Citation Nr: 20002145 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 15-00 247 DATE: January 9, 2020 ORDER Entitlement to a rating in excess of 60 percent for low back pain syndrome with L4-L5 discogenic disease and herniated disc for the period prior to December 1, 2019 is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran received the maximum schedular rating for intervertebral disc syndrome (IVDS). 2. For the entire appeal period, the Veteran’s lumbar spine disability did not result in unfavorable ankylosis of the thoracolumbar spine or entire spine. 3. There is no evidence of moderate radiculopathy of the lower extremities CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for low back pain syndrome with L4-L5 discogenic disease and herniated disc for the period prior to December 1, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 3.159, 4.7, 4.71a, Diagnostic Code 5243, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1971 to December 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. A Board Video Conference was held in March 2017 with the undersigned Veterans Law Judge. A transcript has been associated with the claims file. The Board remanded this case in May 2018 for a contemporaneous examination. The Veteran underwent a VA examination in September 2018 and the Board finds that there has been substantial compliance with its remand directives. The matter is now properly before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2015, the RO proposed to reduce the Veteran’s low back pain syndrome with L4-L5 discogenic disease and herniated disc disability rating. In September 2019, the RO reduced the Veteran’s rating from 60 percent to 40 percent disabling, effective from December 1, 2019. The Veteran appealed the reduction action under the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). He elected the Hearing docket route. On December 4, 2019, the Board acknowledged receipt of the 10182 and informed the Veteran had the option to submit evidence during his hearing or within 90 days of the hearing. Therefore, the scope of the increased rating appeal presently before the Board is limited to the period prior to December 1, 2019. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). Entitlement to a rating in excess of 60 percent for low back pain syndrome with L4-L5 discogenic disease and herniated disc. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). VA’s Schedule for rating disabilities directs that IVDS (preoperatively or postoperatively) is to be rated 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, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. A rating under both schedules is prohibited. The Veteran’s lumbar spine disability is rated as 60 percent disabling under Diagnostic Code 5243, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The 60 percent rating is maximum rating that can be assigned under the IVDS formula. However, as explained above, the Veteran could alternatively be assigned a higher schedular rating under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula allows for an evaluation based on limitation of motion or ankylosis of the spine in addition to separate evaluations (under the appropriate diagnostic code) for any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. Put another way, the orthopaedic and neurological symptoms of the lumbar spine disability could combine to support the assignment of a rating greater than the presently assigned 60 percent rating. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, 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. Radiculopathy is rated under Diagnostic Code 8520 which provides ratings for paralysis of the sciatic nerve. Diagnostic Code 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. The words “mild,” “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 the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” and “moderate” by VA examiners or other physicians, 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. 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. The record shows that forward flexion of the lumbar spine has been limited from 25 to 35 degrees. Resolving all doubt in the Veteran’s favour the assignment of a 40 percent rating based on limitation is deemed appropriate. A 40 percent rating is the maximum evaluation based on limitation of motion. Further analysis of the provisions of §§ 4.40 and 4.45 is not required. Spencer v. West, 13 Vet. App. 376 (2000); Johnston v. Brown, 10 Vet. App. 80 (1997). In order to obtain a higher rating, ankylosis must be shown. However, even after considering his complaints of pain, pain on motion, and functional loss, there is no evidence of ankylosis or the functional equivalent thereof. The contrary is shown. The Veteran retained an active range of motion of the lumbar spine throughout the period on appeal. A September 2018 VA examination indicated that the Veteran exhibited limited range of motion and pain when bending, twisting, and lifting or carrying objects, and that he was limited to handling objects weighing less than 10lbs, he cannot engage in activities requiring rapid movement or repetitively alternating between sitting and standing, and should avoid high impact activities. However, VA examiners from 2015 and 2018 specified that ankylosis of the spine was not shown. The next question is the assignment of separate compensable rating for the neurological manifestations of the Veteran’s lumbar spine disability. VA medical records note the Veteran reported radiating pain down the right and left lower extremities. Medical notes reference a “history of radiculopathy.” October 2015 medical records revealed no evidence of radiculopathy. The report of an August 2015 VA examination similarly indicated that there was no evidence of radiculopathy or other neurological abnormalities. However, when he was evaluated in September 2018, mild bilateral radiculopathy was present. No other neurological disabilities were identified The neurological manifestations (bilateral radiculopathy) of the Veteran’s service-connected lumbar spine disability is manifested by no more than mild impairment. The VA examination findings in this case are persuasive and demonstrate no more than a moderate impairment. Indeed, as indicated, the VA examiner specified that the level of neurological dysfunction was mild. Such was determined by a medical expert. There are no findings that contradict that determination. It would also be improper of the Board to attempt to draw its own medical conclusions in light of the clear medical finding. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (Board is prohibited from making conclusions based on its own medical judgment). Separate 10 percent ratings, but no greater, for mild radiculopathy of the right and left lower extremities is appropriate. Further, aside from radiculopathy of the lower extremities, there are no other neurological complications that have been attributed to the Veteran’s low back disability. There is no evidence of urinary or fecal incontinence due to the back disability. Thus, based on the foregoing, the Veteran would be entitled to a 40 percent rating, but no greater, for limitation of motion of the lumbar spine. He would also be entitled to separate 10 percent ratings for radiculopathy of the right and left lower extremities. The combined rating for these disabilities would equate to a 50 percent rating. See 38 C.F.R. § 4.25. Such is less than the 60 percent rating that has been assigned for the appeal period. The Board has considered the Veteran’s and his spouse's lay statements that the Veteran’s back disability warrants a higher rating and acknowledges that they are competent to report symptoms of back pain. Layno v. Brown, 6 Vet. App. 465 (1994). Lay witnesses are not, however, competent to identify a specific level of disability according to the applicable diagnostic code. Such competent evidence concerning the nature and extent of the Veteran’s service-connected lumbar spine disability has been provided by the VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). In sum, the evidence does not show that a disability rating in excess of 60 percent for low back pain syndrome with L4-L5 discogenic disease and herniated disc is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.