Citation Nr: 21022713 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-19 700A DATE: April 19, 2021 ORDER Entitlement to a 40 percent rating, but no higher, for lumbosacral strain (hereinafter back disability) is granted; effective July 13, 2015. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy, prior to June 20, 2019, is denied. Entitlement to a rating of 20 percent, but no higher, for right lower extremity radiculopathy is granted; effective June 20, 2019. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy, prior to June 20, 2019, is denied. Entitlement to a rating of 20 percent, but no higher, for left lower extremity radiculopathy is granted; effective June 20, 2019. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. Throughout the appellate period, the evidence shows that when considering the Veteran’s pain and functional loss, including during flare-ups, his back disability is productive of disability analogous to limitation of flexion to 30 degrees; the preponderance of the evidence shows that the Veteran’s back disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine or entire spine, or incapacitating episodes of intervertebral disc syndrome (IVDS). 2. Prior to June 20, 2019, the Veteran’s bilateral lower extremity radiculopathy resulted in no more than mild incomplete paralysis of the sciatic nerve. 3. As of June 20, 2019, the Veteran’s bilateral lower extremity radiculopathy has resulted in no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. Prior to June 20, 2019, the criteria for a rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. From June 20, 2019, the criteria for a rating of 20 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. Prior to June 20, 2019, the criteria for a 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. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8620. 5. From June 20, 2019, the criteria for a rating of 20 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1985 to June 2007. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2014 and October 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, a September 2019 rating decision assigned a 40 percent rating for the Veteran’s back disability, effective May 13, 2019. As this increase does not represent a total grant of benefits sought on appeal, the claim for an increased rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Moreover, the Board notes that the Veteran has not filed an appeal with respect to the propriety of the assigned ratings for his bilateral lower extremity radiculopathy; however, such matters are part and parcel of his claim for an increased rating for his back disability. Specifically, the rating criteria governing the evaluation of such disability states that any associated objective neurological abnormalities be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Therefore, such issues will be addressed herein. The Board notes that while the Military Order of the Purple Heart (MOPH) continues to represent the Veteran and was provided notice of the docketing of this appeal at the Board, MOPH provided notice regarding the inability to provide argument in this appeal due to staffing and program changes. The Board notes that additional VA treatment records have been added to the claims file that has not been considered by the agency of original jurisdiction (AOJ). However, review of this evidence reveals that it is cumulative or duplicative of evidence previously of record and is not pertinent to the issues on appeal. Accordingly, the Board may proceed with adjudication without further delay. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 importance. Fenderson v. West, 12 Vet. App. 119, 126–27 (1999). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). Back Disability The Veteran’s back disability has been in receipt of a 20 percent rating prior to May 13, 2019, and a 40 percent rating thereafter pursuant to Diagnostic Code 5237. Diagnostic Code 5237 is part of the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Board notes that while portions of the Rating Schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5237 was not changed. A May 2015 VA treatment note indicated that the Veteran had intermittent pain throughout the day that was aggravated by prolonged walking or sitting. The Veteran was afforded a VA examination in August 2015, in which he was diagnosed with lumbosacral strain. The examiner indicated that the Veteran did not have flare-ups or functional impairment of the thoracolumbar spine. Initial range of motion testing revealed forward flexion to 45 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees with pain. The examiner noted pain with weight-bearing and mild to moderate lumbar spine tenderness. No additional loss of function or range of motion was noted after repetitive-use testing. The examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted muscle spasm, localized tenderness, and guarding not resulting in abnormal gait or abnormal spinal contour. Sensory and reflex examinations revealed normal results. The examiner noted that the Veteran had left lower extremity radiculopathy, indicating mild intermittent pain and paresthesias and/or dysesthesias. The examiner indicated that the Veteran had mild left lower extremity radiculopathy of the sciatic nerve roots. The examiner indicated that the Veteran’s right lower extremity was not affected. There was no evidence of reduced muscle strength, muscle atrophy, ankylosis, IVDS, or other neurologic abnormalities In his March 2016 substantive appeal, the Veteran reported having intermittent flare-ups resulting in painful range of motion, excess fatigue, and weakness. The Veteran underwent another VA examination in December 2017, in which he was diagnosed with degenerative arthritis of the lumbar spine. The Veteran reported having flare-ups and functional impairment of the thoracolumbar spine. He also reported having sharp pain twice per week that causes him to be unable to move for approximately four to six minutes. Initial range of motion testing revealed forward flexion to 60 degrees, extension to 25 degrees, bilateral lateral flexion to 25 degrees, and bilateral lateral rotation to 25 degrees. The examiner indicated that the Veteran exhibited pain on forward flexion. The examiner also indicated that there was no evidence of pain with weight-bearing, localized tenderness, or pain on palpation. No additional loss of function or range of motion was noted after repetitive-use testing. The examiner indicated that she was unable to opine as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or flare-ups without resorting to mere speculation because an examination would be required to ascertain functional ability with repeated use over time and/or during flare-ups. Sensory and reflex examinations revealed normal results. There was no evidence of muscle spasm, muscle atrophy, reduction in muscle strength, radicular pain, IVDS, ankylosis, or other neurologic abnormalities. The examiner opined that the Veteran’s diagnosis of degenerative arthritis of the lumbar spine is a natural progression of his lumbosacral strain. The Veteran submitted a private back conditions disability benefits questionnaire (DBQ) that was completed in June 2019. The Veteran reported having daily flare-ups and functional impairments of the thoracolumbar spine due to prolonged sitting and standing. Initial range of motion testing revealed forward flexion to 45 degrees, extension to 15 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees. No additional loss of function or range of motion was noted after repetitive-use testing. The examiner noted pain on active and passive movement as well as with weight-bearing and nonweight-bearing activities. The examiner also noted moderate tenderness and pain to the paravertebral muscles bilaterally. Muscle spasms and guarding were noted. The examiner noted less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing. The examiner described the Veteran’s functional ability during flare-ups and/or with repetitive use over a period of time in terms of range of motion, noting forward flexion to 30 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 15 degrees. Muscle strength testing revealed reduced strength for bilateral plantar flexion (4/5), ankle dorsiflexion (4/5), foot abduction (4/5), foot adduction (4/5), and great toe extension (4/5). Sensory examination revealed decreased sensation to touch in the bilateral lower leg/ankle (L4/L5/S1) and foot/toes (L5). The examiner noted that the Veteran had bilateral lower extremity radiculopathy, indicating moderate constant pain, intermittent pain, dull pain, paresthesias and/or dysesthesias, and numbness. The examiner indicated that the Veteran had moderate bilateral radiculopathy of the sciatic nerve roots. No muscle atrophy, ankylosis, IVDS, or other neurologic abnormalities were noted. The Veteran reported regular use of a back brace as well as heating pads and/or ice for pain and stiffness. After careful review of evidence of record, the Board finds that the Veteran’s back disability warrants a 40 percent rating, but no higher, for the entire appellate period. The Board notes that the December 2017 VA examiner did not address whether the Veteran’s increased functional loss during flare-ups or repeated use over time resulted in any additional limitation of motion or provide an estimate for the degree of additional functional loss during flare-ups or repeated use over time. Therefore, the Board finds that the December 2017 VA examination is inadequate as it did not include all of the information needed to determine whether a higher rating is warranted based on additional functional loss during flare-ups or repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the August 2015 VA did not provide range of motion measurements for passive range of motion and nonweight-bearing. Thus, the examination report is inadequate. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, after considering the Veteran’s reports of pain and increased functional loss during flare-ups and the June 2019 private DBQ, the Board finds that the Veteran’s back disability has more nearly approximated forward flexion of the thoracolumbar spine to no more than 30 degrees throughout the appeal period. Therefore, affording the Veteran the benefit of the doubt, the Board finds that a rating of 40 percent, but no higher, is warranted, effective July 13, 2015. The Board finds that the Veteran’s back disability does not warrant a rating in excess of 40 percent. To warrant a rating higher than 40 percent under the General Rating Formula the Veteran’s back disability must manifest in unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. In this case, the medical evidence does not indicate, nor does the Veteran contend, the presence of ankylosis in the spine at any point. Therefore, a rating higher than 40 percent is not warranted. Furthermore, the Board notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp, 29 Vet. App. at 26. The Board has considered whether the Veteran is entitled to a disability rating under an alternative diagnostic code as back disabilities may also be evaluated under Diagnostic Code 5243 for IVDS. The criteria for IVDS rates the disability according to the number of incapacitating episodes suffered per year. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As indicated above, the evidence does not show and the Veteran does not allege that he has had any physician prescribed bed rest having a total duration of at least six-weeks over a 12-month period, which is required for the next higher 60 percent rating, at any time during the appeal period. Accordingly, Diagnostic Code 5243 is not applicable. Moreover, the Board has considered whether the Veteran is entitled to additional separate ratings for associated neurologic conditions, other than his bilateral lower extremity radiculopathy discussed in more detail below. However, the record does not reflect that the Veteran has had other neurologic abnormalities associated with his service-connected back disability. Therefore, a separate evaluation for associated additional neurologic conditions is not warranted. In sum, the Board finds that a disability rating of 40 percent, but no higher, is warranted for the Veteran’s back disability, effective July 13, 2015. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b). Bilateral Lower Extremity Radiculopathy The Veteran’s right lower extremity radiculopathy is in receipt of a 10 percent rating pursuant to Diagnostic Code 8520. The Veteran’s left lower extremity radiculopathy is in receipt of a 10 percent rating pursuant to Diagnostic Code 8620. The criteria for evaluating the severity or impairment of the sciatic nerve is set forth under Diagnostic Codes 8520, 8620, and 8720. Under Diagnostic Code 8520, mild incomplete paralysis warrants a 10 percent disability rating. Moderate incomplete paralysis warrants a 20 percent disability rating. Moderately severe incomplete paralysis warrants a 40 percent disability rating. Severe incomplete paralysis with marked muscular atrophy, warrants a 60 percent rating. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost and warrants an 80 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Codes 8620 addresses the criteria for evaluating neuritis of the sciatic nerve, respectively. The criteria is consistent with the criteria for evaluating degrees of paralysis as set forth above. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for mild, or at the most, the moderate degree. Id. The Board observes that the words “mild,” “moderate” and “severe” as used in the various diagnostic codes 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. Upon review of the record, the Board finds that the Veteran’s bilateral lower extremity radiculopathy does not warrant ratings in excess of 10 percent, prior to June 20, 2019. There is no competent evidence to support a finding that the Veteran had worse than mild, incomplete paralysis of the bilateral lower extremities. The August 2015 and December 2017 VA examination reports noted that muscle strength testing, sensory examination, and reflex examination revealed normal results. Additionally, the August 2015 VA examiner noted only mild intermittent pain and paresthesias and/or dysesthesias of the left lower extremity. Moreover, the Board finds that the Veteran’s bilateral lower extremity radiculopathy warrant ratings of 20 percent, but no higher, from June 20, 2019, the date it was factually ascertainable that an increase in disability had occurred. See McGrath v. Gober, 14 Vet. App. 28, 35–36 (2000). Here, the June 2019 private DBQ revealed that the Veteran’s bilateral lower extremity radiculopathy symptoms had worsened. The Board has sought this increased from the earliest date that the record contains evidence that the increase in severity of the Veteran’s bilateral lower extremity radiculopathy occurred. Based on this review, the Board finds that June 20, 2019 is that earliest date. The Board finds that a rating in excess of 20 percent is not warranted, as there is no competent evidence to support a finding that the Veteran has worse than moderate, incomplete paralysis of the lower extremities. The June 2019 private DBQ noted decreased muscle strength, decreased sensation to touch in the bilateral lower leg/ankle and foot/toes as well as moderate constant pain, intermittent pain, dull pain, paresthesias and/or dysesthesias, and numbness in the bilateral lower extremities. The examiner classified the severity of the Veteran’s radiculopathy as moderate. Additionally, as mentioned above, when the involvement is wholly sensory, no more than a moderate degree should be assigned. Here, the Veteran’s symptoms are almost entirely sensory. In sum, the Board finds that the Veteran’s bilateral lower extremity radiculopathy warrant 10 percent ratings for the appellate period prior to June 20, 2019, and ratings of 20 percent thereafter. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to Service Connection for Erectile Dysfunction The Veteran contends that his erectile dysfunction is secondary to his service-connected PTSD or medication prescribed for his PTSD. The Veteran was afforded a VA examination in October 2014, in which the examiner indicated that the Veteran’s erectile dysfunction existed prior to his PTSD, and thus was less likely than not caused by his PTSD. The examiner further noted that there was insufficient evidence in the record to confirm whether the Veteran’s erectile dysfunction has been aggravated beyond normal progression by PTSD. A December 2017 VA examiner opined that the Veteran’s erectile dysfunction was less likely than not due to or aggravated by his alcohol use disorder, medications, and/or service-connected PTSD. He reasoned that the Veteran has multiple conditions (physical and mental) that can and frequently do contribute to erectile dysfunction. The Board regrets further delay, but additional development is necessary before the matter can be adjudicated. Specifically, the Board finds that remand is required in order to obtain an adequate VA medical opinion. Where VA provides a veteran with an examination in a service connection claim, the examination and medical opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board finds that the VA medical opinions of record to be inadequate as the examiners failed to provide sufficient rationale for their conclusion that the Veteran’s erectile dysfunction was not secondary to his service-connected PTSD. Accordingly, remand is necessary to obtain an addendum medical opinion regarding the nature and etiology of the Veteran’s erectile dysfunction. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, forward the claims file to a qualified medical professional to obtain an addendum medical opinion regarding the nature and etiology of the Veteran’s erectile dysfunction. If the examiner determines that another physical examination is necessary, such an examination should be scheduled. Following a review of the claims file, the examiner is asked to opine as to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s erectile dysfunction is proximately due to, the result of, his service-connected PTSD, to include his psychiatric medications? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s erectile dysfunction is aggravated beyond normal progression by his service-connected PTSD, to include his psychiatric medications? A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.