Citation Nr: 18132241
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-07 280
DATE:	September 6, 2018
ORDER
An initial increased rating for a back disability, to include lumbar strain (LS) and degenerative disc disease (DDD) with radiculopathy, in excess of 10 percent prior to December 25, 2013, and in excess of 40 percent thereafter, is denied.
A separate compensable rating for lumbar radiculopathy of the lower left extremity is granted.
A separate compensable rating for lumbar radiculopathy of the lower right extremity is granted.
REMANDED
Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
FINDINGS OF FACT
1. Prior to December 25, 2013, the Veteran's back disability manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees and combined range of motion greater than 120 degrees but not greater than 235 degrees with no evidence of abnormal gait, guarding, muscle spasm, vertebral body fracture, scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis.
2. Since December 25, 2013, the Veteran has been able to move his spine and has not had ankylosis.
3. Since February 3, 2014, the Veteran has had left lower extremity lumbar radiculopathy approximating moderate incomplete paralysis of the sciatic nerve.
4. Since February 3, 2014, the Veteran has had right lower extremity lumbar radiculopathy approximating moderate incomplete paralysis of the sciatic nerve.
5. During the entire period on appeal, the Veteran has not been prescribed any bed rest to treat his low back.
CONCLUSIONS OF LAW
1. Prior to December 25, 2013, the criteria for a disability rating in excess of 10 percent for a back disability have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2017).
2. Since December 25, 2013, the criteria for a disability rating in excess of 40 percent for a back disability have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5237 (2017).
3. Since February 3, 2014, the criteria for a separate disability rating of 20 percent for lumbar radiculopathy of the left lower extremity have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, DC 8520 (2017).

4. Since February 3, 2014, the criteria for a separate disability rating of 20 percent for lumbar radiculopathy of the right lower extremity have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, DC 8520 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1982 to November 1991.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  The Board remanded the issue in February 2018.
The record reflects that the Veteran may be unable to secure and follow substantially gainful employment due to his service-connected disabilities.  Because a TDIU rating is inherent in any claim for an increased rating, it has been added as an issue on the title page.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).
The Board notes that the Veteran’s nonservice-connected DDD is also a disability of service origin, in that the June 2018 VA and December 2017 private opinions inextricably link the Veteran’s service-connected LS and nonservice-connected DDD by determining that the Veteran’s symptoms cannot be separated.  On evaluating the condition of a service-connected disability, if it is not possible to separate the effects of a service-connected condition from that of a nonservice-connected condition, then 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Thus, if any symptoms cannot be distinguished as between service-connected and nonservice-connected symptomatology, the Board will consider both as service-connected disability. Id.  As such, resolving any doubt in the Veteran’s favor, the Board finds that the all relevant signs and symptoms will be attributed to his LS and DDD and will address the disability as a single back disability which encompasses both diagnoses.  See 38 C.F.R. § 3.310.  
1. Back disability
The Veteran's back disability has been evaluated by the RO as 10 percent disabling prior to December 25, 2013 and 40 percent disabling thereafter under 38 C.F.R. § 4.71a, DC 5237.  The Veteran seeks an increased rating.  
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.
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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.
In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).  
Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).
Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the 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 an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 
A 20 percent rating is warranted 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 rating is warranted for flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating requires unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a.  “Unfavorable ankylosis” is defined, in pertinent part, as “a condition in which... the entire thoracolumbar spine or the entire spine is fixed in flexion or extension[.]” See id., Note (5).
In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The basis of disability evaluation 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. 
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.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  
With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.
DC 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 
The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS 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 for IVDS 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 for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a. 
Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a.
Prior to December 25, 2013
Following a careful review of the record, the Board finds that an initial rating in excess of 10 percent prior to December 25, 2013, is not warranted.
The Veteran filed a claim for service connection for his lumbar disorder on May 20, 2010 and was granted an increase to 40 percent effective December 25, 2013.  Accordingly, the relevant time period is from May 2010 to December 2013. 
The Veteran underwent a VA examination in April 2011, wherein he reported daily back pain with numbness and weakness since 1989.  He did not report flare-ups and physical exam did not show weakness or incoordination.  His range of motion, after repetitive use, showed movement with forward flexion to 78 at worst upon consideration of pain and a combined range of motion of 177 degrees.  The examiner opined that the Veteran did not have intervertebral disc syndrome (IVDS) and his lower extremity sensory functioning was normal.
As shown from the evidence above, the Board finds that a rating in excess of 10 percent is not warranted prior to December 25, 2013.  At no point prior to December 25, 2013, has the evidence shown forward flexion of the thoracolumbar spine less than 60 degrees; or, the combined range of motion of the thoracolumbar spine less 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.  
In this regard, despite the Veteran’s complaints of mild lower back pain with stiffness and spasms that was aggravated by bending and twisting, the providers noted the Veteran had normal strength, reflexes, and coordination and was neurologically intact with no gait problems ( December 2009, April 2011, December 2012, January 2013, April 2013, June 2013, October 2013).  Indeed, the April 2011 VA exam reflects that the Veteran had flexion to 78 degrees and a combined range of motion of 177 degrees.
Although the Veteran consistently reported lower back pain with stiffness and spasms and contends “some days” he is unable to move, such inability to move is of limited duration and is given little probative weight.  As such, an increased rating is not warranted.
The Board is aware of the recent decision in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that for an examination to be adequate it should 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. The April 2011 VA examination did not fully comply with Correia in that the examiner did not test for pain in weightbearing and nonweight-bearing modes. However, the examiner tested for ROM in repetitive mode times five with documentation of further range of motion loss due to repetitive use; further, a remedial examination in 2018 or 2019 would be too remote to reasonably relate to the original examination in 2011.  The Board has also considered whether the recent holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), in which an examiner must provide an opinion regarding additional range of motion loss due to pain, would require a remand for a new VA examination.  However, the Veteran specifically denied any flare ups at the April 2011 VA examination and therefore, a new examination to determine the effects of flareups in 2011 when the Veteran specifically denied them, is unnecessary.
In excess of 40 percent from December 25, 2013
Following a careful review of the record, the Board finds that an initial rating in excess of 40 percent from December 25, 2013, is not warranted.
As described above, the Veteran was granted an increase to 40 percent effective December 25, 2013.
A February 2014 VA examination reflects the Veteran reported back pain since 1989 that “waxes and wanes,” with more frequent flare-ups in last 10 years.  He could not “run anymore,” had a “hard time” bending over and “picking things up,” and recently lost his job because he “couldn’t load trucks anymore.”  The physical examination showed that the Veteran had flexion to 15 degrees and a combined range of motion of 110 degrees; abnormal gait; positive bilateral straight leg raise testing; and moderate radiculopathy with intermittent severe pain that lasts “about 5 minutes.”  
An April 2014 VA examination reflects that the Veteran reported persistent back pain with loss feeling in both legs and he used a cane to ambulate.  While the physical examination showed that the Veteran had flexion to 30 degrees and a combined range of motion of 140 degrees, the examiner noted normal bilateral lower extremity strength, reflexes, and sensation and negative straight leg testing.  There was no painful motion, guarding, atrophy, radiculopathy, ankylosis of the spine, nor did the Veteran have IVDS.
An October 2017 VA examination report shows diagnoses of chronic LS, IVDS, and moderate radiculopathy.  The Veteran reported constant lower back pain that was aggravated by bending, difficulty with ambulation, and he stopped working due to difficulty with prolonged standing due to his lower back condition.  The examiner noted that the Veteran had flexion to 30 degrees and a combined range of motion of 120 degrees, decreased bilateral lower leg sensation, and positive bilateral straight leg testing.  There was no guarding, spasms, atrophy, or ankylosis of the spine.  
As described above, a December 2017 private examiner noted diagnoses of LS and lower extremity radiculopathy; complaints of low back pain since 1989; and opined that due to the direct linkage and causation of LS and Lower Extremity Radiculopathy, “no baseline or degree of aggravation can be established.”
In a June 2018 addendum, the October 2017 VA examiner noted diagnoses of LS and bilateral lower extremity radiculopathy.  She opined that the Veteran's report of pain “is likely due to both conditions,” “his LS likely causes aggravation of his lumbar spine DDD with radiculopathy,” and “it cannot be stated without resort to mere speculation the degree of disability of his current symptoms as they are subjective and cannot be separated out as to which condition it is attributed to.”
As shown from the evidence above, the Board finds that a rating in excess of 40 percent is not warranted at any time during the appeal period.  To warrant a disability rating in excess of 40 percent, the evidence should show unfavorable ankylosis of the thoracolumbar spine.  In this regard, the Board notes that the evidence of record has consistently shown, and it does not appear that the Veteran has ever claimed otherwise, that the Veteran has movement in his spine.  Because the preponderance of the evidence reflects that the Veteran is able to move his spine and does not have the functional equivalent of ankylosis, an increased rating is not warranted.
With respect to the provisions of 38 C.F.R. §§ 4.40 and 4.45, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that, if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable.  In the instant case, the Veteran is receiving the maximum rating allowable under the current General Rating Formula for Diseases and Injuries of the Spine, absent ankylosis.  Accordingly, 38 C.F.R. §§ 4.40 and 4.45 are not for consideration for the appeal period.
The Board recognizes that a February 2014 VA lumbar disability benefits questionnaire (DBQ) notes a diagnosis of IVDS with incapacitating episodes of at least 6 weeks over the last 12 months.  However, the Board affords this opinion less probative weight as the examiner provides no rationale and the record does not show that the Veteran has been prescribed any bed rest to treat his low back during the course of his appeal.  Because the prescription of bed rest is a fundamental requirement of a rating under DC 5243, the absence of any prescribed bed rest precludes a rating from being assigned under it.  As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's back disability under the General Rating Formula for Diseases and Injuries of the Spine.
As for the lay assertions of record, the Board notes that the while Veteran is competent to report his lumbar symptoms, there no indication that he is competent to provide an opinion concerning causation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  
Finally, to the extent the VA examinations failed to comply with Correia, supra, or Sharp, supra, such non-compliance is harmless error because a higher rating is not available unless the functional equivalent of unfavorable ankylosis of the thoracolumbar spine is shown.  However, the record shows that the Veteran has retained motion in the thoracolumbar spine during the entire relevant appeal period.  As such, any failure of the VA examinations for the period after December 2013 to comply with Correia or Sharp are harmless.    
In sum, the preponderance of the evidence is against an initial disability rating in excess of 40 percent from December 25, 2013 for the Veteran’s service-connected lumbar strain.
2. Separate disability rating for bilateral lower extremity radiculopathy
The Veteran contends a separate compensable rating for lower extremity lumbar radiculopathy is warranted.  
DC 8520 provides ratings for paralysis of the sciatic nerve.  DC 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling.  Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling.  38 C.F.R. § 4.124a. 
The term “incomplete paralysis” with this and other 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 partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor.  38 C.F.R. § 4.124a.
As shown from the evidence above, the Board finds that separate 20 percent ratings for moderate bilateral lower extremity lumbar radiculopathy is warranted.  In this regard, VA and private treatment records reflect diagnoses of bilateral lower extremity radiculopathy and complaints of lower extremity pain and numbness since 2014 (December 2009, December 2012, February 2014, April  2014, May 2014, March 2015, October 2017, December 2017, April 2018, June 2018).  
The Board is cognizant that the October 2017 VA examiner opined that the Veteran’s radiculopathy is less likely than not caused by or related to or a progression of the Veteran's LS.  However, the Board notes that in the June 2018 addendum the examiner opined that the Veteran's report of pain “is likely due to both conditions,” “his lumbar strain likely causes aggravation of his lumbar spine DDD with radiculopathy.” Since both disabilities are of service origin and therefore are considered a single lumbar spine disability for rating purposes, the opinions as a whole support a finding that the Veteran’s radiculopathy is relate dto the service connected lumbar spine disability.  
Further, in December 2017, Dr. F.A., opined that all the Veteran’s lumbar “abnormalities were the direct result of injuries sustained while in active Army service.”  In this regard, he noted that the Veteran’s current lower extremity radiculopathy, “was caused by the lumbar spine sprain condition that manifested in service” and “due to the complex, severe, and progressive nature of the lumbar spine sprain injury.” 
Accordingly, the Board finds a separate rating of 20 percent for moderate radiculopathy of each lower extremity is warranted.
REASONS FOR REMAND
TDIU
The Board notes that the issue of entitlement to a TDIU is part of a rating issue when such issue is raised by the record during the rating period.  Rice, 22 Vet. App. 447.  The Veteran has reported that he stopped working due to back pain and difficulty with prolonged standing, as well as the inability to work with noise and crowds.  Indeed, he reported that “was released from his last job as a bus driver for disagreeing with the union representatives” in June 2015.  
Moreover, a February 2014 examiner noted the Veteran had a decreased ability to lift, bend, reach, and carry; ability to interact with others due to pain and depression; and reliability as a worker.  The record shows the Veteran is currently unemployed.  The Board notes that the evidence has reasonably raised the issue of entitlement to a TDIU in conjunction with the increased rating issue decided herein; therefore, a remand for the Agency of Original Jurisdiction (AOJ) to adjudicate TDIU in the first instance.
The matter is REMANDED for the following action:
1. The AOJ should send the Veteran VCAA notice that addresses a claim for a TDIU.
2. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from June 2018 to the present.  The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record.
3. After all available evidence has been associated with the record, the AOJ should review the evidence and determine if further development is warranted for a TDIU.  The AOJ should take any additional development as deemed necessary.
4. After the above development has been completed, the AOJ should adjudicate the issue of entitlement to a TDIU on appeal based on all of the evidence of record.
5. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures.

 
E. I. VELEZ
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Roe, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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