Citation Nr: 21032443 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-27 611A DATE: May 27, 2021 ORDER A 40 percent rating, and no higher, effective May 2, 2012, and no earlier, for the service-connected lumbar spine disability, is granted. REMANDED Entitlement to a disability rating in excess of 10 percent prior to August 24, 2020 for right lower extremity sciatic radiculopathy is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to August 24, 2020 for left lower extremity sciatic radiculopathy is remanded. Entitlement to an effective date prior to August 24, 2020 for right lower extremity femoral radiculopathy is remanded. Entitlement to an effective date prior to August 24, 2020 for left lower extremity femoral radiculopathy is remanded. FINDINGS OF FACT 1. Prior to May 2, 2012, the evidence of record does not indicate forward flexion of the thoracolumbar spine to 30 degrees or less, or incapacitating episodes of Intervertebral Disc Syndrome having a total duration of at least four weeks, but less than 6 weeks, or any type of ankylosis. 2. Private records received May 2, 2012 show the Veteran's lumbar spine disorder was manifested, at worst, by forward flexion of the thoracolumbar spine limited to 30 degrees or less, but generally greater than 30 degrees, with partial impairment of physical activities during extended time spent walking, sitting, standing, and lifting; constant pain; and reduced mobility; but not by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a 40 percent rating, but no higher, for the lumbar spine disability, are met throughout the pendency of this claim. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Navy from July 1987 to July 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of December 2014, March 2015, March 2020, and October 2020, by a Department of Veterans Affairs (VA) Regional Office (RO). For procedural clarity, the Board notes that the Veteran filed his initial claim for service connection for his lumbar spine disability in August 2004. That claim was denied in November 2005. The rating decision at that time noted the RO's inability to locate the Veteran's service treatment records. In May 2012, the Veteran filed a claim to reopen, and with that claim, he submitted a copy of a service treatment record. The December 2014 rating decision was then issued and the RO recognized receipt of the relevant service treatment record from the Veteran and, therefore, recognized the original November 2005 rating decision was not final. 38 C.F.R. § 3.156(c). The RO awarded service connection for the lumbar spine disability effective, August 18, 2004, the date of the Veteran's original claim for service connection. The Veteran has perfected an appeal of the initial rating assigned. Hence, this claim period dates back to August 18, 2004. Separate ratings were also assigned for the right and left lower extremity radiculopathy associated with the lumbar spine disability. These ratings have, therefore, also been on appeal since August 18, 2004. In June 2020, the Board remanded the claim of entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine and of entitlement to a rating in excess of 10 percent for right lower extremity sciatic radiculopathy. Specifically, the RO was to provide an updated examination in compliance with Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) for the Veteran's lumbar spine condition and issue a statement of the case (SOC) for the radiculopathy claim. Following the updated VA examination, the RO granted an increase in the Veteran's lumbar spine disability rating from 20 to 40 percent, increased the disability rating of right lower extremity sciatic radiculopathy from 10 to 40 percent, increased the disability rating of left lower extremity sciatic radiculopathy from 10 to 20 percent, and granted service connection for right and left lower extremity femoral radiculopathy at 30 and 20 percent, respectively. The RO assigned effective dates for these increases as of the date of the new VA examination (August 24, 2020). The Veteran contends that he is entitled to earlier effective dates for each of his current disability ratings. Specifically, he contends that the effective dates were simply assigned as of the date the Veteran received his most recent VA examination and that the conditions "clearly did not suddenly deteriorate" on the day of the evaluation. See December 2020 Attorney Letter and Decision Review Request: Supplemental Claim; see also August 2020 Attorney Letter (seeking increased ratings and earlier effective dates for lower extremity sciatic neuropathy and radiculopathy, then rated at 10 percent). In order to address the Veteran's contentions that he is entitled to either earlier effective dates for his current disability ratings, or increased ratings throughout the pendency of the claims, the Board has framed the issues on appeal as noted above. The Board concludes that there has been substantial compliance with prior remand directives only as they relate to the Veteran's lumbar spine disability. Although regrettable, additional remand is needed to obtain adequate medical evidence regarding the Veteran's radiculopathy conditions of the lower extremities. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Increased Rating Lumbar Spine Disability The Veteran contends entitlement to a rating in excess of 20 percent prior to August 24, 2020. Again, this claim has been pending since August 18, 2004. Disability evaluations are determined by the application of the 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In claims for increased disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received by VA within one year after that date. Otherwise, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In this case, the Veteran was awarded service connection for DDD of the lumbar spine in a December 2014 rating decision, and assigned an initial 20 percent disability rating, effective August 18, 2004, the date his claim was received. Initially, the Board recognizes that, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. As such, VA must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Here, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. All diseases and injuries of the spine, other than intervertebral disc syndrome (IVDS), are rated under the general rating formula for diseases and injuries of the spine (general rating formula). IVDS is rated either under the general rating formula or under the Formula for Rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The new rating criteria do not involve changes to the specific rating criteria within either the general rating formula or the Formula for Rating IVDS based on incapacitating episodes. However, under the old criteria, Note 6 of the general rating formula directs evaluation of DC 5242 to also see DC 5003. The new rating criteria direct ratings under DC 5242 to see either DC 5003 or 5010. DC 5003 provides that degenerative arthritis established by x-ray findings be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5010 provides that arthritis, due to trauma, substantiated by x-ray findings, be rated as arthritis, degenerative. 38 C.F.R. § 4.71a. The only change made to DC 5003 in the new regulation is to clarify it as pertaining to degenerative arthritis, other than post-traumatic. The new DC 5010 indicates post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint, and, if there are two or more joints affected, each rating shall be combined in accordance with § 4.25. The only other change to the regulations pertaining to rating the spine involved DC 5244, traumatic paralysis, which is not applicable in this case. Under the general rating formula, a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is 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 where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. 38 C.F.R. § 4.71a. In addition, under the formula for rating IVDS based on incapacitating episodes a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the Formula for Rating IVDS based on incapacitating episodes defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The current version of DC 5243 for IVDS instructs adjudicators to assign that DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and to assign DC 5242 for all other disc diagnoses. The former version provides no such instruction. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp, 29 Vet. App. 26, the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In this case, the records dating back to the original August 2004 claim are minimal. In October 2004, private records were submitted showing treatment between 2002 and 2004 for back pain. There were no range of motion measurements, but back pain with radiation to the right leg was noted and treated with epidural blocks and chiropractic care. There is no evidence related to the lumbar spine disability of record between 2004 and 2012. The evidence of record includes an April 2012 disability benefits questionnaire (DBQ) and accompanying report completed by the Veteran's private provider, a physician with the initials W.H.B., which was received by VA on May 2, 2012. According to this questionnaire, the Veteran was diagnosed with DDD and IVDS. Dr. W.H.B. recorded the Veteran's range of motion (ROM) measurements as follows: forward flexion to 45 degrees (with painful motion beginning at 30 degrees); extension to 20 degrees (same degree with pain); right lateral flexion to 30 degrees (same degree with pain); left lateral flexion to 25 degrees (with pain at 20 degrees); right lateral rotation to 25 degrees (with pain at 20 degrees); left lateral rotation to 20 degrees (same degree with pain). On repetitive use testing, forward flexion ended at 60 degrees; extension to 20; bilateral right and left flexion to 25; bilateral right and left rotation to 25 degrees. Regarding the Veteran's IVDS, Dr. W.H.B. concluded that the Veteran had a total duration of less than one week of incapacitating episodes over the previous 12-month period. The Veteran did not utilize any assistive devices as a normal mode of locomotion. The Veteran had no localized tenderness or pain to palpation but did have an abnormal gait. The Veteran had no muscle atrophy. Dr. W.H.B. assessed the Veteran to have less movement than normal and pain on movement and estimated the Veteran's lumbar condition would limit him to walking up to 200 feet and to lifting up to 30 pounds. Several months later, in August 2012, the Veteran received a VA examination regarding his lumbar spine condition. This examiner also assessed the Veteran with DDD and IVDS, and noted that in addition to causing less movement than normal and pain on movement, the Veteran's lumbar condition caused interference with sitting, standing and/or weight-bearing. As the Board noted in June 2020, this examination did not comply with the requirements of Sharp, 29 Vet. App. at 34-36. While the Veteran reported experiencing flare-ups of his condition at a pain intensity of 10 out of 10, the examiner did not measure or attempt to estimate any reduction in ROM based on this report. The ROM measurements taken during this examination were generally higher than as recorded by the Veteran's private physician, and this examiner did not address the data contained in the private examination report. As such, this examination lacks probative value. Following the Board's June 2020 remand, the Veteran received a new examination in September 2020. According to this examination, the Veteran's ROM on forward flexion was limited to 40 degrees (30 degrees after repeated use over time), with extension and right and left lateral flexion and rotation all limited to 20 degrees (15 degrees after repeated use over time). Pain was noted on palpation and on each movement, which caused functional loss. This examiner noted the Veteran's historical reports of flare-ups but noted no current report from the Veteran of flare-ups. The examiner noted evidence of pain on passive ROM and with non-weight bearing. The Veteran was noted to have a current diagnosis of IVDS, however, the condition did not result in episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months. Other than outlined above, the evidence of record during the period on appeal contains no other probative evidence of the Veteran's lumbar range of motion as required for rating purposes. The Board finds the evaluation evidence by Dr. W.H.B. to provide credible and probative data concerning the severity of the Veteran's lumbar spine condition at the earliest point during the period on appeal. Having fully considered the evidence of record, to include all functional impairment shown, the Board finds that the Veteran's lumbar spine disability manifested with, at worst, forward flexion limited to 30 degrees, and with partial impairment of physical activities during extended time spent walking, bending, sitting, standing or lifting, according to private evidence received by VA on May 2, 2012. While the Veteran's range of motion on flexion may have generally been greater than 30 percent, considering his constant level of pain and reduced mobility due to pain, his symptoms approximate a 40 percent rating from May 2, 2012, the date VA received the private evidence showing this level of disability. See DeLuca, 8 Vet. App. at 206-07. Prior to this date, there was no evidence suggesting this higher level of disability. The 2002 to 2004 records show pain and chiropractic care, but no other symptoms warranting a rating higher than 20 percent. And, the record is silent between 2004 and 2012. The next higher rating of 50 percent is not warranted as the evidence does not show the Veteran to experience unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Even considering the Veteran's most severe symptoms throughout the period on appeal, his lumbar spine condition did not manifest with such severe symptoms. The Board notes that rating the Veteran's lumbar spine disability under the formula for rating IVDS would not result in a higher rating at any point during the period on appeal. Accordingly, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a 40 percent rating, but no higher, effective May 2, 2012, and no earlier, for the Veteran's lumbar spine disorder is granted. REASONS FOR REMAND Disability Rating in Excess of 10 Percent Prior to August 24, 2020 Right and Left Lower Extremity Sciatic Radiculopathy The Veteran contends entitlement to a disability rating in excess of 10 percent prior to his most recent VA examination. While the August 2020 examination provided current data concerning the severity of the Veteran's bilateral sciatic radiculopathy, eight years elapsed between the Veteran's most recent VA examination and the private and VA examinations of 2012. As such, there is a lack of adequate medical opinion evidence prior to that date. While the record contains periodic diagnostic data pertaining to the Veteran's radicular symptoms, the Board is mindful that it cannot make its own independent medical determinations. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, the Board finds that a retrospective medical opinion is necessary to assess whether the Veteran is entitled to increase disability ratings for bilateral sciatic radiculopathy prior to August 24, 2020. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (explaining that the duty to assist may include providing a retrospective medical opinion when there is an absence of medical records). Disability Ratings Prior to August 24, 2020 Right and Left Lower Extremity Femoral Radiculopathy The Veteran contends entitlement to earlier effective dates for his bilateral femoral radiculopathy. When assigning the effective date for an initial award of compensation, the date is based on the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In this case, the Veteran has consistently asserted that his radicular symptoms were present throughout the pendency of his claims. The Board notes that while the April 2012 DBQ completed by Dr. W.H.B. indicates that femoral radiculopathy was not present at that time, there is again a lack of medical evidence in the record concerning the onset and severity of the Veteran's femoral radiculopathy. While the record does contain various diagnostic data, the Board finds that a retrospective medical opinion is necessary to assess whether the Veteran is entitled to an effective date prior to August 24, 2020 for service connection for bilateral femoral radiculopathy. Colvin, 1 Vet. App. 171; Chotta, 22 Vet. App. at 85. The matters are REMANDED for the following action: 1. Obtain retrospective medical opinions from an appropriate examiner regarding the severity of the Veteran's bilateral sciatic and femoral radiculopathy throughout the period prior to August 24, 2020, and regarding the approximate date of onset of the Veteran's bilateral femoral radiculopathy prior to August 24, 2020. The Board notes that this claim has been pending since August 18, 2004. The opining clinician should fully review the evidence of record, including diagnostic testing completed by VA and by the Veteran's private providers, and including lay statements made by the Veteran and his representative. If any additional development or diagnostic testing is needed to provide the requested opinions, that development should be completed. The opining clinician should then describe all signs and symptoms necessary for evaluating the Veteran's bilateral lower extremity sciatic and femoral radiculopathy for the period prior to August 24, 2020. This opinion should include a retrospective opinion as to the overall severity of the Veteran's bilateral lower extremity sciatic radiculopathy prior to August 24, 2020, and should include a separate opinion as to the approximate date of onset and severity of the Veteran's bilateral femoral radiculopathy prior to August 24, 2020. A rationale should be provided for any opinion expressed. 2. Following adequate completion of the above, the agency of original jurisdiction should readjudicate the claim on appeal. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.