Citation Nr: 21021104 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-43 725 DATE: April 9, 2021 ORDER Entitlement to a disability rating of 20 percent, but no higher, for service-connected chronic lumbar strain for the entire period on appeal is granted. Beginning May 8, 2013, a separate 20 percent rating for right lumbar radiculopathy, is granted. Beginning May 8, 2013, a separate 20 percent rating for left lumbar radiculopathy, is granted. REMANDED Entitlement to a rating in excess of 30 percent prior to August 24, 2018, and in excess of 50 percent thereafter, for persistent depressive disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the lumbar spine disability more nearly approximates forward flexion of the thoracolumbar spine to 40 degrees at worst, without evidence of favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of IVDS requiring bed rest prescribed by a physician having a total duration of at least 4 weeks. 2. Beginning May 8, 2013, the Veteran’s back disability resulted in neurological impairment of the right and left lower extremities that was analogous to moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no higher, for lumbar spine strain during the entire period on appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 2. Beginning May 8, 2013, the criteria for a separate 20 percent rating for right lumbar radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520. 3. Beginning May 8, 2013, the criteria for a separate 20 percent rating for left lumbar radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2004 to April 2007 in the United States Army. In May 2020, the Board remanded the claims for additional development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating – Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (1995); 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating 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. 38 C.F.R. § 4.71a. A 20 percent rating is provided 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Intervertebral disc syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined as 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). On February 7, 2021, amendments to the schedule for rating disabilities of the musculoskeletal system, including DC 5242 for degenerative arthritis and DC 5243 for IVDS, went into effect. See 85 Fed. Reg. 76460 (November 30, 2020). The amendment to DC 5242 clarifies that the rating criteria is to be applied for other than IVDS. The amendment to DC 5243 for IVDS specifies that it is to be applied only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Id. Analysis On review, the Board finds that a 20 percent rating, but not higher, is warranted for the entire rating period on appeal. The Veteran underwent a VA examination for her lumbar spine in August 2012, at which time the examiner rendered a diagnosis of lumbar strain. The Veteran reported constant back pain with several cycles of physical therapy that provided only a mild relief. She also received spinal injections that helped a lot for three to four months at a time. She wore a back brace constantly and saw a chiropractor for a back flare-up in June/July 2012. Flare-up were described as difficulty with moving, requiring help with dressing/getting in and out of the shower, and inability to bend down in rare occurrences. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 70 degrees; extension to 25 degrees; lateral flexion to 30 degrees, bilaterally; and, lateral rotation to 30 degrees, bilaterally. There was no additional loss of function or range of motion after repetitive use testing. Functional loss/impairment was due to less movement than normal and pain on movement. Localized tenderness did not result in abnormal gait/spinal contour. Muscle strength testing was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal and straight leg raising test was negative, bilaterally. There were no signs/symptoms of radiculopathy. There was no diagnosis of IVDS. According to May 8, 2013 VA treatment records, the Veteran called to report severe back pain that was 8 out of 10 in intensity. The pain radiated down both legs and to her feet. From 2013 to 2020, the Veteran continued to complain of low back pain. Range of motion of the back was not documented. In July 2020, the Veteran underwent an additional back compensation examination, at which time the examiner rendered diagnoses of lumbar strain, degenerative arthritis of the spine, and IVDS. The Veteran reported that she received several spinal injections and used a back brace regularly. The pain ranged from 7 to 8 out of 10 in severity, depending on her activity, and radiated down both extremities. She had stiffness and tightness and increased pain after prolonged periods of laying, sitting, and standing. She also experienced tingling, numbness, and occasional weakness in her legs and feet. She had a recent transfer to the hospital after calling 911 due to acute unbearable back pain. Flare-ups were described as stiffness and aching pain in the lower back. Functional loss/impairment was described as low tolerance for walking, standing, and driving for long periods of time. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 50 degrees; extension to 20 degrees; lateral flexion to 20 degrees, bilaterally; and, lateral rotation to 15 degrees, bilaterally. Range of motion itself contributed to functional loss by making it difficult for the Veteran to bend forward to lift. Pain was noted on examination and caused functional loss. There was moderate localized tenderness and evidence of pain with weight bearing. After repetitive use testing, range of motion of the lumbar spine revealed forward flexion to 40 degrees; extension to 10 degrees; lateral flexion to 10 degrees, bilaterally; and, lateral rotation to 10 degrees, bilaterally. Factors causing functional loss included pain, fatigue, weakness, and incoordination. The examiner indicated that the Veteran was not examined immediately after repetitive use over time or during a flare-up and that the examination report was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss under these conditions. Nonetheless, the examiner noted that pain, fatigue, weakness, and incoordination significantly limited functional ability with repeated use over time and/or during flare-ups. The examiner estimated that after repetitive use over time and during flare-ups, range of motion will decrease to forward flexion to 40 degrees; extension to 10 degrees; lateral flexion to 10 degrees, bilaterally; and, lateral rotation to 10 degrees, bilaterally. Additional factors contributing to the disability included instability of station, disturbance of locomotion, and interference with sitting and standing. There was no ankylosis and IVDS with episodes of bed rest having a total duration of at least 1 week but less than 2 weeks in the previous year. Muscle strength testing was normal (5/5) with active movement against some resistance (4/5) for the ankle dorsiflexion and great toe extension, bilaterally. There was no evidence of muscle atrophy. Reflex examination was normal for the knees, bilaterally, and hypoactive in both ankles. Sensory examination was decreased in the foot/toes, bilaterally. Straight leg raising test was positive, bilaterally. The examiner identified right lower extremity radiculopathy of moderate constant pain, severe intermittent pain, and moderate paresthesias and numbness, and left lower extremity symptoms of mild constant pain, and moderate intermittent pain, paresthesias, and numbness. The examiner concluded that the Veteran’s radiculopathy resulted in moderate incomplete paralysis of the sciatic nerve of the right lower extremity and mild incomplete paralysis of the sciatic nerve of the left lower extremity. She used a brace and a cane constantly. The examiner added that the Veteran suffered from urinary incontinence. On review, the Board resolves all doubt in the Veteran’s favor in finding that a 20 percent rating is warranted during the entire rating period on appeal. In so finding, the Board notes that range of motion of the lumbar spine was 70 degrees in 2012 and the examiner at the time did not estimate any additional loss of motion during flare-ups and/or repeated use over time. However, given the reported flare-ups and the 2020 examiner’s estimation that during flare-ups range of motion of the lumbar spine would decrease by 10 degrees, the Board finds that forward flexion of 60 degrees at best and 40 degrees is approximated for the entire rating period on appeal, both which meet the criteria for a 20 percent rating. As discussed above, forward flexion greater than 30 degrees but not greater than 60 degrees warrants a 20 percent rating. Nonetheless, a rating higher than 20 percent is not warranted for this rating period. Specifically, even taking into consideration the Veteran’s competent and credible reports of flare-ups and functional loss after repetitive use over time, limitation of flexion to 30 degrees is still not met or approximated. As discussed, range of motion of the lumbar spine was to 70 degrees and 50 degrees during the pendency of the appeal, and even using the later estimation of a 10 degrees reduction in forward flexion during flare-ups/after repeated use testing, this would not more nearly approximate forward flexion to 30 degrees, which is required by the rating criteria for a 40 percent disability rating. The Board concludes that the currently assigned 20 percent rating already contemplates the additional loss due to pain and other DeLuca factors after repetitive use and/or during flareups. See 38 C.F.R. §§ 4.40, 4.45. A higher rating under the General Rating Formula is not warranted. In addition, the Veteran did not have a diagnosis of IVDS prior to the 2020 examination report and during the examination report, based on her own assertions, the examiner noted that a best rest was required for one week but less than two weeks in the previous year, which would warrant only a 10 percent rating. In addition, there is no evidence of disc herniation, which does not satisfy the threshold requirement for application of DC 5243 under the 2021 amended rating criteria. Therefore, on this record the Board finds that there is no basis for a higher rating under DC 5243 at any time during the rating period. Associated Neurological Impairment In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (1). Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” See Spellers v. Wilkie, 30 Vet. App. 157 (2018). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Here, the Veteran is in receipt of a 20 percent rating for each lower extremity, effective July 10, 2020. However, as noted above, the Board finds that evidence of lumbar radiculopathy was present since May 8, 2013. While its severity was not discussed at the time, based on the Veteran’s reports throughout the pendency of the appeal, the Board finds that moderate incomplete paralysis was approximated since May 8, 2013. Prior to this date, there is no lay or medical evidence of radiating pain as a result of the service-connected back disability. However, a rating higher than 20 percent is not warranted as there is no evidence to support moderately severe incomplete paralysis of the sciatic nerve. Lastly, although the 2020 examiner noted urinary incontinence, a review of the medical records does not support the assignment of a compensable rating. In fact, all available treatment records showed no urinary frequency, hesitancy, or nocturia. In sum, the Board assigns a separate 20 percent rating beginning May 8, 2013 for both right and left lumbar radiculopathy. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent prior to August 24, 2018, and in excess of 50 percent thereafter, for persistent depressive disorder is remanded. In a December 2020 statement (received by VA in January 2021), the Veteran asserted that the service-connected depressive disorder has increased in severity since the Veteran was last examined by VA in 2018. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of her pshyciatric disability. 2. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issue of an increased rating for service-connected persistent depressive disorder could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected persistent depressive disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to her persistent depressive disorder alone. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.