Citation Nr: 21014301 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-41 174A DATE: March 11, 2021 ORDER Entitlement to a rating in excess of 20 percent for chronic decompensated back with lumbosacral spondylolysis (lumbar spine/low back disability) is denied. However, entitlement to service connection for bilateral (left and right) lower extremity radiculopathy involving the femoral nerve, secondary to the service-connected lumbar spine disability, is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s lumbar spine disability has not manifested as forward flexion of the thoracolumbar spine limited to 30 degrees or less or by favorable ankylosis of his entire thoracolumbar spine. 2. But it is just as likely as not his bilateral (left and right) lower extremity radiculopathy involving the femoral nerve is a neurological complication of, so caused by, his service-connected lumbar spine disability.   CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a rating greater than 20 percent for the lumbar spine disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. But, resolving all reasonable doubt in his favor, the criteria conversely are met for entitlement to service connection for the bilateral (left and right) lower extremity radiculopathy involving the femoral nerve as secondary to the service-connected lumbar spine disability. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to August 1977. This appeal to the Board of Veterans’ Appeals (Board) is from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In support of his claim for a higher rating for his low back disability, the Veteran testified at a hearing in June 2018 before a Veterans Law Judge of the Board. In October 2018, the Board remanded this claim back to the local RO (Agency of Original Jurisdiction (AOJ)) to obtain updated treatment records and then to have the Veteran reexamined to reassess the severity of this service-connected low back disability. At the time of that remand, he had a 10 percent rating for this disability. However, in a July 2020 rating decision since issued on remand, the RO increased the rating for the lumbar spine disability from 10 to 20 percent retroactively effective from October 19, 2010, so for the entire period under review. The RO denied any greater rating, and the Veteran since has continued to appeal for an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal).   Because the Judge that presided over the Veteran’s hearing concerning this claim since has retired, the Board sent the Veteran a letter in December 2020 indicating he could have another hearing before a different Judge who would ultimately decide this appeal. The letter also indicated, however, he needed to respond within 30 days, and he did not, so the Board is proceeding with its adjudication of his claim. 1. Entitlement to a rating higher than 20 percent for the low back disability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.     When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).   If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.   The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, DC 5242, of the General Rating Formula for Diseases and Injuries of the Spine. According to this General Rating Formula, the next higher 40 percent rating requires forward flexion of the thoracolumbar (thoracic and lumbar) spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An even higher 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. And a still greater 100 percent rating requires unfavorable ankylosis of the entire spine (that is, when additionally considering the adjacent cervical segment). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate DC. Id. at Note (1). As discussed in the Board’s prior October 2018 remand of this claim, the Veteran’s initial examination – in November 2014 – was inadequate for rating purposes because the examiner improperly concluded that he could not provide answers to certain examination questions without speculating, not based on lack of knowledge of the medical community or examiner specifically. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). Before that remand, the Veteran also had undergone a July 2018 VA examination revealing he had forward flexion to 45 degrees, extension to 20 degrees, bilateral (left and right) lateral flexion to 20 degrees, and bilateral rotation to 20 degrees. The examiner had observed pain causing functional loss and muscle spasm or guarding resulting in abnormal gait or spinal contour. However, this examiner also was unable to opine on additional loss of motion during repetitive testing or a flare up without speculating, and that was not attributed to a specific lack of knowledge, rendering this examination also inadequate for rating purposes. Id. During the additional August 2019 examination that the Veteran consequently had, on remand, he was unable to participate in range of motion testing due to pain. He reported using a back brace, cane, and walker for ambulation. He also reported constant pain in his lower back, radiating to his left flank and right groin, worsening with movement and bending. He described monthly flare-ups characterized by inability to care for himself for 2-5 days before symptoms return to normal severity. The examiner found pain causing functional loss but no increased functional loss with repeated use over time. He also found guarding and muscle spasms resulting in abnormal gait or spinal contour. Partly based on the results of that examination, on remand, the RO increased the rating for the Veteran’s low back disability from 10 to 20 percent, but also made the increase retroactively effective from October 19, 2010, so for the entire period under review and, therefore, extending back well before that examination. See Swain v. McDonald, 27 Vet. App. 219, 223-24 (2015) (wherein the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that assigning the effective date of an increased rating is not a mechanical exercise of applying the date of the VA examination that warranted the increase). But, that said, the Board finds that a rating even greater than 20 percent for the Veteran’s lumbar spine disability unfortunately is not warranted at any time during the appeal period. The evidence shows he has been able to flex his lumbar spine to greater than 30 degrees, even when accounting for his pain. The Veterans Court (CAVC) has held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). However, the Court also has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In Mitchell, the Court clarified that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (meaning 0-percent disabling) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, the maximum rating is not warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Id. Moreover, although the Veteran has reported instances of debilitating symptoms owing to his lumbar spine disability, the record on appeal does not reflect he has had incapacitating episodes according to the relevant VA regulation – meaning requiring treatment by a physician and bedrest prescribed by a physician (so not, instead, just of his own election). See the explanatory Note (1) in the former version of DC 5243 and the distinction now made of what constitutes intervertebral disc syndrome (IVDS) in the revised versions of DCs 5242 and 5243 that took effect as of February 7, 2021. Finally, the evidence does not demonstrate the presence of any ankylosis, either favorable or unfavorable. Ankylosis is essentially defined as total absence of motion due to “fixation” of the spine (frozen spine) in either a favorable or unfavorable position. Citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), the Court has repeatedly recognized that, at least for VA compensation purposes, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar (thoracic and lumbar) 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 the neutral position (0 degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, Note (5) to DCs 5235-42. There is no such indication here. While the Veteran, as a layman, is competent to report observable symptoms such as increased pain and decreased range of motion, his statements that symptoms render him immobile cannot establish ankylosis, which is a complex medical condition. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, a rating higher than 20 percent for the Veteran’s lumbar disability is not warranted. There is no reasonable doubt to be resolved in his favor inasmuch as the preponderance of the evidence is against this claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for bilateral (left and right) lower extremity radiculopathy involving the femoral nerve secondary to the service-connected lumbar spine disability As already alluded to, in rating claims concerning diseases and injuries of the spine, the Board also must consider – part and parcel to that – whether there is any associated neurological impairment, so including radiculopathy in the lower extremities. See 38 C.F.R. § 4.71a, Note (1) to DCs 5235-42. The Court has held that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). Service connection may be granted on a secondary basis for disability caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). And, here, the Board finds sufficient evidence to grant service connection for the Veteran’s bilateral lower extremity radiculopathy involving the femoral nerve since associated with (i.e., secondary to) his service-connected low back disability. The record on appeal reflects radiculopathy diagnoses, bilateral or unilateral, since July 2012. Treatment over the years has included pain management, nerve blocks, and nerve ablations. The Veteran’s current diagnosis, bilateral radiculopathy of the femoral nerve, was confirmed during his July 2018 VA spine examination. Therefore, the only remaining question is whether there is the required attribution of this diagnosis to his service-connected lumbar spine disability. See Watson v. Brown, 4 Vet. App. 309, 314(1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”). The November 2014 examiner specifically opined against any correlation (“nexus”) between the Veteran’s lumbar spine disability (spondylosis) and lower extremity radiculopathy. The Veteran’s lumbar disability was then rated under DC 5239, spondylolisthesis or segmental instability. See 38 C.F.R. § 4.71a. As such, the examiner diagnosed chronic decompensated back and lumbar spine degenerative disc disease separately but attributed the active radicular symptoms solely to degenerative disc disease. He determined both the degenerative condition and radiculopathy not related to the service-connected lumbar spine disability. The Veteran’s more recent July 2018 examination concluded both that his clinical presentation of his symptoms demonstrated “lumbar degenerative arthritis/disc disease” more than spondylolisthesis, and that his bilateral radiculopathies were secondary to the same. In doing so, this additional examiner cited well-established evidence of radicular symptoms and treatment in the medical records and updated radiology reports. Notably, the inadequate findings in both this examination and the one from November 2014 were irrelevant to assessing whether there is lower extremity radiculopathy owing to the lumbar spine disability.   As such, the record appears to contain two conflicting medical opinions. But, pursuant to the even more recent findings during the August 2019 examination, the RO recharacterized the Veteran’s low back disability and began rating it, instead, under DC 5242 for degenerative arthritis of the spine. Although this examination reported bilateral radiating pain, it did not diagnose or opine on radiculopathy. However, it effectively recharacterized the November 2014 and July 2018 examinations as concurring. Both offer reasoned medical opinions that the Veteran’s degenerative disc disease caused his bilateral lower extremity radiculopathy. The only difference is that now, pursuant to new radiology records, the lumbar spine disability at issue includes his degenerative condition. The Board accordingly finds the relative balance of opinion for versus against granting service connection additionally for the Veteran’s bilateral lower extremity radiculopathy of the femoral nerve. In this circumstance, this reasonable doubt is resolved in his favor and the claim granted rather than conversely denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology).   Rather than assign initial ratings for this bilateral (left and right) lower extremity radiculopathy, however, the Board must defer this responsibility to the RO since the Board assigning these initial ratings – in the first instance – would impermissibly deny the Veteran one bite at the proverbial apple if he does not agree with the ratings assigned. In that eventuality, he will have opportunity to contest the ratings assigned by also appealing them, whatever they may be. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.