Citation Nr: 20006964 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-10 640 DATE: January 28, 2020 ORDER Entitlement to a higher initial disability rating in excess of 10 percent for degenerative facet joint disease (DJD) of the lumbar spine, from January 13, 2012, is denied. Entitlement to a higher initial disability rating in excess of 10 percent for radiculopathy in the left lower extremity (sciatic nerve), from January 13, 2012 to June 24, 2016, is denied. Entitlement to a higher initial disability rating of 40 for radiculopathy in the left lower extremity (sciatic nerve), from June 24, 2016, is granted. FINDINGS OF FACT 1. For the initial rating period from January 13, 2012, the service-connected lumbar spine DJD disability has been manifested by forward flexion of the thoracolumbar spine limited to 75 degrees and a combined range of motion of the thoracolumbar spine significantly greater than 120 degrees, without evidence of ankylosis, guarding, or muscle spasm. 2. For the rating period from January 13, 2012 to June 24, 2016, the left lower extremity radiculopathy has been manifested by mild constant pain and mild intermittent pain, with flareups lasting 2-7days once a year, without evidence of muscular atrophy, paresthesias/dysesthesias, or numbness, more nearly approximating mild incomplete paralysis of the sciatic nerve. 3. For the rating period from June 24, 2016, the left lower extremity radiculopathy has been manifested by severe constant pain, severe paresthesias/dysesthesias, and severe numbness, with severe flareups, without evidence of muscular atrophy or intermittent pain, more nearly approximating moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the rating period on appeal from January 13, 2012, the criteria for a higher initial disability rating in excess 10 percent for the DJD in the lumbar spine have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242. 2. For the rating period on appeal from January 13, 2012 to June 24, 2016, the criteria for a higher initial disability rating in excess of 10 percent for left lower extremity radiculopathy have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520. 3. Resolving reasonable doubt in favor of the Veteran, for the rating period on appeal from June 24, 2016, the criteria for a higher initial disability rating of 40 percent for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1989 to May 1993. This matter is on appeal from a January 2013 rating decision issued by the Regional Office (RO) in Cleveland, Ohio. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. Legal Authority for Disability Ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Disability ratings are based upon 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. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. See 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. 1. Higher Initial Disability Rating for Lumbar Spine DJD in Excess of 10 Percent from January 13, 2012 Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243), unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine 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 rating is assigned for forward flexion of the thoracolumbar spine 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 disability rating is assigned for 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 the entire spine. Id. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (5): 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. For disabilities of the musculoskeletal system, the Board also considers functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Court has interpreted 38 U.S.C. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. See also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The Veteran was in receipt of a 10 percent disability rating from January 13, 2012, based on forward flexion of the thoracolumbar spine at 75 degrees, which was rated under 38 C.F.R. § 4.71a DC 5242 as DJD of the lumbar spine. The Veteran generally appeals for a higher rating. See February 2013 Notice of Disagreement. After a review of all the evidence, the Board finds that from January 13, 2012 the lumbar DJD disability has been manifested by forward flexion of the thoracolumbar spine limited to 75 degrees and a combined range of motion of the thoracolumbar spine significantly greater than 120 degrees, without evidence of ankylosis, guarding, or muscle spasm. The evidence of record pertaining to this issue on appeal are the VA examinations conducted in January 2013 and June 2016. At the January 2013 VA examination, the Veteran endorsed flareups, pain, loss of sensation and strength, and sporadic flareups. The VA examiner found forward flexion of the thoracolumbar spine limited at 75 degrees, a combined range of motion of the thoracolumbar spine to 220 degrees, no ankylosis, and no evidence of guarding or muscle spasm. While functional impact was noted in that the Veteran experienced less movement than normal with repetitive use, the Veteran did not report and the VA examiner did not find that weakness, fatigability, or incoordination. Considering this functional loss under 38 C.F.R. §§ 4.40 and 4.45, it does not warrant a rating in excess of 10 percent. In the June 2016 VA examination, the Veteran endorsed flareups and pain. The VA examiner found forward flexion of the thoracolumbar spine limited at 75 degrees, a combined range of motion of the thoracolumbar spine at 195 degrees, no diagnosis of ankylosis, and no evidence of guarding or muscle spasm. The VA examiner assessed that pain could significantly limit functional ability during flareups or when used repeatedly over time. Considering this functional loss under 38 C.F.R. §§ 4.40 and 4.45, it does not warrant a rating in excess of 10 percent. Based on the foregoing, the Board finds that the weight of the lay and medical evidence demonstrates the service-connected lumbar DJD disability has not been manifested by ankylosis, forward flexion of the thoracolumbar spine greater than 30 degrees, a combined range of motion to the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. For this reason, the Board finds the weight of the evidence is against finding that the criteria for a disability rating in excess of 10 percent for the lumbar DJD have been met or more nearly approximated for this period. 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 5242. 2. Initial Disability Rating for Radiculopathy in the Left Lower Extremity from January 13, 2012 to June 24, 2016 Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124(a). 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. When the involvement is wholly sensory, the rating should be for the mild or at most, the moderate degree. See 38 C.F.R. § 4.124a. For the initial rating period from January 13, 2012, the left lower extremity radiculopathy has been rated at 10 percent disabling under the criteria in 38 C.F.R. § 4.124a, Diagnostic Code 8520, for mild incomplete paralysis of the sciatic nerve. The Veteran generally contends that a higher disability rating is warranted for the left lower extremity radiculopathy. See February 2013 Notice of Disagreement. After a review of all the evidence, both lay and medical, the Board finds that, from January 13, 2012 to June 24, 2016, the left lower extremity radiculopathy has been manifested by mild constant pain and mild intermittent pain, with flareups lasting 2-7days once a year, without evidence of muscular atrophy, paresthesias/dysesthesias, or numbness, more nearly approximating mild incomplete paralysis of the sciatic nerve. The evidence of record pertaining to this issue during this period on appeal is the January 2013 VA examination. The Veteran submitted to a VA examination in January 2013. The Veteran reported pain and loss of sensation. He also reported that he did not use an assistive device. In assessing the radicular pain in the left lower extremity, the VA examiner found mild constant pain and mild intermittent pain, without evidence of paresthesias and/or dysesthesias, numbness, or muscular atrophy. The VA examination reflects normal muscle and reflex testing and normal sensation in the left leg with the exception of the lower leg and ankle which had decreased sensation. For these reasons, the Board finds that the criteria for a higher initial disability rating in excess of 10 percent for the left lower extremity radiculopathy from January 13, 2012 to June 24, 2016 have not been met. 38 C.F.R. §§ 4.3, 4.7. 3. Initial Disability Rating for Radiculopathy in the Left Lower Extremity from June 24, 2016 For the initial rating period from June 24, 2014, the left lower extremity radiculopathy has been rated at 10 percent disabling under the criteria in 38 C.F.R. § 4.124a, Diagnostic Code 8520, for mild incomplete paralysis of the sciatic nerve. The Veteran generally contends that a higher disability rating is warranted for the left lower extremity radiculopathy. See February 2013 Notice of Disagreement. After a review of all the evidence, both lay and medical, the Board finds that, from June 24, 2016, the left lower extremity radiculopathy has been manifested by severe constant pain, severe paresthesias/dysesthesias, and severe numbness, with severe flareups, without evidence of muscular atrophy or intermittent pain, more nearly approximating moderately severe incomplete paralysis of the sciatic nerve. The evidence of record pertaining to this issue during this period on appeal is the June 2016 VA examination. (Continued on the next page)   The Veteran submitted to a VA examination in June 2016. The Veteran reported sharp pain that is “always present” and severe flareups that occur and last based on activity. He also reported that he did not use an assistive device. In assessing the radicular pain in the left lower extremity, the VA examiner assessed severe constant pain, severe paresthesias/dysesthesias, and severe numbness, with severe flareups, without evidence of muscular atrophy or intermittent pain. The VA examination reflects normal muscle testing. The VA examiner found normal reflexes in the left knee but absent reflexes in the left ankle. Sensation testing indicates normal sensation in the upper anterior thigh and the thigh/knee but decreased sensation in the leg/ankle and foot/toes. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a higher initial disability rating of 40 percent, and no higher, for the left lower extremity radiculopathy from June 24, 2016 have been met. 38 C.F.R. §§ 4.3, 4.7. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.