Citation Nr: 1754209	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  12-23 373	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent for a lumbar strain prior to August 25, 2015, and in excess of 40 percent thereafter. 

2. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy.

3. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy.

4. Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU) prior to October 29, 2012. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1977 to March 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  

The Veteran testified before the undersigned Veterans Law Judge at an August 2015 Travel Board hearing in Waco, Texas.  A transcript of the hearing is of record. 

In a December 2014 decision, the Board denied entitlement to an initial rating in excess of 10 percent for the Veteran's lumbar strain prior to August 25, 2014 and granted a rating of 40 percent, but no more, thereafter.  The Board also granted service-connection for bilateral lower extremity radiculopathy, each evaluated at 20 percent disabling.  The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court).  In an August 2016 Joint Motion for Partial Remand (JMPR) and Order, the Court found the Board had failed to fulfill VA's statutory duty to assist.  As a result, the Board remanded this matter in January 2017 for further development.

The issue of entitlement to a TDIU prior to October 29, 2012 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT

1. For the period prior to August 25, 2015, the Veteran's lumbar strain disability manifested with forward flexion of the thoracolumbar spine less than 85 degrees; but not forward flexion of the thoracolumbar spine 60 degrees or less, or with combined range of motion of the thoracolumbar spine 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or any incapacitating episodes. 

2. For the period from August 25, 2015, the Veteran's lumbar strain disability manifested with functional forward flexion less than 30 degrees;  but not unfavorable ankylosis of the entire thoracolumbar spine, or any incapacitating episodes.

3. The Veteran's radiculopathy of the right lower extremity manifested with moderate incomplete paralysis, but not moderately severe incomplete paralysis. 

4. The Veteran's radiculopathy of the left lower extremity manifested with moderate incomplete paralysis, but not moderately severe incomplete paralysis.


CONCLUSIONS OF LAW

1. Prior to August 25, 2015, the criteria for an increased rating in excess of 10 percent for a lumbar spine disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017).

2. From August 25, 2015, the criteria for an increased rating in excess of 40 percent for a lumbar spine disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017).

3. The criteria for an initial rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a, Diagnostic Code 8520 (2017).

4. The criteria for an initial rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a, Diagnostic Code 8520 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duty to Notify and Assist

As noted by the Board's August 2017 Remand, an August 2016 Joint Motion for Partial Remand (JPMR) determined that the Board failed to fulfill its duty to assist prior to rendering its December 2015 decision.  38 U.S.C.A. § 5103A.  Pursuant to the August 2017 Remand directives, these deficiencies have been rectified.  The Veteran and his representative have not argued otherwise.

Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The Schedule is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  

VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran.  38 C.F.R. § 4.1.  If the evidence for and against a claim is in equipoise, the claim will be granted.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  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.  Id.; see also 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.  Id.  Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement.  38 C.F.R. § 4.45.

Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss.  Id.   

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is 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.  See 38 C.F.R. § 4.59.  Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261   (1994).

Staged ratings are appropriate for a 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).  Here, the Board has determined that the current staged rating for the Veteran's lumbar strain disability is appropriate as the record indicates a significant change in the severity of such disability.  With respect to the radiculopathy of the lower extremities, the disabilities have not significantly changed and uniform evaluations are warranted.

Lumbar Spine

The Veteran's service-connected lumbar strain is currently rated as 10 percent disabling for the period prior to August 25, 2015, and 40 percent thereafter, under Diagnostic Code 5237.  See 38 C.F.R. § 4.71a.  The Veteran has challenged the initial rating, effective December 9, 2010.

Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. 
Under the General Rating Formula, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar 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 warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 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.

The rating criteria further explain under Note (1), that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  As a result, the Veteran has separate evaluations for his associated radiculopathy of the lower extremities.  

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part) a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

Note (1) for purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.
Factual Background 

VA treatment records dating from February 2011 to 2014 show active problems of spinal stenosis, lumbago, low back pain, and joint pain - low/leg. 

At a June 2011 VA examination, the Veteran reported symptoms of constant severe pain in his low back area that traveled to his lower leg, stiffness, spasms, decreased motion, weakness of the spine, and numbness.  Back pain was exacerbated by stress and physical activity and relieved with Motrin and Naproxen medications.  The Veteran reported experiencing flare-ups of his lumbosacral spine condition with additional functional impairment described as pain and weakness with limitation of motion of the joint.  He could function at the time of pain with medication. Functionally, walking was limited to 5 miles in 8 hours on average due to his spine condition.  The Veteran denied history of falls due to his spine condition and symptoms of fatigue and paresthesia.  He denied bowel and bladder problems and erectile dysfunction related to his spine condition.  He denied any hospitalization, surgery, any incapacitating episodes of lumbosacral spine symptoms within the past 12 months. 

Inspection of the Veteran's spine revealed normal head position with symmetry in appearance.  There was symmetry of spinal motion with normal curvature.  The Veteran's gait and posture were within normal limits. He walked steady with use of a back brace for assistance with ambulation due to back pain.  There was evidence of radiating pain on movement, which was described as shooting pain with active movement.  Muscle spasm was present in the para-vertebra, but it did not produce an abnormal gait and spinal contour was preserved.  There was tenderness with palpation and guarding of movement of the thoracolumbar spine, but it was not productive of an abnormal gait.  There was weakness of movement.  Muscle tone and musculature was normal.  Straight leg raise testing and Lasegue's sign were negative bilaterally.  There was no atrophy in the limbs or ankylosis of the thoracolumbar spine.  Range of motion of the thoracolumbar spine was forward flexion to 65 degrees with painful motion starting at 65 degrees; extension to 30 degrees with painful motion starting at 25 degrees; right and left lateral flexion and right and left lateral rotation, each to 30 degrees.  There was no additional limitation of motion following repetitive-use testing.  Joint function of the thoracolumbar spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  Neurological examination revealed no sensory deficits to pain or light touch from L1-L5 or at S1. There was no lumbosacral motor weakness.  Bilateral lower extremity reflexes were normal (2+) on knee and ankle jerk.  There were no signs of pathologic reflexes in either lower extremity. Cutaneous reflexes were normal.  There were no signs of lumbar IVDS with chronic and permanent nerve root involvement. X-ray of the lumbar spine was within normal limits.  The examiner diagnosed lumbar strain and stated that effects on the Veteran's usual occupation and daily activities include pain, stiffness and difficulty with prolonged sitting, walking, running, and climbing stairs. 

June 2011 VA imaging of the lumbar spine showed diffuse osteopenia, scattered atherosclerotic changes and mild degenerative changes at the hips.  In August 2011, the Veteran was issued a cane for diagnosis of degenerative joint disease.  In October 2011, the Veteran complained of back pain with frequent falls and a 7 month history of bilateral leg weakness.  In December 2011, VA MRI of the lumbar spine showed transitional lumbosacral anatomy with lumbarization of S1; mild congenital spinal canal stenosis; and minimal degenerative disease at L5-S1 and to a lesser degree at L4-L5 resulting in no more than mild spinal canal or neural foraminal stenosis.  In December 2011, the Veteran was issued a nanny walker for diagnosis of low back pain.  In February 2012, he complained that low back pain sometimes caused his legs to give out. 

In April 2012, the Veteran reported radiation of low back pain into his bilateral buttocks and posterior thighs.  Active range of motion of the lumbosacral spine was full with pain on extension and on lateral rotation bilaterally.  Neurologic examination showed decreased strength (4+/5) on bilateral hip flexion.  Sensation to light touch and pinprick was normal throughout the bilateral lower extremities.  In May 2012, the Veteran received physical therapy for low back pain with stretching exercises and stabilization.  In July 2012, a VA primary care note shows assessment of chronic lumbar radiculopathy.  A January 2013 physical medicine and rehabilitation note shows continued pain in the coccygeal region radiating down both legs. 
At an August 2013 VA examination, the Veteran reported flare-ups of his thoracolumbar spine condition during which he could not lift due to pain on lifting items over his shoulder and he could not walk distances.  Treatment for the Veteran's lumbosacral spine condition included Diclofenac, Methocarbamol and Tramadol medications with benefit. 

Physical examination showed that his posture and gait were within normal limits. Range of motion of his thoracolumbar spine was forward flexion to 90 degrees with objective evidence of painful motion at 90 degrees; unlimited extension to 30 degrees without pain; unlimited right and left lateral flexion to 30 degrees without objective evidence of painful motion; and unlimited right and left lateral rotation each to 30 degrees without objective evidence of painful motion.  There was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing.  Contributing factors to functional loss and/or functional impairment of the thoracolumbar spine included pain on movement, weakness, fatigability and/or incoordination, but there was no additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time.  There was no localized tenderness, pain on palpation for joints and/or soft tissue, guarding, or spasm of the thoracolumbar spine.  Muscle strength was normal (5/5) throughout the bilateral lower extremities.  Deep tendon reflexes of the bilateral lower extremities were normal (2+).  Sensory examination of the Veteran's bilateral lower extremities was normal at all dermatomes.  Straight leg raise testing was negative bilaterally.  The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy.  There were no other neurologic abnormalities or findings related to the thoracolumbar spine (such as bowel or bladder problems/pathologic reflexes).  There was no muscle atrophy.  The examiner stated that the Veteran did not have IVDS of the thoracolumbar spine.  He did not use any assistive devices as a normal mode of locomotion.  X-ray of the thoracolumbar spine showed mild multilevel degenerative changes manifested as mild anterior osteophytes and facet degenerative changes in the lower lumbar spine. 

In a January 2014 statement, the Veteran indicated that his lumbar strain had worsened and that he had begun receiving epidural steroid injections for pain.  In April 2014, he indicated that he left his last job working in food service, at least in part, due to back pain. 

A July 2015 private treatment note from the Veteran's private physician, Dr. S, shows complaints of low back pain related to the Veteran's military work, problems with "arthritic" joints, and "spinal cord problems."  Good results were noted with recent lumbar epidural steroid injection.  The Veteran had requested repeat injections with recent aggravation of pain.  Review of symptoms was positive for muscle pain, back pain, tender points, and muscle cramps.  Treatment included Cyclobenzaprine, acetaminophen-hydrocodone, Nucynta, Ultram and ibuprofen medications.  Physical examination showed significant deficits in lumbar spine range of motion.  Spurling and straight leg raise testing was positive on the left and the Veteran's gait was mildly impaired.  Deep tendon reflexes were decreased at the left Achilles.  Diagnoses included spondylarthritis for which an epidural steroid injection was performed, spondylosis of unspecified site without mention of myelopathy, lumbar radiculopathy, and unspecified thoracic or lumbosacral neuritis or radiculitis.  Electromyelogram of the bilateral lower extremities was scheduled. 

During the August 2015 Travel Board hearing, the Veteran testified that he was in receipt of disability benefits from the SSA due to his service-connected back disability, which he stated became significantly worse in 2007 and became so bad that he had to stop working in about 2010.  He reported experiencing excruciating pain with bending such as when tying his shoes and putting on pants. He reported that he now wears flip flops and that he sometimes has his son assist him with putting on pants.  The Veteran reported that his lumbosacral spine disability was most recently evaluated by his private physician in August 2015.  The Veteran submitted report of a VA thoracolumbar spine DBQ completed by his private physician on August 25, 2015, which the Veteran stated was mistakenly dated September 25, 2015.  The Veteran stated that his private physician indicated that his lumbosacral spine disability had worsened.  He stated that his back pain was treated with multiple medications and the dosages of such medications had to be increased. He reported additional treatment with epidural steroid injections about once a month.  The undersigned observed that the Veteran used a cane for assistance with ambulation.  The Veteran reported that he has used a cane and a walker for assistance with ambulation for about the last 2 to 3 years as he was falling down a lot.  He reported use of a walker when exercising and reported that he is able to walk about 2 blocks before having to stop to rest.  He reported that his back pain radiates from his back down into his legs, worse on the left. 

Report of the August 2015 VA thoracolumbar spine DBQ completed by the Veteran's private physician, Dr. S, shows diagnoses of spinal stenosis, spondyloarthritis, and radiculopathy.  Flare-ups were reported that impacted the function of the thoracolumbar spine, described as difficulty with any activity of standing and bending.  Dr. S indicated that the Veteran has functional problems and uses a cane for assistance with ambulation.

Range of motion of the thoracolumbar spine was forward flexion to 40 degrees with objective evidence of painful motion at 25 degrees; extension to 5 degrees with objective evidence of painful motion at 0 degrees; right lateral flexion to 15 degrees with objective evidence of painful motion at 0 degrees; left lateral flexion to 15 degrees with objective evidence of painful motion at 5 degrees; right lateral rotation to 15 degrees with objective evidence of painful motion at 10 degrees; and left lateral rotation to 15 degrees with objective evidence of painful motion at 5 degrees. Repetitive-use testing could not be performed due to pain; however, Dr. S indicated that there was additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing.  There was functional loss, functional impairment, and/or additional limitation of range of motion of the thoracolumbar spine after repetitive-use due to contributing factors of pain on movement, instability of station, and interference with sitting, standing and/or weight bearing.  There was localized tenderness or pain to palpation for the joints and/or soft tissues of the thoracolumbar spine in multiple regions of the lumbar spine.  There was no guarding or muscle spasm of the thoracolumbar spine.  Motor strength in the bilateral lower extremities was decreased on right hip flexion (4/5), left hip flexion (3/5), right knee extension (4/5), left knee extension (3/5), left ankle plantar flexion (4/5), left ankle dorsiflexion (4/5), and left great toe extension (4/5).  There was muscle atrophy of the left calf and quadriceps with the right calf measured at 34.5 centimeters and the left atrophied calf measured at 33 centimeters.  Deep tendon reflexes were hypoactive (1+) at the bilateral knees and ankles.  Sensation to light touch was normal in all dermatomes of the bilateral lower extremities.  Straight leg raise testing was positive bilaterally.  Symptoms of radiculopathy included constant pain (may be excruciating at times) described as moderate in severity in the right lower extremity and as severe in the left lower extremity.  Other signs or symptoms of radiculopathy included weakness, atrophy and gait instability.  Nerve roots involved included the bilateral L4/L5/S1/S2/S2 nerve roots (sciatic nerve), moderate in degree.  Other neurologic abnormalities or findings related to the Veteran's thoracolumbar spine condition included radiculopathy with lower extremity radiating pain and weakness.  Dr. S indicated that the Veteran has IVDS of the thoracolumbar spine with incapacitating episodes over the past 12 months lasting for a total duration of less than one week (several days).  Constant use of a cane and regular use of a walker were used as a normal mode of locomotion due to unstable walking pattern and weakness.  X-ray of the thoracolumbar spine documented arthritis.  Dr. S also stated that EMG study had also been performed and showed radiculopathy.  He stated that the Veteran's thoracolumbar spine condition impacts his ability to work in that he is unable to perform walking, bending, lifting, and he fatigues easily.  He remarked that the Veteran has been impaired severely since 2012, but his work has been limited since 2010. 

Records from the Social Security Administration show that the Veteran is in receipt of disability benefits for primary diagnosis of degenerative disc disease, severe, and secondary diagnosis of affective disorder with a disability onset date of August 1, 2011.  Exertional limitations due to the Veteran's lumbar degenerative disc disease included occasional lifting/carrying 20 pounds, frequent lifting/carrying 10 pounds, stand/walk for 3 hours of an 8 hour work day, sitting for 6 hours of an 8 hour work day, cane required for assistance with ambulation, and hand held assistive devices required for stairs and uneven terrain.  Postural limitations included occasional climbing of ramps and stairs, unable to climb ladders/scaffolds/ropes, occasional balancing, stooping, kneeling, crouching and crawling; and due to degenerative disc and joint disease he should not be in height situations and should avoid even moderate exposures to hazards and vibration.  Residual functional capacity assessment rendered the Veteran unable to sustain a 40 hour work week as he did not have the residual functional capacity to perform past relevant work in the food service industry.  He had light residual functional capacity but standing and walking was limited to only 3 hours a day which reduced the Veteran to a light to sedentary residual functional capacity. 

In a September 2015 statement, Dr. S indicated that the Veteran had been attending pain relief clinics at his facility since May 2015.  He stated that due to the current severity of the Veteran's service-connected spondylarthritis, lumbar radiculopathy and spinal stenosis, it is his professional opinion that the Veteran is unable to gain and maintain substantially gainful employment in any occupational field, to include both physical and sedentary types of employment.

Pursuant to the Board's January 2017 Remand, the Veteran was sent letters requesting private treatment records, or authorization to obtain such records.  The Veteran did not respond to this request.  Updated VA treatment records were associated with the file, which the Board has reviewed.  

Initial Period Prior to August 25, 2015

Based on the evidence of record, the Board finds that an evaluation in excess of 10 percent is not warranted for this period. 

Objective medical findings are consistent with a 10 percent evaluation.  There is no evidence of the Veteran's lumbar spine disability manifesting in functional limitation equivalent to forward flexion of 60 degrees or less, combined motion of the thoracolumbar spine limited to 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  In addition, there is no evidence of ankylosis.

With respect to the provisions of 38 C.F.R. §§ 4.40, 4.45 and DeLuca consideration, the Veteran's range of motion was not limited upon repetitive motion testing to the degree that range of motion is consistent with a higher evaluation.  The Veteran did not exhibit any further loss of motion due to pain, fatigue, weakness, lack of endurance, or incoordination upon repetitive motion testing that would warrant a higher evaluation.  Pain was noted at times during the examinations.  However, even with pain, there is no indication that the Veteran's flexion was limited to 60 degrees or less during this period.  As noted, there is no evidence of ankylosis.

The Board has not overlooked the statements by the Veteran with regard to the severity of his disability during this period.  The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain; and the Board finds that the Veteran's reports have been credible.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Board has considered the Veteran's reports along with the medical evidence of record.  Here, the most probative evidence consists of the VA examinations prepared by skilled providers.  In addition, the Board notes private treatment records during this period suggesting an increase in severity of the Veteran's lumbar spine disability.  However, prior to the August 25, 2015 private DBQ, there is no objective medical evidence of an increase in severity consistent with a higher evaluation.

Period from August 25, 2015

Based on the evidence of record, the Board finds that an evaluation in excess of 40 percent is not warranted for this period. 

Objective medical findings are consistent with a 40 percent evaluation.  There is no evidence of ankylosis of the entire thoracolumbar spine.  Again, the Board acknowledges the provisions of 38 C.F.R. §§ 4.40, 4.45 and DeLuca.  However, there is simply no evidence of ankylosis or functional limitation consistent with ankylosis.  In addition, the Board notes that the August 25, 2015 private DBQ notes IVDS and incapacitating episodes.  To the degree that such incapacitation is consistent with Note (1) and the requirement for bed rest prescribed by a physician, there is no evidence that such episodes have had a total duration of at least 6 weeks during the last 12 months, necessary for an evaluation in excess of 40 percent.  

The Board has not overlooked the statements by the Veteran with regard to the severity of his disability during this period.  While competent to report on factual matters, the Veteran has not indicated that he has ankylosis of the thoracolumbar spine.  See Jandreau, supra; see Washington, supra. 

Radiculopathy Lower Extremities

Pursuant to the Board's December 2015 decision and a subsequent rating decision, the Veteran is in receipt of a 20 percent evaluation for radiculopathy of each lower extremity under Diagnostic Code 8520, effective August 25, 2015.  The Veteran has not challenged the effective date of compensation.

Under Diagnostic Code 8520, paralysis of the sciatic nerve: a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with evidence of marked muscular atrophy.  38 C.F.R. § 4.124a.  Complete paralysis will be evaluated as 80 percent disabling for such symptoms as foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost.  Id. 

The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision.  Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6. 
The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124 (a).

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis.  38 C.F.R. § 4.123.  The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  Id.

In the August 25, 2015 private DBQ, the examiner diagnosed radiculopathy of the bilateral lower extremities.  Findings revealed decreased motor strength and normal sensation of the bilateral lower extremities. Signs and symptoms of radiculopathy at that time included constant pain described as moderate in the right lower extremity and as severe in the left lower extremity, weakness, gait instability, and muscle atrophy of the left calf and quadriceps with the left calf measured at 1.5 centimeters smaller than the right calf.  Nerve roots involved in diagnosis of lumbar radiculopathy of the bilateral lower extremities included the bilateral L4/L5/S1/S2/S2 nerve roots (sciatic nerve).  The examiner described the severity as "moderate" bilaterally.

The Board has reviewed updated VA treatment records.  As previously noted, the Veteran has not responded to VA's request for additional private treatment records, or authorization to obtain such records.

Based on the evidence of record, the Board finds that an evaluation in excess of 20 percent is not warranted for either lower extremity. 

Objective medical findings are consistent with a 20 percent evaluation.  There is no evidence of the radiculopathy of the lower extremities manifesting in moderately severe incomplete paralysis.  The private examination submitted by the Veteran clearly indicates that the Veteran experiences moderate incomplete paralysis in both lower extremities.  He has not submitted any evidence to suggest otherwise and VA treatment records do not document such manifestations.

The Board has not overlooked the statements by the Veteran with regard to the severity of his disability.  See Jandreau, supra; Washington, supra.  The Board has considered the Veteran's reports along with the medical evidence of record.  Here, the most probative evidence consists of the private examination and VA treatment records.  


ORDER

Entitlement to an initial rating in excess of 10 percent for lumbar strain is denied.

Entitlement to a rating in excess of 40 percent for lumbar strain from August 25, 2015, is denied.

Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is denied.

Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is denied.


REMAND

In the Board's December 2015 decision, it referred the matter of entitlement to a TDIU to the Director of the VA Compensation Service for extraschedular consideration for the period prior to October 29, 2012.  A June 2016 request for a decision by the Director was issued in June 2016.  An undated decision was issued by the Director.  However, the matter of entitlement to a TDIU was not readjudicated in a Supplemental Statement of the Case (SSOC) as directed by the Board's Remand directives.  As a result, remand is again required to ensure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where remand order of the Board are not followed, the Board errs as a matter of law when failing to ensure compliance).


Accordingly, the case is REMANDED for the following action:

Readjudicate the matter of entitlement to a TDIU for the period prior to October 29, 2012.  If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a SSOC and given the requisite opportunity to respond before the case is returned to the Board for further appellate consideration, if in order. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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