Citation Nr: 20021860 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-42 427 DATE: March 27, 2020 ORDER For the period on appeal prior to the Veteran’s surgery on July 20, 2018, a rating in excess of 20 percent for L5-S1 herniated nucleus pulposus, post discectomy (low back disorder), is denied. A temporary rating of 100 percent for L5-S1 herniated nucleus pulposus, post discectomy, is granted from July 20, 2018 to September 30, 2018 for surgery and convalescence. A rating of 40 percent for L5-S1 herniated nucleus pulposus, post discectomy, is assigned from October 1, 2018 and thereafter. A rating in excess of 40 percent for left lower extremity radiculopathy with foot drop is denied. FINDINGS OF FACT 1. For the period on appeal prior to July 20, 2018, the Veteran’s service connected L5-S1 herniated nucleus pulposus, post discectomy has been manifested by subjective complaints of pain and forward flexion of no worse than 40 degrees; no ankylosis has been shown. 2. For the period from July 20, 2018 to September 30, 2018, the Veteran’s service connected L5-S1 herniated nucleus pulposus, post discectomy required surgery and convalescence. 3. For the period from October 1, 2018 and thereafter, the Veteran’s service connected L5-S1 herniated nucleus pulposus, post discectomy, has been manifested by subjective complaints of pain and forward flexion of no worse than 30 degrees; no ankylosis has been shown. 4. For the entire period on appeal, the Veteran’s service connected left lower extremity radiculopathy with foot drop has been manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to July 20, 2018, the criteria for a disability rating in excess of 20 percent for L5-S1 herniated nucleus pulposus, post discectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.71a, Diagnostic Codes 5235 to 5243. 2. From July 20, 2018 to September 30, 2018, the criteria for a temporary total disability rating for the Veteran’s service connected L5-S1 herniated nucleus pulposus, post discectomy have been met. 38 U.S.C. §§ 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 4.30. 3. For the period from October 1, 2018 and thereafter, the criteria for a disability rating of 40 percent for the Veteran’s service connected L5-S1 herniated nucleus pulposus, post discectomy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.71a, Diagnostic Codes 5235 to 5243. 4. The criteria for a disability rating in excess of 40 percent for left lower extremity radiculopathy with foot drop have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1998 to October 2004. On appeal is an August 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) that denied a disability rating in excess of 20 percent for L5-S1 herniated nucleus pulposus, post discectomy; and increased the disability rating for left lower extremity radiculopathy with foot drop to 40 percent. In his December 2013 Notice of Disagreement (NOD), the Veteran states his back symptoms are more consistent with an evaluation of at least 40 percent; and his radiculopathy symptoms are more consistent with a 60 percent disability rating. A Board hearing was held in this matter in February 2020 before the undersigned Veterans Law Judge, and a transcript of the proceedings is associated with the claims file. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). 1. Entitlement to a rating in excess of 20 percent for L5-S1 herniated nucleus pulposus, post discectomy (low back disorder). Spine disabilities are rated pursuant to the criteria of a General Rating Formula for Diseases and Injuries of the Spine governing Diagnostic Codes 5235 to 5243, set forth in 38 C.F.R. § 4.71a. Under the General Rating Formula, a 40 percent 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 rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. In light of the rating criteria for the thoracolumbar spine, it is necessary to show ankylosis for a rating higher than 40 percent. It should also be noted that the levels listed above apply to Diagnostic Codes 5235 through 5243, unless the disabilities rated under Diagnostic Code 5243 are evaluated separately under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5243. A July 2013 VA examination reflects the Veteran was assessed for his L5-S1 herniated nucleus pulposus, post discectomy. The Veteran’s forward flexion was measured at 40 degrees with no additional limitation on repetition, no IVDS, and no incapacitating episodes noted. The examiner also noted the Veteran had radiculopathy of his left lower extremity that resulted in moderate intermittent pain and moderate numbness. Private medical records from Rothman Orthopedics are associated with the Veteran’s claim file. A May 2018 record reflects the Veteran complained of lower back pain and noted that his medical history includes 3 previous lumbar surgeries, with the most recent in August 2012. A July 2018 record shows the Veteran underwent another surgery (lumbar decompression and fusion) on July 20, 2018. A January 2019 record reflects the Veteran had his 6-month appointment after undergoing lumbar fusion. He continues to have intermittent incontinence as he did prior to surgery, as well as numbness and tingling down his legs with pain although it has improved since surgery. In July 2019, the Veteran’s private physician completed a Disability Benefits Questionnaire (DBQ). The Veteran’s forward flexion of the thoracolumbar spine was measured at 45 degrees with no additional limitation on repetition, and there was no ankylosis. His gait was abnormal with left foot drop. The examiner indicated the Veteran had IVDS of the thoracolumbar spine and had incapacitating episodes of at least 6 weeks over the past 12 months. It was also noted the Veteran had radiculopathy of his left lower extremity that resulted in moderate constant pain, moderate intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. The private physician evaluated the level of severity of the Veteran’s radiculopathy of the left lower extremity as severe. In August 2019, the Veteran underwent another VA examination. The Veteran’s forward flexion was measured at 30 degrees, and there was no muscle atrophy, no ankylosis, and no IVDS noted. It was also noted the Veteran had radiculopathy of his left lower extremity that resulted in severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. The examiner assessed the Veteran’s left lower extremity radiculopathy as severe but found no muscle atrophy to be present. At his February 2020 Board hearing in this matter, the Veteran testified that he is still being treated for his back and is scheduled for 2 more back surgeries. He also stated there were times that if he sneezed, he could not stand back up and would have to go to the ER. Upon review of the relevant evidence, the Board finds that a staged rating is appropriate for this Veteran. For the period prior to his July 20, 2018 back surgery, the Veteran’s symptoms are consistent with the 20 percent rating currently assigned, based on the degree of forward flexion, which was not shown to be worse than 40 degrees at any time during the period in question, with no ankylosis shown. Specifically, the July 2013 VA examiner found the Veteran’s flexion to be limited to 40 degrees. To obtain a higher rating for the Veteran’s low back disorder, it is necessary to show ankylosis or forward flexion 30 degrees or less. Here, however, there is simply no evidence that the Veteran had ankylosis of the lumbar spine at any point during the appeal period or that his forward flexion was 30 degrees or less prior to July 20, 2018. Further, no IVDS was documented at any point prior to July 20, 2018. Thus, the Board finds that a higher rating is not warranted for the Veteran’s L5-S1 herniated nucleus pulposus, post discectomy for the period prior to July 20, 2018. The Board next finds that, for the period from July 20, 2018 to September 30, 2018, the Veteran is entitled to a temporary 100 percent rating due to his back surgery and convalescence. For the period from October 1, 2018 and thereafter, the Veteran’s symptoms are consistent with a 40 percent rating, based on the degree of forward flexion, which has been shown to be 30 degrees during this appellate period. To obtain a higher rating for the Veteran’s L5-S1 herniated nucleus pulposus, post discectomy, it is necessary to show ankylosis. Here, however, there is simply no evidence that the Veteran has had ankylosis of the lumbar spine at any point during the appeal period. Thus, the Board finds that a higher rating is not warranted for the Veteran’s L5-S1 herniated nucleus pulposus, post discectomy for the period from October 1, 2018 and thereafter. The Board has considered the Veteran’s reports of pain but finds that the pain does not amount to ankylosis of the entire thoracolumbar spine. Additionally, while there is indication from the July 2019 private examiner that the Veteran suffered from IVDS, the weight of the evidence, including VA examination conducted in both July 2013 and August 2019, specifically found no IVDS to be present. There is further no indication in the Veteran’s treatment records of any diagnosis of or treatment for IVDS, to include no indication of any physician-prescribed bed rest for such. Thus, the Board concludes that he is not entitled to the higher 60 percent rating based on incapacitating episodes. The Board has also considered the lay statements from the Veteran, in particular his testimony at the February 2020 Board hearing. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, such an opinion falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran contends that his L5-S1 herniated nucleus pulposus, post discectomy, is more severe than currently evaluated, while the Veteran is competent to describe his symptoms, he is not competent to report that his L5-S1 herniated nucleus pulposus, post discectomy, is of sufficient severity to warrant a certain percent evaluation under VA’s criteria for rating disabilities of the lumbar spine, such an opinion requires medical expertise which he does not possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372. Finally, the Board notes that the Veteran has already been awarded service connection for neurological disorders of the right and left lower extremities. To the extent that he has challenged the rating assigned to his left lower extremity radiculopathy associated with his lumbar spine disability, this appeal is discussed below. In sum, the Board finds that the preponderance of the evidence is against the claim for a disability rating in excess of 20 percent for service-connected L5-S1 herniated nucleus pulposus, post discectomy, for the period prior to July 20, 2018, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). The Board further finds, however, that the Veteran is entitled to a temporary 100 percent disability for the period July 20, 2018 to September 30, 2018 due to surgery and convalescence. Finally, the Board finds that the Veteran’s service-connected L5-S1 herniated nucleus pulposus, post discectomy warrants a rating of 40 percent from October 1, 2018, and thereafter. 2. Entitlement to a rating in excess of 40 percent for left lower extremity radiculopathy with foot drop. Lower extremity radiculopathy involving the sciatic nerve is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this diagnostic code, a 40 percent rating is warranted for incomplete paralysis that is moderately severe. A 60 percent rating is warranted for incomplete paralysis that is severe, with marked muscular atrophy. A maximum 80 percent rating is warranted for complete paralysis. 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. A January 2012 letter from the Veteran’s private doctor states the Veteran is under his care for radiculopathy and he is status post a disc herniation which led to a foot drop. A July 2013 VA examination reflects the Veteran was assessed for his for left lower extremity radiculopathy with foot drop. The examiner noted the Veteran had incomplete paralysis of his sciatic nerve that was of moderate severity. The examiner also noted the Veteran did not have muscle atrophy. Private medical records from Rothman Orthopedics are associated with the Veteran’s claim file. In summary, these records reflect the Veteran continues to have numbness and tingling down his legs with pain. In July 2019, the Veteran’s private physician completed a Disability Benefits Questionnaire (DBQ) of the Veteran’s back, which also addressed radiculopathy of the Veteran’s left lower extremity. The private physician noted the Veteran had radiculopathy of his left lower extremity that resulted in moderate constant pain, moderate intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. The examiner opined that the overall severity of his radiculopathy in the left lower extremity was severe. The examiner found the Veteran to have an abnormal gait due to left foot drop and assessed him with muscle atrophy of the “gastro and quad,” although he noted that any such atrophy was “not measured.” In the neurological evaluation, the examiner assessed the Veteran with complete paralysis of multiple nerves, although found him to experience only moderate incomplete paralysis of the sciatic nerve. In August 2019, the Veteran underwent another VA examination. The examiner noted the Veteran had radiculopathy of his left lower extremity that resulted in severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. The examiner assessed the Veteran’s left lower extremity radiculopathy as severe but also specifically noted there was no muscle atrophy. VA treatment records from the Wilmington VAMC are associated with the Veteran’s claim file. In summary, these records reflect the Veteran has had complaints and treatment for radiculopathy. At his February 2020 Board hearing, the Veteran testified that as it relates to his left lower extremity radiculopathy with foot drop, he feels like he does have marked atrophy on his left leg that began in 2007 when he had the back surgery. Upon consideration of the record in this matter, and the laws and regulations for ratings as set forth above, the Board concludes that the Veteran does not meet the criteria for a disability rating higher than 40 percent for his radiculopathy of the left lower extremity sciatic nerve. While the evidence reflects the Veteran reported pain and numbness in his legs, the Board notes that the July 2013 VA examiner specifically opined that the Veteran’s radiculopathy of the left lower extremity involving the sciatic nerve has been no more than moderate in severity. The Board acknowledges that both the July 2019 examiner and the August 2019 examiner opined that the Veteran’s radiculopathy of the left lower extremity was severe. However, neither examiner indicated the Veteran also had muscle atrophy, which is needed to warrant a 60 percent rating. In so finding, the Board notes that the Veteran has most often demonstrated no more than moderate intermittent pain, with no indication of complete paralysis or marked muscular atrophy. The Board further acknowledges the findings of the private evaluator that the Veteran experiences total paralysis of multiple nerves of the left lower extremity but holds that this finding is less probative than the conclusions of the July 2013 and August 2019 VA examiners, both of whom identified the affected nerve as the sciatic nerve. Further, aside from this evaluation, there is no medical evidence of record to support a finding that the Veteran’s radiculopathy of the left lower extremity causes total paralysis of the left sciatic nerve, with the foot dangles and drops, no active movement possible of the muscles below the knee, and flexion of the knee weakened. Here, there is simply no indication that the Veteran has lost all movement of the muscles below the knee or experiences weakened or lost flexion of the knee to find complete paralysis such to warrant an 80 percent rating under Diagnostic Code 8520. In sum, the Board concludes that the preponderance of the evidence is against the claim for a rating in excess of 40 percent for service-connected left lower extremity radiculopathy, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). Therefore, the Board finds that a rating in excess of 40 percent for left lower extremity radiculopathy must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts, 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.