Citation Nr: 21003497 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-15 600 DATE: January 21, 2021 ORDER Entitlement to an initial rating higher than 20 percent for residuals of a lumbar laminectomy is denied. Entitlement to an initial rating in excess of 20 percent for sciatic radiculopathy of the lower left extremity prior to November 12, 2019 and in excess of 40 percent thereafter is denied. FINDINGS OF FACT 1. The Veteran’s residuals of a lumbar laminectomy disability did not manifest with forward flexion of 30 degrees or less or reveal favorable ankylosis of the entire thoracolumbar spine. 2. Prior to November 12, 2019, the evidence demonstrates that the Veteran’s sciatic radiculopathy of the lower left extremity is productive of moderate incomplete paralysis. 3. As of November 12, 2019, the evidence demonstrates that the Veteran’s sciatic radiculopathy of the lower left extremity is productive of moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for entitlement to a 20 percent rating, but no higher, for residuals of a lumbar laminectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5241. 2. Prior to November 12, 2019, the criteria for entitlement to a rating in excess of 20 percent for sciatic radiculopathy of the lower left extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124, 4.124a; Diagnostic Codes 8520. 3. After November 12, 2019, the criteria for entitlement to a rating in excess of 40 percent for sciatic radiculopathy of the lower left extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124, 4.124a; Diagnostic Codes 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1993 through March 2000. This matter was previously remanded by the Board of Veterans’ Appeals (Board), in April 2020, to the Department of Veterans Affairs (VA) Regional Office (RO) for further development, to include examinations to determine the current severity of the Veteran’s disabilities. Subsequently, the RO obtained two VA examinations in November 2019 pursuant to the parameters of the remand, and also provided a supplemental statement of the case (SSOC) which provided rationale concerning the denial of the Veteran’s request for increased ratings. Based on the foregoing, the Board finds that the agency of original jurisdiction (AOJ) complied with the mandates of the Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Concerning the matters at issue, the Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Due to the lengthy and inextricable procedural history of each claim, this decision will address each issue separately. Increased Rating 1. Entitlement to an initial rating higher than 20 percent for residuals of a lumbar laminectomy In January 2015, VA granted entitlement to service connection for residuals of lumbar laminectomy and assigned a 10 percent rating effective May 10, 2010. In April 2015, the Veteran submitted a notice of disagreement (NOD) and appealed to the VA for an increase in the rating. In March 2017, the VA determined that an evaluation greater than 10 percent for residuals of lumbar laminectomy was not warranted. In the same month, the Veteran perfected an appeal to the Board and also requested a hearing. During the pendency of the appeal, in October 2017, VA assigned an increased rating with an evaluation of 20 percent effective July 31, 2017. In August 2019, a hearing was held before the undersigned and a transcript of that hearing is associated with the record. In October 2019, the Board remanded the claim back to the AOJ for further development. Shortly thereafter, in November 2019, the AOJ changed the effective date of the service-connected residuals of a lumbar laminectomy to an evaluation of 20 percent effective May 10, 2010. In August 2020, the RO issued an SSOC confirming the evaluation. The appeal has since returned to the Board for adjudication. Legal Criteria Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, at 206. 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 United States Court of Appeals for Veterans Claims has held that a higher rating can be based on “greater limitation of motion due to pain on use.” See DeLuca, at 206. Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” 38 C.F.R. § 4.40. The Veteran’s service-connected residuals of a lumbar laminectomy are rated under the criteria for rating disabilities of the spine listed under Diagnostic Codes 5242-5241, which are part of the General Rating Formula for Diseases or Injuries of the Spine (General Formula), Diagnostic Codes 5235 to 5243. The code for intervertebral disc syndrome (Diagnostic Code 5243), permits rating under either the General Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Formula, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The normal findings for range of motion of the lumbar spine are from 0 to 90 degrees for forward flexion; 0 to 30 degrees for extension, lateral flexion, and rotation. 38 C.F.R. § 4.71a, Plate V. These ratings apply 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Note (5) of the General Formula defines unfavorable ankylosis as 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 the neutral position (zero degrees) always represents favorable ankylosis. Pursuant to Note (1) of the General Formula, associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate diagnostic code. Factual Background The Veteran contends that he is entitled to a higher rating for his service-connected residuals of lumbar laminectomy. At the August 2019 Board hearing, the Veteran and his representative stated that his service-connected low back disability is severe enough to the point that it may cause him to need aid and attendance. The Veteran testified that he needed help with chores such as doing groceries, laundry, and cleaning. He indicated that he has required some sort of health care for the last four to five years. The Veteran further testified that he has had constant daily low back pain, including upon movement, with periods of spikes. The Veteran, through his representative, also submitted an appellate brief reiterating his desire for a higher rating. At a VA examination in July 2010, the examiner observed forward flexion was at 70 degrees. The Veteran reported pain at the base of his spine and that his ability to walk was limited to half a mile. At a VA examination in May 2012, the examiner observed flexion was at 80 degrees. A private physical therapy evaluation in June 2012 shows flexion was at 50 degrees with burning pain across the lower back. Private medical records associated with the Social Security Administration (SSA) show that in September 2012 flexion was at 70 degrees. Medical records associated with SSA in November 2016 and December 2016 show flexion was at 45 degrees. A November 2019 VA examination indicated forward flexion was at 45 degrees. The Veteran reported symptoms of pain, fatigue and weakness during flare-ups. The examiner opined that these symptoms significantly limit the Veteran’s functional ability. The examiner further observed that the Veteran exhibited guarding and muscle spasms which resulted in abnormal gait or abnormal spinal contour and pain with range of motion. Legal Analysis Upon consideration of the medical and lay evidence, the Board finds that entitlement to an initial rating higher than 20 percent for residuals of a lumbar laminectomy is not warranted. The Board has considered the medical evidence of record. In the most recent November 2019 examinations of the Veteran, he exhibited forward flexion at 45 degrees and guarding and muscle spasms which resulted in abnormal gait or abnormal spinal contour. Prior examinations of record indicate forward flexion ranging from 80 to 45 degrees. The Board finds the November 2019 examinations highly probative because they were based on physical examinations of the Veteran and a review of the record. Though the Veteran’s forward flexion has indeed decreased over the years, it still does not meet the parameters of a higher rating because he did not have forward flexion at 30 percent or less and there is no evidence of favorable ankylosis of the entire thoracolumbar spine. The Board has also considered the lay statements of record to include the Veteran’s testimony at his August 2019 hearing. The Veteran reported greater limitation of motion due to pain on use as well as pain, fatigue and weakness during flare-ups. The Board finds the Veteran’s statements not as probative as the medical evidence of record, addressed above. Contemporaneous medical evidence has greater probative value than the Veteran’s reports of history. Curry v. Brown, 7 Vet. App. 59 (1994). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person such that it is easily observable and identifiable (such as a broken leg). 38 C.F.R. § 3.159; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Though the Veteran is competent to give evidence about his personal accounts of pain due to residuals of a lumbar laminectomy, he does not have the requisite medical knowledge or training to render an opinion as to whether he meets the criteria for a higher rating. Besides, the Board is still bound by the criteria in the ratings and the Veteran’s symptoms are most applicable to the 20 percent rating. Lastly, the Board considered the contentions raised in the appellate brief of the Veteran’s representative and finds that the AOJ did not err in denying entitlement to an evaluation greater than 20 percent for service-connected lumbar laminectomy, for the reasons addressed herein. Considering the medical and lay evidence and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for an initial 20 percent rating for residuals of a lumbar laminectomy effective May 10, 2010 are more nearly approximated based on limitation of flexion greater than 30 degrees but not greater than 60 degrees. 38 U.S.C.§ 5107(b). Thus, entitlement to an initial rating higher than 20 percent for residuals of a lumbar laminectomy is not warranted and the claim is denied. 2. Entitlement to an initial rating in excess of 20 percent for sciatic radiculopathy of the lower left extremity prior to November 12, 2019 and in excess of 40 percent thereafter In January 2015, VA granted entitlement to service connection for radiculopathy of the lower left extremity and assigned a 10 percent rating effective May 9, 2010 based on the date of the initial diagnosis. In April 2015, the Veteran submitted a NOD and appealed to the VA for an increase in the rating. In March 2017, the VA “granted” the appeal for entitlement to an earlier effective date of May 10, 2010, which is the date of receipt for the primary claim for lumbar conditions. In the same month, the Veteran perfected an appeal to the Board and also requested a Board hearing. In July 2017, the Veteran underwent a VA examination which was considered by the RO during the pendency of the Board appeal. In October 2017, the RO issued an SSOC finding that entitlement to an evaluation greater than 10 percent for radiculopathy of the lower left extremity was not warranted. In August 2019, a hearing was held before the undersigned. In October 2019, the Board remanded the claim back to the AOJ for further development. Shortly thereafter, in November 2019, the AOJ granted service connection for radiculopathy of the lower left extremity with an evaluation of 20 percent effective May 10, 2010. In August 2020, the RO issued a rating decision increasing the evaluation of radiculopathy of the lower left extremity from 20 percent disabling to 40 percent effective November 2019, the date of the most recent VA examination. This issue is now back before the Board to determine whether an increased rating is warranted for both periods. Legal Criteria Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran’s service-connected sciatic radiculopathy of the lower left extremity is rated under the criteria for rating disabilities of the Sciatic Nerve listed under Diagnostic Code (DC) 8520, which is part of the General Rating Formula for Neurological Conditions and Convulsive Disorders, Diagnostic Codes 8520 to 8720. 38 C.F.R. § 4.124a. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve group, a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve group, a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve group, a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve group, with marked muscular atrophy, and an 80 percent rating is assigned for complete paralysis of the sciatic nerve group (the foot dangles and drops, no active movement possible of the muscles below the knee, flexion of the knee weakened or (very rarely) lost). The term “incomplete paralysis” indicates a degree of impaired function substantially less than the type of picture for “complete paralysis” given for 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 words “mild,” “moderate,” and ’severe” are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. Id. Factual Background The Veteran contends that he is entitled to a higher rating for his service-connected radiculopathy of the lower left extremity and asserts that his current rating percentage does not adequately represent his level of disability. He contends that he has had neurological symptoms, including numbness; burning and shooting pain, particularly when driving, sitting or standing for a prolonged period of time; and tripping and falling at times due to the leg collapsing. At the August 2019 hearing, the Veteran also reported the use of massages, acupuncture and physical therapy to relieve his symptoms. He also testified that his quality of life is diminished with the constant pain and limiting mobility, and that this disability has taken away his ability to actualize his potential in life. A May 2012 VA examination indicated normal muscle strength, normal deep tending reflexes, normal sensation, as well as moderate intermittent pain and mild paresthesias and/or dysesthesias in the left knee. The Veteran also had no constant pain or numbness upon examination. An October 2012 VA examination showed sensation is intact to light touch in the bilateral lower extremities and right paracentral pseudo disc bulging and asymmetric disc bulging towards the left with residual anterolistheses which resulted in encroachment upon the left exiting nerve root. An August 2017 examination indicated no cyanosis, clubbing or edema in the extremities and that the Veteran was able to move all his extremities with normal sensation. A September 2017 VA examination showed nerve root sensation at 2 out of 2 and nerve root motor strength at 5 out of 5 in the left knee. The neurological portion of a June 2018 VA examination indicated 4 out of 5 in left hip flexion, knee extension, and ankle dorsiflexion, normal deep tendon reflexes, decreased sensory in the left thigh, knee, lower leg and ankle, positive straight leg raising and moderate intermittent pain. The examination also indicated involvement of the sciatic nerve in nerve roots at L4, L5, S1, S2 and S3 and no functional impairment which would result in amputation with prosthesis. Specifically, the Veteran was able to perform repetitive use testing without additional functional loss except for certain effects of the functional impact of the lower extremity to include balancing and propulsion. The neurological portion of a November 2019 VA examination indicated 2 out 5 in muscle strength testing (meaning active movement with gravity eliminated) and normal deep tendon reflexes in the left knee, and hypoactive deep tendon reflexes in the left ankle. The Veteran showed decreased sensation to light touch in his left thigh, knee, foot and toes, and normal sensation in his lower leg and ankle as well as his upper anterior thigh. The Veteran also presented positive straight leg raising results with severe constant and intermittent pain in his lower left extremity, and moderate paresthesias and numbness in the same. The Veteran also presented with radiculopathy in his bilateral nerve roots and the examiner observed severe radiculopathy on his left side. Legal Analysis After a review of the evidence, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 20 percent for the service-connected radiculopathy of the lower left extremity for the period prior to November 12, 2019. The weight of the evidence shows that the service-connected left radiculopathy is productive of no more than moderate impairment or moderate incomplete paralysis. In making this finding, the Board finds particularly persuasive the May 2012 and June 2018 VA examinations and medical treatment records, reflecting moderate, dull and intermittent pain, paresthesia, and numbness in the lower left extremity. In particular, the June 2018 VA examination reflects the Veteran’s lower left extremity disability affects the functional impact of the lower extremity to include balancing and propulsion. However, the Veteran is able to perform repetitive use testing without additional functional loss. Based on that examination, the Veteran’s radiculopathy is equivalent to moderate incomplete paralysis of the sciatic nerve. Although the determination of whether the incomplete paralysis is mild, moderate, or more severe than moderate is the Board’s to make, the Board finds that the examiner’s characterization is consistent with the evidence of record. The Board has also considered whether a disability rating in excess of 20 percent is warranted for the appeal period prior to November 12, 2019 and finds that it is not. The Veteran reports experiencing pain, paresthesia, and numbness in the lower left extremity. However, the Veteran has not alleged, and the record does not show, diminished or absent muscle strength, absent deep tendon reflexes, or muscle atrophy. There are also no trophic changes attributable to the Veteran’s condition during this period. Considering the above, the Board finds that the Veteran’s symptoms are primarily sensory in nature with limited loss of function. As noted, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Additionally, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 40 percent for the service-connected radiculopathy of the lower left extremity for the period after November 12, 2019. The weight of the evidence shows that the service-connected radiculopathy of the lower left extremity is productive of no more than moderately severe impairment or moderate incomplete paralysis. In making this finding, the Board finds particularly persuasive the November 2019 VA examination and medical treatment records, which largely reflects the Veteran’s subjective complaints of pain and paresthesias/dysesthesias, but also the objective findings of absent reflexes, reduced muscle strength, and sensory impairment. More importantly, the VA examiners specifically provided diagnoses of moderate or severe radiculopathy. In the Board’s view, when the benefit of the doubt rule is applied, a 40 percent evaluation affords a better approximation of the disability picture presented. However, the criteria for a higher evaluation are not met as there is no evidence of marked muscular atrophy, paralysis, or foot drop as required for a 60 percent or 80 percent disability rating. Given the evidence as outlined above, the Board finds that the Veteran’s lower left extremity radiculopathy cannot be properly described as more than moderately severe in degree. The Board also considered the contentions raised in the appellate brief of the Veteran’s representative and finds that the AOJ did not err in denying entitlement to an evaluation greater than 20 percent for radiculopathy of the lower left extremity prior to November 12, 2019 and in excess of 40 percent thereafter, for the reasons addressed herein. After resolving any reasonable doubt in favor of the Veteran, the Board finds that the preponderance of the evidence supports a 20 percent rating for the Veteran’s radiculopathy of the lower left extremity sciatic nerve prior to November 12, 2019, and since that date is most consistent with a 40 percent rating. 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hamilton, 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.