Citation Nr: 21003569 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-39 576 DATE: January 22, 2021 ORDER A rating of more than 20 percent for a lower back disorder, now characterized as spinal fusion, spinal stenosis, spondylolisthesis, and vertebral fracture, from February 22, 2017 to August 9, 2020, is denied. A rating of more than 40 percent for a lower back disorder, now characterized as spinal fusion, spinal stenosis, spondylolisthesis, and vertebral fracture, since August 10, 2020, is denied. A separate 20 percent rating for right lower extremity radiculopathy secondary to a lower back disorder is granted. A separate 20 percent rating for left lower extremity radiculopathy secondary to a lower back disorder is granted. FINDINGS OF FACT 1. From February 22, 2017 to August 9, 2020, the Veteran’s lower back disorder(s) manifested with intermittent lower back pain; weakness, stiffness, instability and decreased motion; lumbar flexion greater than 60 degrees but not greater than 85 degrees; inability to extend the spine due to kyphosis/scoliosis; and functional impairment including difficulty with weight bearing, prolonged standing and walking, and driving. 2. Since August 10, 2020, the Veteran’s lower back disorder also manifested with favorable ankylosis of the entire thoracolumbar spine. 3. The Veteran’s lower back disorder(s) manifested with neurological symptoms analogous to moderate incomplete paralysis of the bilateral lower extremities. CONCLUSIONS OF LAW 1. From February 22, 2017 to August 9, 2020, the criteria for a disability rating of more than 20 percent for a lower back disorder were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 2. Since August 10, 2020, the criteria for a disability rating of more than 40 percent for a lower back disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5243. 3. The criteria to establish a separate disability rating for right lower extremity radiculopathy secondary to a lower back disorder have been approximated. 38 C.F.R. § 4.124a, DC 8250. 4. The criteria to establish a separate disability rating for left lower extremity radiculopathy secondary to a lower back disorder have been approximated. 38 C.F.R. § 4.124a, DC 8250. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1942 to June 1946. In December 2017 and August 2019, the Board of Veterans’ Appeals (Board) remanded this matter to the Regional Office (RO) to obtain additional VA medical examinations and opinions. The Veteran was afforded VA examinations in March 2017, January 2018, and August 2020. Review of the completed development reveals that substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability ratings are determined by applying 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 there is a question as to which of two evaluations should 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 infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it 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 seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). As here, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating of more than 20 percent from February 22, 2017 to August 9, 2020, and a rating of more than 40 percent thereafter, for a lower back disorder. The Veteran’s increased rating claim was received on February 22, 2017. Prior to filing the claim, the Veteran’s lower back disorder was characterized as a “compression fracture of the of the third lumbar vertebra with slight deformity,” and evaluated as 20 percent disabling. The 20 percent rating was in effect for over 20 years and is therefore protected and cannot be reduced absent fraud. See 38 C.F.R. § 3.951(b). From February 22, 2017 to August 9, 2020, the Veteran’s lower back disorder was rated 20 percent disabling under the General Rating Formula for the Spine. See 38 C.F.R. § 4.71a, DC 5243. The October 2020 rating decision recharacterized the Veteran’s lower back disorder as “spinal fusion, spinal stenosis, spondylolisthesis, vertebral fracture,” and assigned a 40 percent increased rating, effective August 10, 2020. The General Rating Formula provides: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; and A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5243. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See Note 5 to DC 5243. The Veteran was afforded a VA lower back examination in March 2017. The Veteran reported daily, intermittent lower back pain that did not radiate into his lower extremities. He denied flare-ups. He reported constant numbness in his feet and ankles and intermittent tingling in his toes, both of which began three years prior. On range of motion (ROM) testing, the Veteran had forward flexion to 70 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The examiner noted the Veteran was unable to extend his spine past 0 degrees due to age-related kyphosis (an increased front-to-back curve of the upper spine). The Veteran was able to perform repetitive use testing without any additional loss of function or ROM, and the examiner indicated that fatigue, weakness, pain or incoordination would not limit functional ability with repeated use over a period of time. The Veteran did not demonstrate guarding, muscle spasm, lumbar tenderness or associated lumbar paraspinal tenderness. The examiner indicated that the Veteran did not have ankylosis or intervertebral disc syndrome (IVDS). The examiner further noted the Veteran’s functional loss included inability to perform any manual labor, weight bearing, difficulty walking and dressing. The VA examiner noted the Veteran’s in-service L3 vertebra fracture and noted post-service diagnoses of spondylolisthesis at the L5-S1 vertebrae, spinal stenosis, spondylosis, and DDD. The examiner opined that the Veteran’s current pain level and functionality were all attributed to the Veteran’s post-service diagnoses, which included kyphosis and scoliosis. The examiner stated the post-service diagnoses were new and related to post-service activity. X-rays taken at the March 2017 examination indicated multiple compression fractures at all visible thoracolumbar levels. The examiner noted the severity of these fractures suggested they were due to bone demineralization associated with age from presumed osteoporosis. In a May 2017 rating decision, the RO reevaluated the Veteran’s spinal fracture under the current rating formula for the spine and continued the 20 percent rating. The RO indicated the Veteran’s symptoms at the March 2017 VA examination were reduced ROM with pain, which would ordinarily warrant a 10 percent rating under the current rating schedule. However, the RO noted the Veteran’s 20 percent rating was in effect for more than 20 years and therefore could not be reduced. The Veteran was afforded an additional VA examination in January 2018. He continued to report worsening intermittent lower back pain and weakness of his back and lower legs. He denied flare-ups. On ROM testing, the examiner noted the Veteran was unable to fully twist from side to side and his spine was fixed in a neutral position. The Veteran had forward flexion to 75 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The examiner indicated there was evidence of pain on all ranges of motion which caused functional loss. The Veteran was able to perform repetitive use testing without additional loss of ROM however the examiner opined that pain would significantly limit functional ability during repeated use over a period of time. The examiner noted there was no evidence of pain with weight bearing or evidence of localized tenderness or pain on palpation of the joints or soft tissue of the lumbar spine. She further indicated that the Veteran’s functional loss included difficulty with prolonged standing and walking, and weight bearing. The January 2018 VA examiner indicated the Veteran had scoliosis of the thoracic and lumbar spine, but not ankylosis. She opined that the Veteran’s lumbar spondylosis, DDD, scoliosis and spinal stenosis could be a progression of the Veteran’s L3 fracture in service. She noted spondylolisthesis at L5-S1 was diagnosed in 1961 but had an unknown etiology (cause). She indicated she was unable to determine which condition was causing radicular pain. In February 2018, VA obtained an additional medical opinion from a physician. After reviewing the Veteran’s medical records, including numerous X-rays, private treatment records, and the March 2017 and January 2018 VA examination reports, the physician opined that the Veteran’s current lower back diagnoses are unrelated to the Veteran’s in-service L3 compression fracture. In August 2019, the Board remanded the matter for an additional VA examination and medical opinion by an orthopedic physician. The Veteran was afforded the appropriate examination in August 2020 and the examiner issued a medical opinion in September 2020. In the report of the August 2020 VA examination, the Veteran denied having back pain and indicated his problem was balance loss and inability to feel his feet. He denied experiencing flare-ups. He reported unsteadiness while walking and difficulty walking on slopes, climbing stairs, sitting and standing. He reported using a cane while walking. He indicated he can bathe and dress himself and denied bladder or bowel issues. On ROM testing, the Veteran had forward flexion to 90 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The Veteran did not report pain during ROM testing. The examiner noted the Veteran had kyphosis of 10 degrees with forward posturing. The Veteran was able to perform repetitive use testing without additional loss of ROM or pain. The examiner indicated there was no evidence of pain on passive ROM testing or non-weight bearing testing. He opined the Veteran’s functional ability would not be limited by pain, weakness, fatigability, or incoordination during repeated use over a period of time. The examiner did not discuss functional limitation during flare-ups because the Veteran denied having them. The Veteran’s functional loss included less movement than normal due to ankylosis, instability of station, disturbance of locomotion, and interference with standing. The examiner indicated the Veteran had favorable ankylosis of the entire thoracolumbar spine but found no evidence of IVDS, radicular pain or any other neurologic abnormalities associated with the Veteran’s lower back disorders. The August 2020 examiner reviewed post-service imaging and indicated the Veteran’s current kyphosis and non-radicular neuropathy are “not related in any manner or form” to the Veteran’s 1944 spinal fracture. The examiner explained that the L3 fracture noted in service did not cause the Veteran’s current spinal stenosis, spondylolisthesis, spinal fusion and other vertebral fractures because those conditions are not present at the L3 level. Based on this evidence, the VA examiner opined the progression of the Veteran’s lower back symptoms was caused by neurogenic claudication related to spinal stenosis symptoms, DDD, and foraminal narrowing secondary to facet arthropathy. From February 22, 2017 to August 9, 2020, the Veteran’s lower back disorder(s) manifested with intermittent lower back pain; weakness, stiffness, instability and decreased motion; lumbar flexion greater than 60 degrees but not greater than 85 degrees; inability to extend the spine due to kyphosis/scoliosis; and functional impairment including difficulty with weight bearing, prolonged standing and walking, and driving. Ordinarily, these symptoms would warrant a 10 percent rating under the General Formula for the Spine. See 38 C.F.R. § 4.71a, DC 5243. However, the Veteran’s existing 20 percent rating has been in effect for more than 20 years and cannot be reduced. Since August 10, 2020, the Veteran’s lower back disorders manifested with favorable ankylosis of the entire thoracolumbar spine and warrants a 40 percent rating under DC 5243. A 40 percent rating is not warranted before August 10, 2020 because the Veteran was not found to have favorable ankylosis of the thoracolumbar spine prior to that date. A rating more than 40 percent is not warranted at any point during the appellate period because the record does not show that the Veteran has ever had unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, DC 5243. In making these determinations, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. A higher rating is not warranted based on these provisions because the Veteran has not had pain resulting in additional functional loss. He has consistently denied pain during ROM testing and was not found to have pain with non-weight bearing, or passive ROM or repetitive use testing. For these reasons, a rating of more than 20 percent from February 22, 2017 to August 9, 2020, and a rating of more than 40 percent thereafter, is denied. 2. Entitlement to separate disability ratings for bilateral lower extremity radiculopathy secondary to a lower back disorder. Radiculopathy is evaluated under DC 8520, which provides ratings for paralysis of the sciatic nerve. DC 8250 provides different levels of compensation for mild, moderate, moderately severe, and severe incomplete paralysis. See 38 C.F.R. §4.124a, DC 8250. 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. Id. Terms such as “mild,” “moderate” and “moderately severe” are not defined in the regulatory criteria, and the Board must make considerations as to their applicability to symptoms reported in the record in a manner that is “equitable and just.” See 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. At the March 2017 VA examination, the Veteran reported experiencing constant numbness in his feet and ankles and intermittent tingling in his toes, both of which began three years prior. He reported difficulty walking due to instability and using a cane or walker. He stated he had fallen in the past due to instability of his lower legs. On physical examination, his muscle strength was normal, however he had decreased sensation in his lower extremities and “absent” deep tendon reflexes in his bilateral ankles. He was unable to perform the straight leg test. Despite the Veteran’s reports of numbness and tingling in his lower extremities, the examiner indicated the Veteran did not have radicular symptoms or any other neurologic abnormalities or findings related to the lower back. At the January 2018 VA examination, the Veteran’s muscle strength and reflexes were normal, although he had decreased sensation in his lower legs, ankles, feet and toes. Straight leg testing was negative for the right leg and positive for the left leg. The examiner indicated the Veteran had radicular symptoms, namely mild numbness and mild paresthesias and/or dysesthesias (burning, tingling and/or prickling sensations), in his bilateral lower extremities. The examiner indicated femoral nerve root involvement on the right lower extremity and sciatic nerve root involvement in the left lower extremity. The examiner characterized the Veteran’s radiculopathy as “mild” and indicated the Veteran did not have any other signs or symptoms of radiculopathy. At the August 2020 VA examination, the Veteran continued to report worsening numbness and swelling from his feet to his knees. Straight leg testing was negative and the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The Veteran had left knee extension with active movement against some resistance, but otherwise normal muscle strength. He had muscle atrophy, with the left thigh being slightly smaller than the right. The Veteran had normal reflexes but decreased sensation in the lower legs, ankles, feet and toes. Straight leg testing was negative. The examiner noted the Veteran had bilateral global neuropathy of the feet, which is non-radicular in nature. The examiner clarified that the current clinical findings included neurogenic claudication (pain, tingling, or cramping in the lower back and legs) due to spinal stenosis and an undiagnosed neuropathy due to aging or other metabolic issues. Since February 22, 2017, the Veteran has reported numbness, tingling and decreased sensation of the lower extremities, instability, and difficulty walking. Although the January 2018 VA examiner indicated the Veteran’s radicular symptoms were “mild,” clinical testing revealed decreased sensation and muscle strength, and sciatic and/or femoral nerve involvement. While the August 2020 VA examiner indicated the Veteran’s symptoms were indicative of global neuropathy, that examiner at least partially attributed these symptoms to the Veteran’s spinal stenosis and other lower back conditions. Throughout the appellate period, the Veteran’s neurologic symptoms caused instability that resulted in his falling and necessitated the use of a walker or cane. Given this evidence, separate 20 percent ratings are approximated based on “moderate incomplete paralysis” of the sciatic nerve as contemplated by DC 8250. A rating greater than 20 percent is not warranted at any point during the appellate period. While the Veteran’s ability to walk is impaired, he is still able to do so with the use of a walker or cane. For the reasons above, the Veteran’s neurological symptoms are rated by analogy to DC 8250 and the Board will assign separate 20 percent evaluations for radiculopathy of the right and left lower extremities. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.