Citation Nr: 18139562 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 13-22 971 DATE: October 1, 2018 ORDER An initial disability rating in excess of 20 percent for thoracolumbar degenerative disc disease is denied. An initial disability rating in excess of 10 percent for right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s degenerative disc disease of the thoracolumbar spine has been predominately manifested by forward flexion to 50 degrees at worst, with pain and no evidence of ankylosis of the spine or physician-prescribed bedrest for incapacitating episodes. 2. Throughout the appeal period, the Veteran’s left lower extremity radiculopathy has been manifested by at worst, mild incomplete paralysis of the femoral nerve. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an initial disability rating in excess of 20 percent for thoracolumbar degenerative disc disease have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R §§ 4.7, 4.71a, Diagnostic Codes (Code) 5242, 5243 (2018). 2. The criteria for establishing entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.124a, Code 8526 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from November 1985 to August 1991. The Board notes that the Veteran was previously scheduled for a video conference hearing in September 2012. However, he requested to cancel that hearing. The Veteran also cancelled a subsequent hearing scheduled for May 2014. As the record does not contain any additional requests for an appeals hearing, the Board deems the Veteran’s request for a hearing to be withdrawn. See 38 C.F.R. § 20.702 (2018). In a January 2017 Board decision, this matter was remanded for additional development to include affording the Veteran new VA examinations. As the requested development has been completed, this matter has been returned to the Board for appellate consideration. Increased Rating Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2018). The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.10 (2018). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The United States Court of Appeals for Veterans Claims (Court) has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial evaluation in excess of 20 percent disabling for thoracolumbar degenerative disc disease The Veteran’s degenerative disc disease of the thoracolumbar spine is evaluated as 20 percent disabling under Diagnostic Code 5243. He contends a higher initial evaluation is warranted. Disabilities of the spine are addressed by 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2018). Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but less than 60 degrees; or, a 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 forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a (2018). The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Pertinently, note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Alternatively, a back disability can also be rated as intervertebral disc syndrome (IVDS) with incapacitating episodes. Under the criteria listed in Diagnostic Code 5243, a 20 percent evaluation requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks but more than four weeks, and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a (2018). In this case, the Board has reviewed the competent evidence and finds that an initial disability rating in excess of 20 percent is not warranted for the Veteran’s thoracolumbar degenerative disc disease. The record shows that the Veteran has been afforded multiple VA examinations. On examination in October 2012, the Veteran complained of daily low back pain that impaired his ability to get out of bed, dress himself, or engage in activities requiring prolonged walking, standing or sitting. Initial range of motion testing revealed forward flexion limited to 60 degrees, extension and right lateral rotation limited to 20 degrees, left lateral flexion limited to 15 degrees, and bilateral rotation limited to 30 degrees. No evidence of pain was indicated. Following repetitive use testing, right lateral flexion was limited to 15 degrees, left lateral flexion was limited to 10 degrees. Evidence of localized tenderness and pain on motion was noted; however, no muscle spasms or guarding was indicated. Muscle strength, deep tendon reflexes, and straight leg raise testing yielded normal results. There was no evidence of atrophy or ankylosis. Although IVDS was noted, incapacitating episodes reportedly occurred less than once per week over the previous 12 months. The examiner diagnosed degenerative disc disease. On a subsequent VA examination in October 2013, the Veteran reported constant and chronic pain located in the small of his back. He described the pain as dull, aching and stabbing with pain on movement. The pain was rated as a 5 on a 10-point scale. The Veteran denied using oral medications to treat his pain, but reported participating in physical therapy. On examination, no neurological abnormalities, bladder or bowel problems were shown. Range of motion testing also revealed forward flexion limited to 60 degrees, extension limited to 10 degrees, right and left lateral flexion limited to 30 degrees, right lateral rotation limited to 5 degrees, and left lateral flexion limited to 30 degrees. Objective evidence of painful motion was noted. Repetitive use testing did not result in any additional functional impairment or limitation due to pain, fatigue, weakness, lack of endurance, or incoordination. Localized tenderness to palpation was shown, with no evidence of muscle spasms or guarding. Muscle strength, deep tendon reflexes, and straight leg raise testing yielded normal results, with no evidence of atrophy or ankylosis. Constant use of a cane was reported. There were no signs of neurological abnormalities. Evidence of IVDS was noted with the duration of incapacitating episodes reported as 1 week but less than 2 weeks over the previous 12 months. Diagnostic findings revealed minimal degenerative disc disease at L1-L2 and L4-L5. In December 2013, a magnetic resonance imaging (MRI) study was conducted. Diagnostic findings revealed a circumferential disc bulge at L1-L2, and mild bilateral facet arthropathy at L2-L3 and L3-L4. Facet arthropathy and ligamentum flavum overgrowth with a broad based central disc protrusion was shown at L4-L5. At L5-S1, mild bilateral facet arthropathy with patent spinal canal and foramina was indicated. The diagnostic impression was mild degenerative lumbar spondylosis with no evidence of high-grade spinal canal or foraminal narrowing. The Veteran was most recently examined by VA in February 2017. Range of motion testing revealed forward flexion limited to 50 degrees; extension limited to 25 degrees; right and left lateral flexion limited to 30 degrees; and right and left lateral rotation to 30 degrees. Range of motion did not contribute to functional loss, to include following repetitive use testing. There was no objective evidence of pain on weight-bearing, localized tenderness or pain on palpation, loss of muscle strength, impaired reflexes, or impaired sensation. There was no indication that pain, weakness, fatigability, or incoordination significantly limited functional ability with repetitive use over time. Muscle strength, deep tendon reflexes, and straight leg raise testing yielded normal results. There was no evidence of atrophy or ankylosis. The Veteran reported regular use of a cane and occasional use of an electric scooter while grocery shopping. Although the examiner noted favorable evidence of IVDS, no incapacitating episodes requiring bedrest were reported in over the previous 12-month period. Diagnostic testing revealed degenerative arthritis, with no evidence of thoracic vertebral fracture. In making all determinations, the Board has fully considered all medical evidence and the lay assertions of record. It also acknowledges the Veteran’s competence to report on observable symptoms and such statements are generally deemed credible to the extent that they articulate the Veteran’s belief that he is entitled to a higher rating. In this case, however, the Veteran’s lay assertions are outweighed by competent and credible medical evidence which evaluated the true extent of his back impairment. The Board notes that the VA examiners possess the necessary training and expertise to evaluate the type and degree of the impairment associated with the Veteran’s symptoms. For these reasons, greater evidentiary weight is placed on the examination findings. To establish entitlement to the next higher evaluation of 40 percent, the evidence must show forward flexion of the thoracolumbar spine limited to 30 degrees or less, favorable ankylosis of the thoracolumbar spine, or incapacitating episodes having a total duration of less than six weeks but more than four weeks. Throughout the appeal period, the evidence of record has failed to meet the required showing. Specifically, the Veteran’s symptoms have been evaluated on multiple occasions. At no time have his symptoms been described as any worse than mild in severity. Further, the record is silent for any periods of physician-prescribed bed rest, let alone any incapacitating episodes having a total duration of at least four weeks during the past 12 months. In fact, during the February 2017 VA examination, the Veteran specifically denied experiencing any incapacitating episodes during the previous 12 month-period. The Veteran’s forward flexion also consistently exceeded 30 degrees, even after repetitive motion testing. In addition, ankylosis of the spine was not shown. As such, a rating in excess of 20 percent is not warranted. Given that the Veteran’s symptoms have remained substantially consistent throughout the appeal period, the Board also finds no basis for a “staged” rating under the applicable rating criteria. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to an evaluation in excess of 20 percent disabling for his service-connected lumbar disability must be denied. 2. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy The Veteran’s right lower extremity radiculopathy is evaluated as 10 percent disabling under Diagnostic Code 8526. He contends a higher initial evaluation is warranted. Under Diagnostic Code 8526, incomplete paralysis of the femoral nerve warrants a 10 percent evaluation when mild, a 20 percent evaluation when moderate, and a 30 percent evaluation when severe. Complete paralysis of quadriceps extensor muscles is evaluated at 40 percent. 38 C.F.R. § 4.124a (2018). The term “incomplete paralysis” 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 rating schedule does not define terms such as “mild,” “moderate,” or “severe.” Instead, adjudicators must evaluate all the evidence and render a decision that is equitable and just. 38 C.F.R. § 4.6 (2018). The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence 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 (2018). Based upon a review of the record, which includes the reports from multiple VA examinations, the Board finds that an initial disability rating in excess of 10 percent is not warranted for the Veteran’s right lower extremity radiculopathy. On October 2012 VA examination, the examiner noted that the Veteran did not have any constant pain, paresthesias and/or dysesthesias, or numbness in the right lower extremity. He did have moderate intermittent pain and involvement of the L2/L3/L4 nerve roots of the femoral nerve was noted on the Veteran’s right side. The Veteran’s overall symptom severity was described as moderate. VA treatment records show that in December 2012, the Veteran’s physical therapist noted that the most of the Veteran’s pain and discomfort appeared to be coming from his L1-L2, but that he was also “experiencing much radicular pain.” In January 2013, the Veteran described radicular pain that radiated to his right mid-thigh. In March 2013, it was reported that the Veteran’s radicular symptoms had subsided and most of his pain was focally at L2-L3. In April 2013, he reported radicular pain with movement. A subsequent VA examination occurred in October 2013. During the clinical evaluation, the Veteran reported intermittent radiating pain on the right side that worsen with physical activity. Other symptoms included occasional numbness and tingling, which improved with consistent use of a cane. On physical examination, the examiner noted mild intermittent pain, paresthesias and/or dysesthesias, and numbness to the Veteran’s right lower extremity. Chronic pain, however, was not noted and the overall severity of his radiculopathy was described as mild. The Veteran’s deep tendon reflexes and sensation was normal. Diagnostic testing revealed mild incomplete paralysis of the anterior crural (femoral) nerve. Right-sided involvement of the L2/L3/L4 nerve roots of the Veteran’s femoral nerve was also indicated. In December 2013, an MRI revealed prominent nerve root sleeves along the S2 nerve, with evidence of a small sacral Tarlov cyst. VA physical therapy outpatient notes, dated September 2014, show complaints of chronic low back pain, numbness in the bilateral legs, and difficulty walking long distances. Normal sensation and reflexes was noted in the bilateral lower extremities. There was no evidence of ataxia, clonus, or any signs of bowel/bladder impairments. During an April 2015 discharge follow-up, the Veteran denied weakness, numbness, tingling, and pain. On examination in May 2015, no evidence of radiculopathy was found. A physical examination revealed normal findings as to the anterior crural (femoral) nerve. In February 2017, the Veteran was afforded a new examination. The VA examiner found no evidence of radiculopathy. An electromyography evaluation failed to show lumbosacral radiculopathy, bilateral plexopathy, or peripheral neuropathy of the lower extremities. No other significant findings were revealed. As stated at the outset, a review of the record does not show that the Veteran’s right lower extremity radiculopathy warrants a higher initial rating. In making this determination, the Board has fully considered all medical evidence and the lay assertions of record. It also acknowledges the Veteran’s competence to report on observable symptoms and such statements are generally deemed credible to the extent that they articulate the Veteran’s belief that he is entitled to a higher rating. However, the objective record does not establish that his right lower extremity radiculopathy has been manifested by symptoms tantamount to more than mild incomplete paralysis. In this regard, the Board recognizes that on October 2012 VA examination, it was determined that the Veteran’s right lower extremity radiculopathy was manifested by moderate symptomology. However, the Board is not bound by the examiner’s description of the Veteran’s impairment. Instead, the Board must and has considered that finding within the context of the remainder of the record. Here, the record shows that within that same VA examination, although the Veteran had moderate intermittent pain, he did not have any constant pain, paresthesias and/or dysesthesias, or numbness in the right lower extremity. His VA treatment records also show that within 5 months of that examination, in March 2013, his radicular symptoms subsided. Although he was noted in April 2013 to again have radicular pain with movement, there is nothing in the record to suggest that such pain was more than mild. A subsequent VA examination in October 2013 found that the Veteran’s radicular symptoms were mild, and more recent VA examinations in May 2015 and February 2017 found no evidence of radiculopathy. Given the foregoing, the Board finds that the Veteran’s symptom picture, which focuses on complaints of pain, paresthesias, dysesthesias, and numbness, does not rise to the level of moderate incomplete paralysis, as is required for a rating in excess of 10 percent; therefore, an increased initial rating is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel