Citation Nr: 21012649 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-25 937 DATE: March 4, 2021 ORDER Entitlement to an evaluation in excess of 40 percent for herniated nucleus pulposus, status post discectomy, lumbosacral spine (spine disability) is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy (sciatic nerve) is remanded. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy (sciatic nerve) is remanded. FINDING OF FACT The evidence of record does not establish the Veteran had unfavorable ankylosis of the thoracolumbar spine or VA defined incapacitating episodes at any time during the appeal period. CONCLUSION OF LAW The criteria for a disability rating greater than 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to January 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board and were remanded for additional development in June 2019. The case is once again before the Board. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2019. A transcript of the hearing has been associated with the claims file. One issue previously on appeal, entitlement to a total disability rating based on individual unemployability (TDIU) raised as part and parcel of the Veteran’s claim for an increased rating, was granted by the RO in a September 2020 rating decision. An effective date of June 28, 2013 was assigned based on the date the Veteran filed his claim for an increased evaluation for his spine and radiculopathy. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. The record contains no indication that the appellant has disagreed with the effective date assigned. A separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned. Therefore, that matter is not in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).   Increased rating for a spine disability Generally, disability evaluations are determined by the application of the VA 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); see also 38 C.F.R. § 4.59. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks a disability rating in excess of 40 percent for his spine disability. The Veteran has been in receipt of a 40 percent disability rating for his spine disability since March 13, 2009. He asserts his disability has increased in severity, and a higher rating is warranted. During the pendency of the appeal, the Veteran was assigned a temporary evaluation of 100 percent based on surgical and other treatment necessitating convalescence from July 30, 2015 to August 30, 2015; and 40 percent thereafter. The record demonstrates that the Veteran was admitted to the hospital for back surgery on July 30, 2015 and discharged July 31, 2015. The Veteran’s spine disability is currently rated under 38 C.F.R. § 4.71a, DC 5243, for intervertebral disc syndrome (IVDS). DC 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. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 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 DC 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. 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 the height. 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. 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: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. At a March 2014 VA examination, the Veteran was provided a diagnosis of degenerative arthritis of the spine (specifically, degenerative discs disease and herniated nucleus pulposus of the spine with bilateral radiculopathy), and IVDS. The Veteran reported daily pain with radiation into his legs, but he did not report flare-ups. The Veteran was able to perform the repetitive use test three times without additional loss in range of motion. Range of motion measurements were as follows: forward flexion - zero degrees; extension - zero degrees; right lateral flexion - zero degrees; left lateral flexion -zero degrees; right lateral rotation to 15 degrees; and left lateral rotation to 15 degrees. The examiner noted that there was no objective evidence of painful motion upon forward and bilateral flexions or extension, but painful motion was noted at 15 degrees upon both left and right rotation. While the Veteran lacked range of motion in forward and lateral flexions and extension upon examination; the examiner reported that the Veteran did not have ankylosis. As noted above, fixation of a spinal segment in neutral position (zero degrees) is always considered favorable ankylosis; here, the Veteran demonstrated rotational movement. Moreover, the examiner observed range of motion greater when the Veteran changed his clothing before and after the examination than that measured in the formal examination. The Veteran’s range of motion here is not reflective of symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. In this regard, treatment records report that the Veteran injured his ankle seven days after the examination, while lifting a wheel barrel. See March 24, 2014 VA treatment records. The ability to lift a wheel barrel tends to show that the Veteran’s range of motion is not reflective of unfavorable ankylosis. The Veteran was noted to have localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine, which did not result in abnormal gait or abnormal spinal contour. On muscle strength testing, the Veteran was noted to have normal strength of bilateral hip flexion, bilateral knee extension, bilateral ankle plantar flexion, bilateral dorsiflexion, and bilateral great toe extension. He was not noted to have muscle atrophy. On reflex examination, he was noted to have normal knee and ankle reflexes. The Veteran was noted to have decreased sensation in his bilateral upper anterior thigh, thigh/knee, lower leg/ankle, and left foot/toes. Straight leg testing was negative for both legs. The Veteran was noted to have IVDS, however, he did not have any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician or treatment by a physician in the past 12 months. Upon examination in December 2019, the Veteran’s range of motion was: forward flexion to 35 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees; and left lateral rotation to 10 degrees, resulting in a combined range of motion of 85 degrees. The Veteran reported pain on motion and on rest/non-movement. The Veteran reported experiencing flare-ups described as severe shooting pain to his feet. The Veteran stated that the pain limits his mobility and he uses a wheelchair to ambulate short distances. To the extent that the Veteran uses an assistive device, the record does not demonstrate that he is strictly limited in his ability to ambulate and he is not completely dependent on the use of a wheelchair. At his January 2019 hearing, the Veteran testified that he was still able to go up and down stairs with a handrail. Additionally, treatment records demonstrate he can walk 100 feet without any issues. See July 2019 CAPRI received November 11, 2019. The Veteran was able to perform the repetitive use test without any additional functional loss. While the examination was not performed during a flare-up or after repeated use, the examiner determined there was no additional loss of range of motion during flare-ups or after repeated use. The Veteran exhibited reduced muscle strength of 4/5, indicating active movement against some resistance, in the bilateral hip flexion, bilateral knee extension, bilateral ankle plantar flexion, bilateral dorsiflexion, and bilateral great toe extension. No muscle atrophy was noted. The examiner reported that the Veteran did not have IVDS. Also of record are VA and private treatment records, which reflect the Veteran reporting back pain. In June 2019, the Veteran reported low back pain that radiated into his right leg. See June 2019 CAPRI received November 6, 2019. In July 2016 the Veteran reported he could only walk 100 feet before it became too painful. See July 2016 orthopaedical surgeon report. These records do not reflect symptomology worse than what is described in the VA examinations of record. The Board has considered whether a rating under the Formula for Rating IVDS Based on Incapacitating Episodes would be more favorable to the Veteran. The preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s spine disability based on incapacitating episodes. In this case, incapacitating episodes are not shown as there are no periods of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. The March 2014 examination specifically note that the Veteran did not experience incapacitating episodes that required bed rest. The December 2019 examiner did not find a diagnosis of IVDS. Moreover, in January 2019 the Veteran testified that he could not say if he was ever prescribed bed rest, but that he was told to stay off his feet to avoid breaking his hip. A review of the treatment records does not demonstrate that the Veteran was prescribed bed rest by a physician as outlined in the rating criteria. Therefore, under DC 5243, the Veteran would not meet the criteria for a rating in excess of 40 percent. To the extent the Veteran stated that he always feels incapacitated, he did not describe incapacitating episodes as defined by the criteria for IVDS. See December 2016 Statement in support of claim. The Veteran stated that he was on medication daily and could not walk 100 feet, could not perform everyday tasks for himself, had to use a walker to get around, and could not stand still in one spot without pain. While the Veteran used the word incapacitated, he did not describe incapacitating episodes requiring prescription bedrest as contemplated by the ratings criteria. The Veteran has also indicated that he has not been prescribed bedrest, and the evidence of record does not reflect, that he has suffered from incapacitating episodes due to IVDS throughout the pendency of the appeal. The Board also finds the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s spine disability under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected in his statements that he cannot walk for extended periods of time would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. As discussed above, the Board has considered the Veteran’s statements that he is constantly incapacitated because of the medications he takes for pain. In December 2019, the Veteran stated that he takes Flexiril, Pregabalin, Morphine, Oxycodone, and Steroid shots for pain relief. In this regard, “the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The effects of medication are not specifically contemplated by DC 5243 or the General Rating Formula for spine diseases. The Veteran has been in receipt of a 40 percent disability rating for the entire appeal period. To get a higher level within the rating criteria, the Veteran’s spine disability would have to exhibit unfavorable ankylosis of the entire thoracolumbar spine. Neither the VA treatment notes, VA examination reports, or the Veteran’s statements indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine during the appeal period. Rather, these documents contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy for the sciatic nerve and bilateral lower extremity radiculopathy for the femoral nerve. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for the Veteran’s service-connected spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy (sciatic nerve) is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy (sciatic nerve) is remanded. The Veteran contends that his service-connected radiculopathy of the sciatic nerve, in both the left and right lower extremities, warrants a disability rating higher than 20 percent under 38 C.F.R. § 4.124a, DC 8520. A remand is necessary to determine the severity of the Veteran’s sciatic nerve symptoms while discounting the ameliorative effects of medication. The Veteran underwent a VA nerve examination in December 2019. The examiner reported that the Veteran had incomplete paralysis with mild severity in the sciatic nerve. The Veteran’s treatment records and examination reports indicate that he takes Pregabalin, Morphine, and Oxycodone for his nerve pain; and as noted above, receives shots for his back pain. In this regard, it is not clear whether any examiner discounted the ameliorative effects of the Veteran’s medication, if any, when evaluating his nerve symptoms. See Jones v. Shinseki, supra. DC 8520 does not contemplate the ameliorative effects of medication. Unlike DC 5243 discussed above, a higher level of disability could possibly be obtained when disregarding the ameliorative effects of any medication taken to treat the nerve symptoms under DC 8520. Accordingly, an opinion is warranted to determine the current severity of the Veteran's sciatic nerve pain, without consideration of any ameliorative effects of medication. Moreover, the Veteran has been granted service connection for both the sciatic and the femoral nerve. After review of the evidence, the Board is unable to determine the neurologic symptoms and impairment attributable to the sciatic nerve or the the femoral nerve. The December 2019 VA nerve examination report does not distinguish between the neurologic impairment caused by the sciatic and femoral nerve and the other evidence of record does not provide any information or evidence in this regard. The Board notes that a VA peripheral nerve examination will likely be helpful in determining the symptoms and functional impairment attributable to the radiculopathy caused by the sciatic nerve and in determining the proper rating assignable in this appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA nerve examination to determine the severity of the service-connected bilateral lower extremity radiculopathy involving the sciatic nerve. The claims file should be made available to the examiner for review, and any diagnostic testing deemed necessary should be performed in this regard. The examiner should report all symptoms attributable to the sciatic nerve and should specifically note whether there are any organic changes characterized by loss of reflexes, muscle atrophy, sensory disturbances, or constant pain. The examiner should also state what the severity of the sciatic nerve might be when discounting the ameliorative effects of any medication taken to treat the nerve symptoms. If this is not feasible, the examiner MUST provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the physician cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. If the examiner is unable to distinguish the symptoms and impairment attributable to the sciatic and femoral nerves, he or she must explain why this is so. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, 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.