Citation Nr: 21015356 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-31 313 DATE: March 17, 2021 ORDER Entitlement to a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome is denied. Entitlement to a rating of 20 percent, but not more, prior to October 8, 2018, for left lower extremity sciatica is granted. Entitlement to a rating of 40 percent, but not more, on and after October 8, 2018, for left lower extremity sciatica is granted. REMAND Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. INTRODUCTION The Veteran served on active duty from July 1980 to April 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The Veteran’s appeal was remanded most recently in December 2018, for additional development. After the issuance of a November 2020 supplemental statement of the case, the appeal has been remitted to the Board for further appellate review. For reasons unknown to the Board, VA issued a letter to the Veteran and his attorney regarding the Veteran’s death. The Board acknowledges the January 2021 letter from the Veteran’s attorney, and will adjudicate the merits of the claims. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s service-connected lumbar spine intervertebral disc syndrome is manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 2. The preponderance of the evidence is against findings that the Veteran’s service-connected lumbar spine disability is productive of incapacitating episodes at any point during the pendency of the appeal. 3. Prior to October 8, 2018, the Veteran’s left lower extremity sciatica more nearly approximated moderate incomplete paralysis. 4. On and after October 8, 2018, the Veteran’s left lower extremity sciatica more nearly approximated moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbar spine intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a rating of 20 percent, but not more, prior to October 8, 2018, for left lower extremity sciatica have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating 40 percent, but not more, on and after October 8, 2018, for left lower extremity sciatica have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminarily, the Board remanded the Veteran’s above-captioned claims in December 2018, for additional development. Specifically, the Board directed the RO to provide the Veteran with VA examinations to ascertain the current severity of his lumbar spine intervertebral disc syndrome and left lower extremity sciatica. Further, the Board directed the RO to obtain an opinion as to TDIU on an extraschedular basis from the Director of Compensation Service. The Veteran underwent the requested VA examinations in October 2019, and in October 2020, the RO obtained an opinion from the Direct of Compensation Service as to the Veteran’s entitlement to TDIU on an extraschedular basis. In November 2020, the RO re-adjudicated the Veteran’s claims and issued a November 2020 supplemental statement of the case before remitted the appeal to the Board. The Board finds that the RO substantially complied with the remand directive and, thus, another remand is not warranted. Lumbar Spine Throughout the pendency of this appeal, the Veteran’s service-connected lumbar spine intervertebral disc syndrome has been assigned a 20 percent rating. Disabilities of the thoracolumbar spine are rated under a General Rating Formula (Formula). 38 C.F.R. § 4.71a. The Formula ratings apply with or without symptoms such as pain, stiffness, or aching. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted it there is unfavorable ankylosis of the entire thoracolumbar spine. The Formula provides for a separate rating for any associated objective neurologic impairment. Effective February 7, 2021, the Formula was amended for certain spine disabilities. However, the Veteran’s disability has been diagnosed as lumbar spine intervertebral disc syndrome with associated lower extremity nerve root irritation, which has been rated under Diagnostic Code 5243 throughout the pendency of this appeal. Diagnostic Code 5243 was not amended and, thus, adjudicating the claim herein is not prejudicial to the Veteran. The Veteran has not asserted, and the evidence does not otherwise support finding the presence of ankylosis, be it favorable or unfavorable. As such, a rating in excess of 20 percent is not warranted on this basis for any distinct period throughout the pendency of this appeal. The Veteran underwent VA examinations in September 2010, August 2011, July 2018, October 2018, and October 2019. Range of motion testing administered during these examinations showed that the Veteran’s forward flexion was from zero degrees to between 90 degrees and 45 degrees (90 degrees in September 2010, 60 degrees in August 2011, 70 degrees in July 2018, 45 degrees in October 2018, and 55 degrees in October 2018). These ranges of motion include measurements by the examiners after repeat range of motion testing, functional impairment with repeat use over time, and estimations of limitations during flare-ups (if reported by the Veteran during the examination). Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). During these examinations, and as evidenced by treatment reports and the Veteran’s lay reports and testimony, he experiences pain, stiffness, spasms, and decreased motion. As a result of this disability and the associated symptoms, the Veteran endorsed an impaired lifting ability and difficulty walking, standing for prolonged periods, exercising, playing sports, bending, climbing stairs, and performing chores. Clinical testing consistently demonstrated normal muscle strength in each tested aspect, with no evidence of muscle atrophy. Further, the Veteran’s reflex examinations were consistently normal. The Veteran required the regular or constant use of a cane for ambulation. Further, despite the presence of muscle spasm and guarding, neither is shown to cause an abnormal gait or abnormal spinal contour. Even with consideration of the Veteran’s reported symptoms and functional impairment, the Board finds that the preponderance of the evidence does not meet or more nearly approximate a limitation of forward flexion to 30 degrees. Consequently, a rating in excess 20 percent in not warranted for any distinct period during the pendency of this appeal. Because the Veteran’s disability has been diagnosed as intervertebral disc syndrome the disability Incapacitating Episodes Formula is for application. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Incapacitating Episodes Formula provides for a 20 percent when incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. A 40 percent evaluation is assigned when incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum of 60 percent is assigned for when incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Incapacitating Episodes Formula, Diagnostic Code 5243. For purposes of evaluation under the Incapacitating Episodes Formula, 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). If intervertebral disc syndrome is present in more than one spinal segment and the effects in each spinal segment are clearly distinct, each segment is evaluated on the basis of incapacitation episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. Id. at Note (2). The evidence does not support finding that the Veteran’s lumbar spine intervertebral disc syndrome caused incapacitating episodes as defined by VA. During the May 2016 hearing, the Veteran’s attorney stated that a “Dr. N.,” who completed a VA Disability Benefits Questionnaire (DBQ), determined that the Veteran experienced at least six weeks of incapacitating episodes over the previous 12 months. While the evidence of record includes a June 2015 DBQ completed by “JN,” it pertained to the Veteran’s left knee, not his lumbar spine. Therein, there is no determination as to incapacitating episodes associated with the Veteran’s lumbar spine. Further, the Board is unable to locate a DBQ, completed by “Dr. N.” or otherwise, that includes a determination that the Veteran’s lumbar spine resulted in incapacitating episodes. Additionally, none of the VA examiners determined that the Veteran’s service-connected lumbar spine intervertebral disc syndrome resulted in incapacitating episodes as defined by VA. The evidence does not otherwise demonstrate episodes of bed rest prescribed by a physician and treatment by a physician due this disability. Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran’s service-connected lumbar spine disability is productive of incapacitating episodes at any point during the pendency of the appeal. Left Lower Extremity Sciatica The Veteran’s left lower extremity sciatica has been evaluated under Diagnostic Code 8520, which governs paralysis of the sciatic nerve. Neurological disability is evaluated on the basis of nerve paralysis, partial paralysis, neuritis or neuralgia in proportion to the impairment of motor or sensory function. 38 C.F.R. §§ 4.120-4.124a. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520 (paralysis of the sciatic nerve), a 10 percent evaluation is warranted where there is mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. A maximum rating of 80 percent is warranted for complete paralysis, where the foot dangles and drops, with no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. The term “incomplete paralysis” with peripheral nerve injuries such as this indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). The terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the regulations. 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. Although the use of such terms by VA examiners and others is evidence to be considered by the Board, it is not dispositive of the issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Prior to October 8, 2018 VA examinations in September 2010 and September 2011, revealed the presence of left lower extremity sciatica. During these examinations, the Veteran reported weakness in his leg, as well as constant pain that begins in his low back and travels down his leg. He described this pain as “severe,” which is exacerbated by physical activity and prolonged standing. During flare-ups, the Veteran endorsed functional impairment, limitation of motion, and an inability to apply pressure to his left leg. After clinical testing, the diagnosis was L4-5 root involvement of the sciatic nerve with pain radiation, numbness, weakness, and paresthesias. During the May 2016 hearing, the Veteran testified that a 40 percent rating was warranted for moderately severe paralysis with atrophy. In July 2018, the Veteran underwent another VA examination to assess the severity of his left lower extremity sciatica. The Veteran reported sharp pain moving down his left leg, with numbness and tingling. Muscle strength and reflex testing were normal in all tested aspects. The examiner determined the presence of “mild” paresthesias and “mild” numbness in the Veteran’s left lower extremity. Treatment records dated during this period show ongoing complaints of and treatment for left lower extremity sciatica. These reports demonstrate clinical findings echoing those of the VA examiners. Although the July 2018 VA examiner characterized the Veteran’s left lower extremity paresthesia and numbness as “mild,” the Veteran’s disability was not wholly sensory in nature. The Veteran endorsed “severe” pain that was exacerbated by physical activity. Moreover, during flare-ups, the Veteran endorsed an inability to put weight on his left leg. With consideration of this evidence and giving the Veteran the benefit of the doubt, the Board finds that his left lower extremity sciatica more nearly approximates moderate incomplete paralysis prior to October 8, 2018. 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. Consequently, a 20 percent rating, but not more, is warranted prior to October 8, 2018. On and After October 8, 2018 On October 8, 2010, the Veteran underwent a VA examination, in part, to ascertain the severity of his left lower extremity sciatica. The Veteran reported worsening pain, increasing in both intensity and frequency over the previous 2 years, with pain traveling down his left leg with paresthesias. Pain increases with activity or changes in the weather. Muscle strength and reflex testing were normal. The examiner determined the presence of decreased sensation in the Veteran’s left lower leg/ankle, as well as constant, moderate pain and moderate numbness in his left lower extremity. The examiner characterized the Veteran’s sciatica as moderate. In October 2019, the Veteran underwent another VA examination. The Veteran reported that his left lower extremity sciatica had worsened over the previous year, and that his pain was worse at night when he takes off his shoes. The examiner determined the presence of moderate, constant pain in the Veteran’s left lower extremity, but muscle strength and reflex testing were normal in each tested aspect. The examiner determined that there was incomplete, moderate paralysis of the Veteran’s left lower extremity sciatic nerve. The examiner clarified that these clinical findings exclude consideration of the Veteran’s left knee osteoarthritis, and that the Veteran’s diabetic neuropathy was of no bearing during the examination. Treatment records dated on and after October 8, 2018, demonstrate ongoing complaints of and treatment for left lower extremity sciatica. Clinical findings contained in these reports are similar to those of the October 2018 and October 2019 VA examiners. When compared to the clinical findings prior to October 8, 2018, the Veteran’s left lower extremity sciatica increased in severity since October 8, 2018. The examiners ascertained the presence of constant, moderate pain as well as moderate numbness. When considering this evidence in conjunction with the Veteran’s report of symptoms and the resultant functional impairment, the Board finds that his left lower extremity sciatica more nearly approximates moderately severe incomplete paralysis. 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. Accordingly, a 40 percent rating, but not more, is warranted on and after October 8, 2018. REASONS FOR REMAND Subsequent to the issuance of the November 2020 supplemental statement of the case, the Veteran asserted that the State of North Carolina determined that he was too disabled to work; a decision that was allegedly rendered 5 years ago. The Board finds that a remand is warranted in order to obtain documentation associated with this determination and for the RO to re-consider the Veteran’s claim based on the grants contained herein.   Accordingly, the case is remanded for the following action: 1. Request that the Veteran and/or his attorney provide or identify documentation associated with the State of North Carolina’s determination that he is too disabled to work. Obtain any identified evidence not already associated with the claims file. 2. Request that the Veteran and/or his attorney provide or identify other documentation associated with the Veteran’s unemployability. Obtain any identified evidence not already associated with the claims file. 3. Re-adjudicate the Veteran’s TDIU claim. If any benefit remains denied, issue the Veteran and his attorney a supplemental statement of the case. After they have had an opportunity to respond, remit the appeal to the Board of further appellate review. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.