Citation Nr: 20004512 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 15-14 692A DATE: January 21, 2020 ORDER Entitlement to a rating in excess of 20 percent for a low back disability is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity (LLE) is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity (RLE) is denied. FINDINGS OF FACT 1. The Veteran’s low back disability has been manifested by flexion limited to, at worst, 55 degrees and pain. 2. LLE radiculopathy is manifested by incomplete paralysis of the sciatic nerve that is mild in severity. 3. RLE radiculopathy is manifested by incomplete paralysis of the sciatic nerve that is mild in severity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243 (2019). 2. The criteria for an initial rating in excess of 20 percent for LLE radiculopathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2019). 3. The criteria for entitlement to an initial rating in excess of 10 percent for RLE radiculopathy have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from November 1977 to December 1982. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2019. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in April 2019, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. The Board notes that the issue of entitlement to service connection for a psychiatric disability was also remanded in April 2019 for additional development. In an August 2019 rating decision, the Veteran was granted entitlement to service connection for depressive disorder. That decision constituted a full grant of the benefit sought on appeal. However, a review of the record shows that the Veteran properly disagreed with the rating assigned in that decision in a VA Form 10182. However, the Veteran requested a hearing before a member of the Board with respect to that appeal. As such, that issue will be the subject of a subsequent Board decision. Increased Rating – Low Back Disability The Veteran has asserted that he should have a higher rating for his back disability as his symptoms are worse that those contemplated by the currently assigned ratings. At a September 2013 VA examination, the Veteran reported that he continued to experience back pain that was the result of an in-service injury. He reported that he experienced painful flare-ups of his back pain and that as a result he was unable to participate in sports and exercise as he once did. He reported that his back disability caused him to be unable to enjoy sexual encounters, as such activities caused his back pain to flare for up to two weeks at a time. Upon physical examination, range of motion measurements of the thoracolumbar spine were as follows: flexion to 55 degrees, extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees. There was objective evidence of pain at the end range of all excursions of motion. The Veteran was able to perform repetitive use testing, but there was no additional limitation of motion following repetition. The examiner noted that thoracolumbar spine functional loss consisted of less movement than normal, weakened movement, excess fatigability, pain on movement, and disturbance in locomotion. There was no pain on palpation of the spine, muscle spasms, or guarding. Muscle strength testing was normal and there was no muscle atrophy. Deep tendon reflect examination was normal. Sensory examination was normal. The Veteran did not have intervertebral disc syndrome and there was no indication of incapacitating episodes. Diagnostic imaging revealed arthritis of the spine. The examiner noted that the Veteran’s back disability impacted his ability to work as a plumber as he was unable to bend into positions required by the job. The examiner noted that the Veteran currently worked moving cars and that the activity required of him in that position did not overly aggravate his back pain. The examiner diagnosed lumbar strain. At the January 2019 hearing, the Veteran testified that his back had gotten worse since the September 2013 VA examination. At an August 2019 VA examination, the Veteran reported constant back pain with various levels of pain throughout the day. He reported that he needed to get up several hours early in the morning to get his body going, and to use the heating pad to loosen up his back. He reported that he took Diclofenac and Tramadol for treatment of his back pain, but that he did not want injections for pain management. The Veteran reported that he had difficulty sleeping and getting up from chairs as a result of his back disability. The Veteran reported that he experienced flare-ups of his back pain and functional loss following repeated use that resulted in limitations in sitting, standing, cutting the grass, other yard work, lifting items, sexual intercourse, and driving for longer than 45 minutes at a time. Upon physical examination, range of motion measurements of the thoracolumbar spine were as follows: flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees each. The Veteran exhibited pain on all excursions of motion. Passive range of motion measurements were not performed as they were not feasible. There was no pain with weight-bearing. There was pain on palpation of the back. The Veteran was able to perform repetitive use testing, but while the Veteran did experience additional function impairment as a result of pain on repetition; there was no additional limitation of motion following repetition. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during a flare-up or following repeated use over time. Muscle spasms were present, but they did not result in abnormal gait or spinal contour. There was no guarding. The examiner noted that the Veteran’s back disability interfered with his ability to sit and stand. Muscle strength testing was normal and there was no muscle atrophy. Deep tendon reflex examination was normal. Sensory examination was normal. There was no ankylosis. The examiner noted that the Veteran did not experience episodes requiring medically prescribed bed rest. The Veteran regularly used a back brace for assistance with locomotion. The examiner noted that the Veteran’s back disability impacted his ability to work in that he had to reduce his hours delivering auto parts due to pain from repetitive lifting and extended driving. The Veteran reported that he left his prior job because of back pain. The examiner assessed the Veteran’s back disability as moderate. A review of the record shows that the Veteran receives treatment for various disabilities at the VA Medical Center. However, a review of the treatment notes of record does not show that the Veteran has symptoms of his back disability, to include limitation of motion, that are worse than those reported at his VA examinations. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his back disability. In this case, there is no indication from the record that the Veteran has flexion limited to 30 degrees or less. In fact, during the appeal period, the Veteran’s flexion was limited to, at worst, 55 degrees. The Board notes that the additional limitation the Veteran experienced due to pain, weakness, incoordination, fatigability on repetition, during flare-ups, or following repeated use over a period of time was accounted for by the VA examiners when determining the Veteran’s range of motion. 38 C.F.R. § 4.40, 4.45 (2019). There is no other evidence showing that he has more limitation of motion than that found at the VA examinations. While the Veteran reported flare ups, there is no indication from the treatment notes of record that he has functional limitation worse than that reported at his VA examinations during a flare-up. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning a rating in excess of 20 percent for functional impairment of the thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237-5242 (2019). Consideration has also been given to assigning a higher rating based on incapacitating episodes. However, while the record does show the Veteran to have intervertebral disc syndrome, there is no indication from the record that he has experiencing incapacitating episodes requiring medically prescribed bed rest. As such, the Board finds that the Veteran is appropriately rated based on pain and limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2019). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 20 percent for the Veteran’s back disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Initial Ratings – RLE and LLE Radiculopathy The Veteran asserts that he should have higher initial ratings for his RLE and LLE radiculopathy as his symptoms are worse than those contemplated by the currently assigned ratings. At a September 2013 VA examination, the Veteran was noted to have symptoms of radiculopathy to include mild, intermittent pain in the RLE; mild paresthesias and/or dysesthesias in the LLE; and mild numbness in the LLE. The examiner noted that there was sciatic nerve root involvement bilaterally. There were no other neurological findings. At an August 2019 VA examination, the Veteran reported experiencing numbness, tingling, and at times, pain shooting into both legs. He reported that those symptoms occurred approximately two times per month, but happened more often when driving or standing for extended periods. The examiner noted that the Veteran experienced weakened movement as a result of his neurological impairment. On physical examination, the Veteran exhibited signs and symptoms of radiculopathy. The Veteran experienced mild intermittent pain, paresthesias and/or dysesthesias, and numbness in both lower extremities. There were no other signs or symptoms of radiculopathy. The examiner found that the Veteran had mild impairment in the sciatic nerve on both the left and the right. The examiner assessed the severity of the Veteran’s radiculopathy as mild. The Board finds that the Veteran is not entitled to initial ratings in excess of 20 percent and 10 percent for LLE and RLE radiculopathy, respectively. In this regard, there is no indication from the record that the Veteran’s LLE ot RLE radiculopathy is worse than mild in severity. In this regard, the Veteran has been noted to experience only mild symptoms of numbness, pain, or paresthesias and/or dysesthesias. While the Veteran has been noted to experience some weakness as a result of his neurological impairment, there is no indication from the record that the weakness has an impact on his balance and propulsion. This is evidenced by the fact that he Veteran does not require the use of assistive devices such as a cane or walker for assistance with locomotion. Further, while the weakness does impact the Veteran’s ability to stand or walk for prolonged periods, there is no indication that he cannot appropriately function with periods of rest. Further, the Veteran’s impairment is purely sensory in nature. Therefore, the Board finds that the Veteran is not entitled to initial ratings in excess of 20 percent and 10 percent for LLE and RLE extremity radiculopathy, respectively. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Consideration has been given to assigning staged ratings. However, at no time during the period in question have the disabilities warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to increased initial ratings for LLE and RLE radiculopathy are not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ivan Franklin 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.