Citation Nr: 21023632 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-40 277 DATE: April 21, 2021 ORDER Entitlement to a rating in excess of 20 percent for spondylosis and multilevel degenerative joint disease (DJD) of the lumbosacral spine is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity, associated with lumbar spine disability is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity, associated with lumbar spine disability is remanded. FINDING OF FACT The evidence of record does not show, including consideration of back pain, forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable or unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine; and the Veteran has not had any incapacitating episodes due to IVDS. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for spondylosis and multilevel DJD of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from December 1968 to November 1989. This appeal arises from a May 2014 rating decision, denying increased rating claims for the service-connected lumbar spine disability in excess of 20 percent and associated right lower extremity radiculopathy in excess of 20 percent. The Veteran testified at a Board hearing at the RO (Travel Board hearing) in June 2019, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In September 2019, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development and consideration. Of note, the Board also remanded the Veteran’s claim for a rating in excess of 20 percent for right-sided radiculopathy to obtain a VA examination to assess the severity of his disability. On remand, in an August 2020 rating decision, the AOJ confirmed and continued the 20 percent rating for radiculopathy of the right lower extremity. It also granted service connection for radiculopathy of the left lower extremity, as associated with the service-connected lumbosacral spine DJD, and assigned an initial 10 percent rating, effective from December 18, 2019. Accordingly, these issues are also before the Board, as they are part and parcel of the Veteran’s lumbar spine claim. See also AB v. Brown, 6 Vet. App. 35, 39 (1993) (A Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). The file is again before the Board for further appellate review. INCREASED RATING In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). In this case, the Board reviews the evidence of record since March 2013, which is one year before the March 2014 increased rating claim was filed. 1. Entitlement to a rating in excess of 20 percent for spondylosis and multilevel DJD of the lumbosacral spine. The Veteran contends his lumbar spine disability is more severe than has been rated. Notably, the Veteran stated in June 2019, “I asked [my employer] for 25% cut in hours in that I was unable to work extended periods of time without excruciating pain and muscle spasms. Three years ago [my employer] granted this to me. THIS 25% CUT IN HOURS EQUALS 13 WEEKS OF INCAPACITATION. I AM NOW CONSIDERING AN EVEN FURTHER CUTBACK IN HOURS!” His lumbosacral spine spondylosis and multilevel DJD has been rated under 38 C.F.R. § 4.71a, 5299-5242, analogously rated for degenerative arthritis of the spine. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Spine disabilities are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  38 C.F.R. § 4.71a, DCs 5235 to 5243. The General Rating Formula provides that disability evaluations are to be 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 normal range of motion for the thoracolumbar spine is from 0 to 90 degrees forward flexion, 0 to 30 degrees extension, 0 to 30 degrees left and right lateral flexion, and 0 to 30 degrees left and right lateral rotation. Normal combined range of motion of the thoracolumbar spine is 240 degrees. General Rating Formula, Note (2); 38 C.F.R. § 4.71a, Plate V. Under the General Rating Formula, a 20 percent rating is warranted 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  Id. at Note 1. Overall, the probative evidence of record does not show forward flexion of the thoracolumbar spine to 30 degrees or less, even with consideration of DeLuca factors, such as pain, fatigue, weakness, endurance, incoordination. The Veteran’s May 2014 and December 2019 VA examination reports provides highly probative evidence in this regard. At the May 2014 VA examination, the Veteran reported he experiences an acute flare of symptoms about once a month lasting 3-7 days, with pain level of 6-7/10, and reported he was currently in a flare which has been present about two months. The examiner found forward flexion limited to 40 degrees, with consideration of functional limitation due to pain noted on exam; and forward flexion limited to 35 degrees on repetitive-use testing. At the December 2019 VA examination, the Veteran reported flareups related to normal daily required activities. However, he denied having any functional loss or functional impairment of thoracolumbar spine. The examiner found forward flexion limited to 60 degrees, with consideration of functional limitation due to pain noted on exam but not resulting in functional loss, and pain with weight bearing, and objective evidence of localized tenderness on pain on palpation; no additional loss of function or range of motion on observes repetitive use. The examiner noted that pain, weakness, fatigue, and incoordination do not significantly limit his functional ability with repeated use over time and/or flare-ups. There is also no favorable or unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. The May 2014 and December 2019 VA examiners specifically found the Veteran had no ankylosis of the spine.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Available VA treatment records include the Veteran’s complaints of back pain, but overall, do not show any findings of range of motion or other findings that would warrant a rating higher than 20 percent.  38 C.F.R. § 4.71a, DCs 5235 to 5243. The Board observes that the Veteran has complained of flare-ups of back pain to the VA examiners. While his descriptions of his symptomatology are both competent and credible, they are outweighed by the medical evidence noted. The medical findings are more probative since made by a clinician with expertise in assessing the severity of spinal disabilities, based upon physical evaluation and diagnostic testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2). Further, the medical evidence of record, such as his May 2014 and December 2019 VA examination, found no neurological abnormalities, such as bowel/bladder problems. The Board has also considered the possibility of a rating in excess of 20 percent as due to IVDS. Pursuant to DC 5243, IVDS is rated under either the General Rating Formula outlined above or the Formula for Rating IVDS, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. A 20 percent rating is warranted 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 rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted 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, Formula for Rating IVDS Based on Incapacitating Episodes (IVDS). An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS, Note (1). The May 2014 VA examiner indicated that the Veteran has IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. However, on review of his VA treatment records, there is simply no evidence of any incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. Moreover, the December 2019 VA examiner found Veteran has IVDS but no incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. So, the overall evidence of record does not support a finding of IVDS with incapacitating episodes of at least 6 weeks during the past 12 months, to warrant a higher rating. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Therefore, since the Veteran’s lumbar spine disability has never been more than 20 percent disabling, the Board cannot further stage this rating. Hart, 21 Vet. App. at 505. Further, there is no indication in the evidence of record that his lumbar spine disability presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. 38 C.F.R. § 3.321(b)(1). The Board acknowledges the Veteran’s statements, wherein he maintains that because of his lumbar spine disability he has experienced a 25 percent reduction in his work hours and is considering additional cutbacks in hours. However, the Board finds that the Veteran’s disability picture is contemplated by the rating schedule; as such, the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. See 38 C.F.R. § 3.321 (b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). As discussed above, the Veteran’s disability and symptoms, including painful motion and limitation of motion due to flare-ups of pain, are contemplated by applicable schedular rating criteria. Generally, the rating schedule’s degrees of disability are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several degrees of disability. 38 C.F.R. § 4.1. Accordingly, the Board concludes that referral of this case for consideration of an extra-schedular rating under 38 C.F.R. § 3.321 (b)(1) is not warranted. Id. Further, even though the Board acknowledges his reduced work schedule at his private place of employment, there is no indication that his lumbar spine disability prevents his ability to obtain or maintain substantially gainful employment. By his own June 2019 Veteran’s statement, it appears he has remains employed at the same private employer and has been able to work at least 75 percent of a full-time schedule for several years. There are no contravening medical or other findings of record. Neither the Veteran nor the evidence raises the issue of entitlement to a total rating based on individual unemployability due to service-connected disability. Thus, no consideration in this regard is warranted. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for the Veteran’s lumbar spine disability. Thus, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Accordingly, the appeal is denied.  REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity, associated with lumbar spine disability. 2. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity, associated with lumbar spine disability. The Veteran is assigned a 10 percent initial rating for radiculopathy of the left lower extremity, under 38 C.F.R. § 4.124a (diseases of the peripheral nerves), DC 8620 (neuritis of the sciatic nerve). The Veteran’s radiculopathy of the right lower extremity is currently assigned a 20 percent rating, also under DC 8620. Another remand is necessary to provide the Veteran a new examination of the severity of his bilateral lower extremity radiculopathy. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Also, a remand by the Board confers on a Veteran the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). In this case, the December 2019 VA examinations provided contradictory findings on the severity of radiculopathy of both lower extremities. For instance, with respect to the left-sided radiculopathy, the December 2019 VA back examination found the Veteran had left lower extremity radiculopathy involving the sciatic nerve, with no constant pain, moderate intermittent pain (usually dull), moderate paresthesias and/or dysesthesias and mild numbness, with no noted other neurologic abnormalities. However, the December 2019 VA back examination characterized the overall severity of the radiculopathy as “mild” for the left side, which contradicts the Veteran’s moderate symptoms. Similarly, the December 2019 VA peripheral nerves examination found the Veteran had left lower extremity radiculopathy demonstrating mild constant pain, moderate intermittent pain (usually dull), moderate paresthesias and/or dysesthesias and mild numbness, with no noted functional impact from his peripheral nerve condition. The December 2019 VA peripheral nerves examination characterized the overall severity of the radiculopathy as “mild incomplete paralysis” of the sciatic nerve affecting the left lower extremity. Again, however, the December 2019 VA back examination characterized the overall severity of the radiculopathy as “mild” for the left side, which contradicts the Veteran’s moderate symptoms. Similarly, with respect to the right-sided radiculopathy, the December 2019 VA back examination found the Veteran had right lower extremity radiculopathy involving the sciatic nerve, with no constant pain, severe intermittent pain (usually dull), severe paresthesias and/or dysesthesias and severe numbness, with no noted other neurologic abnormalities. A clinical history review shows a March 2017 MRI recorded indications of severe pain (degrees of pain of 8) and moderate weakness (degrees of weakness of 5) on his right-side radiculopathy. However, the December 2019 VA back examination characterized the overall severity of the radiculopathy as “moderate” for the right side, which contradicts the Veteran’s severe symptoms. Similarly, the December 2019 VA peripheral nerves examination found the Veteran had right lower extremity radiculopathy demonstrating moderate constant pain, severe intermittent pain (usually dull), severe paresthesias and/or dysesthesias and severe numbness, with no noted functional impact from his peripheral nerve condition. However, the December 2019 VA peripheral nerves examination characterized the overall severity of the radiculopathy as “mild incomplete paralysis” of the sciatic nerve affecting the right lower extremity, which contradicts the Veteran’s moderate and severe symptoms. A remand is necessary for the AOJ to provide the Veteran a new VA examination to assess the severity of his service-connected radiculopathy of the bilateral lower extremities. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician, different from a previous examiner, to determine the current severity of his service-connected radiculopathies of the left and right lower extremities. After reviewing the pertinent evidence of record and a copy of this Board Remand, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner should reconcile the contradictory findings regarding the severity of radiculopathy in the December 2019 VA back examination report as well as the December 2019 VA peripheral nerves examination report, as discussed above. (Continued on the next page)   A rationale should be provided for any conclusions reached. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.