Citation Nr: 20041041 Decision Date: 06/16/20 Archive Date: 06/16/20 DOCKET NO. 15-10 036 DATE: June 16, 2020 ORDER An initial rating higher than 10 percent for degenerative disc disease of the lumbar spine (hereinafter low back disability) prior to April 14, 2014, is denied. A higher rating of 40 percent for low back disability from April 14, 2014 is granted. From February 8, 2016, a separate 10 percent rating for left lower extremity (LLE) radiculopathy is granted. From February 8, 2016, a separate 10 percent rating for right lower extremity (RLE) radiculopathy is granted. FINDING OF FACT 1. From February 29, 2012 to April 14, 2014, the Veteran’s low back disability was manifested by pain on movement. 2. From April 14, 2014, the Veteran’s low back disability is manifest by chronic pain and flexion of no less than 45 degrees with functional loss due to pain, disturbances of locomotion, and interference with sitting and standing. 3. From February 8, 2016, the Veteran’s LLE radiculopathy results in mild incomplete paralysis of the sciatic nerve. 4. From February 8, 2016, the Veteran’s RLE radiculopathy results in mild incomplete paralysis of the sciatic nerve. CONCLUSION OF LAW 1. Prior to April 14, 2014, the criteria for a rating higher than 10 percent for low back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. From April 14, 2014, the criteria for a 40 percent rating for low back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242. 3. From February 8, 2016, the criteria for a separate 10 percent rating for LLE radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.120, 4.124A, DC 8520. 4. From February 8, 2016, the criteria for a separate 10 percent rating for RLE radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.120, 4.124A, DC 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from February 1987 to November 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 2019, the Veteran testified in support of this appeal during a hearing held at the Board’s Central Office in Washington, DC before the undersigned Veterans Law Judge. In March 2019 the Board remanded this matter for further development. Spine Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe that at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends that his service-connected low back disability warrants a higher rating. For the following reasons, the Board concludes that a higher initial rating is not warranted, but a rating higher than currently assigned is warranted. The Veteran’s low back disability was rated 10 percent under 38 C.F.R. § 4.71a, and was later rated 20 percent under DC 5242 effective October 29, 2014. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater 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 height. 38 C.F.R. § 4.81a, General Rating Formula for Disease and Injuries of the Spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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. Id. 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. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “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; 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 neurological symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always considered favorable ankylosis. Id. 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. 38 C.F.R. § 4.45 requires consideration 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; 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the Veteran is not entitled to a higher initial rating prior to April 14, 2014. The Veteran’s low back disability was assigned a 10 percent rating based on pain on movement. In July 2013 the Veteran underwent a VA examination. His forward flexion was to 85 degrees, extension was to 25 degrees, right and left lateral flexion were to 25 degrees, and right and left lateral rotation were to 30 degrees. His combined range of motion was 220 degrees. An October 2012 private medical record also documents the Veteran having full range of motion. This evidence supports the 10 percent initial rating assigned. The Veteran has a combined range of motion greater than 120 degrees, but less than 235 meeting the rating criteria for a 10 percent rating. The Board has considered whether a higher rating based on functional loss is warranted. The VA examination found pain on motion, but pain on motion does not necessarily equal functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011). The VA examination indicates that the Veteran experienced pain at the same limit as his range of motion on all points. As such, the Board finds that the pain the Veteran experienced during range of motion testing does not constitute functional loss, and as such a higher rating is not warranted. The Board though does find that a 40 percent rating is warranted from April 14, 2014. In October 2014, the Veteran was afforded a VA examination. At the examination forward flexion was to 45 degrees, extension was to 5 degrees, right and left lateral flexion were to 10 degrees, and right and left lateral rotation were to 10 degrees. Pain was noted to start at 30 degrees of flexion, 0 degrees of extension, 10 degrees for right and left lateral flexion, and 10 degrees for right and left lateral rotation. The Veteran’s combined range of motion without pain was at 90 degrees. These factors, without taking into account functional loss, support the 20 percent rating that was assigned. However, the Veteran has exhibited symptoms of functional loss that would warrant a higher rating. The claims file includes private treatment records from April 2014 that exhibit the extent of the Veteran’s low back disability. In April 2014, his private physician wrote a note excusing the Veteran from work secondary to a medical condition from mid-April to early May. Contemporary medical records document the extent of the Veteran’s low back disability. On April 18, 2014, the Veteran reported that for the past four days he has had low lumbar back pain that is worse with standing and certain movements. Other April 2014 medical records note decreased range of motion, decreased strength, decreased postural awareness, inability to sleep through the night, and an inability to perform work duties. The Veteran’s functional limitations were noted to be unable to sleep through the night, unable to stand without pain or meds, unable to walk without pain or meds, unable to work, and unable to perform household chores such as washing the dishes. This functional loss continued into his October 2014 VA examination, with the VA examiner noting that the Veteran experienced functional loss with contributing factors of less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting and standing. Based on all these considerations, the Board has determined that from April 14, 2014, four days before the April 18, 2014 medical record, a higher 40 percent evaluation is warranted based on functional loss. See Mitchell, 25 Vet. App. at 38–43; DeLuca, 9 Vet. App. 204–07. The Veteran’s low back disability represents an increased symptomatology that roughly equates to limitation of motion to 30 degrees or less of forward flexion as required for the assignment of the next higher evaluation of 40 percent. A rating higher than 40 percent is not warranted. In order to receive a rating of 50 percent the Veteran would need to exhibit unfavorable ankylosis of the entire thoracolumbar spine. There is no evidence in the record that supports any ankylosis in the thoracolumbar spine. As such, a higher rating of 50 percent cannot be awarded. Radiculopathy The Board has considered whether a separate rating for radiculopathy of the lower extremities is warranted. For the following reasons, the Board finds that from February 8, 2016, a separate 10 percent rating is warranted for bilateral lower extremity radiculopathy. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. “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. 38 C.F.R. § 4.120A, Disease of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The terms “mild” and “moderate” are not defined in the VA schedule for Rating Disabilities, and the use of terms by VA examiners and others, although an element to be considered by the Board, is not dispositive of the level of paralysis present. In February 2016 the Veteran reported numbness and tingling into the bilateral lower extremities following the L4 and L5 dermatomes and there was an assessment of lumbar degenerative disc disease with radiculitis. In October 2016 the Veteran reported he noticed some numbness in his left leg. At a September 2017 appointment, the Veteran was assessed to have lumbar pain possibly radicular along the L4 dermatomes enhancing his knee pain. In May 2018, the Veteran is found to have some paresthesias into the gluteus and gluts bilaterally, as well as into the anterior thigh of the RLE, but his straight leg raise tests were negative, and motor and sensory reflexes of the lower extremities were within normal limits and equal bilaterally. The Veteran was assessed to have lumbar pain with radiculopathy into the RLE along the L4 dermatome. These symptoms are repeated in June 2018 with the Veteran reporting occasional tingling down his thigh. At his February 2019 hearing the Veteran testified that he experiences pain radiating down his leg. Resolving reasonable doubt in the Veteran’s favor, the Board finds that from February 8, 2016 a separate 10 percent rating for bilateral radiculopathy in the lower extremities is warranted. The Veteran has consistently reported varying symptoms of numbness, tingling, and pain radiating from his spine down his lower extremities. His private physician assessed this pain to be associated with the L4 dermatome. The Board finds that a rating under DC 8520 for incomplete paralysis of the sciatic nerve is most appropriate for the symptoms described by the Veteran. The Veteran’s symptoms have been wholly sensory. As such, a rating based on mild incomplete paralysis is warranted. The Veteran’s symptoms do not present with the intensity and frequency that would warrant a rating based on moderate incomplete paralysis. A date earlier than February 8, 2016 is not available because that is the earliest date where the Veteran reported his radiculopathy symptoms. The Veteran did not provide an estimate as to how long he had been experiencing his symptoms. As such, the date of the medical encounter where the Veteran reported his radiculopathy symptoms is the most accurate date available to assign as an effective date. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.