Citation Nr: 20022084 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 14-06 114 DATE: March 30, 2020 ORDER Entitlement to a rating in excess of 40 percent for chronic low back pain with degenerative disc disease (DDD) and hypertrophy is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy, right lower extremity, associated with chronic low back pain with DDD and hypertrophy, is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability has resulted in limitation of forward flexion of the thoracolumbar spine to 25 degrees but has not been characterized by unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran’s radiculopathy of the right lower extremity has been productive of no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for chronic low back pain with degenerative disc disease (DDD) and hypertrophy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21,.4.40, 4.45, 4.59, 4.71a, Diagnostic Code5242. 2. The criteria for an initial rating in excess of 10 percent for radiculopathy, right lower extremity, associated with chronic low back pain with DDD and hypertrophy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.40, 4.45, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1992 to December 1997. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 2012 rating decision, which denied the Veteran's claim of entitlement to a rating in excess of 40 percent for chronic low back pain with DDD and hypertrophy. He perfected a timely appeal to that decision. In January 2018, the Board remanded the case to the RO for further evidentiary development. Subsequently, a Decision Review Officer’s (DRO) decision in November 2019 granted service connection for radiculopathy of the right lower extremity, evaluated as 10 percent, effective February 7, 2018. A supplemental statement of the case (SSOC) was issued in November 2019. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is 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. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. 38 C.F.R. § 4.21. 1. Entitlement to a rating in excess of 40 percent for chronic low back pain with degenerative disc disease (DDD) and hypertrophy The Veteran maintains that his back disability is more disabling than reflected by the rating currently assigned. His service-connected degenerative disc disease of the lumbar spine is currently rated as 40 percent disabling under Diagnostic Code 5242 for degenerative arthritis of the spine. The Veteran's back disability may be rated either under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 through 5242) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (Diagnostic Code 5243), whichever results in the higher evaluation. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness or aching in the area affected by residuals of injury or disease. For VA compensation purposes, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Alternatively, under the Formula for Rating IVDS Based on Incapacitating Episodes, a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). The Veteran’s claim for an increased rating for his low back disability was received in October 2010. The Veteran was afforded a VA examination in February 2011, at which time he experiences stiffness, decreased motion and paresthesia; he also reported weakness in the leg. At the time of pain, he is able to function with medication. He noted that, during flare-ups, he experiences pain that travels down to the legs. Examination of the back revealed evidence of radiating pain on movement of the legs. He also had muscle spam; however, it does not produce an abnormal gait. He has paraspinal muscle tenderness. There was no guarding of movement and no weakness. There was no atrophy and no ankylosis of the thoracolumbar spine. Forward flexion was to 30 degrees, extension to 5 degrees, lateral flexion was to 5 degrees bilaterally, and rotation was to 15 degrees bilaterally. The examiner noted that repetitive range of motion of the lumbar spine was not possible because of pain. The examination revealed no sensory deficits from L1-L5 and no sensory deficits of S1. There were no signs of lumbar intervertebral disc syndrome with chronic and permanent root involvement. The diagnosis was chronic low back degenerative disc disease and hypertrophy. The examiner noted that the effect of the low back disability on the Veteran’s usual occupation is difficulty with prolonged standing, walking and heavy lifting. VA treatment records dated from April 2011 through April 2018 show that the Veteran received ongoing clinical evaluation and treatment, including physical therapy, for chronic low back pain. During a physical rehabilitation consultation in April 2018, the Veteran complained of low back pain and right lower extremity pain. The Veteran indicated that he used a TENS unit, sauna, heating pad and a back brace with some relief of his symptoms. He also noted that the right lower extremity pain started within the past 2 years and is intermittent. The assessment was chronic low back pain likely secondary to lumbar spondylosis and spinal stenosis. During a recent DBQ examination in October 2019, the Veteran reported worsening low back pain with symptoms weekly. He reported radiation of pain down the right lower extremity intermittently; he noted that the pain radiates from the inner thigh to the knee and occasionally to the lower leg and foot. He also noted numbness and tingling in right foot. The Veteran indicated that experienced flareups of his back pain where he has excruciating pain and has to lay on the floor and limps when walking. He stated that, during the flares, he is unable to engage in any physical activities, and treatments do not help. Forward flexion was to 25, extension to 5 degrees, lateral flexion to 15 degrees, right lateral rotation to 15 degrees and left lateral rotation to 20 degrees. Pain was noted on examination on rest and non-movement. There was evidence of pain with weight bearing. Mild paraspinal muscle tenderness was noted. The Veteran was able to perform repetitive use testing with at least three repetitions, but there was no additional loss of function or range of motion after three repetitions. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal. No muscle atrophy was noted. Deep tendon reflexes were 1+ in the right lower extremity and absent in the left. Decreased sensation in the right lower extremity. The examiner noted that the Veteran had moderate pain, paresthesia and numbness in the right lower extremity. The examiner reported mild radiculopathy of the sciatic nerve in the right lower extremity. No ankylosis was noted. The examiner noted that the Veteran did not have IVDS of the thoracolumbar spine. Regular use of a brace for back pain and stability, and occasional use of a cane for ambulating long distances. The examiner stated that the Veteran had degenerative disc disease at L5-S1, no evidence of HNP. The examiner noted that the Veteran is a truck driver who is self-employed. The Veteran reported missing days from work when he has flares of his back symptoms and also reports flares of low back pain with prolonged driving. The examiner noted that the Veteran would have difficulty with jobs requiring prolonged standing, prolonged walking, repeated bending, heavy lifting or other physically strenuous activities. The examiner noted that there was evidence of pain on passive range of motion testing, and there was evidence of pain with the joint is used in non-weight bearing. The examiner stated that she had no basis to offer additional losses of function or motion when it comes to repetitive use over time or during flare-ups. Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against assignment of a rating in excess of 40 percent for the Veteran's lumbar spine disability. In this regard, the Veteran's lumbar spine disability has been manifested by decreased range of motion of the lumbar spine and significant pain. As noted herein, however, in order to warrant a rating in excess of 40 percent under the applicable rating criteria, the Veteran's disability must be manifested by unfavorable ankylosis of the entire thoracolumbar spine. The clinical evidence, however, establishes that the Veteran has retained motion in his spine, although with noted complaints of pain. He has not contended otherwise. By definition, the fact that the Veteran's spine manifests some range of motion is evidence of the absence of unfavorable ankylosis. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure"). The evidence further reflects that he exhibits none of the indicia of ankylosis as set forth in 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, note (5), such as a limited line of vision, restricting opening of the mouth, etc. There is no evidence or allegation that there has been ankylosis during the appeal period. Specifically, the February 2011 and October 2019 examiners found no evidence of ankylosis of the thoracolumbar spine. Absent a finding of unfavorable ankylosis, which has not been shown by the evidence of record, a rating in excess of 40 percent is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4. 40, 4.45, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Similarly, Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) are not for application because those decisions pertain to the adequacy of examinations as they relate to range of motion findings, but range of motion findings are not relevant here because they cannot result in a higher rating. In addition, the Veteran does not contend, and the evidence does not reflect, that he has suffered from incapacitating episodes due to IVDS. The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the Veteran's lumbar spine disability could not receive a higher rating under an analogous diagnostic code. See 38 C.F.R. § 4.115 (b). The Board has also considered that the Rating Schedule specifically provides that neurological symptoms are to be rated separately under the appropriate diagnostic code. In this case, service connection has been awarded for radiculopathy of the right lower extremity, which is further discussed below. The available evidence does not demonstrate diagnoses of any other neurological conditions related to the Veteran's lumbar spine disability. Thus, a separate evaluation for additional neurological disability is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 40 percent for the Veteran's service-connected lumbar spine disability, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy, right lower extremity The Veteran essentially contends that his right lower extremity disability is more severe than reflected by the rating currently assigned; therefore, a higher rating is warranted. The Veteran's radiculopathy of the right lower extremity has been evaluated under Diagnostic Code 8520 for paralysis the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2018). The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The Board notes that words such as “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6 (2018). On examination of the lumbar spine in October 2019, the Veteran reported radiation of pain down the right lower extremity intermittently; he noted that the pain radiates from the inner thigh to the knee and occasionally to the lower leg and foot. The Veteran also reported numbness and tingling in his right foot. The examiner noted decreased sensation in the right lower extremity. The examiner noted that the Veteran had moderate pain, paresthesia and numbness in the right lower extremity. The examiner reported mild radiculopathy of the sciatic nerve in the right lower extremity. In this regard, the Board notes that, while the report indicates that the Veteran had moderate pain, paresthesia and numbness, the examiner stated that the severity of the radiculopathy of the sciatic nerve in the right lower extremity was mild. As such, the Veteran’s symptoms are found to be productive of no more than mild incomplete paralysis of the right lower extremity. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for increased rating for radiculopathy of the right lower extremity, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of chronic low back pain with DDD and hypertrophy, tinnitus, radiculopathy of the right lower extremity, and migraine headaches are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2017) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case neither the claimant nor the record has raised the question of unemployability due to service-connected disabilities. Therefore, no further discussion of a TDIU is necessary. JAMES G. REINHART 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.