Citation Nr: 21001777 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-31 048 DATE: January 11, 2021 ORDER Entitlement to an increased rating for intervertebral disc syndrome (IVDS) (previously evaluated as lumbosacral strain), currently evaluated as 20 percent disabling prior to January 17, 2020, and as 40 percent disabling thereafter, is denied. Entitlement to an initial evaluation in excess of 20 percent for left lower extremity radiculopathy with intermittent foot drop is denied. FINDINGS OF FACT 1. Prior to January 17, 2020, the Veteran did not have forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. She also did not have incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. Since January 17, 2020, the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. She also does not have incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 3. Throughout the appeal, the Veteran’s left lower extremity radiculopathy has not been manifested by severe incomplete paralysis with marked muscular atrophy. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for IVDS prior to January 17, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. The criteria for an evaluation in excess of 40 percent for IVDS on or after January 17, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 3. The criteria for an initial evaluation in excess of 20 percent for radiculopathy of left lower extremity with intermittent foot drop have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to December 2000. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2013 and April 2016 rating decisions. In June 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Agency of Original Jurisdiction (AOJ). A transcript of the hearing has been associated with the record. In November 2019, the Board remanded the case to the AOJ for further development. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in a July 2010 rating decision, the AOJ increased the evaluation for IVDS to 40 percent, effective from January 17, 2020. Because that evaluation is less than the maximum award allowed under VA law and regulations, the claim for an increased evaluation remained on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Law and Analysis The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lumbar Spine In this case, the Veteran’s IVDS is currently assigned a 20 percent evaluation prior to January 17, 2020 and a 40 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 indicates that degenerative arthritis should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine (General Rating Formula). Under the General Rating Formula for Diseases and Injuries of the Spine, with or 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, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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 evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation 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 Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted 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 evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 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, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Historically, the Board notes that the Veteran was initially service-connected for lumbosacral strain. The service treatment records indicated that the Veteran sustained several back injuries during service from falls, lifting, and an incident that occurred while cuffing another soldier. She was diagnosed with several different diagnoses, including chronic sacroiliitis, strained back, and musculoskeletal back pain. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that increased evaluations are not warranted for the Veteran’s service-connected lumbar spine disability for either period on appeal. Initially, the Board notes that there is no evidence of record that the Veteran had forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine prior to January 17, 2020. In fact, there are no specific range of motion findings recorded in degrees for this time period. The Veteran submitted a VA Disability Benefits Questionnaire (DBQ) completed by a private nurse practitioner in August 2013. However, the nurse practitioner noted that she was unable to perform range of motion testing of the thoracolumbar spine due to the absence of a goniometer. A September 2017 VA treatment record indicated that the Veteran had mild tenderness to palpitation over her lumbar paravertebral muscles and quadratus lumborum; however, her range of motion was normal, and it was noted that she maintained good flexion and extension. Such evidence does not suggest that forward flexion would have been limited to 30 degrees or less, nor does it demonstrate favorable ankylosis. In addition, the evidence does not show that the Veteran had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months at any point prior to January 17, 2020. The August 2013 private nurse practitioner noted that the Veteran had IVDS of the thoracolumbar spine; however, she indicated that the Veteran did not have any incapacitating episodes over the past 12 months due to IVDS. As such, the Veteran has not been shown to have met the criteria for an increased evaluation under the Formula for Rating IVDS Based on Incapacitating Episodes prior to January 17, 2020. On or after January 17, 2020, the evidence does not show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. In fact, during a January 2020 VA examination, the Veteran had forward flexion from 0 to 90 degrees and extension from 0 to 30 degrees. In addition, the January 2020 VA examiner specifically reported that there was no ankylosis of the spine. Further, the evidence does not show that the Veteran has had incapacitating episodes having a total duration of at least 6 weeks during the past 12 months at any point since January 17, 2020. The January 2020 VA examiner noted that the Veteran had IVDS of the thoracolumbar spine; however, he indicated that the Veteran did not have any incapacitating episodes over the past 12 months due to IVDS. As such, the Veteran has not been shown to have met the criteria for an increased evaluation under the Formula for Rating IVDS Based on Incapacitating Episodes beginning on or after January 17, 2020. The Board has also considered the provisions of 38 C.F.R. § § 4.40, 4.45, 4.59, and the holding in DeLuca. However, increased evaluations for the Veteran’s lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms and impairment are supported by pathology consistent with the assigned 20 and 40 percent evaluations, and no higher. In this regard, the Board observes that the Veteran complained of constant, aching pain on numerous occasions. However, the effect of the pain in the Veteran’s lumbar spine is contemplated in the currently assigned evaluations. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant increased evaluations. In the August 2013 VA DBQ, the private nurse practitioner noted that the Veteran had lumbar and bilateral flank muscle spasms on repetitive use testing; however, she did not perform range of motion testing. During the January 2020 VA examination, the VA examiner did note that the Veteran had pain on movement; however, he indicated that there was no additional limitation of functional ability of the thoracolumbar spine during flare-ups. He did note that there was additional loss of function or range of motion following repetitive use testing; however, he estimated that the Veteran still maintained forward flexion from 0 to 45 degrees and extension from 0 to 20 degrees. Thus, she did not more nearly approximate unfavorable ankylosis even during repetitive use testing. The January 2020 VA examiner further noted that the Veteran had normal muscle strength testing of the bilateral lower extremities and that she did not have muscle atrophy. The Board finds that the effect of the pain in the Veteran’s lumbar spine is contemplated in the currently assigned 20 and 40 percent evaluations and that she does not more nearly approximate the criteria for 40 and 60 percent evaluations. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant increased evaluations throughout the appeal. Based on the foregoing, the Board finds that the weight of the evidence is against an increased rating for the Veteran’s service-connected lumbar spine disability. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). Radiculopathy The Veteran is currently assigned a 20 percent evaluation for left lower extremity radiculopathy with intermittent foot drop, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. Moderate incomplete paralysis is assigned a 20 percent rating, moderately severe incomplete paralysis warrants a 40 percent evaluation, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of 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 only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, can receive a maximum rating of moderate incomplete paralysis, except for tic douloureux or trifacial neuralgia, which may be rated up to complete paralysis. 38 C.F.R. § 4.124. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. The words “slight,” “mild,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA 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. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 20 percent for her left lower extremity radiculopathy throughout the appeal period. Initially, the Board notes that the evidence of record does not demonstrate manifestations consistent with the criteria for an increased rating for the sciatic nerve. Rather, the preponderance of the evidence of record documents that there was no atrophy, no abnormal muscle tone or bulk, no complete paralysis, and no organic changes. In an August 2013 VA DBQ, a private nurse practitioner noted that the Veteran had radicular pain or other signs or symptoms due to radiculopathy. Specifically, she noted that the Veteran had severe constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the left lower extremity. She also indicated that the Veteran had cold spots in her legs when she walked. During an August 2016 VA muscles examination, the Veteran demonstrated normal muscle strength for left knee flexion and extension and left ankle dorsiflexion. She had less than normal muscle strength for left ankle plantar flexion, but she did not have muscle atrophy. During a January 2020 VA peripheral nerves examination, the examiner noted that the Veteran reported numbness and tingling in her bilateral legs and feet, an inability to feel her toes, and occasional foot drop. The examiner noted that the Veteran did not have constant or intermittent pain in her left lower extremity. He indicated that the Veteran had severe paresthesias and/or dysesthesias and severe numbness in the left lower extremity. The Veteran demonstrated active movement against gravity in left knee extension and left ankle dorsiflexion, and she had normal muscle strength for left ankle plantar flexion. The examiner further reported that the Veteran did not have muscle atrophy and that she had normal reflexes. She had decreased sensation for light touch to the left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The examiner noted that the Veteran had a shuffled gait due to foot drop. He indicated that there was moderately severe incomplete paralysis of the sciatic nerve in the left extremity. The Board notes the Veteran’s complaints of pain, tingling, and numbness throughout the appeal. However, the evidence does not show that she has marked muscular atrophy as required under Diagnostic Code 8520 for the next higher 40 percent evaluation. In fact, the August 2016 and January 2020 VA examiners specifically found that she did not have muscle atrophy. Moreover, during the June 2019 hearing, the Veteran testified that her left calf muscle is bigger than her right calf muscle, which does not suggest muscle atrophy in her left lower extremity. In addition, the Board notes that there is evidence indicating that the Veteran has occasional foot drop. However, she has not been shown to have complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost, as required for an 80 percent evaluation under Diagnostic Code 8520. In fact, during the January 2020 VA examination, the Veteran demonstrated active movement against gravity in left knee extension and left ankle dorsiflexion, and she had normal muscle strength for left ankle plantar flexion. She also testified during the June 2019 hearing that she is able to bend her knee. Moreover, the August 2013 private nurse practitioner and the January 2020 VA examiner both described the Veteran’s left sciatic radiculopathy as moderate, which is commensurate with a 20 percent evaluation. For these reasons, the Board finds that the preponderance of the evidence is against a finding that a higher evaluation is warranted for the left lower extremity radiculopathy. The Veteran and her representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.