Citation Nr: 20034565 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 19-06 273A DATE: May 18, 2020 ORDER Entitlement to service connection for radiculopathy in the right lower extremity, to include as secondary to lumbosacral strain, is denied. Subject to the laws and regulations governing the award of monetary benefits, entitlement to an initial rating of 20 percent for lumbosacral strain is granted. FINDINGS OF FACT 1. The medical evidence establishes that the Veteran does not have a current disability of radiculopathy in the right lower extremity. 2. The Veteran's back disability more nearly approximates painful limitation of forward flexion more than 30 degrees but not greater than 60 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for radiculopathy in the right lower extremity, to include as secondary to lumbosacral strain, have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2019). 2. The criteria for entitlement to an initial rating of 20 percent for lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.59, 4.71a, Diagnostic Code 5237 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1997 to November 2001. This appeal to the Board of Veteran’s Appeals (Board) arose from an October 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran has perfected the appeal. See October 2016 Notice of Disagreement; January 2019 Statement of the Case (SOC); March 2019 Substantive Appeal (VA Form 9). Regarding the issues of entitlement to service connection for radiculopathy in the left lower extremity, and entitlement to an earlier effective date for the award of service connection for lumbosacral strain, the RO granted these claims in February 2019. These grants are considered full grants of benefits sought on appeal. Therefore, there are not before the Board for appellate consideration. Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § § 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102 1. Entitlement to service connection for radiculopathy in the right lower extremity, to include as secondary to lumbosacral strain. The Veteran contends that he has developed radiculopathy in his right leg due to his lumbar spine condition. Regarding whether the Veteran has a current disability of radiculopathy in the right lower extremity, the October 2015 VA examiner found no radicular pain or any other signs or symptoms due to radiculopathy upon examination of the Veteran. The examiner explained that there was no medical treatment noted in the record regarding bilateral lower extremity radiculopathy. In a May 2017 private medical record, the Veteran reported that he had pain radiating down his left thigh and left groin. The Veteran did not report radiating pain in his right lower extremity. The December 2018 VA examiner only found signs of radiculopathy in the left lower extremity. The Board does note that the Veteran is service connected for radiculopathy in his right upper extremity that is related to his service-connected cervical spine condition. Based on the evidence of the record, the Board finds that there is no current disability. Service connection requires a showing of a current disability. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the Veteran’s assertions that he experiences radiating pain, numbness, and tingling in both of his extremities. However, examinations of the Veteran’s lower extremities have not found signs or symptoms of radiculopathy in the right lower extremity, as it has been found in his left lower extremity. Therefore, he does not have a current disability diagnosed as radiculopathy in the right lower extremity. Although lay persons are competent to provide opinions on some medical opinions, determining the diagnosis of radiculopathy falls outside the realm of common knowledge of a lay person. The Veteran has not demonstrated the medical expertise required for this matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). The Board finds that the weight of the evidence is against a finding of service connection for radiculopathy in the right lower extremity. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. Increased (Initial) Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 2. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain. The Veteran is seeking a higher rating for his service-connected back condition. Currently, his condition is rated at 10 percent disabling under Diagnostic Code 5237 (lumbosacral or cervical strain). This disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, 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, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, 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 entire spine. 38 C.F.R. § 4.71a. Turning to the evidence of the record, on the October 2015 VA examination, it was noted that the Veteran had been seen for recurrent low back pain since 1999. In November 1999, plain film lumbosacral was normal. The assessment was chronic low back pain due to chronic strain. The Veteran has treated his back pain with NSAIDs, muscle relaxants, and physical therapy. The Veteran reported intermittent pain and stiffness with radiation of pain accompanied by numbness and tingling to the bilateral lower extremities. Prolonged standing and sitting increased the Veteran’s pain. There was no bowel or bladder incontinence. The Veteran reported experiencing flare-ups, describing them as daily intermittent pain with prolonged standing and sitting lasting several hours. Functional impairment was described as pain with motion and limitation of motion. Range of motion was noted as follows: forward flexion was 80 degrees; extension was 20 degrees; right lateral flexion 20 degrees; left lateral flexion was 20 degrees; right rotation was 20 degrees; left rotation was 20 degrees. Abnormal range of motion contributed to functional loss. Pain was noted in all planes and it caused functional loss. There was no evidence with weight bearing. The Veteran did have localized tenderness or pain on palpation of joints or soft tissue. The Veteran was able to perform repetitive-use testing. There was no change in the range of motion after repetitive-use testing. The Veteran was being examined after repetitive use. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use or during a flare-up. The Veteran was not being examiner during a flare-up. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. The Veteran did not have guarding or muscle spasm. Less movement than normal and interference with sitting and standing contributed to the Veteran’s disability. The Veteran's muscle strength was normal and there was no muscle atrophy. His reflex and sensory examinations were normal. Straight leg raising test results were negative. The Veteran did not have radiculopathy or ankylosis. The Veteran did not have any neurological abnormalities or intervertebral disc syndrome (IVDS). No assistive devices were noted. Arthritis was not documented. In an April 2017 private treatment record, the Veteran reported moderate to occasionally severe pain. Severity level was seven to eight out of ten. The pain interfered with his activities of daily living. It was also noted that the pain was aggravated with movement and laying down. The pain was worst with standing. In September 2017, the Veteran complained of low back pain. He denied any radiation of pain, tingling, numbness, bowel and bladder incontinence. In a July 2018 VA Pain Outpatient Note, the Veteran complained of continued back pain. He reported the severity level to be a nine out of ten. The pain was located over his axial low back. The pain was sharp, intermittent, worse with heavy work or prolonged standing. The Veteran stated that pain radiated with a numb character on the left side from his back around his medial leg and next to his scrotum. The pain improved when the Veteran used Toradol injections and avoided heavy work. Upon examination of the Veteran’s lumbar spine, range of motion was noted to be painful in flexion but near full. There was tenderness of upper lumbar paraspinals. Straight leg raising test was negative bilaterally. Femoral stretch reproduced left upper lumbar pain. At the December 2018 VA examination, pain was reported to be localized to the paraspinous mid-lumbar region. The pain was greater on the left than the right with radiation into the left buttock as well as into the posterior left thigh. The pain also radiated into the left testicle. Regarding treatment, the Veteran has had epidural steroid injections three times. The Veteran’s condition improved for only one week after each injection. He had a spine surgery consultation and was told he was not a good candidate for surgical intervention. The Veteran did not report flare-ups. The Veteran reported functional impairment, describing it as difficulty with any forward flexion activities, such as putting on his shoes. The Veteran also express having pain with sexual intercourse and playing sports. Range of motion was noted as follows: forward flexion was 80 degrees; extension was 30 degrees; right lateral flexion 30 degrees; left lateral flexion was 30 degrees; right rotation was 30 degrees; left rotation was 30 degrees. Pain was noted in forward flexion, but it did not cause functional loss. There was no evidence of pain with weigh bearing. The Veteran did not have localized tenderness or pain on palpation of joints or soft tissue. The Veteran was able to perform repetitive-use testing. There was no change in the range of motion after repetitive-use testing. The examination was not being conducted after repeated use or during a flare-up. The examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare-up. The examiner was unable to say if pain, weakness, fatigability, or incoordination significantly limited functional ability after repeated use and during a flare-up. The examiner also stated it was not possible to determine without resorting to mere speculation the estimated loss of range of motion after repeated use or during a flare-up. The examiner explained that there was no conceptual or empirical basis for making such a determination without directly observing function under those conditions. In addition, for the Veteran, there was no persistent evidence of record, considered to be valid or reproducible for rating purposes, that indicated a loss of function during these conditions. The Veteran did not have guarding or muscle spasm. Muscle strength was normal, and the Veteran did not have any muscle atrophy. His reflex and sensory examination results were normal. Straight leg raising test results were all negative. The Veteran had radiculopathy in his left lower extremity. The Veteran did not have ankylosis and any other neurological abnormalities. The Veteran did not have IVDS. The Veteran did not use an assistive device. Arthritis was documented. Passive range of motion was not performed as it was not feasible to do this in a safe and reasonable matter. Non-weight bearing testing was not applicable. There was no objective evidence of pain when the spine was in a non-weight bearing position at rest. After a thorough consideration of the evidence, the Board determines that the Veteran’s symptoms more nearly approximate the severity level contemplated by the 20 percent rating criteria. The Board acknowledges that the Veteran’s forward flexion has not approximated between 30 degrees and 60 degrees, or that he was found to have guarding or muscle spasm that resulted in abnormal gait or spinal contour. However, the Board has considered the Veteran’s pain, weakness, flare-ups, and limitation of movement that may at times result in additional functional loss than objectively demonstrated. The Veteran has consistently reported increased pain with prolonged sitting and standing. Painful flexion has been noted consistently in the medical records. The severity level of the pain has been noted to moderate to severe. The Veteran reported experiencing difficulty with any activity involving forward flexion. Therefore, the Board finds that the Veteran is entitled to a 20 percent rating for his low back disability. However, while considering the Veteran’s symptoms and limitations they cause. the Board does not find that the Veteran’s symptoms approximated the severity level contemplated by the 40 percent rating criteria. The Veteran’s forward flexion did not approximate 30 degrees or less or exhibited favorable ankylosis. The Veteran’s flexion has been noted to be 80 degrees. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5). Throughout all of his examinations, the Veteran has never been noted to have ankylosis, or exhibit symptoms resembling ankylosis. The Veteran does not require an assistive device due to his back condition. The Board has also considered whether a higher evaluation may be warranted due to incapacitating episodes associated with intervertebral disc syndrome (IVDS). However, the medical evidence has shown that the Veteran has not ever had IVDS. Therefore, a rating for IVDS is not warranted. Regarding entitlement to a separate rating for radiculopathy, the Veteran has been service connected for radiculopathy in his left lower extremity. Therefore, the Veteran is being compensated for any radiating pain he experiences on the left lower side of his body. As explained extensively before, the examinations have shown that the Veteran does not have radiculopathy in his right lower extremity. The Board has also considered whether the Veteran is entitled to separate ratings for associated objective neurological abnormalities. However, the examinations noted that the Veteran does not display any neurological abnormalities, such as bowel or bladder incontinence, related to his low back disability. In sum, the Board determines that the Veteran is entitled to a 20 percent rating, but no higher, for his service-connected lumbosacral strain for the entire initial rating period. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.