Citation Nr: 21004877 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-25 352 DATE: January 28, 2021 ORDER Entitlement to disability rating in excess of 40 percent for degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome is denied. Entitlement to rating in excess of 20 percent for right lower extremity radiculopathy associated with degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome is denied. Entitlement to disability rating in excess of 20 percent for left lower extremity radiculopathy associated with degenerative joint disease. at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome is denied. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran’s degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome has not been manifested by unfavorable ankylosis. 2. Throughout the rating period on appeal, the Veteran’s right lower extremity radiculopathy associated with degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome has been manifested by no more than moderate incomplete paralysis. 3. Throughout the rating period on appeal Veteran’s left lower extremity radiculopathy associated with degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome has been manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 2. The criteria for a disability rating in excess of 20 percent for right lower extremity radiculopathy associated with degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating in excess of 20 percent for left lower extremity radiculopathy associated with degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from September 1979 to January 1984. This case is before the Board of Veterans’ Appeals (Board) from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at a March 2019 hearing. In July 2019, the Board remanded these matters to the RO for additional development. Finding there has been substantial compliance with the Board’s remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. The Veteran’s appeal originally included a claim for service connection of entitlement to disability rating in excess of 20 percent for service-connected degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome with radiculopathy of the left and right lower extremities. A September 2020 rating decision increased the Veteran’s back disability to 40 percent and granted service connection for radiculopathy of the right and left lower extremities, with disability ratings of 20 percent each. These represent partial grants of the benefit sought on appeal. However, because the highest ratings authorized under governing regulations has not been granted, the matters remain on appeal. 1. Disability rating in excess of 40 percent for degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome. The Veteran has claimed entitlement to an increased disability rating for his back disability (10/13/2011 VA 21-0820 Report of General Information). During his hearing, the Veteran described a worsening of symptoms, to include pain, spasm, stiffness, radiculopathy, with pain being constant, daily. The Veteran denied being able to touch his toes or turn from side to side (3/07/2019 Hearing Transcript, pgs. 3-5). The Veteran is currently assigned a disability rating of 40 percent for degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome, under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243 (12/30/2020 Rating Decision - Codesheet). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. If the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. 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. 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. Unfavorable ankylosis is defined 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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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 40 percent for degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome. Upon VA examination in October 2016, the Veteran had forward flexion to 80 degrees and extension to 25 degrees, the latter which decreased to 5 degrees with repeated motion. See 2/22/2019 CAPRI at p. 54. The Veteran complained of flare-ups. The examiner was unable to estimate the additional degree of functional limitation during flares. No ankylosis was shown on examination. During his November 2020 examination, the Veteran’s forward flexion was assessed at 30 percent, and 25 degrees after repetition. Neither favorable nor unfavorable ankylosis was shown (11/19/2020 C&P Exam, pg. 11). Additionally, clinical records reflect back pain in the Veteran’s problem list and note complaints of such pain. He took ibuprofen as needed. Such clinical records did not reflect findings of ankylosis. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, spasm, and stiffness. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements do not suggest, nor has the Veteran described, symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Moreover, for the same reason any deficiencies by the examiner’s in failing to estimate functional limitation during flare-ups are harmless because, without a finding of ankylosis, there is no support for an increased rating. A higher award based solely on range of motion findings is not possible here. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Although, IVDS is noted and the Veteran has indicated episodes of bedrest totaling more than 6 weeks over the past 12 months, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Because bed rest was no prescribed by a physician as required under 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Code 5243. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome. 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. 2. Disability rating in excess of 20 percent for right lower extremity radiculopathy associated with degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome. 3. Disability rating in excess of 20 percent for right lower extremity radiculopathy associated with degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome. Since the Veteran claimed entitlement to an increase in rating for his back disability, the Veteran has been assigned separate disability ratings for left and right lower extremity radiculopathy associated with his back disability. The Veteran is currently assigned disability ratings of 20 percent for each left and right lower extremity radiculopathy associated with his back disability, under 38 C.F.R. § 4.124a, Diagnostic Code 8520 (12/30/2020 Rating Decision – Codesheet). Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating that may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. During an October 2016 VA examination, lower extremity strength was reduced bilaterally, to 4 on a scale of 5, ankle reflexes were noted as hypoactive bilaterally, moderate pain was noted as constant, with intermittent severe pain, moderate paresthesia and mild numbness bilaterally. The examiner characterized the severity of the Veteran’s radiculopathy as moderate (2/22/2019 CAPRI, pgs. 54-61). The Veteran’s November 2020 VA examination revealed no trophic changes, however, decreased sensation to light touch of the lower leg and ankle, bilaterally. Intermittent, usually dull pain to both the right and left lower extremities was noted. The Veteran’s reflexes, bilaterally, were noted to be normal. The November 2020 examiner described the Veteran’s bilateral lower extremity radiculopathy as mild, involving the L4/L5/S1/S2/S3 nerve roots. Although regular use of assistive devices (brace and cane) were noted in both the October 2016 and November 2020 examinations, complete paralysis was not indicated during either examination. The Board notes that 38 C.F.R. § 4.120 “contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker.” Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). The Board has considered the lay assertions of record, including those of the Veteran and his spouse during his March 2019 hearing, specifically complaints of bilateral lower extremity numbness, having contributed to loss of balance. The Board finds the Veteran’s description of his symptoms is consistent with the medical of evidence of record. While a fall and loss of balance was described by the Veteran, the Board does not find the lay evidence to suggest a functional loss approaching moderately severe incomplete paralysis. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance and pain, most closely aligned with moderate incomplete paralysis. The Board also finds that the most probative evidence of record is against a finding that the Veteran’s disability is manifest by symptoms of impairment of motor functions, trophic changes, sensory disturbance, loss of reflexes, pain, muscle atrophy or paralysis approaching moderately severe incomplete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. (Continued on the next page)   The Board has considered whether other potentially applicable Diagnostic Codes would be appropriate, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating/rating in excess of 20 percent for either right or left lower extremity radiculopathy associated with degenerative joint disease at L4-5 with bulging nucleus pulposus at L5-S1 with intervertebral disc syndrome. 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. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.