Citation Nr: 21024448 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-07 245 DATE: April 22, 2021 ORDER A rating greater than 40 percent for a lumbar spine disability is denied. REMANDED The issue of service connection for left lower extremity neuropathy, as due to the service-connected lumbar spine disability, is remanded. The issue of service connection for left lower extremity radiculopathy, as due to the service-connected lumbar spine disability, is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s lumbar spine did not show unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or Intervertebral Disc Syndrome (IVDS) causing incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSION OF LAW Throughout the entire period on appeal, the criteria for a rating more than 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, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243, 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1978 to March 1986. This matter was previously before the Board of Veterans' Appeals (Board) in December 2019 when the issues were remanded in compliance with the July 2019 joint motion for partial remand (JMPR) filed by the parties before the Court of Appeals for Veterans Claims (Court). The Court vacated the July 2018 Board decision, which denied the issues above. In particular, the Board was directed to obtain additional VA and private medical records pertaining to the Veteran’s treatment. On the issue of an increased rating for the lumbar spine disability, the July 2019 JMPR directed the Board to obtain private chiropractic records from Dr. J.A.R. and private medical records, to include imaging, from Dr. E.M.-L, from April 2009 to the present. The December 2019 Board remand directed the Agency of Original Jurisdiction (AOJ) to attempt to obtain these outstanding records. In March 2020, August 2020, November 2020, and January 2021, VA notified the Veteran that additional information was needed to obtain the private medical records from Dr. J.A.R. and Dr. E.M.-L. The Veteran was asked to complete and return VA Form(s) 21-4142 and 21-4142(a). Each notification informed the Veteran that he had 30 days to respond to the request for information, and that a decision on his claim may be made if he did not respond within the 30-day timeframe. However, as of the date of this decision, the Veteran has not provided the requested information necessary to obtain the outstanding private medical records from Dr. J.A.R. or Dr. E.M.-L. As the Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). The AOJ's efforts in attempting to obtain additional information as to the issue of an increased rating for the lumbar spine disability was sufficient, and it need not further attempt to secure response from the Veteran. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Therefore, the issue of an increased rating for the lumbar spine disability is addressed below on the merits. On the issues of service connection for left lower extremity neuropathy and radiculopathy, the July 2019 JMPR directed the Board to obtain records of a nerve conduction velocity (NCV) testing of his right lower extremity and electromyogram (EMG) testing of the right lower extremity and lower thoracic, L-S paraspinals, noted in a September 2, 2012 VA physical medicine rehab E & M consult. The examiner recommended additional testing and noted the complete report would be available at Vista imaging. The July 2019 JMPR also directed the Board to obtain records of a “US Report” that was noted as scanned in Vista imaging in a November 22, 2014 non-VA medical record. The December 2019 Board remand directed the AOJ to obtain these outstanding records. However, the record does not show that any attempt was made by VA to obtain these records. Therefore, the issues of service connection for left lower extremity neuropathy and radiculopathy are remanded to ensure compliance with the December 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand confers upon the appellant the right to compliance with that order). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "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. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 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. 38 C.F.R. § 4.7. A rating more than 40 percent for a lumbar spine disability is denied. The Veteran contends that his lumbar spine disability is worse than that which is contemplated by his current 40 percent rating. The preponderance of the evidence is against the claim and the appeal will be denied. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. §§ 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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, DC 5237. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. §§ 4.71, Plate V. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. §§ 4.71a, DC 5243. An incapacitating episode is 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, DC 5243, Note (1). The Veteran was afforded a VA examination in August 2014. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA claims file was completed. Diagnoses of lumbar disc herniation at L-3/L-4 and lumbar myositis were noted. Flare-ups were reported upon stooping and prolonged standing and ambulation. Initial range of motion (ROM) measurements were recorded as follows: flexion to 15 degrees with pain at 15 degrees, extension to 10 degrees with pain at 5 degrees, bilateral flexion to 10 degrees with pain at 5 degrees, and bilateral rotation to 10 degrees with pain at 5 degrees. The Veteran was not able to perform repetitive-use testing with at least three repetitions due to pain. The examiner noted additional limitation of ROM and functional impairment in the form of less movement than normal and pain on movement. Localized tenderness or pain to palpation was noted at the bilateral paravertebral. Muscle spasms and guarding not resulting in abnormal gait or spinal contour was noted. Muscle strength was noted as five out of five on all areas tested. Muscle atrophy was denied. The reflex and sensory examinations revealed normal results. Straight leg raising testing revealed normal results. Radicular pain or any other signs or symptoms due to radiculopathy was denied. Ankylosis was denied. No other neurologic abnormalities were indicated. IVDS was denied. The use of assistive devices was denied. No other pertinent findings were noted. The examiner noted that the Veteran’s condition does not impact his ability to work. However, the examiner noted that lumbar spine pain could significantly limit functional ability during flare-ups or when the joint is used over time. No evidence of weakness, fatigability, or incoordination was indicated. In an August 2015 private medical record, Dr. E.M.-L. noted mild anterolisthesis of L-3 on L-4 and L-4 on L-5 secondary to degenerative changes of the posterior facets. She noted that intervertebral disc spaces appear narrowed from the L-3 to L-5/S-1 level, and that posterior elements show degenerative changes at all levels of the lumbar spine. A May 2016 imaging report shows early discogenic disc disease changes at L-3/L-4 and L-4/L-5 disc levels with minimal anterior subluxation of L-4 and L-5, posterior facet joint degenerative changes at L-4/L-5 and L-5/S-1 levels, and questionable minimal anterior wedging of L-1 vertebral body, which was noted as possibly representing mild compression facture changes. The Veteran was afforded a VA examination in June 2016. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA claims file was completed in conjunction with the examination. The examiner noted diagnoses of lumbar myositis with HNP of L3-4 and bulging annulus of L1-2. Flare-ups were reported, which are treated with pain medication and rest. The Veteran also reported functional loss or impairment. Specifically, he stated “I can’t lift heavy objects anymore.” Initial ROM measurements were recorded as follows: flexion to 20 degrees, extension to 10 degrees, bilateral flexion to 10 degrees, and bilateral rotation to 20 degrees. ROM itself was noted not to contribute to a functional loss. Pain was noted on forward flexion, but not noted to cause functional loss. Evidence of pain with weight bearing was noted. Objective evidence of pain on palpation was noted. The Veteran was able to perform repetitive-use testing with at least three repetitions. However, no additional loss of function or ROM was noted after three repetitions. The Veteran was not examined immediately after repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time. The examination was not conducted during a flare-up. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with flare-ups. Muscle spasm and guarding was noted. Localized tenderness was noted to result in abnormal gait or spinal contour. Muscle strength was noted as five out of five on all areas tested. Muscle atrophy was denied. The reflex and sensory examinations revealed normal results. Straight leg raising testing revealed normal results. Radicular pain or any other signs or symptoms due to radiculopathy was denied. Ankylosis was denied. No other neurologic abnormalities were indicated. IVDS was denied. The use of assistive devices was denied. No other pertinent findings were noted. In terms of functional impact, the examiner noted that the Veteran is limited to occupational activities with the following restrictions: no back twisting or extreme bending movements; no heavy lifting, carrying, pushing, or pulling; and no prolonged standing or prolonged ambulation activities. As noted above, the July 2019 JMPR directed the Board to obtain private chiropractic records from Dr. J.A.R. and private medical records, to include imaging, from Dr. E.M.-L, from April 2009 to the present. The December 2019 Board remand directed the AOJ to attempt to obtain these outstanding records. The Veteran has not cooperated in this effort. The Veteran’s VA medical records show ongoing treatment for back pain with “on and off exacerbations.” Pursuant to the December 2019 Board remand, the Veteran was provided a VA examination in February 2021. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA claims file was completed in conjunction with the examination. The examiner noted diagnoses of lumbar myositis with HNP of L3-4, bulging annulus of L1-2, and moderate central canal stenosis at the L-3/L-4 level. Flare-ups were reported as occurring two to three times per month, lasting 8 to 12 hours in duration, and which improve with pain medication and rest. Functional loss or impairment was reported as limitation in lifting heavy objects. ROM itself was noted to contribute to functional loss in that the Veteran is limited in his ability to reach for ground level objects from a standing position. Active ROM measurements were recorded as follows: flexion to 40 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 30 degrees. Passive ROM measurements were recorded as follows: flexion to 45 degrees, extension to 25 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 30 degrees. Pain was noted on forward flexion and extension during active and passive motion, and was noted to cause functional loss. No objective evidence of crepitus was noted. Objective evidence of localized tenderness or pain on palpation of the joint or associate soft tissue was noted. The Veteran was able to perform repetitive-use testing with at least three repetitions. However, no additional loss of function or ROM was noted after three repetitions. The Veteran was examined immediately after repetitive use over time. The examiner noted that pain significantly limits functional ability with repeated use over time. The examiner estimated ROM after repeated use over time as the following: flexion to 15 degrees, extension to 5 degrees, bilateral flexion to 15 degrees, and bilateral rotation to 20 degrees. The examination was conducted during a flare-up. The examiner estimated ROM during a flare-up as the following: flexion to 20 degrees, extension to 5 degrees, bilateral flexion to 15 degrees, and bilateral rotation to 20 degrees. The examiner noted that the Veteran has localized tenderness and guarding of the lumbar spine not resulting in abnormal gait or abnormal spinal contour. Muscle spasms was denied. No additional contributing factors were noted. Muscle strength was noted as five out of five on all areas tested. Muscle atrophy was denied. The reflex examination revealed all sites tested as hyperactive without clonus. The sensory examination revealed normal results. Straight leg raising testing revealed normal results. Radicular pain or signs or symptoms due to radiculopathy was endorsed. Specifically, mild intermittent pain was noted of the bilateral lower extremity. No other signs or symptoms of radiculopathy were indicated. Ankylosis was denied. No other neurologic abnormalities were indicated. IVDS was denied. The regular use of a cane for the back condition was endorsed. No other pertinent findings were noted. In terms of functional impact, the examiner noted that the Veteran is limited to occupational activities with the following restrictions: no back twisting or bending movements; no heavy lifting, carrying, pushing, or pulling; and no prolonged standing or prolonged ambulation activities. Pursuant to 38 C.F.R. §§ 4.71a, DC 5237, a rating higher than 40 percent for a lumbar spine disability can only be assigned if the Veteran exhibits unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. Throughout the period on appeal, at worst, the Veteran has exhibited flexion of his lumbar spine limited to 15 degrees with pain shown, at worst, at 15 degrees. Further, ankylosis is consistently denied throughout the period on appeal. Therefore, throughout the period on appeal, the Veteran is not entitled to a schedular rating more than 40 percent, for his lumbar spine disability under DC 5237. A higher rating under DC 5243 is also not warranted. Although the record shows intermittent exacerbations with the need for rest and medication during flare-ups, the record otherwise consistently shows that IVDS was denied. A higher rating under the criteria for IVDS requires a showing of incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. Furthermore, the criteria also require that acute signs and symptoms due to IVDS requires that bed rest is prescribed by a physician and treatment by a physician. 38 C.F.R. §§ 4.71a, DC 5243, Note (1). The record does not show that the Veteran has had incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal and has been prescribed bed rest by a physician and had treatment by a physician. Therefore, a higher rating under DC 5243 is not warranted. In evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. §§ 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors regarding joint disability. 38 C.F.R. §§ 4.45. Although the Veteran reported experiencing flare-ups during the period on appeal, it has not been shown that the Veteran's thoracolumbar spine, even accounting for pain, weakness, fatigability, or incoordination, showed unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. While the Veteran experiences pain on ROM, the pain was not shown to result in unfavorable ankylosis of the entire thoracolumbar spine or entire spine. Throughout the entire period on appeal, the weight of the evidence indicates that the Veteran's lumbar spine disability has not been so functionally limited as to warrant a rating more than 40 percent. While the Veteran may, at times, experience pain on ROM, pain has not been shown to cause unfavorable ankylosis of the entire thoracolumbar spine or entire spine. Accordingly, throughout the entire appeal period, the preponderance of the evidence is against the claim and the appeal is denied. REASONS FOR REMAND 1. The issue of entitlement to service connection for left lower extremity neuropathy, as due to the service-connected lumbar spine disability, is remanded. 2. The issue of entitlement to service connection for left lower extremity radiculopathy, as due to the service-connected lumbar spine disability, is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: In December 2019, the Board remanded the issues of service connection for left lower extremity neuropathy and radiculopathy in accordance with the July 2019 JMPR, which directed the Board to obtain records of a nerve conduction velocity (NCV) testing of his lower right extremity and electromyogram (EMG) testing of the right lower extremity and lower thoracic, L-S paraspinals, noted in a September 2, 2012 VA physical medicine rehab E & M consult. The September 2, 2012 medical record indicates that the examiner recommended additional testing and noted the complete report would be available at Vista imaging. The July 2019 JMPR also directed the Board to obtain records of a “US Report” that was noted as scanned in Vista imaging in a November 22, 2014 non-VA medical record. Although the December 2019 Board remand directed the AOJ to obtain these outstanding records. However, the record does not show that any attempt was made by VA to obtain these records. These issues must be remanded. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand confers upon the appellant the right to compliance with that order). 2. On remand, the AOJ MUST obtain the NCV and EMG testing records and the US Report scanned into Vista imaging, as well as any additional testing records resulting from a September 2012 recommendation for additional testing. All efforts to obtain the outstanding records MUST be documented in the record. If the records cannot be obtained, a complete explanation MUST be annotated in the record. 3. If necessary, based on the above development, the Veteran should be scheduled for a new VA examination with the February 2021 VA examiner. If the February 2021 VA examiner is no longer available, schedule the Veteran or a VA examination, in accordance with established VA examination protocols, with an appropriate VA examiner regarding the nature and etiology of the Veteran’s left lower extremity neuropathy and radiculopathy, as due to the service-connected lumbar spine disability. The entire claims file, including a copy of the remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. If a new VA examination is necessary, after a review of the record, the examiner is asked to respond to the following: * Whether the Veteran has left lower extremity neuropathy and radiculopathy that was caused by the Veteran’s service-connected lumbar spine disability. The examiner’s attention is drawn to the following: * A June 2002 VA examination found that there were no radicular or neurological signs or symptoms. * A November 2009 C&P examination indicates reported “shock like,” radiating pain, down the right leg, which was also noted as a symptom of the Veteran’s lumbar spine condition. * A September 2012 VA medical note indicates a recommended evaluation to rule out radiculopathy. * An August 2014 VA examination found that the Veteran had no lower extremity peripheral nerve condition or peripheral neuropathy. Although the Veteran complained of radiating pain down both legs. * A January 2015 VA examination found that the Veteran had no lower extremity peripheral nerve condition or peripheral neuropathy. Although the Veteran complained of radiating pain down both legs. * A January 2016 VA examination found that there were no radicular or neurological signs or symptoms. * A June 2016 VA examination found that there were no radicular or neurological signs or symptoms. * A February 2021 VA examination for the Veteran’s back condition noted radicular pain or signs or symptoms due to radiculopathy. Specifically, mild intermittent pain was noted of the bilateral lower extremity. * A February 2021 VA examination for peripheral nerve conditions found that the Veteran does not have a peripheral nerve condition or peripheral neuropathy. Although the examiner noted that the Veteran reported a history of occasional “pain from the back to the legs,” that is not constant, the examiner noted that the Veteran does not have any symptoms attributable to any peripheral nerve conditions. The examiner stated that there is no evidence of peripheral nerve pathologies of the lower extremities, including radiculopathies or peripheral neuropathies found on examination. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 4. Following the review and any additional development deemed necessary, re-adjudicate the claims. If the claims are not granted in entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.