Citation Nr: 21042450 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-54 323 DATE: July 13, 2021 ORDER Entitlement to a rating in excess of 40 percent for herniated nucleus pulposus, L5-S1 (low back disability) is denied. REMANDED Entitlement to a rating in excess of 40 percent, prior to October 24, 2019, and in excess of 60 percent thereafter for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected low back disability was not manifested by unfavorable ankylosis of the spine. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for herniated nucleus pulposus, L5-S1 (low back disability) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1971 to June 1974. This matter is before the Board of Veterans' Appeal (Board) on appeal from a March 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in November 2018, and the matter has been returned for appellate consideration. The June 2020 rating decision increased the disability rating for left lower extremity radiculopathy from 40 percent to 60 percent, effective October 24, 2019. However, as this grant does not represent a total grant of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155;38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment function will be expected in all cases. 38 C.F.R. § 4.21. 1. Entitlement to a rating in excess of 40 percent for herniated nucleus pulposus, L5-S1 (low back disability). The Veteran seeks an increased rating in excess of 40 percent for his service-connected low back disability. The Veteran's low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242 at 40 percent for his low back disability. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating requires that the condition be manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71, General Rating Formula. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). For the Veteran to achieve a disability rating greater than 40 percent for his service-connected low back disability, the objective medical evidence must show unfavorable ankylosis of the lumbar spine and/or the entire spine. Turning to objective medical evidence, the Veteran's treatment records do not reveal any indication that the Veteran suffers from unfavorable ankylosis of the spine. The Veteran was afforded a VA examination in July 2016 to determine the severity of his low back disability. The Veteran reported low back pain that radiated to his legs. The Veteran compared the pain to a toothache. The Veteran endorsed issues with bending, walking, and sitting. The Veteran denied the occurrence of flare-ups of the low back. Upon physical examination, the VA examiner did not find any objective signs of ankylosis of the spine. In November 2019, the Veteran reported constant low back pain, in which the Veteran rated the severity as 5/10 with the occasional sharp pain. See November 2019 VA examination report. The Veteran endorsed experiencing flare-ups that manifested as sciatic pain and left leg instability. The VA examiner found that the Veteran would not suffer additional loss of function of his back during flare-ups. Upon physical examination, the VA examiner did not find any objective signs of ankylosis of the spine. The VA examiner found a diagnosis of intervertebral disc syndrome (IVDS) but found that the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. After reviewing the evidence, the Board concludes that the preponderance of the evidence is against a rating in excess of 40 percent for his low back disability. The Veteran has not presented evidence of ankylosis of the spine. The evidence does not suggest that the Veteran's functional loss is equivalent to unfavorable ankylosis of the entire spine. VA and private treatment records support this understanding of the Veteran's disability picture and denote his primary symptom of pain, as accompanied by difficulties standing for prolonged periods of time, and lifting/carrying of heavy items, during the period on appeal. Of note, these records are silent for reports of ankylosis and do not contain additional range of motion testing for consideration Consideration has also been given to assigning a rating under the Formula for Rating Based on Incapacitating Episodes. Although, the Veteran does have IVDS, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The November 2019 VA examination found that the Veteran had a diagnosis of IVDS, but without any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, interference with sitting and standing, bending, and lifting. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating ankylosis of the entire spine. Accordingly, the Veteran's disability picture is best embodied in the criteria for a 40 percent rating, as currently assigned. As shown above, objective testing did not indicate ankylosis of the spine. To the extent that the Veteran experiences pain and functional loss associated with his back disability, the Board does not find that the related impairment equates to favorable ankylosis of the entire spine. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent, prior to October 24, 2019 and 60 percent thereafter for left lower extremity radiculopathy is remanded. 2. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. The Veteran is seeking increased ratings for his service-connected bilateral lower extremity radiculopathy. To this point, the Veteran has not been afforded a VA examination to specifically determine the nature and severity of the Veteran's bilateral lower extremity radiculopathy. The current evaluation of his bilateral lower extremity radiculopathy is based on findings in his VA back conditions examination. While the findings in the VA back conditions examinations detail the level of severity of the Veteran's radiculopathy, it does not indicate whether the Veteran's paralysis is complete or incomplete. The Veteran could be entitled to higher disability rating based on whether his neurological paralysis is complete or incomplete. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given that the Veteran has not been afforded a VA examination to determine the severity of his bilateral lower extremity radiculopathy, he Board of Veterans' Appeals (Board) finds that further VA evaluation is needed. The matters are REMANDED for the following action: Schedule the Veteran for an examination to determine the nature and severity of the Veteran's service-connected bilateral lower extremity radiculopathy. The Veteran's claims file, including a copy of this remand, must be provided to the examiner prior to the examination. The examiner should consider the Veteran's lay statements regarding the severity of his symptoms and report all signs and symptoms necessary for rating the Veteran's disability under the applicable criteria, 38 C.F.R. § 4.124(a). (CONTINUED ON NEXT PAGE) If the VA examiner finds that multiple nerve groups of the lower extremities are affected, the VA examiner should state whether the symptoms of the affected group can be differentiated from each other, if possible. J. O'CONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Higgins, J.R. 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.