Citation Nr: 21001195 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-01 929 DATE: January 7, 2021 ORDER A disability rating in excess of 20 percent for lumbar strain, degenerative disc disease with levoscoliosis, is denied. Restoration of a 60 percent disability rating for radiculopathy, right lower extremity, effective September 1, 2016, is denied. A disability rating in excess of 60 percent prior to September 1, 2016, and in excess of 20 percent therefrom, for radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s lumbar strain, degenerative disc disease with levoscoliosis is not manifested by forward flexion of 30 degrees or less, nor ankylosis of the entire thoracolumbar spine. 2. Throughout the rating period on appeal, radiculopathy of the right lower extremity has been manifested by mild to moderate incomplete paralysis, which is wholly sensory. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbar strain, degenerative disc disease with levoscoliosis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5243. 2. The criteria for restoration of a 60 percent disability rating for radiculopathy of the right lower extremity, from September 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.124A, Diagnostic Code 8520. 4. Prior to September 1, 2016, the criteria for a rating in excess of 60 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code 8520. 3. From September 1, 2016, the criteria for a rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 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 contends that she is entitled to a rating in excess of 20 percent for lumbar strain, degenerative disc disease with levoscoliosis. Radiculopathy of the right lower extremity is rated 60 percent disabling, effective October 2, 2012. In a November 2015 rating decision, the rating assigned to radiculopathy, right lower extremity, was proposed to be decreased to 20 percent disabling. In a June 2016 rating decision, the rating assigned to radiculopathy, right lower extremity, was decreased to 20 percent disabling, effective September 1, 2016. The ratings assigned to radiculopathy of the right lower extremity, are part and parcel of the lumbar spine disability issue and will be discussed below. The Board acknowledges that the Veteran’s claim for a total disability rating due to individual unemployability (TDIU); as the Agency of Original Jurisdiction (AOJ) is currently developing this, the Board will refrain from consideration of this issue. Lumbar spine The Veteran’s lumbar strain, degenerative disc disease with levoscoliosis, is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (lumbosacral strain) and 5243 (intervertebral disc syndrome). Intervertebral disc syndrome is to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 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 the height. 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 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 evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and, a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula For Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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 (1995); 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lumbar strain, degenerative disc disease with levoscoliosis. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, less movement than normal, disturbance of locomotion, and interference with standing, sitting or weight-bearing. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. On examination in February 2010, flexion was to 60 degrees, with no change on repetitive motion testing. An April 2012 outpatient evaluation reflects painful flexion to 70 degrees. 09/22/2016 CAPRI at 369. On examination in March 2013, flexion was to 65 degrees, with additional limitation of motion to 50 degrees on repetitive motion testing. On examination in September 2016, flexion was to 40 degrees, with no additional limitation of motion on repetitive motion testing, and the examiner indicated that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over a period of time. The examiner noted that the examination was being conducted during a flare-up and that pain, weakness, fatigability or incoordination would significantly limit functional ability with flare ups but did not result in additional loss of motion. On examination in May 2018, flexion was to 70 degrees, with the examiner noting that decrease with range of motion reduces power, resulting in weaker spine movements and function. There was no additional limitation of motion on repetitive motion testing. The examiner stated that although the Veteran was not evaluated after repetitive use over time, physical examination and discussion with the Veteran suggest that scenarios involving repetitive use would cause pain and weakness without any appreciable change in range of motion. The examiner also found that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with flare-ups; the Veteran denied flares involving the condition. On examination in September 2020, flexion was to 60 degrees. She was not able to perform repetitive-use testing, and the examiner stated that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time resulting in flexion to 50 degrees. The examiner stated that pain, weakness, fatigability or incoordination do not significantly limit functional ability with flare-ups; the Veteran denied flare-ups. The objective findings combined with the subjective complaints of the Veteran do not support a 40 percent for her lumbar spine disability. In consideration of the DeLuca factors, there have been objective findings of functional loss such as pain and less movement than normal. However, the objective findings contained within the record, based on examination reports and treatment records, do not more nearly approximate the criteria for a higher rating even with consideration of pain and repetitive motion. The 20 percent in effect for limitation of motion symptomatology compensates her for limited and painful motion and assigning the next higher rating for painful motion would not accurately assess the resulting functional loss, even when considering the pain. The 20 percent rating takes into consideration the Veteran’s functional loss associated with her lumbar spine. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for an increased rating for any period contemplated by this appeal. See DeLuca, 8 Vet. App. at 204 -07. In other words, the functional loss does not most nearly approximate the criteria for the next-higher 40 percent evaluation. Consideration has also been given to assigning a higher rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that she was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, in April 2019 the Board granted a 60 percent rating for radiculopathy of the left lower extremity, effective September 17, 2010. Such rating was effectuated in a May 2019 rating decision. Radiculopathy of the right lower extremity is addressed below. With regard to any bowel and bladder impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with her spine disability. A September 2020 examiner opined that the Veteran’s bladder trouble is not associated with her lumbar spine disability. The examiner explained that bladder trouble is a separate entity entirely from the lumbar strain, degenerative disc disease with levoscoliosis and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. Thus, there is no basis for assignment of separate ratings for bowel or bladder impairment. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for lumbar strain, degenerative disc disease with levoscoliosis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Radiculopathy, right lower extremity The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines. See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the Veteran’s condition). Per a June 2013 rating decision, service connection was established for radiculopathy, right lower extremity, rated 60 percent disabling, effective October 2, 2012. Per a November 2015 rating decision and notice letter, the Veteran was informed of the proposal to reduce the disability rating assigned to radiculopathy of the right lower extremity, from 60 percent to 20 percent disabling, as it was determined that a clear and unmistakable error had occurred in the assignment of the 60 percent rating in the June 2013 rating decision. Action taken to reduce the rating from 60 percent disabling to 20 percent disabling, effective September 1, 2016, was taken pursuant to 38 C.F.R. § 3.105(e) in a June 2016 rating decision. It is clear that the Veteran was given 60 days to present additional evidence to show that compensation payments should be continued at the 60 percent level. It should also be pointed out that the reduction, taken within less than five years from the award of the 60 percent rating, is not governed by the provisions of 38 C.F.R. § 3.344 regarding stabilization of ratings. See 38 C.F.R. § 3.344(c); see also Collier v. Derwinski, 2 Vet. App. 247, 249 (1992); Tucker v. Derwinski, 2 Vet. App. 201, 203-04 (1992) (the requirements for decrease of a rating for disabilities which have continued for a long time at the same level are more stringent than those for an initial award or an increase in ratings). Proper notice was given to the Veteran regarding the reduction of the disability rating assigned. Radiculopathy of the right lower extremity is separately rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, Sciatic nerve. A 10 percent rating is for application for incomplete paralysis of the sciatic nerve when “mild.” “Moderate” incomplete paralysis of the sciatic nerve warrants a 20 percent rating; “moderately severe” incomplete paralysis warrants a 40 percent rating; and, “severe, with marked muscular atrophy” incomplete paralysis warrants a 60 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. See VBA Adj. Manual M21-1, III.iv.4.N.4.c. The Court held in Miller v. Shulkin that, “[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.” 28 Vet. App. 376, 380 (2017). Initially, the Board finds that the evidence of record does not support a disability rating in excess of the 60 percent assigned effective October 2, 2012. The medical evidence of record does not show complete paralysis of the sciatic nerve manifested by the foot dangling and dropping with no active movement possible of muscles below the knee or flexion of knee weakened or lost. Second, the Board finds that the preponderance of the evidence clearly supports the reduction to the 20 percent level for radiculopathy, right lower extremity, effective September 1, 2016. Finally, the preponderance of the evidence does not support a disability rating in excess of 20 percent from September 1, 2016. A March 2013 examination reflects mild constant pain, intermittent pain, paresthesias/dysesthesias, and numbness, and the examiner characterized the severity of her radiculopathy affecting the right lower extremity to be mild in nature. On muscle strength testing, right knee extension, right ankle plantar flexion and dorsiflexion and great toe extension all were 4/5. Deep tendon reflexes were +1 (hypoactive) in the knee and ankle. Sensation testing was decreased in the lower leg/ankle. An August 2016 Disability Benefits Questionnaire completed by the Veteran’s treating physician reflects that the Veteran complained of moderate radiculopathy of the right lower extremity. On muscle strength testing, right knee extension, and ankle plantar flexion and dorsiflexion was 4/5. A reflex exam of the right knee and right ankle was normal. Sensation testing was decreased in the upper anterior thigh, thigh/knee, lower leg/ankle and foot/toes. The examiner found mild incomplete paralysis of the sciatic nerve of the right lower extremity. A September 2016 examination reflects a normal reflex and sensory examination of the right lower extremity. She had severe constant pain, moderate paresthesias/dysesthesias, and moderate numbness affecting the right lower extremity. The examiner characterized her radiculopathy as moderate in nature. A May 2018 examination reflects a normal reflex examination of the right lower extremity with decreased sensation in the lower leg/ankle and foot/toes. The examiner found no constant pain; mild intermittent pain; mild paresthesias/dysesthesias; and, mild numbness affecting the right lower extremity. The examiner characterized her radiculopathy as mild in nature. An August 2018 Disability Benefits Questionnaire completed by the Veteran’s treating physician reflects the Veteran’s complaint of weakness in both lower extremities and bilateral foot drop, left worse than right. The examiner found moderate constant pain; severe dull pain; moderate paresthesias/dysesthesias; and, moderate numbness. The examiner characterized her radiculopathy of the right lower extremity as severe. A September 2020 examination reflects reflexes of +1 (hypoactive) for the right knee and a normal right ankle. Sensory examination of the right lower extremity was normal. The examiner found no constant pain; moderate intermittent pain; mild paresthesias/dysesthesias; and, mild numbness affecting the right lower extremity. The examiner characterized her radiculopathy as mild in nature. As detailed hereinabove, while the August 2018 examiner characterized the Veteran’s radiculopathy of the right lower extremity as severe, the other examination reports reflect objective findings that her radiculopathy as ranging from mild to moderate in severity. Both the May 2018 and September 2020 examinations conducted prior to and subsequent to the August 2018 evaluation contain objective findings characterizing her radiculopathy of the right lower extremity to be mild in nature. Thus, upon following the guidelines in § 3.105(e), the reduction to 20 percent disabling from September 1, 2016 was proper. The Board finds that from September 1, 2016, the competent medical evidence weighs against a finding that radiculopathy of the right lower extremity is moderately severe in severity. The findings upon physical examination reflect that the Veteran’s radiculopathy of the right lower extremity - specifically the sciatic nerve - is no more than mild to moderate in nature. The objective medical evidence reflects that the Veteran’s symptomatology is wholly sensory characterized as mild to moderate in nature. As such, the disability picture more nearly approximates the current 20 percent rating in effect from September 1, 2016. In summary, for the reasons and bases expressed above, the Board has concluded that the reduction to 20 percent disabling, effective September 1, 2016, was proper, and a disability rating in excess of 20 percent is not warranted. Accordingly, the benefits sought on appeal are denied. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.