Citation Nr: 18160547
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-02 119
DATE:	December 27, 2018
ORDER
Entitlement to an initial rating in excess of 20 percent for the period prior to January 8, 2018 and in excess of 10 percent thereafter for lumbar spine, herniated bulge disc at L5-S1 disability is denied.
Entitlement to a disability rating of 20 percent, but no higher, for service connected right lower extremity radiculopathy is granted.  
REMANDED
Entitlement to service connection for persistent depressive disorder claimed as depression is remanded.
FINDINGS OF FACT
1. For the period prior to January 8, 2018, the Veteran’s service-connected lumbar spine, herniated bulge disc at L5-S1 disability was manifested by forward flexion of the thoracolumbar spine limited to less than 60 degrees but greater than 30 degrees.
2. From January 8, 2018, the Veteran’s service-connected lumbar spine, herniated bulge disc at L5-S1 disability was manifested by forward flexion of the thoracolumbar spine limited to no worse than 90 degrees without spasm or guarding severe enough to result in an abnormal gait or evidence of intervertebral disc syndrome.
3. The Veteran’s radiculopathy of the right lower extremity is manifested by moderate incomplete paralysis or impairment of the sciatic nerve.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 20 percent is not warranted for the Veteran’s lumbar spine, herniated bulge disc at L5-S1 disability for the period prior to January 8, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237.
2. The criteria for a disability rating in excess of 10 percent for the Veteran’s lumbar spine, herniated bulge disc at L5-S1 disability from January 8, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5237.
3. The criteria for a disability rating of 20 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.124a, DC 8520.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1989 to September 1992. 
These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2015, January 2016, and January 2018 rating decisions by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). 
By way of history, the Board notes that service connection for lumbar spine herniated bulge disc was granted in the November 2015 rating decision and an initial 20 percent disability rating was assigned from July 1, 2015. Thereafter, in a December 2015 rating decision, the RO changed the effective date of the 20 percent disability rating to July 1, 2014. A January 2018 rating decision subsequently decreased the rating to 10 percent, effective January 8, 2018. 
1. Rating in excess of 20 percent for lumbar spine, herniated bulge disc at L5-S1 disability prior to January 8, 2018 
The Veteran’s lumbar spine, herniated bulge disc at L5-S1 disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. A 20 percent rating is effective for the period prior to January 8, 2018. 
Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, DC 5235-5242. Under DC 5237, a 10 percent disability evaluation is warranted for a disability of the thoracolumbar spine resulting in forward flexion 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 evaluation is warranted for disability of the thoracolumbar spine resulting in forward flexion 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 evaluation applies if there is forward flexion of the thoracolumbar spine less than 30 degrees; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine.
Diagnostic Code 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 Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; 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 for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating 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 Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.
There are several notes set out after the diagnostic criteria. Associated objective neurologic abnormalities are to be rated separately under an appropriate Code and unfavorable ankylosis is defined for VA compensation purposes. Unfavorable ankylosis is a condition in which the entire cervical 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Codes 5235-5243.
The Board has reviewed the Veteran’s lay statements and all relevant medical evidence, with particular attention to a July 2015 back disability benefits questionnaire (DBQ) and the VA examination from October 2015.
On a July 2015 back DBQ, Dr. A.M. noted abnormal spinal contour and muscle spasms. There was muscle atrophy reported in the right lower extremity, hip, knee, ankle. The examiner noted unfavorable ankylosis of the entire thoracolumbar spine. The examiner indicated that there was severe radiculopathy in the right lower extremity and occasional bowel incontinence. IVDS with incapacitating episodes of at least 6 weeks over the past twelve months was reported by the examiner. Thoracolumbar spine range of motion measurements were as follows: flexion to 52 degrees, extension to 14 degrees, right lateral flexion to 20 degrees, left lateral flexion to 9 degrees, and right and left lateral rotation was not reported. Pain on movement was noted with extension and right and left lateral flexion. The examiner indicated that there was localized tenderness or pain on palpitation in the right lumbar region; right lower extremity, posterior. The examiner noted that the Veteran constantly used a back brace as an assistive device. 
The Veteran underwent a VA back examination in October 2015. The examiner noted evidence of guarding or muscle spasms resulting in abnormal gait or abnormal spinal contour. Thoracolumbar spine range of motion measurements were as follows: flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 25 degrees each. Muscle strength was normal. Pain was noted on the examination but it did not result in functional loss. There was no evidence of muscle atrophy. There was no ankylosis, bowel dysfunction, or bladder dysfunction. The examiner noted that there was intervertebral disc syndrome (IVDS) but that it did not require bed rest prescribed by a physician and treatment by a physician in the last twelve months. There was reported mild right lower right extremity radiculopathy. The examiner noted that the Veteran constantly used a back brace as an assistive device. The examiner indicated that the Veteran’s lumbar spine disability impacted his ability to work in that he was unable to stand or drive for prolonged periods of time due to increased pain in his back. 
After consideration of the pertinent evidence of record, the Board concludes that a rating in excess of 20 percent is not warranted for the Veteran’s lumbar spine disability prior to January 8, 2018. Under the General Rating Formula, the evidence must establish that forward flexion of the thoracolumbar spine less than 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine.  
The Veteran’s lumbar spine disability has been manifested by subjective complaints of pain, weakness, and limitation of motion, at most, to 52 degrees of forward flexion, 14 degrees of extension, right lateral flexion to 20 degrees, left lateral flexion to 9 degrees, and 25 degrees of bilateral lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, DC 5237. Based on the foregoing, a rating greater than 20 percent is not warranted. Additionally, the Board notes that the July 2015 back DBQ report shows that the VA examiner noted “unfavorable ankylosis” regarding the severity of the Veteran’s lumbar spine disability. However, the Veteran’s forward flexion, extension and lateral movements were all measurable in degrees. Indeed, the October 2015 VA examiner also recorded range of motion results. As there was clearly motion, the medical evidence of record simply does not show ankylosis of the entire thoracolumbar spine, required for the assignment of the next higher rating. See 38 C.F.R. § 4.71a, General Rating Formula; also see Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citations omitted) (defining ankylosis as “immobility and consolidation of a joint due to disease, injury, surgical procedure.”). 
Additionally, although the July 2015 back DBQ noted IVDS with incapacitating episodes of at least 6 weeks over the past twelve months, a review of the Veteran’s records does not include evidence of any physician prescribed bed rest or treatment by a physician. The Veteran has not specified any particular treatment provider who has required bedrest or indicated that VA is missing any pertinent treatment records. Hence, there is no adequate evidence of any “incapacitating episodes” as defined by VA. The October 2015 VA examiner also specifically found that the Veteran did not have IVDS. As such, a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5243 based on incapacitating episodes of IVDS is not warranted at any time during this period on appeal. 
2. Rating in excess of 10 percent for lumbar spine, herniated bulge disc at L5-S1 disability from January 8, 2018
The Veteran’s lumbar spine, herniated bulge disc at L5-S1 is evaluated under Diagnostic Code 5237 as 10 percent disabling from January 8, 2018. 
On a January 2018 VA back examination, the examiner noted that the Veteran did not report any flare-ups. There was no guarding or muscle spasm present. Thoracolumbar spine range of motion measurements were as follows: flexion to 90 degrees, extension to 25 degrees, right and left lateral flexion to 25 degrees each, and right and left lateral rotation to 25 degrees each. The examiner noted that the Veteran experienced pain on flexion. Muscle strength was normal. There was no evidence of muscle atrophy. There was no ankylosis, bowel dysfunction, or bladder dysfunction. There was also no radiculopathy or IVDS. The examiner noted that the Veteran used a brace occasionally as an assistive device. The examiner reported that the Veteran’s thoracolumbar spine condition impacted his ability to work in that the Veteran was not able to do any heavy lifting, pushing, or pulling. 
Beginning on the Veteran’s January 2018 VA medical examination, there is no evidence to support a 20 percent disability rating. To warrant a higher rating, the evidence would have to show forward flexion between 30 and 60 degrees, a combined range of motion not greater than 120 degrees, or spasm or guarding severe enough to result in abnormal gait. This is not supported by the record. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.
As the Veteran is still not shown to suffer from IVDS, a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5243 based on incapacitating episodes of IVDS is not warranted during this time.  
The Board finally notes that while the Veteran has been awarded a separate rating for his right lower extremity radiculopathy, the propriety of which will be addressed below, the Board finds that his back disability does not result in any additional associated objective neurologic abnormalities. In this regard, while the Veteran complained of occasional bowel incontinence in July 2015, he denied such symptomatology both prior and subsequent to such date. Therefore, absent evidence of objective neurologic abnormalities of bowel incontinence, the Board finds that separate ratings for such claimed conditions is not warranted.
3. Rating in excess of 10 percent for right lower extremity radiculopathy 
The Veteran’s radiculopathy of the right lower extremity is rated as 10 percent disabling from July 1, 2014 under 38 C.F.R. § 4.124a, DC 8520. 
Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.120. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory. Id. Special consideration is given to complete or partial loss of use of one or more extremities and disturbances of gait. 38 C.F.R. § 4.124a.
Diagnostic Code 8520 pertains to paralysis of the sciatic nerve, and provides that a 10 percent rating is warranted for mild incomplete paralysis. A rating of 20 percent is warranted for moderate incomplete paralysis. Moderately severe incomplete paralysis merits a 40 percent rating. A rating of 60 percent requires severe incomplete paralysis with marked muscle atrophy. The maximum rating of 80 percent is reserved for complete paralysis shown by manifestations such as: the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, DC 8520.
Terms such as “mild,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. The use of such terms by VA examiners or other physicians will be considered, but are not dispositive when assigning an evaluation. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.
The Veteran’s July 2015 back DBQ showed that the Veteran reported sciatic pain. He described it as severe intermittent pain. He had severe paresthesias and/or dysesthesias. He reported severe numbness. Dr. A. M. opined that the Veteran’s right lower extremity radiculopathy was severe. The Veteran also reported occasional bowel incontinence. 
The Veteran’s October 2015 VA back medical examination showed that the Veteran had right lower extremity radiculopathy. He described his intermittent pain as mild. He had mild paresthesias and/or dysesthesias. The examiner opined that the Veteran’s right lower extremity radiculopathy was mild. 
The Veteran’s January 2018 VA back medical examination showed that the examiner found no evidence of radiculopathy at that examination. 
In light of the above-noted evidence, and in consideration of this functional impairment and the holdings of Deluca, Mitchell, and Burton, the Board finds that, resolving all doubt in the Veteran’s favor, moderate incomplete paralysis of the right lower extremity radiculopathy is most nearly approximated.  See 38 C.F.R. §§ 4.40, 4.45, 4.59. 38 C.F.R. § 4.71a, DC 5280.  Accordingly, a rating of 20 percent, but no higher, for the Veteran’s service-connected right lower extremity radiculopathy is granted.
However, a rating in excess of 20 percent is not warranted at any time during the appeal period. To warrant a higher rating for his right lower extremity radiculopathy, the evidence would have to show moderately severe incomplete, which the lay and objective evidence has not shown. Pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as ‘excursion, strength, speed, coordination, and endurance,’ in order to constitute functional loss, which is not shown by the record. Id.; see 38 C.F.R. § 4.40.
REASONS FOR REMAND
1. Entitlement to service connection for persistent depressive disorder claimed as depression is remanded.
The Veteran contends that his depressive disorder is attributable to his active duty service. Specifically, the Veteran reported that he became depressed after he fell ten feet from a helicopter and landed on his right side onto a ship in 1990 during service in the Navy. 
The Veteran underwent a VA mental disorders examination in October 2015. The examiner diagnosed the Veteran with persistent depressive disorder. The examiner opined that the Veteran’s depression was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran’s persistent depressive disorder was not incurred in service and was not caused by the tour of duty. No rationale for the opinion regarding the etiology of persistent depressive disorder was provided. 
The Board finds the October 2015 VA examination inadequate. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner’s failure to provide any explanation for this conclusion, therefore renders the Board unable to use this opinion to make an informed determination as to whether or not service connection for the Veteran’s psychiatric disorder is warranted. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Therefore, a remand is necessary in order to obtain an addendum opinion.
The matter is REMANDED for the following action:
1. After obtaining any necessary releases, obtain any outstanding VA and private treatment records pertinent to the Veteran’s claim.  
2. Then, return the claims file to the VA examiner who conducted the Veteran’s October 2015 VA Mental Disorders examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the October 2015 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.
Thereafter, the examiner should:
(a) Identify all currently diagnosed acquired psychiatric disorders. The examiner should identify all such disorders that have been present at any time during the appeal period.
(b) For all such diagnosed disorders, the examiner must state whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disorder had its onset in service or is otherwise etiologically related to active service. 
In answering each of the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion.
(Continued on the next page)
 
A rationale for any opinion offered should be provided.
 
Lindsey M. Connor
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Grzeczkowicz, 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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