Citation Nr: 21031786 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-32 196A DATE: May 24, 2021 ORDER Entitlement to a rating in excess of 20 percent for a lumbar spine disability is denied. Entitlement to an initial rating in excess of 10 percent for right leg sciatica is denied. Entitlement to service connection for a left lower extremity neurological disability is granted. Entitlement to service connection for a bowel impairment disorder, to include as secondary to service-connected lumbar spine disorder, is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's lumbar spine disability does not have a forward flexion of 30 degrees or less or favorable ankylosis of the thoracolumbar spine. 2. The Veteran's right lower extremity sciatica has been manifested by no more than mild incomplete paralysis of the sciatic nerve during the appeal period. 3. The Veteran's left lower extremity neurological disability is caused by his service-connected lumbar spine disability. 4. The Veteran's lumbar spine disability has not been productive of bowel impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for an initial rating in excess of 10 percent for right lower extremity sciatica are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DCs 8799-8720. 3. The criteria for entitlement to service connection for left lower extremity neurological disability secondary to service-connected lumbar spine disability have been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for a bowel disorder secondary to service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 2005 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in June 2018. The Board remanded this matter in November 2018 for additional development. In October 2020, the Board erroneously sent the Veteran a letter that invited him to amend his outstanding request for a Travel Board hearing in favor of a video teleconference hearing. In February 2021, the Board sent the Veteran a letter to clarify whether he would like to attend an additional hearing before the Board and was given 30 days to respond. The Veteran has not responded to the Board's February 2021 letter. Thus, the Veteran's appeal may proceed to readjudication without prejudice. Increased Ratings 1. Entitlement to a rating in excess of 20 percent for lumbar spine disability is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court of Appeals for Veterans Claims (Court) later clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran is currently in receipt of a 20 percent rating for his lumbar spine disability, under DC 5243. 38 C.F.R. §§ 4.27, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The current appeal period before the Board begins on September 30, 2009, the date VA received the Veteran's claim for an increased rating, plus the one-year look back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Diagnostic Code 5243 directs VA to rate the Veteran 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. Further, if a Veteran has x-ray evidence to establish degenerative arthritis of the spine with noncompensable limitation of motion, he or she is entitled to a 10 percent disability rating for each major joint or group of minor joints affected by limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, 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 also Plate V, 38 C.F.R. § 4.71a. Otherwise, disabilities of the spine are rated according to the number of incapacitating episodes a person has had in the past 12 months. 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. See Note (1) to Diagnostic Code 5243. Under the formula, a 20 percent rating is assigned for incapacitating episodes having a total duration between 2 to 4 weeks during the past 12 month period, a 40 percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period, and a 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. As a preliminary matter, the Board acknowledges that effective February 7, 2021, regulation changes have been made to Diagnostic Codes 5243 and 5003, among other codes recognized in the regulations. Under the new regulations, Diagnostic Code 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root and Diagnostic Code 5003 qualifies as a code for degenerative arthritis other than post-traumatic arthritis. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, 5244); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). In order to receive a higher rating, the Veteran's back disability must produce either: forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of IVDS having a total duration of at least four weeks but less than six weeks during the past 12 months. As discussed below, the Board finds that the Veteran's symptoms do not meet these criteria and a higher rating is not warranted. The Veteran presented for a VA examination in October 2010, at which time the examiner noted a diagnosis, in relevant part, of degenerative disc disease of the lumbar spine. During the examination, the Veteran reported that his low back symptoms were aggravated by "everything, just sitting down, keeps me up at night." The Veteran endorsed symptoms of fatigue, decreased motion, stiffness, weakness, and pain. The examiner determined that there were no incapacitating episodes of spine disease, lumbar lordosis, ankylosis, or reverse lordosis. There was objective evidence of right side tenderness, but without muscle spasms. The range of motion testing showed Veteran's forward flexion to 50 degrees. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion after three repetitions. The Veteran reported that his back disability caused increased absenteeism and assignment of different duties at work, due to pain and decreased mobility. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask her to describe the additional functional loss, if any, she suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Here, the Board finds that the October 2010 VA examination for the Veteran's back disability did not comply with addressing the impact of flare-ups on range of motion of the Veteran's back, pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and Sharp. The Veteran was provided a VA examination in October 2019. He was diagnosed with degenerative arthritis of the spine and degenerative lumbar disc disease. The Veteran reported daily back pain, mostly on the right side that radiates down his right leg. He endorsed flare-ups every three to four months, lasting five to seven days, with severity of 9/10. The Veteran reported that his back disability impacted his ability to walk, run, jump, and bend. The range of motion testing showed forward flexion at 0 to 70 degrees, with pain and weakness noted that contributed to functional loss. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time. There was objective evidence of tenderness and mild muscle spasms. The back disability also contributed to interference with sitting and standing. The examination was not conducted during a flare-up; the examiner held the exam was medically consistent with the Veteran's statements describing functional loss during flare-ups. Additionally, no muscle atrophy or ankylosis was noted. The examiner found IVDS but determined that the Veteran's symptoms did not require bed rest prescribed by a physician in the past twelve months. The Veteran used a brace as an assistive device on an occasional basis. The Veteran reported that he lost two to four weeks of work in the past twelve months due to his service-connected back disability, as his IVDS caused pain that prevented walking, bending, and outreaching. The examiner determined that passive range of motion testing was not feasible to complete in a safe and reasonable manner. The examiner found no objective evidence of pain when the spine was in non-weight bearing position. In an April 2020 VA addendum opinion, a VA examiner determined that extended repetitive use would result in flexion limited to 60 degrees. During a flare-up the Veteran's back disability would be limited to 50 degrees. Although the October 2010 VA examiner did not comply with Sharp, the range of motion and other examination findings are valid. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight;" "it may be given some weight based upon the amount of information and analysis it contains"). Moreover, while the Veteran has competently indicated that recurrent chronic pain limits his functional ability and contributed to flare-ups, such pain has not contributed additional limitation of motion, including in non-weightbearing, such that the symptoms would more nearly approximate forward flexion of the spine less than 30 degrees or ankylosis, warranting a 40 percent rating under the general rating formula. Additionally, the Board has considered whether evaluating the Veteran's back disability under the IVDS Formula would be more beneficial to him. However, there is no evidence of record of any incapacitating episodes as contemplated within the applicable rating criteria, let alone 4 weeks over a period of 12 months of such episodes, to allow for assignment of a 40 percent rating, and the Veteran does not contend otherwise. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Thus, an increased rating is not available under the IVDS Formula. For the foregoing reasons, a disability rating higher than 20 percent for the Veteran's lumbar disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. An initial rating in excess of 10 percent for right leg sciatica is denied. Regarding separate neurological manifestations, the Veteran is currently in receipt of a 10 percent rating for right lower extremity sciatica, effective September 30, 2009, the date VA received the Veteran's claim for an increased rating for the lumbar spine disability, rated under DCs 8799- 8570. Under 38 C.F.R. § 4.27, unlisted disabilities, requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. The current hyphenated code of 8799-8720. 8799 refers to a neuralgia of a peripheral nerve, with 8720 specifying neuralgia of the sciatic nerve. DC 8520 evaluates paralysis of the sciatic nerve, and provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, a 60 percent rating for severe incomplete paralysis with marked muscle atrophy, and a maximum 80 percent rating for complete paralysis. 38 C.F.R. § 4.124a, DC 8520. The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding the assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. A September 2009 electrodiagnostic study found no evidence of neuropathy, plexopathy, or radiculopathy. The Veteran underwent VA examination in October 2010. The Veteran endorsed constant sharp shooting pain that radiates to his ankles and a tingling sensation. Physical examination revealed a positive Lasegue's sign on the right lower extremity with normal motor, deep tendon reflexes, and sensation responses. During VA treatment in May 2011, the Veteran reported chronic shooting pain and a burning sensation in his ankle. The Veteran was afforded a back VA examination in October 2019. Physical examination revealed normal muscle strength testing with no atrophy, deep tendon reflexes were 1+ (hypoactive), and normal sensation. Straight leg raising was positive on the right lower extremity. The Veteran reported moderate intermittent pain. The October 2019 VA examiner found no more than mild incomplete paralysis of the sciatic nerve of the right lower extremity. The Veteran presented for a March 2020 VA examination, the report of which indicates no more than mild incomplete paralysis of the sciatic nerve of the right lower extremity, manifested by normal muscle strength with no atrophy, normal reflexes, and normal sensation, as well as the Veteran's subjective reports of mild intermittent pain. This examination report is demonstrative of no more than mild incomplete paralysis, which is consistent with no higher than a 10 percent rating. Higher ratings are not warranted because the contemporaneous examination reports and treatment records do not indicate signs or symptoms of moderate incomplete paralysis in the right lower extremity. Instead, the Veteran's symptoms have only been slight in nature and not of the severity, duration or frequency associated with a medium, or moderate impairment. No other separately compensable neurological ratings are warranted based on the record. Service Connection 3. Entitlement to service connection for left leg sciatica is granted. The Veteran asserts this his current left leg neurological symptoms are caused by his service-connected lumbar spine disability. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). There is conflicting evidence of record regarding whether the Veteran has left lower extremity neurological disorder. An August 2015 VA treatment record notes a positive straight leg raise on the left lower extremity, with normal motor, sensory, and reflexes. Following complaints of radiculopathy to the bilateral lower extremities, the Veteran was afforded a MRI in October 2015. The MRI revealed mild bilateral foraminal narrowing. The October 2010, October 2019, and March 2020 VA examination reports do not support a clinical finding of left lower extremity sciatica or radiculopathy. The Veteran competently and credibly testified that he has experienced bilateral leg pain since his in-service back injury. See June 2018 Board Hearing at 12; see also August 2010 Correspondence. Thus, the Board resolves the claim in the Veteran's favor and finds a current diagnosis related to the Veteran's left lower extremity neurological abnormalities. While there is no clear and direct opinion that the Veteran's left lower extremity neurological disability is caused by his service-connected back disability, his reports of back pain radiating to the left lower extremity, and the clinical findings of left lower extremity neurological abnormalities support the conclusion that his left lower extremity symptoms are caused by his service-connected back disability. There are no medical opinions contrary to this conclusion. Resolving reasonable doubt in favor of the Veteran, service connection for right lumbar radiculopathy, secondary to service-connected lumbar spine disability, is granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.310. The Veteran is advised that if he disagrees with the initial disability rating assigned for his left lower extremity neurological disability by the RO, he should request review of that decision on the appropriate VA-promulgated form. 4. Entitlement to service connection for a bowel impairment disorder, to include as secondary to service-connected lumbar spine disorder, is denied. In this case, the Board notes that the Veteran is shown to have chronic complaints of bowel urgency, abdominal cramping, epigastric pain, gastroenteritis with rectal bleeding, and intermittent diarrhea; the first element of service connection - a current gastrointestinal disability resulting in functional impairment - is therefore conceded. See June 2009, May 2015, and May 2019 VA treatment records. Likewise, the Board notes that the Veteran is service-connected for neurological impairment of the bilateral lower extremities and a lumbar spine disability. Thus, the second element of secondary service connection has been met in this case. Consequently, this case turns on whether the Veteran's gastrointestinal disability is caused or aggravated by his service connected disabilities. To that end, the Veteran testified that his gastrointestinal disorder was secondary to his back disability, as onset began one year after his back injury. See June 2018 Board Hearing at 6. He has not alleged, nor is there evidence, that his gastrointestinal disorder is directly related to service; the Veteran's sole contention is that the disorder is secondary to his back disability. See January 2007 Medical Evaluation Board Report (The Veteran denied constipation, stool incontinence, or other gastrointestinal symptoms.) The Board finds that the Veteran's gastrointestinal disorder is in no way related to or aggravated by his service-connected back disability. A review of the record reveals that the October 2010 VA back examination report noted normal bulbocavernosus reflex (anal wink), anus, and rectal walls. Furthermore, the Veteran underwent a VA back examination in October 2019 in which the examiner found the Veteran to have no bowel problems associated with his service-connected back disability. A March 2020 VA examination also found no objective evidence of bowel impairment related to a service-connected disability. The Veteran's VA treatment records are silent as to any bowel problems that are specifically related to the Veteran's back disability. In this regard, a May 2019 VA treatment provider suspected functional etiology as the cause of the Veteran's gastrointestinal complaints. A June 2019 CT scan was normal. In June 2019, the Veteran underwent a colonoscopy, resulted in a non-cancerous hyperplastic (benign) polyp being removed. In this case, the Veteran's current gastrointestinal disorder is not in dispute. However, as discussed above, because the record does not contain evidence either establishing the occurrence of an in-service injury or indicating that the Veteran's gastrointestinal disorder is associated with his service-connected back disability, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a gastrointestinal disorder, including as secondary to service-connected lumbar spine disability. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection for a gastrointestinal disorder, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The claim is denied. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.