Citation Nr: 20004356 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 12-10 983 DATE: January 17, 2020 ORDER A rating in excess of 40 percent for thoracolumbar degenerative arthritis is denied. A rating in excess of 10 percent for right lower extremity (RLE) radiculopathy prior to May 23, 2019 is denied. A rating in excess of 20 percent for RLE radiculopathy from May 23, 2019 and thereafter is denied. A rating in excess of 10 percent for left lower extremity (LLE) radiculopathy is denied. FINDINGS OF FACT 1. The Veteran’s thoracolumbar degenerative arthritis did not result in ankylosis of the thoracolumbar spine. 2. Prior to May 23, 2019, the Veteran’s RLE radiculopathy produced impairment most analogous to mild incomplete paralysis. 3. From May 23, 2019 and thereafter, the Veteran’s RLE radiculopathy produced impairment most analogous to moderate incomplete paralysis. 4. The Veteran’s LLE radiculopathy produced impairment most analogous to mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for thoracolumbar degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a rating in excess of 10 percent for RLE radiculopathy prior to May 23, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.10, 4.124a, DC 8720. 3. The criteria for a rating in excess of 20 percent for RLE radiculopathy from May 23, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.10, 4.124a, DC 8720. 4. The criteria for a rating in excess of 10 percent for LLE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 4.7, 4.10, 4.124a, DC 8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty and active duty for training from March 1976 to June 1977, October 1987 to February 1988, February 1989 to May 1989, April 1991 to September 1991, March 1992 to June 1992, October 2001 to April 2004, May 2005 to September 2005, and July 10, 2006 to September 12, 2007, with additional service in the National Guard. An October 2019 rating decision granted an increased rating for thoracolumbar spine degenerative arthritis from 20 to 40 percent for the entire appeal period. The rating decision also granted an increased rating for RLE radiculopathy from 10 to 20 percent, effective May 23, 2019. As these decisions do not constitute a full grant of the benefit sought for the entire appeal period, the claims remain in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating 1. A rating in excess 40 percent for thoracolumbar degenerative arthritis An October 2019 rating decision granted an increased rating for thoracolumbar spine degenerative arthritis from 20 to 40 percent for the entire appeal period. The Veteran contends she is entitled to a higher rating. See November 2019 representative brief. The Veteran’s thoracolumbar degenerative arthritis is rated under 38 C.F.R. § 4.71a, DC 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Unfavorable ankylosis is defined as “a condition in which 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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. Id. The evidence does not support, nor has the Veteran or her representative contended, the Veteran’s spine disability produced unfavorable ankylosis during the appeal period. The evidence indicates the Veteran maintained some motion of the spine. A 40 percent rating is the maximum rating for limitation of motion of the thoracolumbar spine under DC 5242. A higher rating due to additional functional loss under 38 C.F.R. §§ 4.40 and 4.45 is not available. Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. §§ 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). Consideration was given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. However, the evidence of record does not show IVDS with incapacitating episodes that required bedrest prescribed by a physician having a total duration of at least 6 weeks during a 12 month period to warrant a higher rating. Regarding additional neurological impairment, the Veteran is service connected for RLE radiculopathy and LLE radiculopathy. The Board considered the Veteran’s complaints of incontinence, but found the competent and probative evidence shows any incontinence is not a neurological symptom of the Veteran’s thoracolumbar degenerative arthritis. The May 2019 VA examiner found that because the Veteran’s bowel incontinence was intermittent and not progressive, spinal stenosis is most likely not the cause of her bowel incontinence. While the Veteran is competent to report symptomatology that she experiences, the etiology of her incontinence is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, there is not competent evidence that the Veteran has incontinence related to her spine disability. For the foregoing reasons, the preponderance of the evidence is against a rating in excess of 40 percent for thoracolumbar degenerative arthritis. As such, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. A rating in excess of 10 percent for RLE radiculopathy prior to May 23, 2019 3. A rating in excess of 20 percent for RLE radiculopathy from May 23, 2019 and thereafter 4. A rating in excess of 10 percent for LLE radiculopathy An April 2012 rating decision granted service connection for LLE radiculopathy with an evaluation of 10 percent, effective May 19, 2011, and granted service connection for RLE radiculopathy with an evaluation of 10 percent, effective June 8, 2011. An October 2019 rating decision granted an increased rating for RLE radiculopathy from 10 to 20 percent, effective May 23, 2019. The Veteran contends she is entitled to a higher rating. See November 2019 representative brief. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory. In Miller v. Shulkin, the Court held that “[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20 percent disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.” 28 Vet. App. 376, 380 (2017). At a July 2016 VA examination, the Veteran reported pain down both legs. Muscle strength testing was normal for both legs. There was no muscle atrophy in either leg. Sensory testing was normal for both legs. Reflex testing was normal for both legs. The examiner noted right leg symptoms of intermittent pain to a mild severity, paresthesias and/or dysesthesias to a mild severity, and numbness to a mild severity. The examiner noted the left leg symptoms of intermittent pain to a mild severity, paresthesias and/or dysesthesias to a mild severity, and numbness to a mild severity. Overall, the examiner opined the Veteran’s RLE radiculopathy produced incomplete paralysis of a mild severity and the Veteran’s LLE radiculopathy produced incomplete paralysis of a mild severity. At a May 2019 VA examination, the Veteran reported back pain that radiates to her legs and feet, right worse than left, intermittently throughout the day and night. Muscle strength testing was normal in both legs. There was no muscle atrophy in either leg. Sensory testing was decreased on the right lower leg/ankle and foot/toes. Sensory testing was decreased on the left foot/toes. Reflex testing showed hypoactive reflexes of the right knee and ankle. Reflex testing on the left leg was normal. The examiner noted the right leg symptoms of intermittent pain to a mild severity, paresthesias and/or dysesthesias to a moderate severity, and numbness to a moderate severity. The examiner noted the left leg symptoms of paresthesias and/or dysesthesias to a mild severity and numbness to a mild severity. Overall, the examiner opined the Veteran’s RLE radiculopathy produced incomplete paralysis of a moderate severity and the Veteran’s LLE radiculopathy produced incomplete paralysis of a mild severity. The Board gives great probative weight to these examination findings, as the findings were supported by an in-person examination, testing, consideration of lay evidence, and medical expertise. The Board also gives great probative weight to the Veteran’s lay statements describing her lower extremity symptoms. She is competent to report these symptoms and her symptom descriptions are consistent with the record. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (a lay person is competent to report observable symptomatology of an injury or illness). Based on the above, regarding the Veteran’s RLE radiculopathy, prior to May 23, 2019, the Board finds the level of impairment most analogous to mild incomplete paralysis. The disability was manifested by intermittent pain to a mild severity, paresthesias and/or dysesthesias to a mild severity, and numbness to a mild severity. The disability was not manifested by trophic changes, sensory disturbance, loss of reflexes, or muscle atrophy. There was no evidence of complete paralysis. From May 23, 2019 and thereafter, the Board finds the level of impairment most analogous to moderate incomplete paralysis. The disability was manifested by intermittent pain to a mild severity, paresthesias and/or dysesthesias to a moderate severity, and numbness to a moderate severity. Additionally, sensation testing was decreased at the right lower leg/ankle and foot/toes. Reflex testing showed hypoactive reflexes at the right knee and ankle. The disability was not manifested by trophic changes or muscle atrophy. There was no evidence of complete paralysis. Regarding the Veteran’s LLE radiculopathy, the Board finds the level of impairment most analogous to mild incomplete paralysis. The disability was manifested by intermittent pain to a mild severity, paresthesias and/or dysesthesias to a mild severity, and numbness to a mild severity. Additionally, May 2019 VA examination sensory testing was decreased to the left foot/toes. The disability was not manifested trophic changes, loss of reflexes, or muscle atrophy. There was no evidence of complete paralysis. (Continued on the next page)   The Board considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 perfect for RLE radiculopathy prior to May 23, 2019, against a rating in excess of 20 percent for RLE radiculopathy from May 23, 2019, and against a rating in excess of 10 percent for LLE radiculopathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.