Citation Nr: 21011202 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 18-18 648 DATE: March 1, 2021 ORDER An initial rating higher than 10 percent for thoracolumbar strain with scoliosis (hereinafter back disability) is denied. From January 18, 2014, a higher rating of 20 percent for back disability is granted. From January 18, 2014, a separate 10 percent rating for right lower extremity radiculopathy is granted. REMANDED Service connection for tuberculosis is remanded. FINDINGS OF FACT 1. Prior to January 18, 2014, the Veteran’s back disability was manifest by forward flexion to 85 degrees. 2. From January 18, 2014, the Veteran’s back disability is manifest by forward flexion greater than 30 degrees but not greater than 60 degrees. 3. From January 18, 2014, the Veteran’s right lower extremity radiculopathy is manifest by no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. From January 18, 2014, the criteria for a higher rating of 20 percent for back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 3. From January 18, 2014, the criteria for a separate 10 percent rating for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Air Force from November 1998 to November 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a virtual hearing before the undersigned in November 2020. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability have exhibited signs or symptoms that would warrant different ratings under the rating criteria. Back Disability The Veteran’s back disability was assigned an initial rating of 10 percent under Diagnostic Code (DC) 5237. The Veteran contends he is entitled to a higher rating for his back disability. For the following reasons, the Board finds that a higher initial rating is not warranted, but from January 18, 2014, a higher rating of 20 percent is warranted. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but 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 height. 38 C.F.R. § 4.71a, 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. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. 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. Unfavorable ankylosis is defined as “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; 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 neurological symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or § 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of §4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). 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). The Veteran underwent three examinations during the appeal period. At his first examination in August 2013, the Veteran exhibited forward flexion to 85 degrees, full extension, full right and left lateral flexion, and full right and left lateral rotation. The Veteran had a combined range of motion of 235 degrees. He reported flare-ups that were described as back pain with heavy lifting. The Veteran did not exhibit additional loss of range of motion after repetitive use. He had additional limitations of less movement than normal and pain on movement. No guarding or muscle spasm was observed, and the Veteran did not use any assistive devices. The Veteran’s second examination was in August 2017. He exhibited forward flexion to 60 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. The Veteran’s combined range of motion was 190 degrees. The Veteran did not report any flare-ups and there was no additional loss of function or range of motion after repetition. He exhibited no guarding or muscle spasm of the thoracolumbar spine and did not use any assistive devices. In October 2017, an addendum opinion was sought from the examiner who performed the August 2017 examination. The examiner was asked to opine to what extent if possible was the Veteran’s limited motion due to his service connected back disability or a post-service motor vehicle accident. The examiner opined that the Veteran’s service connected back disability had resolved and that his current back condition was due to a post-service motor vehicle accident. The examiner based their conclusion of the Veteran’s service-connected back disability having resolved on the Veteran working as a satellite technician post-service and the degenerative joint disease diagnosed on January 2014 X-rays not being a progression of the service-connected back disability. In February 2020, the Veteran underwent another examination for his back disability. At this examination he exhibited forward flexion to 40 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. The Veteran’s combined range of motion was 130 degrees. He did report flare-ups that were described as less ability with prolonged driving and walking. There was no loss of range of motion after repetition or during flare-ups. The Veteran does have muscle spasm, but it does not result in abnormal gait or abnormal spinal contour. He had additional limitations of disturbance with locomotion, interference with sitting, and interference with standing. The examiner noted that the Veteran occasionally uses a brace when engaging in strenuous activities. The Veteran submitted private medical records from November 2020 to December 2020. The records document the Veteran receiving physical therapy for his back pain and he was found to have decreased range of motion. However, measurements in degrees are not provided. The lack of this information lessens the probative value of the private treatment records in awarding a higher rating. Considering the above evidence, the Board finds that an initial rating higher than 10 percent is not warranted. Prior to his motor vehicle accident, the Veteran did not exhibit forward flexion greater than 30 degrees, but not greater than 60 degrees or a combined range of motion not greater than 120 degrees. The Veteran also did not exhibit guarding or muscle spasms that resulted in abnormal gait. Without this evidence, the Board cannot award a rating higher than 10 percent. The Board has considered if a higher initial rating could be awarded pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.49. Though pain was noted on forward flexion and the Veteran had functional impairment of less movement than normal and pain on movement, he did not show additional factors which would restrict movement to such an extent that the criteria for a 20 percent rating would be justified. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. The Board does finds that a higher rating of 20 percent is warranted effective the date of his January 2014 motor vehicle accident. After his accident, the Veteran has consistently reported back pain to his VA medical providers. Furthermore, at his VA examination conducted in August 2017, the Veteran exhibited limited forward flexion that would warrant a 20 percent rating. The Veteran again exhibited limited forward flexion that would warrant a 20 percent rating at his February 2020 examination. Though the August 2017 examiner found the limited motion to be due to the Veteran’s post-service motor vehicle accident, such a finding was not made by the February 2020 examiner. The Board finds the evidence to be in equipoise as to whether the Veteran’s current back symptom are due to his service-connected back disability. As such, the Board resolves reasonable doubt in the Veteran’s favor and finds that his limited motion is due to his service-connected back disability and that a higher rating of 20 percent is warranted effective the date of his January 2014 motor vehicle accident. A rating higher than 20 percent cannot be awarded. At no point has the Veteran exhibited favorable ankylosis of the entire thoracolumbar spine or limited forward flexion to 30 degrees. The Board has considered if a higher rating could be awarded pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.49. Though pain was noted on examination and the Veteran had functional impairment of disturbance of locomotion, interference with sitting, and interference with standing, he did not show additional factors which would restrict movement to such an extent that the criteria for a 20 percent rating would be justified. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. A higher rating of 20 percent cannot be awarded earlier than the date of the Veteran’s January 2014 motor vehicle accident. A March 2012 physical therapy consult notes that the Veteran was going to the gym four days a week for strength training where he would be lifting more than 300 pounds. This indicates that the Veteran was not exhibiting the symptoms that would warrant a 20 percent rating. It is after his January 2014 motor vehicle accident that the Veteran starts to report chronic back pain and pain radiating down into his right lower extremity. As such, the Board finds that the date of the Veteran’s January 2014 motor vehicle accident is the earliest date it is factually ascertainable that the Veteran’s service-connected back disability increased in severity. For the foregoing reasons, the preponderance of the evidence is against awarding an initial rating higher than 10 percent. In denying such a rating, the Board finds that the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board does find that effective January 18, 2014, a higher rating of 20 percent is warranted for the Veteran’s back disability and the claim is granted. Right Lower Extremity Radiculopathy The Board has considered whether a separate rating is warranted for right lower extremity radiculopathy. For the following reasons, the Board finds that from January 18, 2014, a separate 10 percent rating is warranted for right lower extremity radiculopathy. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. “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 partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The terms “mild” and “moderate” are not defined in the VA Schedule for Rating Disabilities, and the use of terms by VA examiners and others, although an element to be considered by the Board, is not dispositive of the level of paralysis present. In January 2014, the Veteran was involved in a motor vehicle accident. In February 2014, the Veteran reported that he had pain radiating down his right lower extremity and was diagnosed with radiculopathy. In March 2014 it is noted that the Veteran had a normal neurologic examination that was not in agreement with his reported pain and MRI findings. Since his January 2014 accident, the Veteran has consistently reported to his VA medical providers of pain radiating down his right lower extremity. The Veteran underwent a VA examination for his back disability in August 2013. At this examination he exhibited full muscle strength, normal reflexes, and normal sensation in his lower extremities. The Veteran had a negative straight leg raising test and the examiner did not find any radiculopathy. In August 2017, the Veteran underwent another VA examination for his back disability. At this examination he exhibited full muscle strength, normal reflexes, and normal sensation in his lower extremities. The Veteran had a negative straight leg raising test and the examiner did not find any radiculopathy. The Veteran was found to have radiculopathy at his February 2020 examination. This examiner found full muscle strength, normal reflexes in the Veteran’s knees and left ankle, hypoactive reflexes in his right ankle, and normal sensation in his lower extremities. The Veteran had a negative straight leg raising test. The examiner found the Veteran to have mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in his right lower extremity. The Veteran was found to have radiculopathy involving his right sciatic which the examiner indicated to be mild severity. Resolving reasonable doubt in the Veteran’s favor, the Board finds that from January 18, 2014, a separate 10 percent rating for right lower extremity radiculopathy is warranted. Since his January 2014 motor vehicle accident, the Veteran has consistently reported pain radiating down into his right lower extremity. The Veteran was diagnosed with radiculopathy in March 2014, and at his February 2020 examination it was found that the radiculopathy involved his right sciatic nerve. The Board finds that a separate rating under DC 8520 for incomplete paralysis of the sciatic nerve is most appropriate for the symptoms described by the Veteran. The Veteran’s symptoms are mostly sensory, with hypoactive reflexes of his right ankle. As such, a rating based on mild incomplete paralysis of the sciatic nerve is warranted. The Veteran’s symptoms do not present with the intensity and frequency that would warrant a rating based on moderate incomplete paralysis. A date earlier than January 18, 2014 is not available because that is the earliest date it is factually ascertainable that the Veteran began experiencing symptoms of radiculopathy. It is not until after his January 2014 motor vehicle accident that the Veteran begins reporting pain radiating from his lower back into his right lower extremity. As such, the date of the Veteran’s January 2014 motor vehicle accident is the most accurate date available to assign as an effective date. REASONS FOR REMAND Tuberculosis The Board cannot make a fully-informed decision on the issue of service-connected for tuberculosis because no VA examiner has opined whether the Veteran’s tuberculosis began in service. In February 2016, the Veteran reported that he had a constant nonproductive cough for two months and that he previously tested positive for tuberculosis. At his November 2020 hearing, the Veteran testified that he developed a constant cough during service, but was not tested for tuberculosis due to a lack of time. The Veteran is competent to report observable symptoms, and his service treatment records verify that in August 2002 a tuberculosis test was not performed due to a lack of time. There is insufficient medical evidence to determine if the Veteran’s post-service positive tuberculosis test and constant cough are related to his in-service constant cough. As such, a remand is necessary to obtain a VA examination. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s tuberculosis. The claims file should be made available to the examiner. The examiner must opine with complete rationale whether it is at least as likely as not (50 percent or greater) that the Veteran’s tuberculosis began during service. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.