Citation Nr: 21001877 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-12 877 DATE: January 12, 2021 ORDER Entitlement to a 20 percent rating for the orthopedic manifestations of thoracolumbar spine intervertebral disc syndrome (IVDS) is granted for the time period prior to January 17, 2020. Entitlement to a rating in excess of 40 percent for the orthopedic manifestations of thoracolumbar spine IVDS since January 17, 2020 is denied. Entitlement to a 10 percent rating for right lower extremity lumbar radiculopathy prior to March 15, 2019, and a 20 percent rating from March 15, 2019, is granted. Entitlement to a 10 percent rating for left lower extremity lumbar radiculopathy prior to March 15, 2019, and a 20 percent rating from March 15, 2019, is granted. FINDINGS OF FACT 1. Since the inception of the appeal, the Veteran’s motion loss more closely approximated combined motion of less than 120 degrees when considering functional impairment on use or during flares. 2. The Veteran’s lumbar strain with IVDS has not manifested as unfavorable ankylosis of the entire thoracolumbar spine at any point during the period on appeal. 3. Prior to January 17, 2020, it is not factually ascertainable that the Veteran’s lumbar strain with IVDS manifested as unfavorable ankylosis of the entire cervical spine, favorable ankylosis of the entire thoracolumbar spine, or forward flexion of the thoracolumbar spine 30 degrees or less. 4. For the time period between the inception of the appeal until March 15, 2019, the Veteran’s right lower extremity lumbar radiculopathy has manifested as mild incomplete paralysis of the sciatic nerve due to subjective symptoms only. 5. For the time period beginning March 15, 2019, the Veteran’s right lower extremity lumbar radiculopathy has been manifested as moderate incomplete paralysis of the sciatic nerve due to subjective symptoms, hypoactive reflexes, and decreased sensory perception. 6. For the time period between the inception of the appeal until March 15, 2019, the Veteran’s left lower extremity lumbar radiculopathy has manifested as mild incomplete paralysis of the sciatic nerve due to subjective symptoms only. 7. For the time period beginning March 15, 2019, the Veteran’s left lower extremity lumbar radiculopathy has been manifested as moderate incomplete paralysis of the sciatic nerve due to subjective symptoms, hypoactive reflexes, and decreased sensory perception. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 40 percent for a lumbar strain with IVDS have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes (DCs) 5237, 5242. 2. The criteria for entitlement to an effective date prior to January 17, 2020 for a 40 percent rating for a lumbar strain with IVDS have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a DCs 5237, 5242. 3. Since the inception of the appeal until March 14, 2019, the criteria for entitlement to a 10 percent rating for right lower extremity lumbar radiculopathy have been met, and the criteria for a 20 percent rating have been met effective March 14, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 4. Since the inception of the appeal until March 14, 2019, the criteria for entitlement to a 10 percent rating for left lower extremity lumbar radiculopathy have been met, and the criteria for a 20 percent rating have been met effective March 14, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 1970 to November 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a March 2019 travel Board hearing, a transcript of which has been attached to the record. The Veteran was granted service connection for a lumbar strain, rated as 0 percent disabling (noncompensable) at his separation from service. He submitted a June 2013 claim for an increased rating, and in a March 2014 rating decision the AOJ increased his rating to 10 percent, effective September 22, 2014. The Veteran appealed to the Board, and the matter was remanded to the AOJ in an April 2019 decision in order to obtain a new VA examination to determine the severity of the Veteran’s lumbar spine disability and any associated neuropathy. The AOJ then issued an August 2020 rating decision increasing the Veteran’s lumbar spine disability rating to 40 percent from January 1, 2020, the day of the new VA examination; as well as granting entitlement to service connection for bilateral lumbar radiculopathy of the lower extremities, rated as 10 percent disabling each. As this is less than a full grant of benefits allowed, the matter has been returned to the Board for review. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The Board notes that the AOJ has indicated that the evaluation for the neurologic complications is not on appeal as it “is considered a downstream issue of your evaluation for back condition” remanded by the Board – noting the Board requested consideration of any signs/symptoms of radiculopathy.” The General Formula for Rating Injuries and Diseases of the Spine instructs the rater to evaluate objective neurologic abnormalities “separately, under an appropriate diagnostic code.” 38 C.F.R. § 4.71a, General Formula for Rating Injuries and Diseases of the Spine, Note (1). Once that analysis is completed, the rater is to consider whether a higher alternative rating may be awarded based upon the duration of incapacitating episodes of IVDS. 38 C.F.R. § 4.71a, DC 5243. The Board finds that the evaluating the appropriate rating and effective date of award for any neurologic complications of IVDS are part of the issues necessary for a final decision in assigning the appropriate rating for the Veteran’s thoracolumbar spine IVDS. Here, the AOJ issued a rating decision in August 2020 which eventually recognized that the neurologic complications had been manifested in 2014. If the initial ratings and effective dates of awards were not previously before the Board or currently before the Board, the Board would be unable to arrive at a final decision considering the Formula for Rating IVDS Based Upon Incapacitating Episodes as that analysis requires consideration of the combined rating of both the orthopedic and neurologic aspects of IVDS for the entire appeal period, and the appeal period from the August 2020 assignment of separation ratings for the neurologic complications still has not expired. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a higher rating for a lumbar strain with IVDS The Veteran’s lumbar spine disability is classified as a lumbar strain with IVDS. Under VA’s Schedule of Ratings, IVDS will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. The general rating formula provides a 10 percent disability rating for forward thoracolumbar flexion not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine 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. 38 C.F.R. § 4.71a, DCs 5235-5243. A 20 percent disability rating is warranted upon evidence of forward thoracolumbar flexion 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. Forward thoracolumbar flexion to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is rated as 40 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, Plate V. Further, for VA compensation purposes, unfavorable ankylosis is 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: difficulty walking because of a limited line of vision; 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 neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5235-5243. The Board notes the Veteran’s associated lumbar radiculopathy is separately compensated under the Schedule and will be discussed below. As a preliminary matter, the Board finds it is not factually ascertainable that the Veteran’s lumbar spine disability worsened in the one-year period before his original date of claim. A review of the record reveals no evidence aside from the allegation of worsening made in the Veteran’s claim for an increased rating. Therefore, he is not entitled to a compensable rating prior to his date of claim for an increased rating for his lumbar spine disability: June 7, 2013. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Harper v. Brown, 10 Vet. App. 125 (1997). Additionally, while the Veteran reported several incapacitating episodes of back pain per week interfering with his employment in sales, he indicated at the March 2019 Board hearing that he is still gainfully employed and he has not reported a sheltered/protected working environment. Thus, the Board will not consider the issue of unemployability due to service-connected disability as it is not reasonably raised at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was afforded a January 2014 VA examination in conjunction with his claim for an increased rating. He described pain with a sensation of popping as well as numbness of the legs. He had a pain level of 7/10 severity. He reported severe flareups, occurring three days per week, lasting 24 to 48 hours, brought on by bending or twisting. The Veteran was not experiencing a flareup during the examination but estimated they reduced his range of motion by approximately 50 percent. The examiner did not estimate the Veteran’s range of motion during a flareup, but recorded 80 degrees forward flexion with pain beginning at 75 degrees, 25 degrees extension, 25 degrees right lateral flexion, 30 degrees left lateral flexion, 30 degrees right lateral rotation, 30 degrees left lateral rotation, with pain beginning at all endpoints besides forward flexion. These measurements were unchanged after repetitive use. The examiner noted the Veteran exhibited less movement than normal as well as pain on movement, but no tenderness, muscle spasm, guarding, or abnormal gait. The Veteran exhibited full muscle strength, normal reflexes, no muscle atrophy, and normal sensory examination results with negative straight leg raising tests bilaterally. The examiner observed mild numbness of the bilateral lower extremities, with no indication of constant or intermittent pain, paresthesias or dysesthesias. The examiner opined that the Veteran’s back disability manifested as pain that affected his daily life, noting a mild effect on shopping, chores and traveling; a moderate effect on recreation and driving; a severe effect on exercise and sports and no effect on feeding, bathing, dressing and grooming. In his May 2014 notice of disagreement, the Veteran stated his back condition had worsened over the years, with some doctors recommending surgery, and noted his 10 percent rating had been assigned without the benefit of x-ray imaging. VA treatment records of a September 2014 new primary care provider examination note the Veteran reported burning pain in his middle and lower back as well as numbness and tingling in his extremities, requiring constant shifting to find relief. The VA clinician noted an impression of lumbar radiculopathy and back pain with degenerative changes of the spine and assigned physical therapy as well as a TENS unit. January 2015 VA treatment records indicate the Veteran complained of back pain for 40-plus years, spending 90 percent of his time with back pain radiating to his legs and ankles, leaving him unable to sit still. He also reported numbness. The clinician noted his “MSK” was four out of five in the lower extremities. May 2015 VA treatment records note the Veteran experienced lower back pain with bilateral leg pain and exhibited degenerative changes of the lumbar spine. In his March 2016 Board appeal, the Veteran stated, “ongoing medical records are evidence that show my back injury is worsening and causing injuries to my lower extremities.” December 2016 VA treatment records indicate the Veteran complained of back pain, rated a five out of 10 on medication and 10 out of 10 without medication, requiring him to lean forward or lay back in order to take pressure off his spine. In June 2017 VA treatment records, the Veteran reported worsening back symptoms, including intense “tailbone” pain aggravated by sitting but completely relieved by standing or lying down. July 2017 VA treatment records include imaging of the lumbar spine with the notation: “essentially unremarkable radiographic study of the lumbar spine, unchanged since 9/22/2014.” In July and August 2017, a VA contracted chiropractor observed the Veteran reported constant low back pain, described as sore and tight. The Veteran denied pain radiating into his legs but indicated sitting in a chair increased the pain. The chiropractor observed decreased range of motion in all lumbar planes but noted normal reflexes as well as no numbness or pain radiating into the bilateral lower extremities. No other neurological symptoms were observed. December 2018 VA treatment records indicate the Veteran reported worsening constant aching pain in his low back, rated five out of 10 with medication and 10 out of 10 without it. At the March 2019 travel Board hearing, the Veteran described his back pain as 10-plus on a bad day, four to five on a good one and reported experiencing incapacitating episodes that prevent him from going to work two to three times per week, though not preventing gainful employment. He indicated sometimes requiring one and a half hours in the morning to “loosen up,” before work and stated his pain was getting worse, to include stabbing and numbness in his lower extremities. The Veteran also reported being offered a cane by VA but refusing, although he noted his lower extremity symptoms occasionally caused his legs to give way, requiring him to catch himself before falling. He described increased pain when sitting, requiring a break from driving every half hour, and reported taking his medications only first thing in the morning or right before bed to avoid being “drugged up” during the day. The Board’s April 2019 decision remanded the claim for a new VA examination to determine the severity of the Veteran’s back and associated neurological symptoms, which the Veteran was afforded in January 2020. Concurrent imaging revealed mild degenerative changes at L5-S1, mild disc bulges at L1-L2 through L4-L5, foraminal stenosis most pronounced at L4-L5 and a straightening of the spine which may position against spasm or guarding. Upon examination, the Veteran was diagnosed with a lumbosacral strain, IVDS and bilateral lumbar radiculopathy. The Veteran reported an inability to sit normally and difficulty walking due to pain and numbness down both legs. He indicated pain radiated down the backs of both legs into his heels and reported numbness in his left foot. The examiner noted the examination was taking place during a flare, caused by the drive to the examination, and recorded 20 degrees forward flexion, 10 degrees extension, 20 degrees right and left lateral flexion and 20 degrees right and left lateral rotation, unchanged after repetitive use. Pain was noted on all motion, and the Veteran found the Veteran’s report of symptoms consistent with the examination. No muscle spasm, guarding or other factors were noted. The examiner recorded full muscle strength but hypoactive deep tendon reflexes with decreased sensory perception in the lower ankle and leg bilaterally. With regard to radiculopathy, the examiner noted moderate constant pain, severe intermittent pain, moderate paresthesias, and moderate numbness in the right lower extremity; severe constant pain, severe intermittent pain, severe paresthesias and severe numbness in the left lower extremity. The examiner evaluated the Veteran’s lumbar radiculopathy as moderate in the right leg and severe in the left leg. Finally, the examiner noted that although the Veteran had been diagnosed with IVDS, no bed rest for incapacitating episodes had been prescribed. After a review of the evidence, the Board finds that a 20 percent rating is warranted since the inception of the appeal. The January 2014 VA examination measured forward flexion of 80 degrees with a combined range of motion of 225 degrees. The examiner did not provide an estimate of decreased range of motion during flares. However, the Veteran credibly described back pain of 7/10 severity with severe flares occurring 3 days per week and lasting 24 to 48 hours in duration. The Veteran himself estimated an approximate 50 percent reduction in motion during flares, which would correlate to approximate 40 degrees of forward flexion and a combined motion of 110 degrees. With consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45 as well as the frequency and duration of his flares, the Board finds that the Veteran’s motion loss more closely approximated combined motion loss of less than 120 degrees when considering functional impairment on use or during flares. However, the Board finds that a rating in excess of 20 percent is not warranted prior January 17, 2020. In this respect, the Veteran had demonstrated 80 degrees of forward flexion and has an estimated 40 degrees of forward flexion during flares. These findings fall short of forward flexion limited to 30 degrees. The clinic records describe limitation of motion, but not in terms of degrees. The Veteran reported increasing symptoms of low back and bilateral leg pain with incapacitating episodes occurring 2 to three times per week. The Board cannot factually ascertain from the lay and medical evidence that the decreased range of motion demonstrated on the January 2020 VA examination had been present at any specific time prior to that examination. The Board also finds no basis for higher ratings for any time during the appeal period. The Board finds no lay or medical evidence of ankylosis – defined as fixation of a spinal segment. 2. Entitlement to a higher rating for right lower extremity lumbar radiculopathy 3. Entitlement to a higher rating for left lower extremity lumbar radiculopathy The Veteran’s original claim was one of increased rating for his lumbar spine disability. During the appeal period, the AOJ granted the Veteran service connection for left and right leg radiculopathy associated with his lumbar spine strain and IVDS. As noted above, under VA’s Schedule of Ratings, IVDS will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Per the criteria of DC 5243, the appropriate rating for the chronic neurologic manifestations of a thoracolumbar spine disability is part and parcel of the overall increased rating claim for a thoracolumbar spine disability filed in March 2013. As previously discussed, the criteria for evaluating IVDS contemplate separate evaluations for the orthopedic and neurologic manifestations. 38 C.F.R. § 4.71a, DC 5243. At present, the Veteran has been granted separate 10 percent evaluations for both his left and right lower extremity lumbar radiculopathy from September 22, 2014. A neurological disability is evaluated on the basis of nerve paralysis, partial paralysis, neuritis, or neuralgia in proportion to the impairment of motor or sensory function. 38 C.F.R. §§ 4.120-4.124a. Under DC 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Finally, complete paralysis of the sciatic nerve warrants an 80 percent rating. 38 C.F.R. § 4.124a. Descriptive words, such as “mild,” “moderate” and “severe,” are not defined in the 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. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In this case, it appears the Veteran manifested symptoms of mild numbness of the lower extremities at the time of the January 2014 VA examination albeit without any objective clinical abnormalities. In granting service connection for bilateral lumbar radiculopathy, the AOJ assigned an effective date of September 22, 2014. The Board resolves reasonable doubt in favor of the Veteran by finding the presence of bilateral lower extremity radiculopathy since the inception of the appeal period. The AOJ assigned an initial 10 percent disability rating for lumbar radiculopathy of each of the Veteran’s lower extremities. The Board finds this rating is appropriate, given that the Veteran’s only reported symptoms were numbness in the lower extremities, with normal sensory and reflex testing. The Board observes that the Veteran reported numbness and tingling in the extremities to a VA clinician in September 2014 but did not indicate the severity of the condition. In January and May 2015, the Veteran reported pain radiating from his back down to his legs to VA clinicians, but indicated an absence of lower extremity neurological symptoms during July and August 2017 chiropractic treatment and reported only back pain in December 2018. The Veteran’s radiculopathy appears to have worsened in 2019, as he reported shooting, stabbing pains as well as numbness causing his legs to give way at the March 2019 Board hearing. This description of symptomology was corroborated by a January 2020 VA examination, which indicated moderate lumbar radiculopathy of the right lower extremity and severe lumbar radiculopathy of the left lower extremity based on constant pain, paresthesias and numbness. Based upon the above, the Board finds that, for the time period between the inception of the appeal until March 15, 2019, the Veteran’s right and left lower extremity lumbar radiculopathy was manifested as mild incomplete paralysis of the sciatic nerve due to subjective symptoms only. The Veteran credibly described subjective symptoms of numbness and pain, but the clinical findings demonstrated normal muscle strength absent reflex abnormalities, sensory deficits or trophic changes. When considering relative impairment of subjective symptoms only in light of the normal clinical objective findings, the Board finds that the Veteran’s right and left lower extremity radiculopathy was manifested by no more than mild incomplete paralysis of the sciatic nerve. However, effective March 15, 2019, the Board finds that he Veteran’s right and left lower extremity lumbar radiculopathy has been manifested as moderate incomplete paralysis of the sciatic nerve due to subjective symptoms, hypoactive reflexes, and decreased sensory perception. The 2020 VA examination recorded the Veteran’s description of moderate constant pain, severe intermittent pain, moderate paresthesias, and moderate numbness in the right lower extremity as well as severe constant pain, severe intermittent pain, severe paresthesias and severe numbness in the left lower extremity. These subjective reports were accompanied by objective clinical findings of hypoactive deep tendon reflexes with decreased sensory perception in the lower ankles and legs. The Board finds that the combination of subjective and clinical signs of neurologic impairment more closely approximates moderate incomplete paralysis. The Board further finds that the Veteran’s specific description of functional impairments at the March 2019 hearing renders it factually ascertainable that the 2020 examination findings were present at the time of his March 2019 testimony. However, the Board cannot factually ascertain that the subjective and objective findings were present at any specific date prior to the March 2019 hearing. The Board further finds that the criteria for a rating in excess of 20 percent for radiculopathy of either lower extremity have not been met for any time during the appeal period. At the 2020 examination, the Veteran reported moderate subjective symptoms in the right lower extremity and severe symptoms in the left lower extremity which for the basis for moderate and severe, respectively, by the VA examiner. The Veteran reported some falling episodes, but both lower extremities demonstrated normal muscle strength absent muscle atrophy or trophic changes. Overall, when considering the relative impairment of sensory and reflex deficits against the normal muscle strength absent muscle atrophy or trophic changes, the Board finds that both lower extremities demonstrate no more than moderate incomplete paralysis of the sciatic nerve. For the entire period on appeal, the Board has considered an alternative rating under the Schedule for rating IVDS based on incapacitating episodes. The Veteran has described periods of incapacitation, but there is no evidence of incapacitating episodes as defined in VA’s rating criteria – which requires bed rest prescribed by a physician. Thus, a higher rating for any time during the appeal period based on the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.