Citation Nr: 21002536 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 12-17 719A DATE: January 14, 2021 ORDER Entitlement to a disability rating of 40 percent for degenerative arthritis of the lumbar spine is granted. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy and radiculopathy of the sciatic nerve of the left lower extremity is denied. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy and radiculopathy of the sciatic nerve of the right lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s service-connected lumbar spine disability, when considering his pain and corresponding functional impairment, is commensurate to disability manifested by forward flexion to no greater than 30 degrees. 2. The Veteran’s left lower extremity radiculopathy of the sciatic nerve is productive of moderate, incomplete paralysis/impairment. 3. The Veteran’s right lower extremity radiculopathy of the sciatic nerve is productive of moderate, incomplete paralysis/impairment. CONCLUSIONS OF LAW 1. The criteria for a 40 percent disability rating, but no higher, for a lumbar spine disability, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy and radiculopathy of the sciatic nerve of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy and radiculopathy of the sciatic nerve of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to April 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2011 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA).The Veteran appealed an October 2014 Board decision which denied an increased rating for a service-connected lumbar spine disability to the United States Court of Appeals for Veterans Claims (Court). In response to a February 2016 Joint Motion for Remand (JMR), the Court vacated the Board’s decision and remanded the matter to the Board for compliance with the terms of the JMR. In April 2016, March 2017, September 2017, February 2018, and September 2019 the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a June 2019 rating decision, VA granted service connection for peripheral neuropathy and radiculopathy of the lower extremities. These ratings were made as secondary to diabetes mellitus type II, not the lumbar spine disorder, and are thus not considered as downstream to the lumbar spine issue and are not presently on appeal. Entitlement to a disability rating of 40 percent for degenerative arthritis of the lumbar spine is granted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s lumbar spine disability is evaluated as 20 percent disabling and has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243-5242. 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. 38 C.F.R. § 4.27. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) are made 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. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for 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. A 40 percent evaluation 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 disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. “Ankylosis” is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). The General Rating Formula also provides at Note (1) that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides that, 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Plate V, 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either 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 (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS 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 disability rating for IVDS 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that an incapacitating episode is 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. The Board has reviewed all relevant evidence, to include the Veteran’s lay statements, VA treatment records and with particular attention to the VA examinations from December 2010, February 2013, July 2016, April 2017, November 2017, and May 2019. A review of the VA examinations of record shows that, at worst, the Veteran’s forward flexion of the lumbar spine was to 45 degrees (noted as from 25 degrees to 70 degrees), in the November 2017 VA examination report. Forward flexion was measured to 60 degrees in the December 2010 VA examination report; measured to 70 degrees in February 2013 VA examination report; and measured to 60 degrees in the May 2019 VA examination report. (The July 2016 and the April 2017 VA examination reports reflect that the range of motion testing was not performed). However, based on the evidence, and when resolving reasonable doubt in favor of the Veteran, the Board finds that after consideration of the Veteran’s limitation of motion, his lumbar spine disability more nearly approximates a 40 percent rating. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. The December 2010 VA examination report shows that the Veteran noted experiencing periodic flare-ups, with pain described as 10 out of 10 on a daily basis. The flare-ups lasted a few hours. Severe loss of motion or decrease in function during flare-ups was noted. The April 2017 VA examiner noted that Veteran stated that during a flareup, he could not move. The November 2017 VA examination report shows that the Veteran noted that during flare-ups, the pain in his lower back was excruciating and that the functional loss or impairment was noted as making walking and lifting difficult. It was noted that the Veteran’s range of motion was limited which would affect ambulating, reaching and driving, due to a hunched over position. The November 2019 VA examination report shows that flare-ups occurred following a sharp turn or bending down. Taken as a whole, the Board finds that objective showings of limitation of motion, objective evidence of pain, and necessary pain management are indicative of pain-free motion not greater than 30 degrees for the entire appeal period. Accordingly, and in light of DeLuca, when considering painful motion, the Board finds that a higher 40 percent rating is warranted. A rating in excess of 40 percent is not warranted at any time during the pendency of this appeal, however. While the December 2010 VA examination report shows that the VA examiner indicated that the Veteran had a mild spinal protrusion in the lower thoracic spine, the evidence of record revealed no findings whatsoever indicating unfavorable ankylosis, or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. None of the VA examinations reflect that episodes requiring bed rest were required. As indicated above, limitation of motion as a rating factor is contemplated only by ratings assigned up to 40 percent, as granted here, and there exists no basis for a higher rating solely on account of limitation of motion (as opposed to ankylosis). Entitlement to disability ratings in excess of 20 percent each for peripheral neuropathy and radiculopathy of the sciatic nerve of the left and right lower extremities. The record reflects that the Veteran’s bilateral lower extremities have been rated as 20 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520 (which assigns ratings based upon complete or incomplete paralysis of the lower extremities). The December 2010 VA examination report shows that the Veteran was absent senses in his great toes. The February 2013 VA examination report shows that the Veteran experienced intermittent pain in his right lower extremity and paresthesias and numbness in both his left and right lower extremities. The severity of the Veteran’s radiculopathy was noted as moderate, bilaterally. The July 2016 VA examination report shows that the Veteran experienced intermittent pain in his right lower extremity and numbness in both his left and right lower extremities. The severity of the Veteran’s radiculopathy was noted as moderate for his right lower extremity and as not affected for his left lower extremity. The April 2017 VA examination report shows that the Veteran experienced intermittent pain in his right lower extremity and paresthesias and numbness in both his left and right lower extremities. The severity of the Veteran’s radiculopathy was noted as moderate for his right lower extremity and as not affected for his left lower extremity. The November 2017 VA examination report shows that the Veteran experienced intermittent pain in his right lower extremity. The severity of the Veteran’s radiculopathy was noted as moderate for his right lower extremity and as not affected for his left lower extremity. The May 2019 VA examination report shows that the Veteran experienced intermittent pain, paresthesias, and numbness in both his left and right lower extremities. The severity of the Veteran’s radiculopathy was noted as mild, bilaterally. None of the VA examinations showed muscle atrophy in either the left or right lower extremities. Under 38 C.F.R. § 4.124a, a moderate rating is the highest that can be assigned when the involvement is wholly sensory, as here. As such, the claims for ratings in excess of 20 percent must be denied. 38 C.F.R. § 4.7. Additional considerations. In its February 2016 JMR, the Court noted that a May 2010 VA treatment record showed that the Veteran stated that he did not sleep the night prior due to shoulder and back pain, that the December 2010 VA examination report showed that the Veteran reported problems sleeping due to discomfort, and that the Veteran had stated in a March 2011 correspondence that he had not slept in his bed for about three and a half months due to pain. The February 2013 VA examination report showed that the Veteran stated that he had not slept in his bed for the past year because of back pain, sleeping instead on the couch or in a chair. The Court also noted that the Veteran had noted constipation from his medication. See December 2010 VA examination report, April 2010 and September 2011 VA treatment records. Giving way and the use of a walker were also noted in the December 2010 VA examination report. The Court stated that the Board did not refer the claim for extraschedular review and failed to discuss the symptoms of the disability. The Board finds that no extraschedular entitlement exists for the Veteran’s service-connected lumbar spine as the rating criteria considered reasonably describes the Veteran’s disability level and his symptoms. To the extent a type of effect is not listed in the rating criteria, it is the underlying symptom that results in the effect of the disability. Pursuant to the Board’s March 2017 remand request, the April 2017 VA examination report shows that the VA examiner stated that the Veteran’s pain likely caused insomnia because when someone was in severe pain, it was logical that they could not sleep well. The VA examiner also stated that the Veteran was taking a high dosage on morphine, and that morphine could cause constipation. The VA examiner noted that the Veteran experienced weakness and giving away of his leg, as contemplated in the examination of the legs for radiculopathy. Further, a November 2020 VA memorandum from the Executive Director of the Compensation Services noted that extraschedular evaluations were assigned in cases where an exceptional or unusual disability picture was presented with such related factors as marked interference with employment or frequent periods of hospitalization that rendered application of regular rating schedular standards impractical. The Executive Director of Compensation Service determined that no unusual or exceptional disability pattern had been demonstrated that would render application of the regular rating criteria as impractical. The available medical evidence did not support a higher evaluation on an extraschedular basis for degenerative disc and joint disease of the lumbar spine with peripheral neuropathy and radiculopathy in the right and left lower extremities. While the medical evidence of record did show ongoing treatment for degenerative disc and joint disease of the lumbar spine with peripheral neuropathy and radiculopathy in the right and left lower extremity, the objective evidence of record showed that the disability pattern most closely approximated the level of severe impairment that the Veteran was assigned. There was no evidence corroborate incapacitating episodes creating marked interference with employment or frequent hospitalizations due specifically to the lumbar spine and lower extremities or treatment for the lumbar spine and lower extremities. The evidence of record did not show that the currently assigned, or available, schedular evaluations for the lumbar spine and lower extremities were inadequate due to exceptional or unusual circumstances. The Board agrees with the logic of this determination, and notes as well that a higher disability rating of 40 percent has been assigned under the schedular criteria for the reasons described above. A higher rating, on either a schedular or extraschedular rating, is not warranted. Thus, the Veteran’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected lumbar spine disability is adequate. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.