Citation Nr: 21020879 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 99-08 699A DATE: April 8, 2021 ORDER Entitlement to a 20-percent rating for lumbar paravertebral myositis, effective May 13, 2003, is granted, subject to the law and regulations governing the payment of monetary VA benefits. Entitlement to a rating in excess of 20 percent from May 7, 2004 to February 9, 2007 for lumbar paravertebral myositis is denied. Entitlement to a rating in excess of 40 percent from February 9, 2007 for lumbar paravertebral myositis is denied. Entitlement to service connection for neuropathy of left lower extremity is dismissed. FINDINGS OF FACT 1. From May 13, 2003 to February 9, 2007, the Veteran’s lumbar paravertebral myositis manifested as flexion limited to greater than 30 degrees but less than 60 degrees. 2. From February 9, 2007, the Veteran’s lumbar paravertebral myositis has not manifested as unfavorable ankylosis of the entire thoracolumbar spine or as intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 3. For all periods under review, the Veteran’s lumbar paravertebral myositis did not present an exceptional or unusual disability picture. 4. Following the Veteran’s appeal to the Board of a rating decision of August 2010 that denied entitlement to service connection for neuropathy of the left lower extremity, and before a Board decision on the matter, a rating decision of January 2021 granted service connection for radiculopathy of the left lower extremity (femoral nerve) and for radiculopathy of the left lower extremity (sciatic nerve), with evaluations of 10 percent for each disability and effective dates of December 19, 2020. CONCLUSIONS OF LAW 1. From May 13, 2003 to February 9, 2007, the criteria for entitlement to a 20 percent rating, and not higher, for lumbar paravertebral myositis are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.59, Diagnostic Code 5021- 5242. 2. From February 9, 2007, the criteria for entitlement to a rating in excess of 40 percent for lumbar paravertebral myositis are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.59, Diagnostic Code 5021-5242. 3. The criteria for referral for an extraschedular rating for lumbar paravertebral myositis are not met. 38 C.F.R. § 3.321 (b)(1). 4. The criteria for dismissal of the claim of entitlement to service connection for neuropathy of the left lower extremity are met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101(d) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of November 1998 and August 2010. The Board remanded this matter in November 2009, September 2013, December 2015, and September 2019. The Veteran testified at a Board hearing of May 2005 before a Veterans Law Judge who subsequently issued an April 2014 Board order that was vacated, in part, by an October 2015 order of the Court of Appeals for Veterans Claims. The Veteran has not requested an additional Board hearing and indicated, in a March 2021 filing, that he has no additional argument on the appealed issues. The relevant procedural history may be summarized as follows. A rating decision of June 1969 granted entitlement to service connection for myositis, lumbar paravertebral muscles. A noncompensable evaluation, effective January 13, 1968, was established. In November 1971, the Veteran filed a claim for rating increase. A rating decision of January 1972 increased the rating to 10 percent from January 20, 1971. The Veteran appealed, and a Board decision of January 1973 denied entitlement to a rating in excess of 10 percent. In August 1998, the Veteran filed a claim for rating increase, which was denied by a rating decision of November 1998. The Veteran appealed to the Board. While the appeal was pending, a rating decision of August 2004 increased the rating from 10 percent to 20 percent, effective May 7, 2004, and a rating decision of April 2007 increased the rating from 20 percent to 40 percent, effective February 9, 2007. Because less than the maximum rating was assigned, the issue remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The April 2007 rating decision also granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective September 5, 2003. A Board decision of April 2014 denied entitlement to an evaluation in excess of 10 percent from August 1998 to May 12, 2003, in excess of 20 percent from May 13, 2003 to February 8, 2007, and in excess of 40 percent from February 9, 2007 for lumbar paravertebral myositis. The Board’s order incorrectly listed the periods for the staged rating. Both then and now, the correct periods and corresponding ratings as reflected in the rating-decision narratives and code sheets, are: 0 percent from January 13, 1968 to January 20, 1971; 10 percent from January 20, 1971 to May 7, 2004: 20 percent from May 7, 2004 to February 9, 2007; and 40 percent from February 9, 2007. The Veteran appealed the April 2014 Board decision to the U.S. Court of Appeals for Veterans Claims, which in October 2015 granted a joint motion for partial remand by which the Board’s April 2014 order was vacated to the extent that it denied entitlement to increased ratings for the service-connected low back disability and denied entitlement to service connection for bilateral lower extremity neuropathy. The matter was remanded to the Board for action consistent with the joint motion. Increased Rating Disability ratings assigned in accordance with VA’s Schedule for Rating Disabilities are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. Staged ratings are appropriate when the factual findings show distinct time periods in which the service-connected disability exhibited symptoms warranting different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The claimant must be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 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 (ROM) 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. An evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a combined range of motion of the thoracolumbar spine that is 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. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. There is also the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DC 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. 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight- bearing. 38 C.F.R. § 4.45. A VA examiner must attempt to estimate any additional loss of range of motion with flare-ups and repeated use over time based on relevant information, including competent statements of the claimant. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Veteran’s disability has been rated under DC 5021-5242. DC 5021 applies to myositis, and DC 5242 applies to degenerative arthritis of the spine. 38 C.F.R. § 4.71a. A hyphenated rating is used for informational purposes to help describe the origins of a single, residual disability when that residual is not one listed under the explicit disability codes for the given condition. See Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). 1. Entitlement to a rating in excess of 10 percent prior to May 7, 2004 for lumbar paravertebral myositis. A rating decision of June 1969 granted entitlement to service connection for myositis, lumbar paravertebral muscles. A noncompensable evaluation, effective January 13, 1968, was established. A rating decision of January 1972 increased the rating to 10 percent from January 20, 1971. In August 1998, the Veteran filed a claim for rating increase. In October 1998, the Veteran underwent a VA examination for the spine. He reported mild low back pain and limitation by difficulty going up and down stairs and lifting heavy objects. The initial range of motion (ROM) was 90 degrees for forward flexion, 30 degrees for extension, and 40 degrees for lateral flexions, and 35 degrees for rotations. There was no objective evidence of painful motion for any movement of the lumbar spine. There was no muscle atrophy of the lower extremities. In the preceding year, there had been no doctor visits due to the low back condition. A VA treatment record of June 2002 notes occasional back pain that prevents the Veteran from sitting for more than one hour or lying on his back. A VA treatment record of July 2002 notes improvement in back pain intensity, flexibility, muscle strength, and walking tolerance. In May 2003, the Veteran again underwent a VA examination. He reported severe low back pain. The precipitating factors of a flare-up were reported to be sitting for a prolonged period, working, driving long distances, and doing estimates. He had been working as a salesman for a water company since November 2002. Initial ROM was measured to be 50 degrees for forward flexion, 35 degrees for extension, 40 degrees for lateral flexions, and 35 degrees for rotations. There was painful motion on the last degree of the measured range of motion. The diagnosis was myositis, lumbar paravertebral muscles. The Veteran stated that he was once given a certificate for strict bedrest for one week. A private treatment record of Dr. G. E, dated December 18, 2003, notes lumbar flexion limited to 45 degrees. For the period prior to May 7, 2004, the criteria of a higher, 20-percent rating are met as of the date of the VA examination that occurred on May 13, 2003. That examination showed forward flexion greater than 30 degrees but less than 60 degrees. A higher, 40-percent rating under General Rating Formula for Diseases and Injuries of the Spine would require evidence approximating forward flexion of the thoracolumbar spine of 30 degrees or less but not greater than 60 degrees, or favorable ankylosis of the entire thoracolumbar spine. There was also neither ankylosis nor incapacitating episodes due to IVDS having a total duration of at least 4 weeks but less than 6 weeks during the preceding 12 months. The Veteran is competent to report his experienced back symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). His report of symptoms, along with the medical findings of record, do not approximate the criteria for a rating higher than 10 percent prior to May 13, 2003, or higher than 20 percent from May 13, 2003 to May 7, 2004. 2. Entitlement to a rating in excess of 20 percent from May 7, 2004 to February 9, 2007 for lumbar paravertebral myositis. At a regional office hearing held in May 2004, the Veteran referred to his severe low back pain. He again underwent a VA examination for the spine in June 2004. He complained of an increased intensity of low back pain, and severe continuous low back pain that increased with prolonged standing or sitting. Upon examination, the initial ROM was limited to 79 degrees for forward flexion, 15 degrees for extension, 20 degrees for left lateral bending, 20 degrees for right lateral bending, 30 degrees for left lateral rotation, and 30 degrees for right lateral rotation. Pain was noted to begin at 58 degrees for flexion and at 8 degrees for extension. The Veteran stated at a Board hearing of May 2005 that he could not sit, stand, or lie down for too long because of his back pain. The Board explained in the above section of this order why the Veteran is entitled to a 20 percent rating, and not higher, from May 13, 2003. For the period from May 13, 2003 to February 9, 2007, a preponderance of the evidence is against finding entitlement to a higher, 40-percent rating. There was no ankylosis or incapacitating episodes due to IVDS having a total duration of at least 4 weeks but less than 6 weeks during the preceding 12 months. A higher, 40-percent rating under General Rating Formula for Diseases and Injuries of the Spine would require evidence approximating forward flexion of the thoracolumbar spine of 30 degrees or less but not greater than 60 degrees, or favorable ankylosis of the entire thoracolumbar spine. The Veteran is competent to report his experienced back symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). His report of symptoms and the medical findings of record do not approximate the criteria for a higher, 40-percent rating for the relevant period. 3. Entitlement to a rating in excess of 40 percent from February 9, 2007 for lumbar paravertebral myositis. In February 2007, the Veteran underwent a VA examination for the spine. He reported back pain, stiffness, and weakness lasting 2 to 8 hours per day. He had weekly flare-ups that lasted between 3-4 hours. Precipitating factors were standing for more than 1-2 hours, sitting for more than 2-3 hours, or driving. Upon examination, the initial ROM was limited to 30 degrees for forward flexion, with pain noted to begin at 20 degrees. Extension was limited to 15 degrees, with pain noted to begin at 20 degrees. Left and right lateral and left and right rotation were all 20 degrees, with pain noted to begin at 10 degrees. There was no ankylosis. The diagnoses were lumbar degenerative disease, lumbar disc herniation, and lumbar strain/myositis. He had had no IVDS symptoms during the previous year. The Veteran subsequently underwent further VA examinations for the spine in August 2010, November 2013, October 2018, and December 2020. At none of the examinations was there a finding approximating unfavorable ankylosis of the entire thoracolumbar spine, which would be required for a higher, 50-percent rating under the General Rating Formula for Diseases and Injuries of the Spine. In February 2012, a VA opinion based on record review was obtained. In the stated opinion of the VA clinician, the Veteran’s lumbar spondylosis, as well as lumbar discogenic disease, are the result of aging and are not etiologically or pathophysiologically related to the service-connected condition of lumbar strain, which affects only the paravertebral muscles and not the intervertebral area or the skeletal portion of the spine. The examination reports of November 2013, October 2018, and December 2020 found that the Veteran does not have IVDS of the thoracolumbar spine. A May 2016 imaging record of Dr. V. V. B. diagnosed degenerative changes of the lumbosacral spine, a posterior disc bulge at L5-S1 with bilateral neural foramina stenosis, posterior disc bulge at L4-L5 with mild central spinal canal stenosis and bilateral neural foramina, and posterior disc bulges at L3-L4, L2-L3, and L1-L2 with bilateral neural foramina stenosis at the L3-L4 and L2-L3 levels. No medical record for the relevant period. No record for the relevant period indicated that there were incapacitating episodes due to IVDS having a total duration of at least 6 weeks during the preceding 12 months, which would be required for a higher, 60- percent rating under the Formula for Rating IVDS Based on Incapacitating Episodes. Extraschedular Consideration Ordinarily, the VA Schedule will apply unless exceptional or unusual factors would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating may be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, extraschedular consideration has been raised by the record. The October 2015 order of the U.S. Court of Appeals for Veterans Claims remanded the Veteran’s case on the basis, in part, that Board’s April 2014 order did not provide an adequate statement of reasons or bases for its determination that referral for extraschedular consideration was not warranted. When the issue of entitlement to an extraschedular rating has been raised, the Board may issue a final decision as to entitlement to an increased schedular rating and determine whether or not referring the extraschedular- rating issue to the Director of Compensation Service is warranted. Upon consideration of the entire record, including the Veteran’s lay assertions, the Board finds no basis for referral for extraschedular consideration. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. If so, the second step requires the Board to determine whether the Veteran’s exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Third, if the first two conditions are met, the case must be referred to the Director of Compensation Service to determine whether the claimant’s disability picture requires the assignment of an extraschedular rating. In the October 1998 VA examination report, the Veteran indicated that he had pain and difficulty going up and down stairs and lifting heavy objects. A VA treatment record of June 2002 notes occasional back pain that prevents him from sitting for more than one hour or lying on his back. The May 2003 VA examination for the spine notes severe low back pain and the precipitating flare-up factors of prolonged sitting, working, driving, and doing estimates. In June 2004, the Veteran reported continuous and “strong” low back pain resulting in decreased sleep. He complained of an increased intensity of low back pain, and severe continuous low back pain that increased with prolonged standing or sitting. The Veteran stated at a Board hearing of May 2005 that he could not sit, stand, or lie down for too long because of his back pain. In February 2007, the Veteran stated upon VA examination that he had back pain, stiffness, and weakness. The precipitating factors of a flare-up were standing for more than 1-2 hours, sitting for more than 2-3 hours, or driving. In the November 2013 VA examination report, he referenced a “stabbing-like pain.” The Board determines that all the symptomatology and impairment caused by the Veteran’s lumbar spine disability are specifically contemplated by the schedular rating criteria. Because the first Thun element is not satisfied, no referral for extraschedular consideration is required. See Chudy v. O’Rourke, 30 Vet. App. 34 (2018). The Veteran’s service-connected disabilities include service connection for bilateral lower extremity radiculopathy due to his low back disability. The Board also notes that a rating decision of April 2007 granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective September 5, 2003. The lumbar spine disability has manifested by symptoms including pain, stiffness, reduced range of motion, and limitations to sitting, standing, and walking. The schedular criteria for rating the neurologic, sensory, and motor manifestations, including those in the lower extremities, take into account numerous factors, as cited in 38 C.F.R. § 4.71a. The schedular criteria for rating disabilities of the spine provide for ratings based on the presence of painful motion, whether or not such pain radiates, and limitations of motion of the spine including due to pain and other orthopedic factors that cause functional impairment. 38 C.F.R. §§ 4.40, 4.45, 4.59. Such ratings are also based on other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours, and on the basis of incapacitating episodes. When considered with the schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss. See Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995). Under 38 C.F.R. § 4.59, which is a schedular consideration, there is guidance for noting, evaluating, and rating joint pain. See Burton v. Shinseki, 25 Vet. App. 1, 4 (2011). The rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria. See Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011). Difficulty with lifting heavy objects would not constitute exceptional or unusual effects of a disability involving limited motion. Spinal disabilities affect weight bearing and range of motion of the spine and, on occasion, the extremities, as provided for in the separate disability ratings for neurological symptoms. Therefore, these difficulties are not exceptional or unusual, nor is the inability to drive during flare-ups because of the stiffness involved in sitting for longer periods. They are part of the normal disability picture related to musculoskeletal disabilities as described in 38 C.F.R. §§ 4.40, 4.45, and 4.59, including a lumbar spine disability with radiculopathy in the legs. The Veteran’s pain and functional impairment are contemplated in the schedular ratings assigned under the General Rating Formula for Spine Disabilities either directly as limitation of motion, tenderness, or antalgic gait, or indirectly as orthopedic factors that limit motion and function. The schedular rating criteria encompass the combined ranges of motion in all planes, as well as the absence of motion via ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59 4.71a. Extraschedular consideration cannot be used to undo the approximate nature that results from a statutory rating system based on average impairment of earning capacity. See Thun v. Peake, 22 Vet. App. 111, 116 (2008). Because a preponderance of the evidence is against finding that the Veteran suffers from symptoms not considered by the rating criteria, the matter will not be referred for extraschedular evaluation. Service Connection 4. Service connection for neuropathy of the left lower extremity. A rating decision of August 2010 denied entitlement to service connection for neuropathy of the left lower extremity and for neuropathy of the right lower extremity. The Veteran filed a NOD in August 2011 and VA Form 9 in October 2012. A Board decision of April 2014 denied entitlement to service connection for bilateral lower extremity neuropathy. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims, which in October 2015 granted a joint motion for partial remand, by which the Board’s April 2014 order was vacated to the extent that it denied entitlement to increased ratings for the service-connected low back disability and denied entitlement to service connection for bilateral lower extremity neuropathy. A rating decision of November 2018 granted service connection for radiculopathy in right lower extremity (claimed as neuropathy right lower extremity) as secondary to the service-connected disability of lumbar paravertebral myositis. An evaluation of 10 percent, effective August 27, 2009, was established. A Board order of September 2019 remanded the issue of entitlement to service connection for left lower extremity neuropathy. Subsequently, a rating decision of January 2021 granted, in part, service connection for: radiculopathy of the left lower extremity (femoral nerve), with an evaluation of 10 percent, and for radiculopathy of the left lower extremity (sciatic nerve), with an evaluation of 10 percent. The effective dates were December 19, 2020. In a filing of March 2021, the Veteran’s representative stated that, because the Veteran had been granted service connection for left lower extremity radiculopathy, his claim relating to left lower extremity neuropathy is moot. (Continued on the next page)   Where a claim for service connection is granted during the pendency of an appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The law provides that the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed and may dismiss any case over which it determines it does not have jurisdiction. 38 U.S.C. § 7105; 38 C.F.R. § 20.101(d)(5) (2018). The grant of service connection for left lower extremity radiculopathy represents a grant of the appealed service connection issue. With no error of fact or law being alleged as to the issue, it will be dismissed. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven D. Najarian, 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.