Citation Nr: 21040863
Decision Date: 07/07/21	Archive Date: 07/07/21

DOCKET NO. 13-28 982
DATE: July 7, 2021

ORDER

Beginning June 24, 2004, an increased initial rating of 40 percent for the Veteran's thoracolumbar spine disability is granted.

Beginning June 27, 2017, an increased initial rating of 20 percent for the Veteran's right lower extremity radiculopathy is granted.

Beginning June 27, 2017, an increased initial rating of 20 percent for the Veteran's left lower extremity radiculopathy is granted.

REMANDED

Entitlement to a rating in excess 40 percent for the Veteran's thoracolumbar spine disability is remanded.

Entitlement to a rating in excess of 20 percent for the Veteran's right lower extremity radiculopathy is remanded. 

Entitlement to a rating in excess of 20 percent for the Veteran's left lower extremity radiculopathy is remanded. 

Entitlement to service connection for an acquired psychiatric condition secondary to the service-connected lumbar spine disability is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

VETERAN'S CONTENTIONS

The Veteran contends that his lumbar spine disability is more severe than as reflected by the ratings currently assigned. Specifically, the Veteran contends that he has problems standing for long periods of time and problems bending over to pick up objects. See December 2018 Correspondence. 

FINDINGS OF FACT

1. Since June 24, 2004, the signs and symptoms associated with the Veteran's lumbar spine disability most closely approximated limited forward flexion of the lumbar spine to 25 degrees during flare-ups.

2. Since June 27, 2017, the Veteran has experienced radiculopathy affecting the left and right lower sciatic nerves that has been productive of subjective symptoms including mild to moderate intermittent pain, mild to moderate paresthesias and/or dysesthesias, and mild to moderate numbness. Objective findings include decreased sensation in the bilateral extremities. There is no evidence of muscle atrophy or trophic changes. These findings are consistent with no more than moderate incomplete paralysis of these nerves. 

CONCLUSIONS OF LAW

1. The criteria for an increased initial rating of 40 percent for a lumbar spine disability are met, effective from June 24, 2004 onward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.59, 4.71a, Diagnostic Code 5242.

2. The criteria for an initial increased disability rating of 20 percent for right lower extremity radiculopathy of the sciatic nerve are met, effective June 27, 2017. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.71a, Diagnostic Code 8520.

3. The criteria for an initial increased disability rating of 20 percent for left lower extremity radiculopathy of the sciatic nerve are met, effective June 27, 2017. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.71a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1979 to March 1982. This matter comes before the Board of Veteran's Appeal (Board) on appeal from February and  December 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In June 2019, the Board granted a 10 percent rating for the Veteran's radiculopathy of the bilateral lower extremities beginning June 27, 2017 and implicitly denied a rating in excess of 10 percent for this issue. The Board also remanded the Veteran's lumbar spine increased rating and TDIU claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Veteran and VA's Office of General Counsel filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board's decision and remand the case for readjudication. The Court granted the JMR and returned the case to the Board for further development and readjudication in compliance with the directives specified.

For the Veteran's lumbar spine disability, he seeks a rating in excess of 10 percent beginning June 24, 2004 and in excess of 40 percent thereafter. The Veteran also seeks a rating in excess of 10 percent for the radiculopathy in his bilateral lower extremities. Lastly, the Veteran seeks a TDIU rating beginning June 24, 2004.

Increased Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.

When evaluating a disability based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic codes, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the Veteran or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

1. Beginning June 24, 2004, an increased rating of 40 percent for the Veteran's thoracolumbar spine disability is granted.

As indicated above in the Conclusions of Law section, the Board finds that the Veteran is entitled to an increased rating of 40 percent for his thoracolumbar spine disability beginning June 24, 2004. Although this decision represents a partial grant of the benefits sought on appeal, the Board recognizes that further disposition of this issue would be premature. Accordingly, additional evidentiary development is necessary and is outlined in the Remand portion of the decision below.

In support of this determination to partially grant the Veteran's increased rating, the Board first notes that the Veteran's lumbar spine disability was rated as 10 percent disabling from June 24, 2004 to October 29, 2018 and 40 percent thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. Disabilities assigned pursuant to these diagnostic codes are evaluated under the general rating formula for evaluating disabilities of the spine.

Regarding the Veteran's lumbar spine disability, under the general rating formula, a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or, if there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, there is a vertebral body fracture with loss of 50 percent or more of the height. 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 is not greater than 120 degrees; or, if a claimant has 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. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 rating is warranted where there is unfavorable ankylosis of the entire spine.

Turning to the evidence of record, the Board first observes that the Veteran was provided VA back examinations in August 2009, December 2012, November 2014, October 2018 and October 2020. During each examination, the Veteran reported constant flare-ups where he experienced sharp pain. See VA Medical Opinions dated August 2009, December 2012, November 2014, October 2018, and October 2020. Throughout the period on appeal, the Veteran rated his pain during flare-ups as ranging between eight to ten on a scale of one to ten. Id. The Veteran also reported pain when sitting or standing for thirty minutes. See VA Medical Opinions dated August 2009, December 2012, and November 2014. However, these VA examiners did not provide any estimations regarding the probable additional losses in functionality during a flare-up, which does not comply with the requirements of Sharp v. Shulkin. See Sharp, 29 Vet. App. 26, 32 (2017) (quoting DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). Based on the foregoing, the Board finds that these examinations are inadequate for rating purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The sole adequate opinion in this regard, was provided in October 2020.  The October 2020 examiner opined that during flare-ups the Veteran's flexion was limited to 25 degrees. Thus, the Board finds that the October 2020 VA examiner's finding more accurately reflects the level of severity of the Veteran's lumbar spine disability described by the Veteran throughout the period on appeal. See January 2006 Board Hearing Testimony p. 4; October 2015 Correspondence, and December 2018 Correspondence. As a 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less, the Veteran's limitation of forward flexion to 25 degrees during frequent flare ups warrants the assignment of an increased 40 percent rating for his lumbar spine disability effective June 24, 2004. See 38 C.F.R. § 4.71a. 

2. Beginning June 27, 2017, an initial increased rating of 20 percent for the Veteran's radiculopathy of the bilateral lower extremities is granted.

After review of the evidence, the Board finds that the Veteran's radiculopathy most closely approximates moderate incomplete paralysis of the sciatic nerves, entitling him to separate disability ratings of 20 percent beginning June 27, 2017. Although this decision represents a partial grant of the benefits sought on appeal, the Board recognizes that further disposition of this issue would be premature. Accordingly, additional evidentiary development is necessary and is outlined in the Remand portion of the decision below.

Diagnostic Code 8520 contemplates incomplete or complete paralysis of the sciatic nerve. Mild incomplete paralysis warrants a 10 percent disability rating; moderate incomplete paralysis warrants a 20 percent disability rating; moderately severe incomplete paralysis warrants a 40 percent disability rating; and, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating; complete paralysis: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost warrants a 80 percent disability rating. the Board notes that the Veteran has bilateral lower extremity radiculopathy of the sciatic nerve, each currently rated as 10 percent disabling effective June 27, 2017 under 38 C.F.R. § 4.124a Diagnostic Code 8520.

The terms "mild," "moderate," and "severe" are not defined. Rather than applying a mechanical formula, the Board must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6.

At the outset, the Board would like to note that there is conflicting evidence regarding when the Veteran's radiculopathy of the bilateral lower extremities began. The first evidence indicating radiculopathy in the bilateral lower extremities was a March 2007 letter from the Veteran's treating physician. The March 2007 treating physician noted that the Veteran's straight leg raises were painful but did not explicitly diagnose the Veteran with bilateral lower extremity radiculopathy of the sciatic nerve. See March 2007 Private Physician Letter. Additionally, an August 2009 VA examiner noted that the Veteran described radicular pain, but the examiner did not conduct any sensory testing, straight leg raising testing, or deep tendon reflex testing. See August 2009 VA Medical Opinion. However, from April 2010 to November 2014, the Veteran consistently denied experiencing radiculopathy and the VA examiners also found no signs of radiculopathy. See VA Treatment Records dated April 2010, August 2010 and November 2010; see also VA Medical Opinions dated December 2012 and November 2014. Further, the October 2018 VA examiner found no radiculopathy on examination. See October 2018 VA Medical Opinion. Therefore, the Board finds that the record overall does not support evidence of radiculopathy prior to June 27, 2017, when the Veteran was initially formally diagnosed with radiculopathy.

Comparatively, in June 2017, a VA treating physician diagnosed the Veteran with lumbar radiculopathy. See June 2017 VA Treatment Record. In addition to the June 2017 diagnosis, a March 2018 VA treating physician noted that the Veteran had mild lumbar radicular features that were displayed on examination of symmetrical strength, sensory and reflexes. See March 2018 VA Treatment Record. Additionally, the October 2020 VA examiner noted radiculopathy symptoms which included decreased sensation. The examiner further noted numbness, intermittent pain, paresthesias and/or dysesthesias in the lower extremities. Deep tendon reflexes were hypoactive in the right lower extremity. There was also decreased sense of light touch in the lower extremities and feet. The examiner noted that the Veteran had mild paresthesias and/or dysesthesias and numbness in the left lower extremity and moderate paresthesias and/or dysesthesias and numbness in the right lower extremities. However, there was no muscle atrophy noted. 

The examiner opined that the Veteran had mild incomplete paralysis of the sciatic nerves of the left lower extremities and moderate incomplete paralysis in the right lower extremity. However, the Board is not bound by this determination because the use of similar terminology by medical professionals is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. When evaluating the medical evidence of record, the Board finds that the record demonstrates that the Veteran's paralysis of the sciatic nerve in the left lower extremity is more severe than as determined by the VA examiner.

Based upon the above, the Board finds that increased disability ratings of 20 percent are warranted, as there were objective findings of loss of sensation, decreased deep tendon reflexes, paresthesias and/or dysesthesias beginning June 27, 2017. 

Further, the Board acknowledges that the Veteran's representative argues that the x-ray imaging from January 2005 and June 2004 coupled with the March 2007 private treating physician's letter demonstrated mild central stenosis due to spondylosis, which, in his opinion, supports that the Veteran had moderate paralysis of the nerves. However, although the Board acknowledges this contention, the Board finds that the Veteran's representative is not competent to provide evidence pertaining to the diagnosis of a complex medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Whether the Veteran has a diagnosis of radiculopathy is a complex question that is not answerable by personal observation alone or by the application of knowledge within the realm of a lay person. Id. at n.4. The Board also acknowledges that the Veteran is competent describe the symptoms within his lay observation, but also finds that the Veteran on numerous occasions after the March 2007 letter and August 2009 VA examination denied radiculopathy symptoms. See VA Treatment Records dated April 2010, August 2010 and November 2010; see also VA Medical Opinions dated December 2012 and November 2014. Moreover, the Board affords more probative weight to the June 2017 treating physician's diagnosis of the Veteran's radiculopathy because it was later confirmed by the March 2018 examination of symmetrical strength, sensory and reflexes.

Accordingly, the Board finds that a 20 percent rating beginning June 27, 2017 is warranted.

REASONS FOR REMAND

1. Entitlement to a rating in excess 40 percent for the Veteran's lumbar spine disability is remanded.

After reviewing the evidence of record, the Board first finds that, unfortunately, there has not been substantial compliance with the October 2020 JMR remand directives regarding the Veteran's Social Security Administration ("SSA") Records. Since the October 2020 JMR, SSA records have been added to the Veteran's file that show that the Veteran was denied SSA benefits in December 2019. However, the Veteran's representative informed the Board that the Veteran was granted SSA disability benefits in October 2020, which shows that the Board does not have the Veteran's entire SSA file. See January 2021 Correspondence. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Further, this issue must be remanded because the Veteran's November 2019 SSA records indicate that the Veteran may be suffering from depression, which may be related to his lumbar spine disability. See November 2019 SSA record. The Board finds that in order to properly adjudicate the Veteran's increased rating claim for his lumbar spine condition, a VA examination is necessary to determine whether the Veteran's service-connected thoracolumbar disability has caused and/or aggravated his  psychiatric condition. 

In Morgan v. Wilkie, the Court of Appeals for Veterans Claims (Court) held that the "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." 31 Vet. App. 162, 167 (2019). In doing so, the Court held this included secondary service connection. Id; see also Long v. Wilkie, 33 Vet. App. 167 (en banc) (2020); Bailey v. Wilkie, 33 Vet. App. 188 (2021). Further, the Court held in Grimes v. McDonough that a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream, regardless of whether the claim is initially granted or denied by the RO. Grimes v. McDonough, 2021 U.S. App. LEXIS 18-1017, *8-11 (Fed. Cir. Apr. 28, 2021). Moreover, a claim for service connection may be expanded beyond a veteran's lay description of a disability to include any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

Here, the Veteran's SSA records suggest that his depression due to his thoracolumbar spine pain kept him isolated and caused a sleep impairment. See November 2019 SSA record. Additionally, the Veteran has not been afforded a VA examination regarding his psychiatric condition. Id. By broadly construing the Veteran's contention, the Board finds that a secondary service connection claim has been raised. After reviewing the record, the Board finds that there is no medical evidence addressing whether the Veteran's psychiatric condition was caused by and/or aggravated by his thoracolumbar spine disability. Therefore, a VA examination is needed to determine whether the Veteran's depression is related to the Veteran's service-connected thoracolumbar spine condition. 

Accordingly, the Board finds that a VA mental health examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA examiner should determine whether the Veteran has an acquired psychiatric disability. If the VA examiner finds that the Veteran has an acquired psychiatric disability, the examiner should also comment on whether the Veteran's acquired psychiatric disability was caused by and/or aggravated by his service-connected thoracolumbar spine disability.

In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports.  Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his thoracolumbar spine disability. See Smith v. Wilkie 32 Vet. App. 332, 338-39 (2020).

2. Entitlement to a rating in excess of 20 percent for the Veteran's radiculopathy of the bilateral lower extremities is remanded. 

Similarly, the Board finds that there has not been substantial compliance with the October 2020 JMR remand directives regarding the Veteran's SSA Records. In January 2021, the Veteran's representative informed the Board that the Veteran was granted SSA disability in October 2020, which demonstrates that the Board does not have the Veteran's entire SSA file. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998).

3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded

Finally, the Board also finds that the Veteran's claim for a TDIU is inextricably intertwined with the foregoing issues, and so disposition of the issue is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The matters are REMANDED for the following action:

1. Obtain outstanding and relevant SSA records, such records should be obtained, to include any SSA decision awarding disability benefits for the Veteran, copies of all treatment (medical) records upon which any such SSA disability benefit award was based, and a copy of any medical records associated with any subsequent disability determinations by SSA.

2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The examiner should review the Veteran's entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed. The examiner should address the following:

(a.) Please state whether the DSM-V diagnostic criteria for an acquired psychiatric condition are met.

(b.) If you have find that the Veteran has a current psychiatric condition, please state whether it is at least as likely as not the Veteran's acquired psychiatric disability was caused by his service-connected thoracolumbar spine disability.

(c.) If you determine that the Veteran's bilateral lumbar spine disability did not cause his acquired psychiatric condition, please state whether it is at least as likely as not that the Veteran's acquired psychiatric disability was caused or aggravated by his service-connected bilateral hearing loss disability. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b).

(d.) In further providing a response to Parts (a) through (c), please accept as true the Veteran's assertion that he no longer leaves the home due to depression and back pain. Please review the Veteran's November 2019 SSA records. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements).  

A discussion of the underlying reasons for any opinion expressed must be included in your report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. If you cannot provide the requested opinion without resorting to speculation, please expressly indicate this and state why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

 

 

S.C. Krembs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Foster, Shaniese E., 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.