Citation Nr: 21022696 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-28 111 DATE: April 19, 2021 ORDER Entitlement to a disability rating of 40 percent for degenerative arthritis of the lumbar spine (a lumbar spine disability), prior to October 30, 2019, is granted. Entitlement to a disability rating in excess of 40 percent for a lumbar spine disability, since October 30, 2019, is denied. Entitlement to a disability rating in excess of 10 percent for service-connected left lower extremity radiculopathy is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU), prior to February 12, 2015, is granted. FINDINGS OF FACT 1. Prior to October 30, 2019, the Veteran’s service-connected lumbar spine disability, when considering pain and corresponding functional impairment, is commensurate to disability manifested by forward flexion to no greater than 30 degrees without pain; the evidence does not show that the Veteran’s lumbar spine disability has resulted in unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past twelve months. 2. Since October 30, 2019, the preponderance of the evidence shows that the Veteran’s lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past twelve months. 3. The Veteran’s left lower extremity radiculopathy disability has not been manifested by moderate impairment. 4. Prior to February 12, 2015, the evidence shows that the Veteran’s service-connected disabilities are at least as likely as not preclude the ability to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to October 30, 2019, the criteria for a 40 percent disability rating, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243. 2. Since October 30, 2019, the criteria for a disability rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243. 3. The criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520. 4. Prior to February 12, 2015, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to November 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2015 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2019, the Board remanded, in part, the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the period on appeal, the Board notes that in a July 2015 rating decision, the RO increased the rating for the Veteran’s service-connected lumbar spine disability to 20 percent, effective February 12, 2015. In the April 2019 Board decision and remand, the Board granted an earlier effective date of May 20, 2014, for the lumbar spine disability. Subsequently, while on remand, the RO issued a rating decision in June 2020 which granted an increased disability rating to 40 percent for the lumbar spine disability, effective October 30, 2019. As the latest increase does not represent the maximum rating available, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board also notes that in the June 2020 rating decision, the RO also granted service connection for radiculopathy of the left lower extremity, effective October 20, 2019. The Board will consider whether a higher rating could be assigned as the assignment of the rating occurred during the pendency of this appeal. Id. Lumbar Spine Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s lumbar spine disability is currently evaluated as 20 percent disabling prior to October 30, 2019, and 40 percent thereafter. The service-connected lumbar spine disability is currently rated under Diagnostic Codes 5242-5239. 38 C.F.R. § 4.71a. Diagnostic Code 5242 pertains to rating degenerative arthritis of the spine and Diagnostic Code 5239 pertains to rating spondylolisthesis or segmental instability of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5239. Both diagnostic codes reference the same rating criteria under the General Rating Formula for Diseases and Injuries of the Spine. Id. 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 (General Rating Formula) 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 provides a 20 percent disability rating is assigned 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 rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). The General Rating Formula also provides at Note (1) that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Plate V, 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula provides a 20 percent disability rating 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating 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. Note (1) to Diagnostic Code 5243 provides that 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. The United States Court of Appeals for Veterans Claims (Court) has also issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Board has reviewed the Veteran’s lay statements and all relevant private and VA medical evidence, with particular attention to the private medical report from May 2014 and the VA examinations from July 2015 and October 2019. For the period prior October 30, 2019, based on the evidence, and when resolving reasonable doubt in favor of the Veteran, the Board finds that after consideration of the Veteran’s limitation of motion, her lumbar spine disability more nearly approximates a 40 percent rating prior to October 30, 2019. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. The private May 2014 medical report shows that the Veteran’s forward flexion of the lumbar spine was to 30 degrees. The report from the July 2015 VA examination shows forward flexion of the lumbar spine to 40 degrees; however, pain began at 15 degrees. The Veteran reported flare-ups which caused pressure in her back and weakness. Taken as a whole, the Board finds that objective showings of limitation of motion, and objective evidence of pain, are indicative of pain-free motion not greater than 30 degrees for this period on appeal. Accordingly, and in light of DeLuca, when considering painful motion, the Board finds that a higher 40 percent rating is warranted prior to October 30, 2019. For the entire appeal period, to include since October 30, 2019, a rating in excess of 40 percent is not warranted at any time during the pendency of this appeal, however. The evidence of record does not reveal any findings whatsoever indicating unfavorable (or indeed any) ankylosis, or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months prescribed by a physician. While the July 2015 VA examination report indicates that the Veteran noted that flare-ups were incapacitating and that she, at times, was unable to get out of bed, no physician-prescribed bedrest was noted or reported. The October 2019 VA examination reflects that ankylosis of the spine was not found. Moreover, both VA examination reports show that movement was found in the Veteran’s extension, left and right lateral flexion, and left and right lateral rotation motions. As indicated above, limitation of motion as a rating factor is contemplated only by ratings assigned up to 40 percent, as granted here, and there exists no basis for a higher rating solely on account of limitation of motion (as opposed to ankylosis). Further, the 2019 VA examination meets the requirements of Correia and still does not show limitation of motion approximating unfavorable ankylosis warranting a 50 percent rating. In summary, the Board finds that a 40 percent evaluation is warranted throughout the appeal period. This determination represents a grant for the period prior to October 30, 2019 and a denial for the period beginning on that date. Left Lower Extremity Radiculopathy The service-connected radiculopathy of the left lower extremity is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. This section assigns ratings based upon complete or incomplete paralysis of the lower extremities. Under Diagnostic Code 8520, when there is incomplete paralysis of the sciatic nerve, a 10 percent rating is assigned for mild impairment, a 20 percent rating is assigned for moderate impairment, a 40 percent rating is assigned for moderately severe impairment, and a 60 percent rating is assigned for severe impairment with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Words such as “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. 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. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. 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. The Board has reviewed all relevant medical and lay evidence for this period on appeal, to include private and VA treatment records and examinations. Given the evidence, the Board finds the 10 percent rating currently assigned to be appropriate. The July 2015 VA examination report shows that no radicular pain or any other signs or symptoms due to radiculopathy was found. The VA examiner noted that muscle testing of the bilateral lower extremities elicited no pain in the low back. The October 2019 VA examination report shows that mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness were found in the left lower extremity. In the absence of more significant neurologic impairment, the Board finds that the Veteran’s left lower extremity disability most closely approximates the mild incomplete paralysis described by the 10 percent initial rating rather than the moderate paralysis required for a 20 percent rating. The claim is accordingly denied. Further, a review of the record shows that no radiculopathy signs or symptoms have been diagnosed in the Veteran’s right lower extremity for the entire period on appeal. TDIU Under the applicable criteria, total disability ratings based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In this case, the issue of entitlement to a TDIU has been raised by the record and is properly before the Board as it is part and parcel of the increased rating claim for the lumbar spine disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted above, the effective date of the Veteran’s service-connected lumbar spine is established as May 20, 2014. See Board’s April 2019 Board decision and remand. Prior to February 12, 2015, a review of the record shows that the Veteran is in receipt of an 80 percent combined disability rating. The Veteran meets the minimum schedular criteria for consideration for TDIU. 38 C.F.R. § 4.16(a). The Board notes that since February 12, 2015, the Veteran’s combined evaluation for compensation purposes is 100 percent. This is based upon a 100 percent evaluation for posttraumatic stress disorder, with additional service-connected disabilities. Special monthly compensation has already been granted on the basis of additional service-connected disabilities independently ratable at 60 percent or more. Therefore, entitlement to TDIU during this period is moot. Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008). Thus, the relevant appeal period consists of the period prior to February 12, 2015. The Board is aware that, to date, the Veteran has not been afforded a VA examination to ascertain the precise effects of her service-connected disabilities, taken as a whole, on her ability to secure and follow a substantially gainful occupation. However, the May 2014 private medical note referenced above, shows that the private doctor indicated that due to the Veteran’s multiple physical and mental disabilities, “I do no[t] see her able to work.” As such, given the number of service-connected disabilities for which the Veteran has received compensation, and in light of the statement from the private doctor, the Board finds it at least as likely as not that her service-connected disabilities render her unable to secure or follow a substantially gainful occupation, prior to February 12, 2015. Accordingly, the TDIU claim is granted under 38 C.F.R. § 4.16(a). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.