Citation Nr: 21004879 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-62 209 DATE: January 28, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for lumbosacral strain is denied. Entitlement to a compensable disability rating prior to October 1, 2019, and in excess of 20 percent thereafter, for radiculopathy of the right lower extremity is denied. Entitlement to a compensable disability rating prior to October 1, 2019, and in excess of 20 percent thereafter, for radiculopathy of the left lower extremity is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for post-operative medial meniscectomy of the right knee with chondromalacia patella is remanded. FINDINGS OF FACT 1. At no time during the period on appeal was the Veteran’s lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less. 2. The probative and competent evidence of record demonstrates that prior to October 1, 2019, the Veteran’s right lower extremity radiculopathy did not show at least mild incomplete paralysis. 3. Beginning October 1, 2019, the probative and competent evidence of record demonstrates that the Veteran’s right lower extremity radiculopathy did not show more than moderate incomplete paralysis 4. The probative and competent evidence of record demonstrates that prior to October 1, 2019, the Veteran’s left lower extremity radiculopathy did not show at least mild incomplete paralysis. 5. Beginning October 1, 2019, the probative and competent evidence of record demonstrates that the Veteran’s left lower extremity radiculopathy did not show more than moderate incomplete paralysis CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for a service-connected low back disability have not been met. U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for entitlement to a compensable disability rating prior to October 1, 2019, and in excess of 20 percent thereafter, 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, 4.20, 4.124a, DC 8520. 3. The criteria for entitlement to a compensable disability rating prior to October 1, 2019, and in excess of 20 percent thereafter, 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, 4.20, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1961 to October 1969 and November 1975 to May 1982. The Board is satisfied that there has been substantial compliance with the May 2020 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a disability rating in excess of 20 percent for lumbosacral strain The Veteran contends that his back disability is more severe than the currently assigned 20 percent rating. The Veteran’s back disability has been rated under DC 5243 for Lumbar Strain. Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, DC 5243. Under the General Rating Formula for Diseases and Injuries of the Spine a 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5243. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the entire thoracolumbar spine 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. Id. Under notes to the rating formula: Note (1) any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (see also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The Board finds that a rating in excess of 20 percent is not warranted for any time during the appeal period. The Veteran was given a VA examination for his back in September 2015. On physical examination of his thoracolumbar spine, the Veteran’s forward flexion was 0 to 70 degrees. The Veteran was given a VA examination in January 2020. The examiner reported that the Veteran was experiencing a flare-up during the examination. The Veteran reported that flare-ups of the back are severe but if he stops what he is doing the pain goes away and it is only aching, which it does all the time. His back flare-ups last only for seconds and are precipitated by walking, carrying groceries into the house. The back flare-ups are alleviated by Tylenol and rest. The Veteran further reported that he can't carry anything over 30 pounds and that he has trouble getting his groceries in from the outside. The Veteran also reported that he has excessive pain, weakness and fatigability with flare-ups and a hard time recovering. On physical examination of his thoracolumbar spine, the Veteran’s forward flexion was 0 to 60 degrees and his combined range of motion was 135 degrees after repetitive use. Functional loss was caused by pain, fatigue, lack of endurance and incoordination. The Veteran reported having to have bed rest but was unable to identify who had told go to bed and the record does not contain any documented prescribed bed rest. The examiner noted that the Veteran had guarding and muscle spasm that resulted in an abnormal gait or abnormal spine contour The Veteran was given a VA examination in December 2020. The examiner diagnosed lumbosacral strain with degenerative joint disease and intervertebral disc syndrome. The Veteran stated that his lumbar spine condition had become progressively worse since its onset. The Veteran also complained of symptoms reduced range of motion (ROM), constant dull achy pain that radiates down bilateral lower extremities. The Veteran did not report flare-ups. The Veteran reported that he has difficulty with prolonged walking, prolonged standing, repetitive bending and lifting. On physical examination, the Veteran’s forward flexion was 0 to 70 degrees and his combined range of motion was 145 degrees after repetitive use. The examiner noted that the Veteran had guarding or muscle spasm of the thoracolumbar spine, but he did not have an abnormal gait, abnormal spinal contour or atrophy. His sensation to light touch was normal. The Veteran reported that he was retired, but that his back disability interferes with his ability to perform prolonged standing, lifting, and walking. The Board finds that the criteria for an increased rating are not met. Throughout the period on appeal there is no evidence of forward flexion of the lumbar spine to 30 degrees or less. Even with consideration of pain, flexion was, at worst, to 70 degrees. The Board also notes that the Veteran is already receiving a separate compensable rating for neurological impairment of his right and left lower extremity in association with his lower back disability. The preponderance of the evidence is against the claim for a rating in excess of 20 for a service-connected low back disability. 38 U.S.C. § 5107(b). 2. Entitlement to a compensable disability rating prior to October 1, 2019, and in excess of 20 percent thereafter, for radiculopathy of the right lower extremity 3. Entitlement to a compensable disability rating prior to October 1, 2019, and in excess of 20 percent thereafter, for radiculopathy of the left lower extremity The lower extremity radiculopathies are evaluated as affecting the sciatic nerve and rated under 38 C.F.R. § 4.124a, DC 8520, which provides for rating paralysis of the sciatic nerve. Complete paralysis is rated at 80 percent (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost); severe incomplete paralysis with marked muscular atrophy, 60 percent; moderately severe incomplete paralysis, 40 percent; moderate incomplete paralysis, 20 percent, and; mild incomplete paralysis, 10 percent. The term “incomplete paralysis” with peripheral nerve injuries 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 involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. Note preceding diagnostic codes. 38 C.F.R. § 4.124a. The Veteran was given a VA examination for his back in September 2015 that included normal findings on muscle strength, reflex, sensory testing and straight leg test was negative. The examiner specifically noted that the Veteran did not have any symptoms of radiculopathy. On January 2020 VA examination, the Veteran was experiencing a flare-up during this examination. The examiner found that that the Veteran had mild right and moderate left incomplete paralysis affecting the sciatic nerve. The examiner found the Veteran’s right and left lower extremity radiculopathy manifest symptoms of constant or intermittent pain in his left lower extremity; the right lower extremity did not manifest constant or intermittent pain. However, the Veteran did have mild paresthesia and numbness to his bilateral lower extremities. On sensory examination the examiner found the right thigh/knee to have decreased sensory while the left thigh/knee were normal. However, the Veteran’s sensory for the lower leg/ankle and foot/toes was decreased bilaterally. The Veteran’s reflexes were normal (+2) for the bilateral knees, but hypoactive (+1) for the bilateral ankles. On VA examination in December 2020, the examiner found the Veteran’s right and left lower extremity radiculopathy manifest symptoms of not having constant or intermittent pain. The Veteran did have mild paresthesia and numbness. Lower extremity muscle testing was normal (5 out of 5) and there was no muscle atrophy. The examiner noted that the Veteran’s left lower extremity reflex examination was normal (+2) in the left knee and ankle; light touch sensory examination was also normal. There were no trophic changes (characterized by loss of extremity hair, smooth, shiny skin, etc.) associated with peripheral neuropathy and the Veteran’s straight leg test was negative bilaterally. The examiner classified the sciatic nerve impairment as mild incomplete paralysis affecting the sciatic nerve. The Board finds the VA examination findings, pertaining to the Veteran’s bilateral lower extremity radiculopathy, to be competent and probative evidence concerning the nature and extent of the disability affecting the sciatic nerve. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be persuasive. The Board further finds that the criteria for a compensable rating prior to October 1, 2019 and in excess of 20 percent thereafter for incomplete paralysis are not met. Prior to October 1, 2019, the record does not show that that the Veteran had radicular symptoms in either lower extremity. Neurological findings on September 2015 examination were normal. After October 1, 2019, the Veteran’s bilateral lower extremity radiculopathy manifested symptoms of moderate paresthesia and severe numbness. His sensory examination was normal. The Veteran had diminished ankle reflexes (1+), but muscle strength in the knees and ankles were normal. There was no atrophy. In summary, the preponderance of the evidence is against finding that the criteria for an increased rating are met. The claim for a compensable disability rating prior to October 1, 2019 and greater than 20 percent for right and left lower extremity radiculopathy must be denied. In deciding the increased rating claims, the Board has also considered the Veteran’s lay statements that his disabilities were worse than currently evaluated. He is competent to report symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for post-operative medial meniscectomy of the right knee with chondromalacia patella is remanded. The Board is unable to make an informed decision on the increased rating decision for the right knee because the December 2020 VA examination is inadequate. The December 2020 VA examiner documented that the Veteran’s knee manifested symptoms of instability, grinding and popping sensation. However, the examiner did not identify the Veteran as having instability of station. Additionally, the Veteran’s ROM during flare-ups is the same as his initial ROM results, despite his ROM being less after repetitive use ROM measurements. The Board also notes that these ROM measurements are very different (improved) than those taken almost year earlier, although that examination was determined to be inadequate for other reasons. On remand, the Veteran should be given a new VA examination to assess his ROM and clarification as to his right knee instability. The matters are REMANDED for the following action: Schedule the Veteran for the appropriate VA examination to assess the severity of his service-connected right knee disability. Copies of all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed using the appropriate DBQ if available. The examiner should specifically query the Veteran about any right knee instability and fully document his description any right knee instability. If the Veteran reports flare-ups, the examiner should ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, Associate 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.