sciatic nerve root. However, the Veteran exhibited normal muscle strength in his left leg as well as normal deep tendon reflexes with no atrophy or trophic changes. He indicated he did not require the use of an assistive device to ambulate and did not report a history of stumbling or falls. When considering the relative impairment of moderate pain symptoms and decreased sensation limited to the lower leg and foot in light of the normal reflexes and motor strength absent atrophy or trophic changes, the Board finds that the Veteran does not meet, or more nearly approximate, the criteria for severe, incomplete paralysis of the sciatic nerve. The Board further finds that it cannot factually ascertain from the lay and medical evidence the onset of the moderate pain, paresthesias/dysesthesias and numbness sensation, as well as decreased sensation in the lower left leg and foot, prior to the September 21, 2020 VA examination. The clinic records are silent for such findings, and the Veteran’s statements are not sufficiently specific to find an earlier date of onset. The Board next notes that, at times, the Veteran has referred to pain in both legs. However, the evaluations during the time period found no evidence of radiculopathy of the right lower extremity. The Board also observes that the Veteran self-attributed recurrent urinary infections to his lumbar spine disability, but he is not competent to make this causal connection. There is no medical evidence of any objective chronic neurologic deficit other than left lower extremity radiculopathy. The Board has also considered the applicability of the alternate criteria for rating based upon Incapacitating Episodes of IVDS. However, the records do not reflect any prescribed periods of bed rest by a physician as required by regulation. As such, there is no basis for a higher rating under this formula. REASONS FOR REMAND 1. Entitlement to service connection for a left leg disorder, claimed as a lengthening of one leg, is remanded. 2. Entitlement to service connection for a left knee disorder is remanded. 3. Entitlement to service connection for varicose veins is remanded. The September 2020 Board decision remanded the Veteran’s lower leg issues for additional medical examination and opinion. The Board instructed the examiner to clarify the diagnosis of the Veteran’s left knee condition, to include whether his left leg was longer than his right, and then to opine as to whether any left leg condition was at least as likely as not due to his active service. The Veteran was afforded an additional examination in October 2020, and the examiner stated there was no indication the Veteran’s left leg was longer than his right and recorded identical range of motion for both legs, but noted he manifested a left knee strain. Currently, there is no objective evidence of a leg length disparity. The examiner was also asked to discuss whether there was a medical reason to accept or reject the Veteran’s contention that his left leg conditions were due to his in-service left leg injury. The examiner was informed that she must not rely solely upon the absence of a diagnosis or symptom inservice and that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. The examiner opined that the Veteran’s left knee disorder was less likely than not related to his service, noting there was no evidence of a chronic condition or permanent residual occurring during the remainder of his active service as well as an absence of supporting post-service treatment records revealing a continuity of symptoms following separation. The Board finds the October 2020 VA examiner’s opinion inadequate. The examiner relied on an absence of in-service diagnosis and post-service passage of time without evidence of treatment in formulating her negative opinion. Additionally, the examiner failed to address the February 2020 VA examination which diagnosed the Veteran with a chronic right knee strain and included his reports of left knee pain and stiffness since the inservice leg injury. Finally, the examiner failed to discuss, as instructed by the Board, medical records indicating a diagnosis of “minimal levoscoliosis of the lumbar spine” which the Veteran has asserted is a result of his mismatched legs as well as a lay statement from his wife reporting he walked with a limp and developed varicose veins and a stretched leg after his inservice injury. A medical examiner is not free to ignore a veteran’s lay statements recounting symptoms or events. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, an examiner’s opinion must address the Veteran’s relevant lay statements in order to include enough detail to inform the Board’s decision. Failure to do so renders that opinion inadequate. Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, additional opinion is required to adjudicate the claims. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records since November 2020 and associate them with the claims file. 2. Forward the claims file to an appropriate examiner in order to obtain an opinion as to the nature and etiology of the Veteran’s left leg disorders, to include a chronic knee strain and varicose veins. The need for an additional examination is left to the discretion of the examiner. The examiner is asked to clarify the diagnosis of the Veteran’s left leg disorder(s). For each left leg condition identified, the examiner is requested to answer whether it is at least as likely as not (50 percent probability or greater) that the condition occurred in or is otherwise due to his active service. The examiner is specifically requested to discuss whether there is any medical reason to accept or reject the Veteran’s contention that his documented June 1961 inservice accident resulted in varicose veins and/or a left knee disorder. In this respect, the examiner is requested to discuss whether varicose veins or a chronic left knee disorder would be reasonably be expected to be a long-term sequalae of the type of injury involved. When formulating the requested opinions, the examiner is asked to discuss the following: •August 2013 private medical records indicating a diagnosis of “minimal levoscoliosis of the lumbar spine” •A January 2015 lay statement from the Veteran’s wife reporting that as a result of his in-service left leg injury he walked with a limp and developed varicose veins as well as a stretched left leg. •A February 2020 VA examination in which the Veteran was diagnosed with a chronic left knee strain and he reported chronic and worsening left knee pain with stiffness and instability since his inservice injury. (continued on the next page) A complete rationale must be provided for all opinions. The examiner must not rely solely on the absence of a diagnosis or symptom in service as the basis for a negative opinion. It is also noted that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.