Citation Nr: 21002125 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-31 797 DATE: January 12, 2021 ORDER Entitlement to a rating 20 percent disability, but no higher, for lumbar spine degenerative disc disease with intervertebral disc syndrome (lumbar spine disability) prior to December 21, 2018 is granted. Entitlement to a rating in excess of 40 percent disability for lumbar spine disability from December 21, 2018 is denied. Entitlement to a rating in excess of 10 percent disability for radiculopathy of the right lower extremity, associated with lumbar spine disability (right leg radiculopathy), prior to December 21, 2018, and 20 percent thereafter is denied. Entitlement to a rating of 10 percent disability, but no higher, for radiculopathy of the left lower extremity (left leg radiculopathy), associated with lumbar spine disability, from March 30, 2015 is granted. Entitlement to a rating of a rating in excess of 10 percent disability for left leg radiculopathy, associated with lumbar spine disability, is denied. FINDINGS OF FACT 1. Prior to December 21, 2018 the Veteran’s range of motion more nearly approximates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees with consideration of functional impairment during flare-ups and repetitive use over time. 2. From December 21, 2018 the Veteran has range of motion limited to less than 30 degrees forward flexion with consideration of functional impairment during flare-ups and repetitive use over time. 3. The Veteran’s right leg radiculopathy was manifest by no more than mild incomplete paralysis prior to December 21, 2018, and by no more than moderate incomplete paralysis thereafter. 4. The Veteran’s left leg radiculopathy is manifest by no more than mild incomplete paralysis since its onset in March 2015. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent, but no higher, for lumbar spine degenerative disc disease with intervertebral disc syndrome (lumbar spine disability) prior to December 21, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243-5242. 2. The criteria for entitlement to a rating in excess of 40 percent disability for lumbar spine disability from December 21, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243-5242. 3. The criteria for a disability rating in excess of 10 percent for radiculopathy of the right lower extremity, associated with lumbar spine disability (right leg radiculopathy), prior to December 21, 2018, and 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. The criteria for a disability rating of 10 percent, from March 30, 2015 for radiculopathy of the left lower extremity, associated with lumbar spine disability (left leg radiculopathy) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 5. The criteria for a disability rating in excess of 10 percent for left leg radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from June 1960 to May 1963. The Board sincerely thanks the Veteran for his service. These matters come before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Muskogee, Oklahoma, which granted service connection and assigned a 10 percent rating for his lumbar spine disability and a 10 percent rating for his right leg radiculopathy associated with lumbar spine disability. A subsequent July 2019 rating decision assigned a 40 percent rating for lumbar spine disability and a 20 percent rating for right leg radiculopathy associated with lumbar spine disability, both as of December 21, 2018. It also granted service connection for right leg radiculopathy associated with lumbar spine disability with a 10 percent rating as of the same date. This claim was previously before the Board in February 2018 and October 2019, when the Board remanded to afford the Veteran a new examination which identifies factors noted in Correia v. McDonald, 28 Vet. App. 158 (2016) as they pertain to the September 2014 evaluation. The Board finds that there has now been substantial compliance with its remand directives. Increased Rating Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 U.S.C. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. With a claim for an increased initial rating, separate “staged” ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 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). The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 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.”  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.  1. Entitlement to a rating in excess of 10 percent disability for lumbar spine degenerative disc disease with intervertebral disc syndrome (lumbar spine disability) prior to December 21, 2018, and 40 percent thereafter The Veteran’s service-connected lumbar spine disability is rated 10 percent disabling prior to December 21, 2018, and 40 percent thereafter under DC 5243-5242. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. In this case, the hyphenated code indicates the disability is rated under DC 5242, for degenerative arthritis of the spine. Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine (Rating Formula). 38 C.F.R. § 4.71a. When rating under the Rating Formula, any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Rating Formula, Note (1). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, in pertinent part, the following ratings will apply: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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. 38 C.F.R. § 4.71a. The September 2014 VA examiner diagnosed the Veteran with degenerative disk disease of the lumbar spine with IVDS right sciatic nerve s/p surgery. The Veteran reported flare-ups that limit prolonged sitting, standing, bending, and lifting. Initial range of motion measurements, and measurement after repetitive-use testing, showed forward flexion to 70 degrees, with painful motion at 65 degrees; extension to 10 degrees; right lateral and left lateral flexion to 20 degrees; and right lateral rotation and left lateral rotation to 20 degrees. The Veteran reported additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The examiner noted that, symptomatic at the time of examination, the Veteran indicated that activities are further restrictive that involve repetitive back activity such as bending, lifting, prolonged sitting and standing. The examiner did not provide the degree of additional range of motion loss as he stated it could only be speculated. The examiner stated that the Veteran does not have muscle spasm of the back resulting in abnormal gait or abnormal spine contour. The examiner stated that the Veteran had IVDS of the thoracolumbar spine but that he had not had any incapacitating episodes over the previous 12 months due to IVDS. The December 2018 VA examiner diagnosed the Veteran with lumbosacral strain, degenerative arthritis of the spine, IVDS, spinal fusion, and spinal stenosis. The Veteran reported flare-ups of spasms when he does “too much” which require him to lay down for 20 to 30 minutes before he can walk again. The Veteran reported frequent falls. Initial range of motion testing showed forward flexion to 45 degrees; extension to 15 degrees; right lateral and left lateral flexion to 20 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 20 degrees. Measurement after 3 repetitions showed forward flexion to 20 degrees; extension to 0 degrees; right lateral and left lateral flexion to 10 degrees; and right lateral rotation and left lateral rotation to 10 degrees. Range of motion after repetitive use over time was reported as forward flexion to 0 degrees; extension to 0 degrees; right lateral and left lateral flexion to 5 degrees; and right lateral rotation and left lateral rotation to 0 degrees. Range of motion during flare-ups was reported as forward flexion to 5 degrees; extension to 0 degrees; right lateral and left lateral flexion to 10 degrees; and right lateral rotation and left lateral rotation to 10 degrees. The examiner stated that the Veteran has muscle spasm of the back resulting in abnormal gait or abnormal spine contour. The examiner found there was no ankylosis of the spine. The examiner stated that the Veteran had IVDS of the thoracolumbar spine with episodes of bed rest having a total duration of at least one week but less than two weeks during the previous 12 months. December 2019 VA examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine with IVDS. The Veteran reported constant low back pain which increases with physical activity, foot drop to the left foot, and frequent falls when walking. The Veteran reported severe flare-ups, several times a day, when leaning over, doing things repetitively, or if he stands for too long. Initial range of motion testing showed forward flexion to 45 degrees; extension to 15 degrees; right lateral and left lateral flexion to 20 degrees; and right and left lateral rotation to 25 degrees. Additional loss of function or range of motion was not observed after 3 repetitions. Range of motion after repetitive use over time and during flare-ups was reported as forward flexion to 40 degrees; extension to 10 degrees; right lateral and left lateral flexion to 15 degrees; and right lateral rotation and left lateral rotation to 20 degrees. The examiner found there was no ankylosis of the spine. The examiner stated that the Veteran had IVDS of the thoracolumbar spine but that he had not had any incapacitating episodes over the previous 12 months due to IVDS. The January 2020 clinician, when asked to provide a retrospective opinion as to the Veteran’s functional loss not reported on the September 2014 VA examination, opined that it is not possible to provide retrospective exam findings such as range of motion of the Veteran's back in active motion, passive motion, weight-bearing, and non-weight-bearing or provide information regarding flare ups from an exam in 2014, 5 years ago. She stated that much of that information would be gained from Veteran interview at the time and is not available at this time. As the September 2014 VA examiner indicated that the Veteran reported additional loss of function and range of motion during flare-ups and repeated use over time, but did not attempt to elicit the degree of additional range of motion loss, the examination does not full comply with the later decisions of Correia and Sharp. As noted above, the January 2020 clinician could not provide a retrospective opinion due to lack of contemporaneous information. The Board has considered that the 2014 examination reflects that the Veteran had pain with motion starting at 65 degrees flexion. The Board has also considered the Veteran’s statements at that time that he had additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time and that activities are further restrictive that involve repetitive back activity such as bending, lifting, prolonged sitting and standing. With consideration of these factors, the Board finds that, resolving any doubt in the Veteran’s favor, the Veteran’s low back limitation of motion prior to the December 2018 VA examination more nearly approximated forward flexion greater than 30 degrees but not greater than 60 degrees. The Board does not find that a higher rating is warranted during this period prior to December 21, 2018. The Board has looked closely at the evidence prior to the date of the December 21, 2018 to see if the criteria for a 40 percent rating were more nearly approximated at an earlier time. However, the preponderance of the evidence is against a finding that the Veteran’s forward flexion was less than 30 degrees during this period. It is not factually ascertainable that the criteria for the next higher rating were more nearly approximated at any earlier time. For example, an April 2018 VA treatment record noted that the Veteran had chronic, burning back pain for more than 20 years relieved by heat and/or cold, physical therapy, and a TENS unit and made worse by activity and interfering with normal work. In October 2016 he had back surgery followed by physical therapy. He reported the surgery helped with the sciatica but not with the back pain. In June 2015 he also had back surgery and he reported in a December 2015 VA treatment note that he now has pain in the left leg instead of the right leg. The record noted that he was having a hard time playing golf. At that time, he reported more pain first thing in the morning which got better throughout the day and then at night worsened again. He was offered a back brace, and the record indicates it was refused. However, he later called the clinic and picked up the back brace. As noted above, flexion in 2014 was to 70 degrees with pain beginning at 65 degrees. Combined range of motion was 155 degrees. He did not have muscle spasm of the back resulting in abnormal gait or abnormal spine contour or incapacitating episodes of IVDS at that time. With respect to the period beginning in December 21, 2018 a higher rating is not warranted as unfavorable ankylosis of the entire thoracolumbar spine is affirmatively not shown by the medical evidence of record. See December 2018 and December 2019 VA examinations. In sum, applying the benefit of the doubt and construing all medical evidence in the light most favorable to the Veteran, the Board finds that the Veteran is entitled to a higher rating of 20 percent disabling, but no higher, prior to December 21, 2018, and that the Veteran is not entitled to a rating in excess of 40 percent from December 21, 2018. The Board has also considered whether a higher rating may be warranted under the Formula for Rating IVDS Based on Incapacitating Episodes under 38 C.F.R. § 4.71a, DC 5243. However, as IVDS was noted to cause incapacitating episodes of bed rest having a total duration of at least one week but less than two weeks during the previous 12, and there is no evidence of additional incapacitating episodes of record, a higher rating under this diagnostic code is not warranted. 2. Entitlement to a rating in excess of 10 percent disability for radiculopathy of the right lower extremity, associated with lumbar spine disability (right leg radiculopathy), prior to December 21, 2018, and 20 percent thereafter 3. Entitlement to an initial rating in excess of 10 percent disability for radiculopathy of the left lower extremity (left leg radiculopathy), associated with lumbar spine disability, to include a rating for the period prior to December 21, 2018 The Veteran’s right leg radiculopathy is rated as 10 percent disabling prior to December 21, 2018, and 20 percent thereafter under DC 8520. His left leg radiculopathy is rated as 10 percent disabling from December 21, 2018 under the same DC. Under DC 8520, mild incomplete paralysis is rated 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. Moderately severe incomplete paralysis is rated 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. The September 2014 VA examination report shows that the Veteran experienced mild paresthesias and/or dysesthesias and mild numbness of the right lower extremity. No other signs or symptoms of radiculopathy were noted. The examiner indicated that the Veteran had mild radiculopathy of the right side, and that his left side was not affected. A March 2015 private treatment record shows the Veteran complained of back pain radiating down both legs, including intense shooting pain. A May 2015 private treatment record diagnosed lumbar radiculopathy and shows that the Veteran continued to complain of pain that radiated down the back of both legs equally. The December 2018 VA examination report shows that the Veteran experienced moderate constant pain of the bilateral lower extremities, severe intermittent pain of the bilateral lower extremities, mild paresthesias and/or dysesthesias of the right lower extremity, moderate paresthesias and/or dysesthesias of the left lower extremity, and moderate numbness of the right lower extremity. No other signs or symptoms of radiculopathy were noted. The examiner stated that there was involvement of the right sciatic nerve. The examiner indicated that the Veteran had moderate radiculopathy of the right side, and mild radiculopathy of the left side. The December 2019 VA examination report shows a diagnosis of bilateral lower extremity radiculopathy with its onset in 2008. The examiner noted mild paresthesias and/or dysesthesias and mild numbness in the bilateral upper and lower extremities. The Veteran did not have muscle atrophy. Mild, incomplete paralysis was noted in the bilateral lower extremities. After review of the record, the Board finds that a rating in excess of 10 percent disabling prior to December 21, 2018, and 20 percent thereafter for right lower extremity radiculopathy is not warranted. The September 2014 VA examination showed that the Veteran experienced no more than mild neuropathy of the right foot, consisting of paresthesias and/or dysesthesias and mild numbness. No other signs or symptoms of radiculopathy were noted. Moderate or greater incomplete paralysis of the left sciatic nerve so as to warrant an increased 20 percent or greater rating prior to December 21, 2018 is not shown. The December 2018 and 2019 VA examinations assessed the Veteran’s radiculopathy as no more than moderate. Moderately severe or greater incomplete paralysis so as to warrant a 40 percent or greater evaluation has not been shown at any time during the appeal period. Resolving any doubt in the Veteran’s favor, the Board finds that a rating of 10 percent for the left lower extremity is warranted from March 2015, when the record first reflects a reported manifestation of left leg radicular symptomatology in light of the December 2019 VA examination report showing a diagnosis of bilateral lower extremity radiculopathy with its onset in 2008. However, no earlier date is warranted for a separate rating for left leg radiculopathy as the record is silent as to any compensable manifestations of left leg radiculopathy prior to that date and as the Veteran suggested in a December 2015 VA treatment record that his left leg radicular manifestations began around the time of his 2015 back surgery. As the Veteran's left lower extremity radiculopathy has consistently been described as no more than mild (and symptoms described and found have been less severe than his right lower extremity radiculopathy symptoms), a rating in excess of 10 percent is not warranted. Moderate or greater incomplete paralysis of the left sciatic nerve so as to warrant an increased 20 percent or greater rating is not shown. See, e.g., December 2018 and December 2019 VA examinations. Accordingly, entitlement to a rating in excess of 10 percent disabling prior to December 21, 2018, and 20 percent thereafter for right lower extremity radiculopathy is denied. A rating of 10 percent for left lower extremity radiculopathy is warranted from March 30, 2015, and a rating in excess of 10 percent for left lower extremity radiculopathy is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern 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.