Citation Nr: 20007944 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 15-41 523 DATE: January 30, 2020 ORDER For the appeal period prior to June 16, 2016, entitlement to a rating in excess of 20 percent for lumbosacral strain, to include degenerative disc disease and foraminal stenosis, (lumbar spine disability), is denied. For the appeal period post June 16, 2016, entitlement to a rating in excess of 40 percent for lumbosacral strain, to include degenerative disc disease and foraminal stenosis, (lumbar spine disability), is denied. For the appeal period prior to August 14, 2019, a separate 10 percent disability evaluation for the left and right lower extremity radiculopathy, associated with the service-connected lumbar spine disability, is granted. For the appeal period from August 14, 2019, a rating in excess 10 percent disability evaluation for the left and right lower extremity radiculopathy, associated with the service-connected lumbar spine disability, is denied. FINDINGS OF FACT 1. For the appeal period prior to June 16, 2016, the Veteran’s lumbar spine disability is not productive of incapacitating episodes, ankylosis, or forward flexion of the thoracolumbar spine 30 degrees or less, or the functional equivalent thereof. 2. For the appeal period post June 16, 2016, the Veteran’s lumbar spine disability is not productive of incapacitating episodes or unfavorable ankylosis of the entire thoracolumbar spine, or the functional equivalent thereof. 3. For the appeal period prior to August 14, 2019, the Veteran has left and right mild lower extremity radiculopathy, associated with the service-connected lumbar spine disability. 4. For the appeal period from August 14, 2019, the Veteran’s left and right lower extremity radiculopathy, associated with the service-connected lumbar spine disability, has not reflected moderate or moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the appeal period prior to June 16, 2016, the criteria for an initial rating in excess of 20 percent for the Veteran’s back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2018). 2. For the appeal period after June 16, 2016, the criteria for a rating in excess of 40 percent for the lumbar spine disability have not been met for the rating period beginning April 11, 2007. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2018). 3. Resolving reasonable doubt in the Veteran’s favor, for the appeal period prior to August 14, 2019, the criteria for a separate 10 percent evaluation for the left and right lower extremity radiculopathy, associated with the service-connected lumbar spine disability, have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2018). 4. For the appeal period from August 14, 2019, the criteria for a rating in excess of 10 percent evaluation for the left and right lower extremity radiculopathy, associated with the service-connected lumbar spine disability, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an August 2019 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Board notes in an October 2019 rating decision the Veteran was granted 10 percent ratings for both lower extremities associated with his lumbar spine disability, effective August 14, 2019. 1. Entitlement to a higher rating for the lumbar spine disability The Veteran seeks a higher disability rating for his lumbar spine disability. Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Board notes the Veteran was initially granted a 20 percent rating effective January 26, 1981 for his lumbar disability. An August 2016 rating decision increased the evaluation to 40 percent, effective June 16, 2016 based on forward flexion of the thoracolumbar spine 30 degrees or less. The Veteran’s condition is rated under Diagnostic Code 5237. This disability is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine (“General Formula”), or as intervertebral disc syndrome (IVDS) under the Formula for Rating IVDS Based on Incapacitating Episodes (“IVDS Formula”), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See VBA Training Letter 02-04 (October 24, 2002). Under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), a disability rating of 10 percent is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but less than 85 degrees; or, when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but less 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. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but less than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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 is present. A 40 percent disability rating is warranted 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. Id. Objective neurologic abnormalities associated with a back disability are to be rated separately from the back disability. 38 C.F.R. § 4.71a, General Formula, Note (1). 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Formula, note (2); see also Plate V. 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. 38 C.F.R. § 4.71a, General Formula, Note (5). Intervertebral disc syndrome (IVDS) is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher disability rating. The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for a disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Turning to the evidence, treatment records from Olentangy pain clinic reflect complaints of tingling or radicular pain from the lower back to the left and right legs from April 2008 to June 2008. Specifically, in June 2008, the Veteran complained of occasional radiation down the right leg from the lower back. An MRI revealed partial sacralization of L5 segment, multilevel degenerative disc changes with spondylotic protrusion at L3-4 and L5-S1 levels, worse at L4-5 level, facet hypertrophy and biforminal stenosis impinging on bilateral L4 nerve roots and mild to moderate central canal stenosis at L4-5 level, mild disc bulges at L1-2 levels with diffuse facet hypertrophy throughout. In September 2010 a letter from R.N., D.O., indicated the Veteran has been treated for continuous lumbar pain since 2008. He experiences radicular pain on the left and right side. A physical examination revealed straight leg raising test in the seated position was negative. In the supine position straight leg raising was positive bilaterally at 10 degrees. The passive range of motion for the flexion was 20 degrees, extension was 0 degrees, and right and left side bending were 5 degrees. A March 2012 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The Veteran endorsed flare ups consisting of burning sensation to his lower back with shooting pain. He claims that his back locks up with prolonged standing or bending. Forward flexion was limited to 40 degrees with no pain. Extension was limited to 20 degrees with no pain. Right lateral flexion was limited to 25 degrees with no pain. Left lateral flexion was limited to 25 degrees with no pain. Right lateral rotation was limited to 25 degrees with no pain. Left lateral rotation was limited to 25 degrees with no pain. Repetitive testing did not lead to further loss of range. He had functional loss due to pain on movement. There was evidence of localized tenderness noted on the lumbar spine. There was no evidence of guarding or muscle spasms. Muscle strength was full without atrophy. Reflexes and sensory examinations were normal. There was no evidence of radiculopathy or other neurologic abnormalities. The Veteran does not have IVDS, however, he does use a brace as an assistive device. Functional impact that affected his ability to work was noted. In May 2012 VA treatment records, the Veteran’s doctor reported the radicular pain had resolved. In February 2014, VA treatment records noted the Veteran’s radicular pain is controlled by lumbar epidural steroid injections. In May 2014 VA treatment records, the Veteran reported no longer having radicular pain. A June 2016 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The Veteran reported daily flare-ups of pain which are sharp in nature and 10/10 severity. Forward flexion was limited to 20 degrees with pain. Extension was limited to 10 degrees with pain. Right lateral flexion was limited to 10 degrees with pain. Left lateral flexion was limited to 10 degrees with pain. Right lateral rotation was limited to 15 degrees with pain. Left lateral rotation was limited to 15 degrees with pain. He had functional loss based on reduced range of motion. He reported complications with his ability to perform activities of daily living such as brushing his teeth or washing the dishes. When he stands for long periods the pain becomes intolerable. Repetitive testing did not lead to further loss of range. With regard to repetitive use over time and flare-ups, the examiner opined the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. He was unable to address whether pain, weakness, fatiguability, or incoordination significantly limit function ability with flare-ups without mere speculation. The examiner could not address the functional loss during a flare up because “pain is the functional limitation impacting the Veteran’s abilities during flare-ups.” There was evidence of localized tenderness noted on the lumbar spine. There was evidence of guarding or muscle spasms resulting in abnormal gait or abnormal spinal contour. Muscle strength was full without atrophy. Reflexes and sensory examinations were normal. There was no evidence of radiculopathy, ankylosis, or other neurologic abnormalities. The Veteran does not have IVDS, however, he does use a brace as an assistive device. Functional impact that affected his ability to work was noted. In August 2016 VA treatment records, the Veteran reported low back pain that radiates down his left leg with tingling. An August 2019 VA examination report for peripheral neuropathy indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The Veteran was diagnosed with radiculopathy of the lumbar spine. He experienced intermittent moderate pain for both lower extremities, moderate paresthesias and/or dysesthesias for bother lower extremities, and severe numbness for both lower extremities. Muscle strength was full without atrophy. Reflexes and sensory examinations were normal. The right sciatic nerve reflected mild incomplete paralysis and the left sciatic nerve reflected moderate incomplete paralysis. All other nerves were normal. The examiner opined the Veteran’s radiculopathy of the bilateral lower extremities is at least as likely as not proximately due to or the result of the lumbosacral strain, to include degenerative disc disease and foraminal stenosis. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds that for the appeal period prior to June 16, 2016, entitlement to a rating in excess of 20 percent for a lumbar spine disability is not warranted, however a separate rating for radiculopathy of the lumbar is warranted as discussed below. For the appeal period post June 16, 2016, entitlement to a rating in excess of 40 percent for a lumbar spine disability, is not warranted, however a separate rating for radiculopathy of the lumbar is warranted as discussed below. Appeal period prior to June 16, 2016 A rating in excess of 20 percent is not warranted for this appeal period. Higher ratings are available for incapacitating episodes, ankylosis, or forward flexion of the thoracolumbar spine 30 degrees or less. The evidence weighs against such manifestations. There is no evidence in the record of incapacitating episodes or ankylosis. Nor is there evidence of forward flexion limited to 30 degrees or less for this appeal period. The March 2012 VA examination specifically noted forward flexion was limited to 40 degrees with no pain and a finding of ankylosis was absent from the report. The IVDS Formula is inapplicable because there is no evidence of incapacitating episodes as prescribed by the formula. See 38 C.F.R. § 4.25. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a rating in excess of 20 percent for the Veteran’s lumbar spine disorder is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain throughout the period, however, the effect of the pain in the Veteran’s back is contemplated in the currently assigned 20 percent disability rating. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, the Veteran is receiving a separate rating for pain from the radiculopathy of the lower extremities as discussed below. Accordingly, a rating in excess of 20 percent for the appeal period prior to June 16, 2016 is not warranted. Appeal period post June 16, 2016 A rating in excess of 40 percent is not warranted for this appeal period. Higher ratings are available for incapacitating episodes or unfavorable ankylosis of the entire thoracolumbar spine. The evidence weighs against such manifestations. There is no evidence in the record of incapacitating episodes or ankylosis. The June 2016 VA examination specifically found there was no evidence of ankylosis. The IVDS Formula is inapplicable because there is no evidence of incapacitating episodes as prescribed by the formula. See 38 C.F.R. § 4.25. Therefore, a rating in excess of 40 percent for this portion of the appeal period is not warranted. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. A rating in excess of 40 percent for the Veteran’s lumbar spine disorder is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. The June 2016 VA examination noted the pain with forward flexion of the thoracolumbar spine of 20 degrees warranting the 40 percent rating. The Veteran’s complaints of pain do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Additionally, the Veteran is receiving a separate rating for pain from the radiculopathy of the lower extremities as discussed below. During the August 2019 Board hearing the Veteran’s representative mentioned the last lumbar VA examination was 3 years ago and that his condition is worse than what it was when he was diagnosed. The Board notes the Veteran was diagnosed with the strain in 1977, as noted in his March 2012 VA examination. As such the Board acknowledges the condition is worse and VA agrees, as indicated in the increase of the evaluation to the current 40 percent. Also, the Board acknowledges that the Veteran’s last VA examination is over three years old. The “mere passage of time” does not render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). In this regard, there is no such medical or lay evidence alleging that the Veteran’s service-connected lumbar spine disability has worsened since his June 2016 VA examination. During the hearing the Veteran testified to having trouble with prolonged standing, siting, and walking, as well as shoveling snow or mowing the yard. These issues are similar if not the same to his complaints in the March 2012 and June 2016 VA examination. As such, a new VA examination is not warranted. Accordingly, a rating in excess of 40 percent for the appeal period post June 16, 2016 is not warranted. 2. Entitlement to a separate rating for lumbar radiculopathy The Board finds a separate 10 percent rating for the left and right lower extremity radiculopathy associated with the lumbar spine, prior to August 14, 2019, is warranted. Under DC 8520, 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. § 4.124a. Although the March 2012 and June 2016 VA examiner found the Veteran was not suffering from radiculopathy, the Board will afford the Veteran reasonable doubt and find there is evidence of radiculopathy associated with the lumbar spine. The medical records of evidence indicate the Veteran had radicular pain which had been controlled with lumbar epidural steroid injections. In September 2010 a letter from R.N., D.O., indicated the Veteran experiences radicular pain on the left and right side. In May 2014 the Veteran reported the radicular pain had resolved. In August 2016, VA treatment records reflected complaints of low back pain radiating down his left leg with tingling. Based on the foregoing, the Board finds that a separate 10 percent rating for the left and right lower extremity radiculopathy, as a neurological manifestation of the service-connected lumbar spine disability, is warranted prior to August 14, 2019. 38 C.F.R. §§ 4.3, 4.7, 4.71a. The evidence does not show that the Veteran’s radiculopathy has been assessed as moderate or moderately severe. Accordingly, for the entire period on appeal, a higher rating than 10 percent for lower extremity radiculopathy under DC 8520 is not warranted. 38 C.F.R. § 4.124a. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.