Citation Nr: 22016335 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-31 872 DATE: March 21, 2022 ORDER Entitlement to a rating to 40 percent, but no higher, for a lumbar strain is granted. Entitlement to a rating of 20 percent, but no higher, for neurological abnormalities secondary to lumbar strain is granted. REFERRAL In their April 2021 decision, the Court of Appeals for Veteran's Claims noted that the Veteran's record reasonably raised a secondary service connection claim of depression. The Court further noted that such matter required further development and, if necessary, adjudication. Accordingly, this matter is referred to the Agency of Jurisdiction (AOJ) for proper adjudication. REMANDED Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's lumbosacral strain limits his active range of motion in the joint to 30 degrees of forward flexion. 2. The Veteran's lumbar disability has not been characterized by unfavorable ankylosis, or the functional equivalent, of the entire thoracolumbar spine. 3. The Veteran's lumbosacral strain causes pain with movement. The VA examiner estimated the pain limited the Veteran's range of motion to 20 degrees of forward flexion immediately after repeated use over time. 4. The Veteran experiences moderate paralysis of the sciatic nerve secondary to his lumbar strain. CONCLUSIONS OF LAW 1. The criteria for at least a 40 percent rating for lumbosacral strain have been met. See 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 at least a 20 percent rating for neurological abnormalities tied to a lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107(a); 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1967 to September 1969. The Veteran underwent an examination in July 2012. In February 2013 the AOJ granted the Veteran's service-connection disability but assigned the Veteran a noncompensable rating. The Veteran appealed this decision to the Board. As the appeal was pending, the Veteran underwent a 2016 VA examination for his spine in which he discussed his increased pain, which required multiple pain-relieving shots, and his decreased range of motion. The examiner noted a limited range of motion. In January 2019, the Board issued a decision granting the Veteran no more than 20 percent disability for his limited range of motion. The Board further decided there was no evidence of secondary neurological impairment based on the lumbosacral strain. The Veteran appealed the January 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 memorandum decision, the Court vacated and remanded the Board's denial of a higher ratings for lumbosacral strain, neurological impairment, and secondary issues of depression raised in the record. Lastly, the Board finds that the record raises a claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Rating Claim The Veteran claims, in substance, that he is entitled to higher ratings for his lumbosacral strain and secondary neurological abnormalities due to his back disability. Rating a disability over time that may become worse, or better, over time, is inherently intricate. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). i. The Amended Rating Criteria During the pendency of this appeal, VA promulgated new regulations governing ratings for the musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33, 422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. In pertinent part, 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis of the spine was revised to apply to degenerative arthritis, degenerative disc disease other than Intervertebral Disc Syndrome (IVDS). In addition, 38 C.F.R. § 4.71a, Diagnostic Code 5243 for IVDS was revised to include an instruction to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 should be assigned for all other disc diagnoses. Significantly, the actual rating criteria (the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating IVDS Based on Incapacitating Episodes) were not changed. Under the rating criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. ii. Correia and Sharp, Compliance In adjudicating whether the Veteran meets the criteria for a higher evaluation for his back disability the Board must not overlook the Court's holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Regarding the recent February 2022 examination, the Board finds that the record is adequate to address concerns raised by the Court for this examination. Specifically, the Board finds that the February 2022 examination provided medical opinion evidence adequate to rate the Veteran's back disability when considering his complaints of pain in active and passive range of motion and during flare-ups because the examiner specifically addressed each of these concerns. iii. The Rating Criteria Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted when: forward flexion of the thoracolumbar spine is limited to greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is limited to greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is limited to not greater than 120 degrees; or, the combined range of motion of the cervical spine is limited to not greater than 170 degrees; or, 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 warranted when there is: unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Code 5237. When evaluating joint disabilities rated on 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 has 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 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 claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating based on relief provided by medication when those effects are specifically contemplated by the rating criteria. Lastly, in Chavis v. McDonough, No. 18-2928 (2021) the Court held that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. iv. The Merits of the Back Claim Here, a review of the Veteran's record indicates that he was recently provided a VA Back (Thoracolumbar Spine) Conditions examination in February 2022. The Veteran's active and passive range of motion for forward flexion was measured at 30 degrees. Pain was noted during forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. The examiner further noted that procured evidence revealed during the examination (statements of Veteran) suggest pain significantly limited the functional ability of the Veteran with repeated use over time. Using this information, the examiner estimated the forward flexion of the joint with repeated use over time would be 20 degrees. The examiner noted there was no ankylosis of the spine. See VA Examination Notes of February 2022. Accordingly, the Board finds that the evidence shows that the Veteran meets the criteria for a 40 percent rating for his back disability. However, the Board finds that even when considering the Veteran's complaints of pain per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, Jones, and Chavis as well as when considering his competent reports of his observable adverse symptomatology, he does not meet the criteria for a higher, 50 percent, rating under the General Rating Formula for Disease and Injuries of the Spine due to adverse symptomatology that equates to ankylosis. See Owens, supra. Specifically, the February 2022, May 2016, and July 2012 examiners opined that the entire back was not ankylosed, and the Board finds these medical opinions are not contradicted by any other medical evidence of record. It is important for the Veteran to understand that not all evidence in this case supports the Board grant of a 40 percent evaluation, let alone a higher evaluation. As a result, the Board finds that a higher evaluation is not warranted for the Veteran's service-connected back disability under the General Rating Formula for Disease and Injuries of the Spine due to ankylosis. v. The Merits of the Neurological Abnormalities The Board has jurisdiction to consider the proper initial rating for the Veteran's radiculopathy as a related complication subject to secondary service connection. Chavis, 34 Vet. App. at 18. The Veteran's lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a, DC 8520. Under Diagnostic Code 8520, mild incomplete paralysis warrants a 10 percent rating. Moderate incomplete paralysis warrants a 20 percent rating, and moderately severe incomplete paralysis warrants a 40 percent evaluation. A 60 percent rating is warranted when there is severe disability with marked muscular atrophy. Finally, a maximum schedular rating of 80 percent is awarded for complete paralysis of the sciatic nerve. With complete paralysis, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words "mild," "moderate," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate the totality of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, Diagnostic Code 8510-8730. During the Veteran's February 2022 VA examination, he reported mild pain in both lower extremities. Moreover, the Veteran reported a severe numbness in both lower extremities. During the straight leg test, it is noted that pain radiated below the knee in both of the Veteran's legs. Lastly, the examiner noted that the Veteran had decreased sensation to light touch to both of his lower legs, ankles, and feet. See VA Examination (Thoracolumbar Spine) of February 2022. In applying the above laws to the facts of this case, the Board finds that the Veteran's overall disability picture more closely approximates the 20 percent disability rating criteria for lower extremity radiculopathy, but no higher. As noted above, the February 2022 examination noted mild pain due to radiculopathy in both legs. Moreover, the examination noted that the numbness in both of the Veteran's feet was "severe." Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's lower extremity radicular symptoms are moderate in severity and therefore more accurately characterized by the 20 percent rating criteria. Lastly, the medical record is silent as to any other moderately severe radicular symptoms. As such, a rating of 40 percent or higher is not warranted. REASONS FOR REMAND As discussed above, the Board has increased disability ratings for the Veteran's lumbosacral strain and secondary radiculopathy to 40 percent and 20 percent, respectively. The Veteran has previously received a disability rating for an additional 20 percent for his cervical spine. These ratings, coupled with the referred matters, raise the possibility of TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (per curiam). In Rice, the Court stated that when the issue of entitlement to a TDIU rating for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board has jurisdiction to consider that issue. The Court indicated that if the Board determines that further action by the RO is necessary with respect to the issue, the Board should remand that issue. Id. at 453. Accordingly, the case is REMANDED for the following action: 1. The RO should first address the Veteran's secondary service connection for depression, as discussed above. 2. Following the address of all other claims raised by the appellant (as cited in the introduction) the RO should readjudicate the issue of entitlement to a TDIU, if desired by the Veteran. If the benefit sought on appeal remains denied, the appellant and the appellant's representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations, not previously provided, considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 3. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Paul R. Casey Veterans Law Judge Board of Veterans' Appeals