Citation Nr: 21041131 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-03 772 DATE: July 8, 2021 ORDER Entitlement to a rating in excess of 40 percent for lumbar spine disability beginning March 31, 2017 and thereafter is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity beginning March 31, 2017 and thereafter is denied. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy beginning March 31, 2017 and thereafter is denied. REMANDED Entitlement to a rating in excess of 50 percent for an acquired psychiatric disability to include PTSD and anxiety disorder beginning March 31, 2017 and thereafter is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's lumbar spinal disability is manifested by no more than forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 2. For the entire period on appeal, the Veteran's left lower extremity radiculopathy was manifested by no more than moderate paralysis of the sciatic nerve. 3. For the entire period on appeal, the Veteran's right lower extremity radiculopathy was manifested by no more than moderate paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 40 percent for lumbar spine disability beginning March 31, 2017 and thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy beginning March 31, 2017 and thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 8520. 3. The criteria for entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity beginning March 31, 2017 and thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to May 1974. These matters come before the Board of Veterans' Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). An April 2019 Board decision remanded the issues of entitlement to a rating in excess of 40 percent for lumbar spine disability beginning March 31, 2017 and thereafter; entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity beginning March 31, 2017 and thereafter; entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy beginning March 31, 2017 and thereafter; and entitlement to a rating in excess of 50 percent for an acquired psychiatric disability to include PTSD and anxiety disorder beginning March 31, 2017 and thereafter for further development. Upon review, the Board finds that the remand directives have been complied with. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating General Rating Principles Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be considered in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles- Lumbosacral Spine For the period beginning March 31, 2017 and thereafter the Veteran has a rating of 40 percent for lumbar spine disability under diagnostic code 5237. Diagnostic codes 5235 to 5243 are evaluated under the general rating formula for diseases and injuries of the spine. Under the general rating formula, a rating of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. Note (1) instructs that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment, should be evaluated separately under the appropriate diagnostic code. Rating Principles- Radiculopathy, bilateral lower extremities For the period beginning March 31, 2017 and thereafter the Veteran has a rating of 20 percent for right lower extremity radiculopathy and a separate rating of 20 percent for left lower extremity radiculopathy under diagnostic code 8520. Under diagnostic code 8520, a rating of 20 percent is warranted for moderate paralysis of the sciatic nerve; a rating of 40 percent is warranted for moderately severe paralysis of the sciatic nerve and a rating of 60 percent is warranted for severe paralysis with marked muscular atrophy. A rating of 80 percent is warranted for complete paralysis of the sciatic nerve with foot dangle and drop, no active movement possible of the muscle below the knee and flexion of the knee weakened or (very rarely) lost. Analysis 1. Entitlement to a rating in excess of 40 percent for lumbar spine disability beginning March 31, 2017 and thereafter. 2. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity beginning March 31, 2017 and thereafter 3. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy beginning March 31, 2017 and thereafter. In correspondence dated August 2020 the Veteran reported having symptoms of daily back pain. He reported getting injections for his back but noted that the shot does not last long. He also reported that his lower extremities are often cold at night as if he has no feeling in them. Treatment records during the period at issue note the Veteran's ongoing complaints of lumbosacral pain and some radiculopathy. July 2017 VA treatment records note that the Veteran presented with ongoing complaints of back pain. On examination the Veteran demonstrated full flexion but limited extension and rotation. Axial loading increased his pain bilaterally but there was no evidence of midline or paraspinal pain. The Veteran's bilateral lower extremities showed strength of 5/5 against resistance and the Veteran was able to stand on heels, toes, and each of the lower extremities. The Veteran's gait was steady without the use of an assistive device, but the Veteran demonstrated positive fabere signs bilaterally with the right side worse than the left and point tenderness of the right sacroiliac joint on palpation. The Veteran received a sacroiliac joint injection in August 2017. The Veteran reported that the injection reduced his pain by greater than 50 percent and lasted for approximately three months. The Veteran also reported having right joint pain that radiates to his right anterior thigh and knee. He rated his pain as a 5/10. The Veteran denied any left side radiating pain. On examination the Veteran was noted to ambulate with a walker and had an antalgic gait and station. VA treatment records note that the Veteran was hospitalized for approximately two days for back pain in December 2017. The Veteran presented to the hospital with significant lower back pain radiating down to his inguinal canal and thigh. On discharged the Veteran was advised to return to the emergency room if there were worsening symptoms. Subsequent treatment records continue to note complaints of pain. The Veteran underwent a right SI joint injection in August 2019. He continued with greater than 50 percent pain relief but reported new left sided back pain. The Veteran reported that his left sided pain was sharp, occurred with certain movements but improved with rest. The Veteran underwent an epidural steroid injection in December 2019. The Veteran was afforded a VA examination for his back in December 2019. Subjectively, the Veteran reported constant pain with flare-ups and reported taking Tylenol and over the counter topical cream as needed. With respect to both flare ups and functional loss, the Veteran reported difficulty with walking, bending, prolonged standing not more than one hour and sleeping on his back. On examination the Veteran demonstrated forward flexion to 70 degrees, extension to 30 degrees and bilateral rotation and flexion to 20 degrees. Pain was noted on exam with all movements and caused functional loss. There was no evidence of pain with weight bearing but there was mild subjective tenderness on the right paravertebral lumbar spine. The Veteran remained able to perform repetitive use testing with at least three repetitions and pain was noted to significantly limit functional ability with repeated use over time. There was no evidence of guarding or muscle spasms and the Veteran demonstrated 5/5 strength with flexion, extension, plantar flexion, dorsiflexion, and extension. There was no evidence of muscle atrophy and reflexes were normal in the bilateral knee and ankle. A sensation exam noted normal sensation of the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes bilaterally. The Veteran's straight leg raise was negative bilaterally. The examiner noted that the Veteran had left lower extremity radiculopathy with moderate constant pain and moderate numbness. The Veteran's radiculopathy involved the left femoral nerve and left sciatic nerve and was characterized as moderate. Subjectively, the Veteran reported pain, tingling and numbness radiating from lower back down the left side to the left medial knee sporadically. There was no evidence of ankylosis of the spine and no other neurologic abnormalities were noted. The Veteran was noted to ambulate with a cane for his daily activity as a result of his back disability. Imaging studies confirmed arthritis of the thoracolumbar spine. In rendering a decision, the Board has considered all evidence of record including the Veteran's treatment, lay statements, and VA examination. Ultimately the probative evidence of record weighs against finding that the Veteran is entitled to a rating in excess of 40 percent for his lumbar spine disability. While the record shows that the Veteran has consistently complained of chronic low back pain which resulted in an antalgic gait and required the use of an assistive device as well as SI joint injections, the record does not demonstrate unfavorable ankylosis of the thoracolumbar spine as required for a 50 percent rating or unfavorable ankylosis of the entire spine as required for a 100 percent rating. Further, the Board notes that as 40 percent is the highest schedular rating for limitation of motion, the Board does not have to consider whether he is entitled to a higher disability rating because of functional loss under §§ 4.40 and 4.45. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, in Johnston, the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion since August 10, 2017, and a higher rating requires ankylosis, the cited regulations are not for application. See id. at 84-85 (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). Similarly, the probative evidence also weighs against a finding that the Veteran is entitled to a rating in excess of 20 percent for radiculopathy of the right lower extremity or a rating in excess of 20 percent for radiculopathy of the left lower extremity. As set forth above, the Veteran's left lower extremity radiculopathy was characterized as no more than moderate and no right lower extremity radiculopathy was noted. While treatment records note complaints of radiculopathy of the right and left lower extremity the Veteran rated his pain as a 5/10. Further the Veteran has been noted to have 5/5 lower extremity strength and normal sensation. This does not suggest that the Veteran's pain is more than moderate in severity. For the above reasons, increased rating for the Veteran's low back and radiculopathy disabilities are not warranted. REASONS FOR REMAND 4. Entitlement to a rating in excess of 50 percent for an acquired psychiatric disability to include PTSD and anxiety disorder beginning March 31, 2017 and thereafter. In correspondence dated August 2020 the Veteran reported that his PTSD is not going away and has only gotten worse. He noted ongoing symptoms of disturbed sleep due to symptoms of tossing, turning, hearing bombs guns and people chasing him. Consistent with his statements, June 2020 VA treatment records note that during his mental health appointment the Veteran's wife reported that the Veteran's PTSD was getting worse. The Board notes that it has been approximately five years since the Veteran's February 2017 VA examination for PTSD. Based on the length of time since the Veteran's last VA examination for PTSD, June 2020 VA treatment records noting worsening of the Veteran's PTSD and the Veteran's August 2020 statement that his symptoms have gotten worse, remand is appropriate to assess the current severity of the Veteran's PTSD symptoms. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After all outstanding VA treatment records have been obtained, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. (Continued on the next page) The Veteran is to be presumed credible for the limited purpose of this examination. Michael Sanford Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.