Citation Nr: 20039908 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 16-35 477A DATE: June 11, 2020 ORDER 1. Entitlement to a 40 percent rating, but no higher, for a lumbar spine disability, for the period from September 27, 2019 to April 3, 2020, is granted. 2. Entitlement to an initial disability rating in excess of 40 percent for a service-connected lumbar spine disability, from April 3, 2020, is denied. 3. Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar radiculopathy of the right lower extremity, from September 27, 2019, is denied. 4. Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar radiculopathy of the left lower extremity associated with degenerative joint disease s/p back surgery, from September 27, 2019, is denied. FINDINGS OF FACT 1. For the period from September 27, 2019 to April 3, 2020, the evidence is in relative equipoise whether the Veteran’s service-connected lumbar spine disability manifested forward flexion less than 30 degrees. 2. From April 3, 2020, the evidence of record does not support a finding that the Veteran’s lumbar spine disability manifested as ankylosis of the entire thoracolumbar spine, either favorable or unfavorable. 3. From September 27, 2019, the Veterans service-connected lumbar radiculopathy of the right lower extremity, manifested moderate incomplete paralysis. 4. From September 27, 2019, the Veterans service-connected lumbar radiculopathy of the left lower extremity associated with degenerative joint disease s/p back surgery manifested moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 40 percent for a service-connected lumbar spine disability, for the period beginning September 27, 2019 to April 3, 2020, were met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 3.400(o)(2), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for an initial disability rating in excess of 40 percent for a service-connected lumbar spine disability, from April 3, 2020, were not met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. The criteria for an initial disability rating in excess of 20 percent for service-connected lumbar radiculopathy of the right lower extremity, from September 27, 2019, were not met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial disability rating in excess of 20 percent for service-connected lumbar radiculopathy of the left lower extremity associated with degenerative joint disease s/p back surgery, from September 27, 2019, were not met. 38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to February 1978. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In January 2020, the Board remanded the Veteran’s claims to the RO for further development, to include VA examinations. The Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996) Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the vertebrae of the thoracolumbar spine are considered a group of minor joints. 38 C.F.R. § 4.45. This Veteran’s service-connected lumbar spine disability is rated under 38 C.F.R. § 4.71(a). Disabilities of the spine are evaluated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The criteria of the General Rating Formula are applied with and 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. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The General Rating Formula pertinent to the thoracolumbar spine assigns a 20 percent evaluation is for forward flexion of the thoracolumbar spine 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 if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5242. A 40 percent disability rating is assigned when there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 percent disability rating is assigned when there is unfavorable ankylosis of the entire spine. Id. When evaluating joint disabilities rated on the basis of limitation of motion, the VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, the VA must determine the overall functional impairment due to these factors. Alternatively, intervertebral disc syndrome (IVDS) is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS on Incapacitating Episodes, whichever method results in a higher disability rating. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 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). 1. Lumbar Spine Disability from September 27, 2019 to April 3, 2020 For this time period, the relevant evidence begins with an April 2020 VA thoracolumbar spine examination report which included a review of the claims file, a recitation of his medical history and complaints, and physical examination results. The report noted additional diagnoses of “degenerative joint disease, s/p back surgery with radiculopathy and IVDS.” The Veteran reported subjective symptoms of flare ups and functional loss and impairment. His forward flexion was rated at 30 degrees and his forward extension was rated at 15 degrees; his right and left lateral flexion was rated at 15 degrees each; and his right and left lateral rotation was rated at 15 degrees each. There was pain noted during every rating and his total range of motion was rated at 105 degrees. He was also able to perform repetitive use testing which rated his forward flexion at 25 degrees; and rated his forward extension, right and left lateral flexion, and right and left lateral rotation all at 15 degrees each. Factors affecting functional loss were pain and lack of endurance and his total range of motion was measured at 100 degrees. The Veteran was also able to complete repetitive use over time testing which noted pain and lack of endurance and rated his forward flexion at 20 degrees, and rated his forward extension, right and left lateral extension, and right and left lateral rotation all at 10 degrees each. His total range of motion was rated at 70 degrees. He was also able to perform range of motion testing for flare ups, although no flare up was noted, pain and lack of endurance contributed to his functional loss. His forward flexion was rated at 15 degrees, and his forward extension, right and left lateral extension, and right and left lateral rotation all at 5 degrees each. His total range of motion was rated at 40 degrees. The report determined he was negative for guarding or muscle spasms, negative for muscular atrophy, and ankylosis. The report also noted he suffered from IVDS but does not reflect he had any physician prescribed bed rest. Lastly, the examiner opined, “For the VA established diagnosis of joint disease, s/p back surgery the diagnosis is changed, and it is a progression of the previous diagnosis. Progression due to radiculopathy and IVDS.” For the reasons set forth below, and upon review of the evidence of record in conjunction with the applicable laws and regulations, the Board concludes that for the period from September 27, 2019 to April 3, 2020, the evidence is in relative equipoise as to whether the Veteran’s lumbar spine disability more closely resembled the criteria for the assignment of a 40 percent disability rating. During the Veteran’s September 27, 2019 Board hearing, he alleged his lumbar spine disability worsened and indeed his April 3, 2020 VA examination confirmed his contention. The RO set the effective date of entitlement as the date of the examination since that was the factually ascertainable date the disability arose. However, 38 U.S.C. § 3.400(o)(2) states, “When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment.” Id. In this case, since his claim is for an increased rating, applying section 3.400(o)(2) liberally, the Veteran’s effective date could be applied up to one year prior to April 3, 2020. However, the evidence of record only reflects that the Veteran contended his lumbar spine disability began to worsen during his September 27, 2019 Board hearing. Furthermore, the evidence of record does not contain any evidence pertaining to the state of the Veteran’s lumbar spine disability from September 27, 2019 until April 3, 2020. When in cases such as this, there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Granting all reasonable doubt to the Veteran, it is entirely reasonable to assume his symptoms did not manifest specifically on April 3, but pre-existed the examination and were in existence during his September 27, 2019 Board hearing. It is also entirely reasonable to assume that if his post remand VA examination was scheduled earlier than April 2020, the results would not be materially different. Thus, it is entirely reasonable to assume his lumbar spine disability manifested at a 40 percent rating from September 27, 2019 up until the April 3, 2020 VA examination. As such and affording all reasonable doubt in favor of the Veteran, the evidence of record is in relative equipoise whether his lumbar spine disability had a distinct period of worsening over the appellate period. To the extent that a level of compensation higher than 40 percent is sought beginning September 27, 2019 until April 3, 2020, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, granting all reasonable doubt to the Veteran, he satisfies the criteria for a 40 percent disability award for limitation of forward flexion of his lumbar spine disability for the period beginning September 27, 2019 until April 3, 2020. See 38 U.S.C. § 3.400(o)(2); 38 C.F.R. § 4.71a. 2. Lumbar Spine Disability from April 3, 2020 The Veteran alleges entitlement to an initial disability rating in excess of 40 percent from April 3, 2020. His service-connected lumbar spine disability is rated under 38 C.F.R. § 4.71(a). A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. During his April 3, 2020 VA examination, as detailed previously, he was negative for ankylosis, either favorable or unfavorable. Furthermore, although IVDS was noted, there is no indication physician prescribed bed rest occurred. Additionally, the evidence of record does not contain any other medical record, private or VA, that indicates the Veteran has developed ankylosis of the entire thoracolumbar spine, either favorable or unfavorable. Indeed, the evidence of record does not contain any other evidence, including lay statements, to indicate the Veteran’s lumbar spine disability has manifested at a disability rating higher than 40 percent. As such, and absent any evidence to the contrary, the preponderance of the evidence is against finding that the Veteran’s lumbar spine disability warrants a rating in excess of 40 percent from April 3, 2020. To the extent that any higher level of compensation is sought from April 3, 2020, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claim for an initial disability rating in excess of 40 percent for his service-connected lumbar spine disability from April 3, 2020, is denied. 3. Lumbar Radiculopathy of the Right and Left Lower Extremity from September 27, 2019 The Veteran’s service-connected lumbar radiculopathy is rated at 20 percent for moderate incomplete paralysis of each lower extremity under 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8620. Under this Diagnostic Code, a disability rating of 40 percent is warranted for 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 assigned when there is complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. The term "incomplete paralysis," with respect to 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 lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. §§ 4.123-4. The words "mild," "moderate," and "severe" are not defined in the above rating criteria. 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. Turning to the evidence of record, the Veteran underwent an April 3, 2020 VA peripheral nerves examination report which included a review of the claims file, a recitation of the Veteran’s medical history and complaints, and physical examination results. The report noted he had moderate constant pain in his right and left lower extremities and moderate paresthesias and/or dysesthesias in his right and left lower extremities. The report also determined he had moderate numbness in his right and left lower extremities and determined his right and left sciatic nerve each have moderate incomplete paralysis. The report also noted the Veteran reported subjectively that his bilateral peripheral nerve conditions impact his ability to work due to “lower leg pain, tingling, numbness, difficulty with prolong walking over ¼ mile.” The examiner opined there was “no change in the diagnosis” in the Veteran’s bilateral lower extremity radiculopathy. Additionally, a simultaneous April 3, 2020 VA thoracolumbar spine examination report referred to the Veteran’s bilateral lower extremity radiculopathy. Specifically, the report noted radicular pains of his lower extremities and involvement of both the “L4/L5/S1/S2/S3 Nerve Roots.” After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against finding that the Veteran's lumbar radiculopathy of the right and left lower extremities warrant a disability rating in excess of 20 percent from September 27, 2019. To meet the requirements of the 40 percent disability rating under Diagnostic Codes 8520-8620, it must be shown that his radiculopathy is moderately severe. Here, the Veteran received a VA examination for his bilateral lower extremity radiculopathy, and his symptoms were rated as moderate. The moderate rating is because there is no evidence of manifestations beyond that which is wholly sensory. In this regard, there is no atrophy, weakness, or other signs or symptoms that demonstrate the next higher tier of moderately severe symptoms. Although the Board is not bound by these assessments, it nonetheless finds that the VA examiner's conclusions are consistent with the evidence of record. Indeed, during the applicable appeal period, VA and private treatment records do not provide any evidence to contradict the April 2020 VA medical opinion. Thus, the evidence of record does not indicate a change in the Veteran’s bilateral lower extremity radiculopathy occurred during the applicable appeal period. In conclusion, the evidence of record does not support the assignment of an evaluation in excess of 20 percent for the Veteran’s service-connected lumbar radiculopathy of the right and left lower extremities from September 27, 2019. To the extent that any higher level of compensation is sought from September 27, 2019, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claim for an initial disability rating in excess of 20 percent for his service-connected lumbar radiculopathy of the right and left lower extremities from September 27, 2019 is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.