Citation Nr: 23052051 Decision Date: 09/20/23 Archive Date: 09/20/23 DOCKET NO. 20-11 764 DATE: September 20, 2023 ORDER A 40 percent rating prior to July 18, 2022, for a lumbar spine disorder is granted, subject to the rules and regulations governing the award of monetary benefits. A rating in excess of 40 percent from July 18, 2022, for a lumbar spine disorder is denied. A separate 40 percent rating prior to September 16, 2021, for right lower extremity (RLE) radiculopathy is granted, subject to the rules and regulations governing the award of monetary benefits. A 40 percent rating from September 16, 2021, for RLE radiculopathy is granted, subject to the rules and regulations governing the award of monetary benefits. A separate 10 percent rating prior to July 18, 2022, for left lower extremity (LLE) radiculopathy is granted, subject to the rules and regulations governing the award of monetary benefits. A rating in excess of 10 percent from July 18, 2022, for LLE radiculopathy is denied. REMANDED Entitlement to a separate compensable rating for a neurological disability manifested by bladder or bowel impairment secondary to the lumbar spine disorder is remanded. FINDINGS OF FACT 1. Prior to July 18, 2022, the evidence was at least in equipoise as to whether the Veteran's lumbar spine was manifested by limitation of flexion to 30 degrees or less. 2. At all times relevant to the period on appeal, there has been no evidence of unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent of ankylosis. 3. At all times relevant to the period on appeal, the evidence is at least in equipoise as to whether the Veteran has had RLE radiculopathy attributable to his lumbar spine disorder, which has been manifested by moderately severe symptoms without evidence of marked muscular atrophy. 4. At all times relevant to the period on appeal, the evidence is at least in equipoise as to whether the Veteran has had LLE radiculopathy attributable to his lumbar spine disorder, which has been manifested by mild symptoms. CONCLUSIONS OF LAW 1. Prior to July 18, 2022, the criteria for a 40 percent rating, but no higher, for a lumbar spine disorder were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243. 2. From July 18, 2022, the criteria for a rating in excess of 40 percent for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5243. 3. Prior to September 16, 2021, the criteria for a separate 40 percent rating for RLE radiculopathy, but no higher, were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 4. From September 16, 2021, the criteria for a 40 percent rating for RLE radiculopathy, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 5. Prior to July 18, 2022, the criteria for a separate 10 percent rating for LLE radiculopathy, but no higher, were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 6. From July 18, 2022, the criteria for a rating in excess of 10 percent for LLE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to January 2001. In May 2022, a Board hearing was held before the undersigned Veterans Law Judge. A transcript is of record. In May 2022, the Board remanded the current claims for additional development. In addition to the above issues, the Board also remanded claims for service connection for left and right knee disorders. The service connection claims were granted by the Agency of Original Jurisdiction (AOJ) in August 2022. As this constitutes a full grant of the benefit sought with respect to these issues, these matters are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). In the August 2022 decision, the AOJ also awarded a higher 40 percent rating for a lumbar spine disorder, effective July 18, 2022. As a higher rating for this disability is still available during the appeal period, the claim for a higher rating remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to an increased disability rating for a lumbar spine disorder. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007) 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. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. §§ 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. §§ 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also 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 Veteran's lumbar spine disability is currently assigned a 10 percent rating prior to July 18, 2022, and 40 percent rating from that date under Diagnostic Code 5243 for degenerative arthritis. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. VA regulations provide that spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever would result in a higher rating. 38 C.F.R. § 4.71a. As there is no evidence for IVDS, this rating formula does not apply. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar (lumbar) spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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 disability rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of 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, DC 5243, Note (2). In January 2018, the Veteran underwent a VA examination to evaluate the severity of his lumbar spine disorder. The examiner diagnosed herniated disc L5-S1 lumbar spine, with radicular nerve root impingement of the right hip. The Veteran reported that he had symptoms of urinary incontinence. The Veteran also reported that he had flareups that caused 10 out of 10 low back pain that lasted less than one day. Range of motion testing was not performed because, at that time, the Veteran had a nerve root impingement. The examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flareups or repetitive use over time and it was not possible to estimate, without resorting to mere speculation, the loss of range of motion, because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner noted that the Veteran was complaining of worsening numbness of the bilateral lower extremities with urinary incontinence and, therefore, the examiner contacted the clinical team, and the Veteran was driven to the hospital. VA treatment records reflect a corresponding emergency department note from January 2018. At that time, the Veteran reported back pain with numbness to the legs, which had been ongoing for years. The Veteran indicated that he felt his right lower extremity had become weaker going up stairs and noted that it gave out occasionally. The Veteran also reported that he had episodes of urinary urgency and rectal urgency causing him to run to the bathroom. Private treatment records from 2021 reflect continuing problems with low back pain and right-side sciatica with numbness and tingling. In May 2022, the Veteran testified at a Board hearing regarding his lumbar spine symptomatology. The Veteran explained that, during the January 2018 VA examination, he was in pain and left the examination early to go to the emergency room. The Veteran indicated that this was why the examination looked incomplete. With regard to symptomatology, the Veteran testified that, when he woke up, he had pain and stiffness. He reported flareups with sitting for extended periods of time, which caused stiffness in the back, cramping in the right hip, and numbness radiating down the leg. The Veteran reported treatment with epidural injections (last in January 2022). The Veteran also testified that he had bilateral radicular symptoms of numbness with the right leg much worse than left and urinary symptoms with urinary frequency/urgency. In July 2022, the Veteran most recently underwent a VA examination to evaluate the severity of his lumbar spine disorder. The examiner diagnosed herniated disc L5-S1 lumbar spine, with radicular nerve root impingement of the right hip, and left lower extremity radiculopathy. The Veteran reported constant low back pain with right lower extremity weakness, pain, and numbness/tingling and left lower extremity achiness/tingling. The Veteran indicated that he had difficulty driving or sitting for more than 20 minutes. The Veteran also reported severe flareups of the back that occurred daily and lasted for 1 to 2 hours. Range of motion testing showed flexion at 30 degrees, extension at 10 degrees, left and right lateral flexion at 10 degrees, right lateral rotation at 10 degrees, and left lateral rotation at 15 degrees. Passive range of motion was the same as active. There was evidence of pain with weight bearing, non-weight bearing, and passive/active range of motion that did not result in or cause functional loss. There was no additional range of motion loss on repetitive use testing. With repeated use over time and with flareups, the examiner indicated that the Veteran would have additional loss in range of motion as follows: flexion at 20 degrees, extension at 5 degrees, left and right lateral flexion at 5 degrees, and left and right lateral rotation at 5 degrees. There was no muscle atrophy, no ankylosis, and no IVDS. The Veteran had radiculopathy with symptoms of decreased sensation, severe intermittent pain, moderate paresthesias, and moderate numbness of the right lower extremity. The Veteran also had mild intermittent pain, mild paresthesias, and mild numbness of the left lower extremity. The examiner documented sciatic nerve involvement bilaterally. The examiner also indicated that there were no other neurological abnormalities or findings related to the lumbar spine condition, such as bowel or bladder problems. The examiner explained that the Veteran would have trouble driving or sitting for longer than 20 minutes and would have limitations in his ability to perform heavy lifting and walking long distances. Based on the foregoing, the Board finds that, for the period prior to July 18, 2022, the evidence is at least in equipoise as to whether the criteria for a higher 40 percent rating are met. As indicated above, the Veteran appears to have undergone a significant worsening of his low back pain during his January 2018 VA examination and had to go to the emergency department. At that time, the Veteran was unable to undergo range of motion testing. However, the Veteran did report 10 out of 10 flareup pain. Since this examination was conducted, the Veteran continued to report stiffness of his lumbar spine and flareups with more severe pain. At a subsequent July 2022 VA examination, the Veteran was able to perform range of motion testing. He showed significantly decreased limitation of motion with lumbar flexion to limited to 20 degrees. Considering this evidence in a light most favorable to the Veteran, the Board finds that the Veteran's symptoms that he experienced during the July 2022 VA examination were likely present at the time of his January 2018 VA examination (where his symptoms became so severe that testing was not conducted). Accordingly, in affording the Veteran the benefit of the doubt the Board finds that a 40 percent rating for the lumbar spine disorder is warranted prior to July 18, 2022. For the entirety of the appeal period, however, the record does not reflect that the criteria for a rating in excess of 40 percent have been met. In order to warrant an evaluation in excess of 40 percent for the Veteran's lumbar spine disability, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. VA treatment records and examination reports do not show this. The Board has also considered whether a rating in excess of 40 percent is warranted based on functional loss. 38 C.F.R. §§ 4.40, 4.45; Chavis v. McDonough, 34 Vet. App. 1 (2021). Although the Veteran's lumbar spine limitation of motion is significantly limited, the evidence of record does not show that his spine has been fixed in either flexion or extension, including during flareups. Therefore, unfavorable ankylosis has not been more nearly approximated and, for the period entirety of the appeal period, a rating in excess of 40 percent for a lumbar spine disorder is not warranted. In making the above determination, the Board acknowledges that the VA examinations of the Veteran's lumbar spine must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has also considered the holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), which addresses 38 C.F.R. § 4.40, and states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In light of these requirements, the Board has carefully considered the VA examinations of record and whether they complied with Correia and Sharp. The Board finds that the most recent July 2022 VA examination complies with these requirements. The January 2018 VA examination did not include range of motion testing results; however, that is because the Veteran's symptoms became exacerbated, and the examination was not completed. As explained above, the Board has afforded the Veteran the benefit of the doubt and determined that the limitations present at the time the July 2022 VA examination were likely present at the time of his January 2018 VA examination. Moreover, the Veteran is now in receipt of a 40 percent rating for the entirety of the appeal period. A rating in excess of 40 percent for the lumbar spine involves a finding of ankylosis or its functional equivalent. Thus, a remand for an additional examination would serve no useful purpose in this regard. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board finds that the evidence of record was sufficient to adjudicate his claim. 2. Entitlement to increased ratings for left and right upper extremity radiculopathy. Pursuant to Note (1) of the General Rating Formula, associated neurological abnormalities are considered to be part and parcel of the Veteran's lumbar spine disorder. During the course of the Veteran's appeal for an increased rating for his lumbar spine, and as a result of the development that was completed to address that claim, the Veteran was awarded service connection for right and left upper extremity radiculopathy. The Veteran was awarded a separate rating for RLE radiculopathy at 10 percent, effective September 16, 2021, and a separate rating for LLE radiculopathy at 10 percent, effective July 18, 2022. See August 2022 Rating Decision. Under DC 8520, for the sciatic nerve a 10 percent disability rating is assigned for mild, incomplete paralysis; a 20 percent disability rating is assigned for moderate, incomplete paralysis; a 40 percent disability rating is assigned for moderately severe, incomplete paralysis; and a 60 percent rating is assigned for severe, incomplete paralysis with marked muscular atrophy. After reviewing the claims file, the Board finds that, at all times relevant to the appeal, the evidence is at least in equipoise as to whether the criteria for separate and higher 40 percent ratings for RLE radiculopathy were met. The Board also finds that the criteria for a separate 10 percent rating for LLE radiculopathy were met prior to July 18, 2022. The criteria for a higher rating in excess of 10 percent for LLE radiculopathy have not been met for the period from July 18. 2022. In pertinent part, the competent evidence of record shows that in a January 2018 VA emergency room treatment record, the Veteran reported bilateral radicular symptoms of numbness, with his RLE demonstrating additional symptoms of weakness and occasional give way. Importantly, the Veteran also reported during his January 2018 VA examination that he was experiencing worsening numbness in the bilateral lower extremities. Although objective radicular symptomatology for the bilateral lower extremities were not documented in the VA examination report, it is also noted that the Veteran's symptoms became so severe during the January 2018 VA examination that it was discontinued, and the Veteran was sent to the emergency department. Subsequently, during the May 2022 Board hearing, the Veteran continued to report radicular symptoms of numbness and pain. He also testified that his right leg was more severe than his left. In the July 2022 VA examination report (discussed in greater detail in the above lumbar spine section), the Veteran was noted to have mild symptomatology for the LLE and moderate to severe symptomatology for the RLE. Based on this evidence, the Board finds that the evidence reasonably establishes that the Veteran has had moderately severe RLE radiculopathy throughout the relevant appeal period. As reflected above, the Veteran was noted to have worsening radicular symptoms in January 2018 with RLE weakness and give way and his most recent July 2022 VA examination showed severe intermittent pain, moderate paresthesias, and moderate numbness. As such, in affording the Veteran the benefit of the doubt, the Board finds that the Veteran has demonstrated moderately severe RLE radiculopathy (i.e., the criteria for a higher 40 percent rating). A higher 60 percent rating for RLE radiculopathy requires evidence of severe symptoms with marked muscular atrophy. This has not been shown. As such, a higher rating in excess of 40 percent is not warranted for the Veteran's RLE radiculopathy. The Board also finds that the evidence reasonably establishes that the Veteran has mild LLE radiculopathy (i.e., the criteria for a 10 percent rating) for the entirety of the appeal. In that regard, at all times relevant to the period on appeal, the Veteran demonstrated at least some radicular symptoms attributable to the LLE. The Board finds, however, that a higher 20 percent rating for LLE radiculopathy requires evidence of moderate incomplete paralysis and this has not been shown. Notably, while the Veteran demonstrated symptoms of numbness for his LLE, there is no evidence that such symptoms affected his ability to walk. In fact, the Veteran indicated that, while he had radiating pain on the left side, it was not as severe as his right. The Board also finds the July 2022 VA examiner's characterization of the severity of the Veteran's disability (which was mild) to be the most probative evidence regarding the Veteran's LLE radiculopathy. Accordingly, a higher rating in excess of 10 percent is not warranted for the Veteran's LLE radiculopathy. REASONS FOR REMAND 1. Entitlement to a separate compensable rating for a neurological disability manifested by bladder or bowel impairment secondary to the lumbar spine disorder is remanded. The Board finds that a VA medical opinion is needed to assist in determining whether the Veteran has a neurological disability involving the bladder or bowel that is associated with his service-connected lumbar spine disorder. As noted above, when rating disabilities of the spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The record reflects the Veteran's reports that he has urinary incontinence associated with his lumbar spine disorder. See May 2022 Board Hearing Transcript and January 2018 VA Examination report. It was also noted in the January 2018 VA examination report that the Veteran had current symptoms attributable to his lumbar spine which included urinary incontinence. However, the January 2018 VA examiner did not otherwise reconcile this conclusion with the Veteran's earlier VA treatment records that suggest an alternative etiology and much earlier onset for the Veteran's bladder problems. In fact, VA treatment records from 2006 reflect the Veteran's reports of urinary frequency and nocturia that was present in 2006 and existed for the past 10 years. At that time, the Veteran also indicated that he was told such symptoms were related to having a small bladder capacity and not emptying his bladder completely. See August 2006 VA Treatment records. The Board also notes that the July 2022 VA examination report found that there were no other neurological abnormalities associated with the Veteran's lumbar spine disorder, to include bowel or bladder problems. Given the conflicting evidence, the Board finds that further development is necessary to clarify whether the Veteran's bladder/bowel problems are associated with his lumbar spine disorder. As such, remand is warranted for a VA addendum opinion consistent with the directives herein. The matter is REMANDED for the following action: Obtain a VA medical opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran's bladder or bowel impairment, including determining whether it is due to his service-connected lumbar spine disorder (a physical examination may be conducted if deemed necessary). The examiner is requested to review all pertinent records associated with the claims file, including a complete copy of this decision and remand. For any bladder or bowel impairment confirmed to exist, please indicate whether the impairment is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) due to or aggravated by the Veteran's service-connected low back disability. A complete rationale for all requested opinions shall be provided. The rationale must include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. If the examiner cannot provide an opinion without resorting to mere speculation, they shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that they have exhausted the limits of current medical knowledge in providing an answer to that question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.