Citation Nr: 21003172 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-02 756 DATE: January 19, 2021 ORDER For the period from March 22, 2011 to October 16, 2016, and from December 1, 2016, a disability rating in excess of 10 percent for lumbar spine with mild degenerative changes is denied. A disability rating in excess of 10 percent for radiculopathy, right lower extremity, is denied. A disability rating in excess of 10 percent for radiculopathy, left lower extremity, is denied. FINDINGS OF FACT 1. From March 22, 2011 to October 16, 2016, and from December 1, 2016, the Veteran’s lumbar spine with degenerative changes is not manifested by forward flexion of 60 degrees or less, nor ankylosis of the entire thoracolumbar spine; there is no showing of incapacitating episodes having a total duration of at least 2 weeks. 2. Radiculopathy of the right lower extremity has been manifested by mild incomplete paralysis which is wholly sensory. 3. Radiculopathy of the left lower extremity has been manifested by mild incomplete paralysis which is wholly sensory. CONCLUSIONS OF LAW 1. From March 22, 2011 to October 16, 2016, and from December 1, 2016, the criteria for a rating in excess of 10 percent for lumbar spine with degenerative changes have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5237, 5243. 2. The criteria for a rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code 8520. 3. The criteria for a rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1966 to January 1968. These matters came before the Board of Veterans’ Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A July 2011 rating decision granted service connection for lumbar spine with degenerative changes and radiculopathy, right lower extremity, assigning separate 0% ratings, effective March 22, 2011. A January 2014 rating decision granted a 10 percent rating for lumbar spine with degenerative changes, effective October 3, 2013, and granted a 10 percent rating for radiculopathy, right lower extremity, effective March 22, 2011. In a November 2018 decision, the Board, in pertinent part, granted a 10 percent rating for lumbar spine with degenerative changes for the entire appeal period, and denied an increased rating for radiculopathy, right lower extremity. A January 2019 rating decision implemented the 10 percent rating for lumbar spine with degenerative changes, effective March 22, 2011. The Veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court) with regard to the November 2018 Board decision. Pursuant to an October 2019 Joint Motion for Partial Remand (JMPR), the November 2018 decision was vacated and remanded for action consistent with the JMPR. The lumbar spine and radiculopathy, right lower extremity, issues were remanded in March 2020. In an October 2020 rating decision, a temporary total 100 percent rating for lumbar spine with degenerative changes pursuant to 38 C.F.R. § 4.30 was granted, effective October 17, 2016, and a 10 percent rating was resumed effective December 1, 2016. A separate 10 percent disability rating for radiculopathy, left lower extremity, was granted, effective August 14, 2020. As such rating is part and parcel of the lumbar spine rating, such will be addressed below. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.§ 1155; 38 C.F.R.§ 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Lumbar spine with degenerative changes The Veteran’s lumbar strain with degenerative changes is rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis) and 5243 (intervertebral disc syndrome). Intervertebral disc syndrome is to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and, a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula For Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for his lumbar spine disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and fatigue. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 60 degrees or less. The Veteran’s forward flexion is only shown to be limited to 70 degrees during the appeal period, and his combined range of motion was shown to be greater than 120 degrees throughout the appeal period. Furthermore, there is no evidence of any muscle spasm or guarding that resulted in abnormal spinal contour or gait throughout the appeal period. Specifically, a June 2011 VA examination reflects findings of a normal gait and thoracolumbar spine range of motion forward flexion of 0 to 90 degrees and extension of 0 to 30 degrees. There was no objective evidence of pain following repetitive motion or additional limitations after three repetitions of range of motion testing. On examination in October 2013, the Veteran’s gait was normal, and the examiner recorded range of motion for forward flexion to 70 degrees and extension to 25 degrees after repetitive motion testing; his combined range of motion after repetitive motion testing was greater than 120 degrees. Flare-ups were noted and after repetitive motion the examiner described less movement than normal and pain on movement. Moreover, there were muscle spasms with bilateral flexion and rotation was worse on the left. Tenderness to the para-vertebral muscle bilaterally was also observed. Muscle strength testing revealed 5/5 hip flexion. An August 2020 C&P examination reflects flexion to 70 degrees with a decreased ability to lean in any direction. There was pain noted which causes functional loss. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. Flexion was to 75 degrees upon repetitive motion testing. The examiner found that pain and fatigue caused functional loss. The examiner stated that the examination is neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner stated that pain, weakness, fatigability or incoordination does not significantly limit functional ability with repeated use over a period of time or with flare-ups. The examiner noted that the Veteran denied flare-ups. He had guarding or muscle spasm not resulting in abnormal gait or abnormal spinal contour. There were no additional factors contributing to the disability. The objective findings combined with the subjective complaints of the Veteran do not support a 20 percent for his lumbar spine disability, as even with consideration of his functional limitations forward flexion of 60 degrees or less is not shown, nor muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In consideration of the DeLuca factors, there have been objective findings of functional loss such as pain and fatigue. However, the objective findings contained within the record, based on examination reports and treatment records, do not more nearly approximate the criteria for a higher rating even with consideration of pain and repetitive motion. The 10 percent in effect for limitation of motion symptomatology compensates him for limited and painful motion and assigning the next higher rating for painful motion would not accurately assess the resulting functional loss, even when considering the pain. The 10 percent rating takes into consideration the Veteran’s functional loss associated with his lumbar spine. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for an increased rating for any period contemplated by this appeal. See DeLuca, 8 Vet. App. at 204 -07. In other words, the functional loss does not most nearly approximate the criteria for the next-higher 20 percent evaluation. Consideration has also been given to assigning a higher rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that he was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. With regard to consideration of flare-ups per Sharp v. Shulkin, 29 Vet. App. 26 (2017), the May 2011, June 2013, and August 2020 examiners noted that the Veteran had denied flare-ups. The August 2020 examiner found that pain, weakness, fatigability and/or incoordination would not limit functional ability of the thoracolumbar spine during flare-ups or repeated use over time. Thus, there is no basis for the assignment of a rating in excess of 10 percent in contemplation of symptomatology during flare-ups. Regarding neurological impairment, radiculopathy of the lower extremities is addressed below. With regard to any bowel and bladder impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Thus, there is no basis for assignment of separate ratings for bowel or bladder impairment. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for lumbar strain with degenerative changes. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Radiculopathy, bilateral lower extremities Radiculopathy of the right (10% 03/22/2011) and left (10% 08/14/2020) lower extremities is separately rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, Sciatic nerve. A 10 percent rating is for application for incomplete paralysis of the sciatic nerve when “mild.” “Moderate” incomplete paralysis of the sciatic nerve warrants a 20 percent rating; “moderately severe” incomplete paralysis warrants a 40 percent rating; and, “severe, with marked muscular atrophy” incomplete paralysis warrants a 60 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. See VBA Adj. Manual M21-1, III.iv.4.N.4.c. The Court held in Miller v. Shulkin that, “[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.” 28 Vet. App. 376, 380 (2017). The Board finds that the competent medical evidence weighs against a finding that radiculopathy of the right and left lower extremities affecting the sciatic nerve is moderate in severity. The findings upon physical examination reflect that the Veteran’s radiculopathy of both the right and left lower extremity is no more than mild. The June 2011 examination report reflects the Veteran’s subjective complaints of constant back pain that ached down his right leg and while the examiner found right lower extremity radiculopathy associated with the lumbar spine, the right leg was within normal limits. The October 2013 examination reflects the Veteran’s report that if he sat for a long period of time his leg would fall asleep. He would then have to stand in order for the leg to awaken. His symptoms that were attributable to the neuropathy on his right lower extremity included moderate constant pain; paresthesias and/or dysesthesias at a moderate level and moderate numbness. Muscle strength was 5/5 for knee extension, ankle plantar flexion and ankle dorsiflexion. His gate was observed as normal. Reflexes were also normal. The examiner concluded that the sciatic nerve manifested incomplete paralysis with mild severity. Potential functional impact with substantial gainful activity was noted, however the Veteran was retired. He did report that he could no longer march in Veteran of Foreign War parades. Further, he attempted to walk 2 to 3 times per week approximately a half mile to a mile. An August 2020 peripheral nerves examination reflects findings of moderate constant pain of both extremities but without paresthesias/dysesthesias or numbness. There was no muscle atrophy and a reflex examination was normal. The examiner indicated that the sciatic nerve resulted in mild incomplete paralysis. A September 2020 peripheral nerves examination reflects findings of moderate constant pain affecting the right lower extremity and moderate intermittent pain affecting the left lower extremity, with no paresthesias/dysesthesias and mild numbness affecting both lower extremities. There was no muscle atrophy and a reflex examination was normal. The examiner indicated that the sciatic nerve resulted in moderate incomplete paralysis. In September 2020, an examiner reviewed the claims folder and opined that there was no radiculopathy shown on examination in June 2011. The Veteran subjectively reported a constant ache without mention of severity. The examination recorded negative responses to numbness, paresthesias, leg or foot weakness decreased motion or spine pain. Range of motion was noted to be normal and objective examination recorded normal lower extremity strength with no muscle atrophy, normal lower extremity reflexes, normal lower extremity sensory findings, and normal lower extremity motor function. X-rays performed in May 2011 noted degenerative bone changes with vertebral body heights and disc spaces preserved. With regard to the findings on examination in October 2013, the September 2020 examiner noted that the Veteran subjectively reported right lower extremity moderate constant pain and moderate paresthesias and/or dysesthesias, and there was objective evidence for pain with range of motion and tenderness during manual palpation of paravertebral muscles and objective examination recorded normal lower extremity strength with no muscle atrophy, normal lower extremity reflexes, normal lower extremity sensory findings, and positive results for straight leg list testing. There were no trophic changes noted. These findings were consistent with the recorded mild severity as noted for the sciatic nerve. The examiner explained that severity is determined with subjective report supported by objective findings such as mild: minor or sensory loss only; moderate supported by: strength loss; and, severe supported by: associated atrophy due to nerve condition. The examiner stated that the sciatic nerve is determined to be incomplete paralysis due to lack of objective evidence for damage to nerve showing a complete paralysis or EMG testing to show complete paralysis. With regard to the Veteran’s report of moderate constant pain documented in the August 2020 examination report, the September 2020 examiner stated that the Veteran subjectively reported moderate constant “aching” pain for the right and left leg. The examiner stated that there is no evidence for objective pain with weight-bearing, and there is objective evidence for pain with extension and tenderness/mild pain during manual palpation. The examiner, again, explained that incomplete paralysis severity was determined with subjective report supported by objective findings such as mild: minor sensory loss only; moderate supported by: Strength loss; and, severe supported by: associated atrophy due to nerve condition. Based on the above, the Board finds that the Veteran’s radiculopathy affecting both the right and left legs reflects symptomatology more nearly approximated by a 10 percent rating. As detailed above, the September 2020 examiner determined that on examination in 2011 and 2013, right lower extremity radiculopathy was mild in nature based on subjective complaints and objective findings. With regard to the subjective complaints and objective findings shown in August 2020, while the Veteran complained of moderate constant pain affecting both extremities, he had no paresthesias or dysesthesias and the examiner characterized radiculopathy affecting both extremities as mild incomplete paralysis. With regard to the subjective complaints and objective findings shown in September 2020, the Veteran complained of moderate constant pain affecting the right lower extremity and moderate intermittent pain affecting the left lower extremity, with no paresthesias/dysesthesias and mild numbness affecting both lower extremities. While the examiner characterized his radiculopathy of the lower extremities as moderate in nature, the September 2020 addendum report reflects the explanation that a moderate finding would be supported by strength loss. The September 2020 examination report reflects that muscle strength testing was normal, as a was reflex testing. The September 2020 addendum report also indicated that there was no evidence of objective pain with weight-bearing nor objective evidence for pain with extension and tenderness/mild pain during manual palpation. Based on the subjective complaints of record and objective findings documented in examination reports and treatment records, the competent medical evidence weighs against a finding that radiculopathy of the right and left lower extremities is moderate in severity. Rather, the findings upon physical examination reflect that the Veteran’s radiculopathy of the lower extremities is no more than mild. The objective medical evidence reflects that the Veteran’s symptomatology is wholly sensory characterized as mild in nature. As such, the disability picture more nearly approximates the current 10 percent ratings in effect. In summary, for the reasons and bases expressed above, the Board has concluded that disability ratings in excess of 10 percent are not warranted. Accordingly, the benefits sought on appeal are denied. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.