Citation Nr: 23055643 Decision Date: 10/11/23 Archive Date: 10/11/23 DOCKET NO. 18-15 315 DATE: October 11, 2023 ORDER Entitlement to an increased rating in excess of 40 percent for a lumbar spine disability is denied. REMANDED Entitlement to an increased rating in excess of 20 percent for left femoral nerve radiculopathy is remanded. Entitlement to an increased rating in excess of 20 percent for right femoral nerve radiculopathy is remanded. Entitlement to an increased rating in excess of 20 percent for left sciatic nerve radiculopathy is remanded. Entitlement to an increased rating in excess of 20 percent for right sciatic nerve radiculopathy is remanded. FINDING OF FACT Throughout the appeal period, the persuasive weight of the evidence of record does not demonstrate ankylosis of the entire thoracolumbar spine or its functional equivalent. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1977 to September 1979. The Veteran testified before a Veterans Law Judge in November 2021. In February 2022, the Veteran was informed that the judge no longer worked at the Board and that he had the right to request a new hearing before another Veterans Law Judge. In May 2022, the Veteran indicated that he did not wish to attend another hearing. In December 2022, the Board remanded the Veteran's appeal for further development. The requested opinion was provided regarding the Veteran's lumbar spine disability; however, with respect to the pending appeals for increased ratings for bilateral lower extremity radiculopathies, there has not been substantial compliance with the Board's remand directives. Therefore, remand is again required to address these issues. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the Board notes that the inferred issue of entitlement to a total disability rating based on individual unemployability (TDIU) was previously before the Board and among the issues remanded in December 2022. While on remand, an August 2023 VA rating decision awarded the Veteran a TDIU as of April 28, 2016 (the date of the Veteran's intent to file a claim), which represents the entire appeal period herein. As such, this is a full grant of the benefit sought on appeal, and the issue of entitlement to a TDIU is no longer before the Board. Grantham v. Brown, 114 F3d 1156 (Fed. Cir. 1977). 1. Entitlement to an increased rating in excess of 40 percent for a lumbar spine disability The Veteran's back disability is currently rated at 40 percent. The Veteran contends his condition is more severe than the current rating contemplates. Legal Criteria for Increased Ratings Claims VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally 38 C.F.R. Part IV. The Board determines 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, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. 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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Further, 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."). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Mitchell, 25 Vet. App. at 43. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Diagnostic Criteria The Veteran's service-connected lower back condition is currently awarded a 40 percent rating pursuant to Diagnostic Code 5242-5237, for degenerative arthritis of the lumbar spine with lumbosacral strain. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or, for Diagnostic Code 5243 only, the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Allthough the Veteran's diagnoses have included IVDS, he has never been rated under Diagnostic Code 5243. The General Rating Formula will be applied in this case, as it would result in the higher evaluation, given that the Veteran has never reported, and the records do not reflect, physician-prescribed bed rest, a foundational requirement under the Formula for Rating IVDS. Additionally, the Board notes that while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the General Rating Formula and its criteria including range-of-motion measurements were not changed. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Under the General Rating Formula, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if 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 evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, at Note 5. Unfavorable ankylosis, for VA compensation purposes, is a condition in which the entire cervical spine, or 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note 5. Ankylosis can also mean the "functional equivalent" of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). The functional equivalence of ankylosis arises when application of the effect of pain or other factors identified under 38 C.F.R. § 4.40 or 4.45, to include during flare-ups and repetitive use over time, results in additional loss of motion to the joint that effectively results in functional impairment consistent with ankylosis. Although the underlying appeal was pending when Chavis was decided, rules announced in judicial decisions apply retroactively to all cases still open on review when the new rule is announced. VAOGCPREC 7-03; see also Brewer v. West, 11 Vet. App. 228, 234 (1998). As such, in light of Chavis, the Board's prior remand directed the VA examiner to consider whether the Veteran's back condition manifested in the functional equivalent of ankylosis. The Board notes that in the March 2022 VA examination, the Veteran did not report experiencing flare-ups. His active range of motion in forward flexion was fifty degrees, extension was 20 degrees, right lateral flexion was 20 degrees, left lateral flexion was 10 degrees, right lateral rotation was 18 degrees, and left lateral rotation was 24 degrees. Pain was exhibited in all ranges of motion. The examiner noted that the Veteran experienced back pain when bending forward to put on shoes. The Veteran underwent a VA peripheral nerves examination in March 2023, at which he also discussed his back pain. He reported constant, severe back pain. In a March 2023 VA opinion, a VA examiner opined the Veteran's lumbar spine disability did not result in the functional equivalent of ankylosis. The examiner noted that the Veteran was able to move his spine completely at the examination, although he complained of pain. His forward flexion was noted to be to 90 degrees with pain observed. The Veteran denied experiencing flare-ups and stated that his pain was always a 10 out of 10 on the pain scale. The examiner reviewed the Veteran's November 2021 hearing testimony, which described constant, severe pain. The Veteran indicated he sometimes needed to stretch and that bending his back is painful. The examiner stated the Veteran's history and hearing testimony showed numerous examples of the Veteran being able to bend his spine, and no evidence to support fixation of the spine. Although the Veteran reported 10 out of 10 in pain, the examiner concluded the spine was able to move, citing various range-of-motion measurements. In a July 2023 VA medical opinion rendered by a different examiner, the examiner agreed that the Veteran's lumbar spine disability did not result in the functional equivalent of ankylosis. The examiner considered the Veteran's hearing testimony as directed by the Board's remand. The examiner concluded the Veteran's lumbar spine disability was not so severe as to approximate the functional equivalent of ankylosis, because he maintained range of motion in all spinal segments, despite complaints of consistent, severe pain. The Veteran did not report having flare-ups; rather, he reported that his back pain was always constant and always severe. These findings are consistent with the Veteran's hearing testimony in November 2021, during which he described ongoing constant pain. He reported that sometimes he bent over to touch his toes to try to stretch his back and nearly fell over. He also testified that in order to try to relieve the pain in his back, he performed stretching exercises. When asked how he would characterize his flare-ups of the back during his hearing testimony, the Veteran replied, "it don't ever stop. It's an ongoing thing." The Board finds that the evidence does not support that the Veteran's back condition more nearly approximated ankylosis or the functional equivalent of ankylosis, even during a flare-up. In addition to his range-of-motion measurements being within the criteria for the lower evaluations, the Veteran has described constant pain, but also has described what he does to attempt to alleviate his back pain, including stretching and leg lifts, and even stated he sometimes tried to bend down to touch his toes. These lay statements reflect his ability to move his spine. Indeed, the March 2022 examiner annotated the Veteran's report that bending down to put on shoes was painful. The Veteran has reported that his pain levels are consistent and severe, including at the time of his prior examinations. Thus, even when the Veteran's back pain is at its most severe, the evidence does not support a finding of a functional equivalent of ankylosis. The Veteran's spine retains movement despite his severe pain levels. Thus, the Board finds that the Veteran's range of motion and functional limitations during flare-ups of the back are not significantly different than that identified during examination, as the Veteran does not report substantially different symptomatology during flare-ups, given that he has characterized his symptoms and pain levels as both constant and consistent. Therefore, entitlement to a disability rating in excess of 40 percent for a lumbar spine disability is not warranted. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 20 percent for left femoral nerve radiculopathy is remanded. 2. Entitlement to an increased rating in excess of 20 percent for right femoral nerve radiculopathy is remanded. 3. Entitlement to an increased rating in excess of 20 percent for left sciatic nerve radiculopathy is remanded. 4. Entitlement to an increased rating in excess of 20 percent for right sciatic nerve radiculopathy is remanded. The Board's prior remand in December 2022 noted that a March 2022 VA examination had found radiculopathy of the bilateral lower extremity femoral and sciatic nerves, but that the examiner did not assess the severity of the radiculopathy. Accordingly, the Board ordered a new VA examination. The Veteran underwent the directed VA examination in March 2023, and the examiner concluded the Veteran did not have radiculopathy of the lower extremities at all, despite his longstanding diagnosis and treatment. The examiner stated the Veteran's reported pain was not consistent with radiculopathy. The examiner made additional comments regarding symptom exaggeration, indicating the examiner's impression that the Veteran had not been truthful about his symptoms and conditions. Because no diagnosis of radiculopathy was conferred during that VA examination, no evaluation of the severity of the Veteran's radiculopathy was undertaken. Subsequently, the RO sent the case to another examiner for another medical opinion to address the lack of diagnosis of radiculopathy on the March 2023 examination. In a June 2023 opinion, the clinician disagreed with the conclusion reached by the March 2023 examiner, stating that the Veteran "has evidence of a long standing diagnosis of radiculopathy and there does not appear to be substantial evidence to support why it was not diagnosed on the [March] 2023 exam." Additionally, the clinician concluded there appeared to be "some bias" by the March 2023 examiner, in light of the significant evidence to support the Veteran's diagnosis of radiculopathy. The clinician then asserted the March 2023 VA examiner's conclusion was in error with respect to the radiculopathy diagnoses. However, the June 2023 clinician did not offer an opinion on the severity of the Veteran's radiculopathy, which was specifically required to be assessed by the Board's prior remand. Moreover, despite the "error" of the March 2023 examination, no further examination to assess the severity was scheduled. In light of the June 2023 opinion that the March 2023 findings as to radiculopathy were in error, and in consideration that the Board's remand requested a medical opinion on the severity of the radiculopathy, the RO should have scheduled a new peripheral nerves examination with a different VA examiner to assess the Veteran's service-connected radiculopathy. Remand is therefore required to complete such development. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA peripheral nerves examination with a qualified examiner, other than the examiner who conducted the March 2023 examination, in order to evaluate the severity of his bilateral lower extremity femoral and sciatic nerve radiculopathies. The examiner should provide a full description of the disabilities and report all signs and symptoms. The examination should specifically annotate the neurological findings indicating the extent and severity of the Veteran's bilateral lower extremity femoral and sciatic nerve radiculopathies. All neurological manifestations should be described in detail and the specific nerve(s) affected should be specified, with the degree of paralysis caused by the service-connected disability stated as complete or incomplete, and whether it is determined to be severe, moderately severe, moderate, or mild. 2. Thereafter, readjudicate the Veteran's claims for higher ratings for his bilateral lower extremity femoral and sciatic nerve radiculopathy. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Medley, Amanda T. 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.