Citation Nr: 21062803 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 18-37 537 DATE: October 12, 2021 ORDER Entitlement to an increased disability rating of 40 percent, but no higher, for degenerative arthritis of the thoracolumbar spine with sacroiliac weakness (lumbar condition) prior to November 4, 2014 is granted. Entitlement to an increased disability rating greater than 40 percent for a lumbar condition from November 4, 2014 to April 9, 2018 is denied. Entitlement to an increased disability rating of 40 percent, but no higher, for a lumbar condition from April 10, 2018 to November 18, 2019 is granted. Entitlement to an increased disability rating greater than 40 percent for a lumbar condition from November 19, 2019 is denied. Entitlement to a temporary total disability rating, or 100 percent, based on convalescence following lumbar spine surgery in March 2019 is denied. Entitlement to an increased initial disability rating of 20 percent, but no higher, for right lower extremity radiculopathy from April 24, 2019 is granted. Entitlement to an increased initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. During the entire appeal period, the Veteran's lumbar condition was manifested by additional functional loss more closely approximating forward flexion to 30 degrees or less. It was not manifested by unfavorable ankylosis of the thoracolumbar spine or entire spine, or incapacitating episodes requiring bed rest prescribed by a physician. 2. The preponderance of the evidence does not reflect the Veteran's March 2019 lumbar spine surgery required at least one month of convalescence or resulted in severe postoperative residuals. 3. From April 24, 2019, and no earlier, the Veteran's right lower extremity radiculopathy was manifested by moderate incomplete paralysis. It was not manifested by moderately severe incomplete paralysis. 4. The Veteran's left lower extremity radiculopathy was manifested by moderate incomplete paralysis. It was not manifested by moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent, but no higher, for a lumbar condition prior to November 4, 2014 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2020). 2. The criteria for a disability rating greater than 40 percent for a lumbar condition from November 4, 2014 to April 9, 2018 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2020). 3. The criteria for a disability rating of 40 percent, but no higher, for a lumbar condition from April 10, 2018 to November 18, 2019 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2020). 4. The criteria for a disability rating greater than 40 percent for a lumbar condition from November 19, 2019 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5237 (2020). 5. The criteria for a temporary total disability rating based on convalescence following lumbar spine surgery in March 2019 have not been met. 38 U.S.C. § 1155 (2019); 38 C.F.R. § 4.30 (2020). 6. The criteria for an initial disability rating of 20 percent, but no higher, for right lower extremity radiculopathy from April 24, 2019 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2020). 7. The criteria for an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to December 1989. The Veteran filed a claim for an increased rating of his lumbar spine condition in November 2012 and has continuously pursued his appeal. He appeals a December 2014 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) reducing the Veteran's lumbar spine rating from 20 percent to 10 percent, effective March 1, 2014. During the course of the appeal, the AOJ restored the Veteran's 20 percent rating, increased his rating to 40 percent effective November 4, 2014, and then decreased his rating to 20 percent, effective April 10, 2018. See July 2018 rating decision. Later, the AOJ increased his rating to 40 percent, effective November 19, 2019. A Board of Veterans' Appeals (Board) hearing was held in July 2021. A transcript is of record. As a preliminary matter, the Board notes the Veteran attempted to opt into the Appeals Modernization Act (AMA) system from the July 2018 SOC by submitting a September 2019 VA Form 20-0995 with attached letter noting he was "withdrawing from the Legacy appeals process due to the time length that it is taking to address [his] disability claims." However, prior to this, the Veteran submitted a valid July 2018 VA Form 9 and perfected his appeal under the Legacy system. Importantly, the September 2019 VA Form 20-0995 was submitted more than one year after the issuance of the July 2018 SOC and initial rating decision; therefore, the Veteran was not entitled to enter his appeal into the AMA system at that time. See 38 C.F.R. §§ 3.2400(c)(2), 19.2. As such, the September 2019 VA Form 20-0995 was not a valid opt-in to the AMA system, the Veteran did not withdraw his pending Legacy appeal, and the Board will proceed to adjudicate the lumbar spine increased rating claim in the instant decision within the Legacy system. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Also, when there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Lumbar Spine The Veteran claims his lumbar spine condition is more severe than his disability ratings under Diagnostic Code (DC) 5242-5237 would indicate. See 38 C.F.R. § 4.71a, DC 5242. For the appeal period, the Veteran is currently rated under DC 5242-5237 at 20 percent prior to November 4, 2014, 40 percent from November 4, 2014 to April 9, 2018, 20 percent from April 10, 2018 to November 18, 2019, and 40 percent thereafter. As a preliminary matter, the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Generally, claims pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. Here, however, the Veteran's lumbar spine osteoarthritis is rated under DC 5242-5237 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula) did not change under the revised regulations. As such, the rating criteria for the Veteran's lumbar spine osteoarthritis is unchanged and the Board will proceed with adjudication. Under 38 C.F.R. § 4.71a, all spinal disabilities are evaluated under the General Formula. If the Veteran has Intervertebral Disc Syndrome (IVDS), he may also be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Here, however, the record does not reflect the Veteran has IVDS; therefore, he is not entitled to a potential rating under the IVDS Formula, and he will be rated solely under the General Formula. The pertinent criteria under the General Formula are as follows: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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. See 38 C.F.R. § 4.71a General Formula. 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. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Id. at note (5) (defining ankylosis as fixation of a joint in a particular position). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, or flare-ups is demonstrated, and those factors are not contemplated in the relevant rating criteria See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. This includes any functional loss resulting in the equivalent of ankylosis during flareups or with repeated use over time. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors such as decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement. Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran has had three VA examinations and provided a private examination report from a treating physician. At the April 2013 VA examination, the Veteran's lumbar forward flexion was limited to 90 degrees with pain on all movement. The Veteran noted the April 2013 VA examiner was dismissive of him during the examination and did not want to listen to his report of symptoms. See January 2014 and February 2015 notices of disagreement. Additionally, the VA examiner noted the Veteran exhibited functional loss with pain on movement, but later noted "there is no pain associated with movement, flareups, and repetitive use over time." The later statement directly contradicts the former and is inconsistent with the evidence of record, including the Veteran's lay statements. As the April 2013 VA examination report is internally inconsistent and the examiner did not appear to consider the Veteran's competent lay statements, this examination is inadequate for adjudication purposes. In April 2018, a VA examiner noted the Veteran's flexion was limited to 70 degrees, with a combined range of motion of 170 degrees and pain on all movement. The VA examiner noted pain and lack of endurance caused additional functional loss with repeated use over time and flareups, resulting in flexion limited to 60 degrees and 55 degrees, respectively. In December 2019, a VA examiner recorded the Veteran's forward flexion at 40 degrees, again, with pain on all movement. Here, the December 2019 VA examiner estimated the Veteran's functional loss with repeated use over time and flareups resulted in flexion limited to 30 degrees and 20 degrees, respectively. The Board finds the Veteran's range of motion during these examinations is reflective of his limited motion during the entire appeal period. For example, in October 2014, the Veteran reported 10 out of 10 pain at an appointment with his treating physician at Pain Management Specialists (PMS) and his forward flexion was limited to 25 degrees. At other appointments, the Veteran reported his pain to be a 9 out of 10 and his flexion was recorded at 30 degrees. See, e.g., March 2015 and April 2015 PMS treatment records. The Board finds the October 2014 PMS treatment record probative as it clearly indicates the Veteran's symptoms during the worst lumbar pain he could experience and is akin to a flareup or the severe pain experienced with repeated use over time. This limited flexion was confirmed by a private November 2014 examination report provided by a PMS physician noting the Veteran's functional loss from repeated use over time resulted in an estimated flexion limited to 25 degrees. Thus, based on the medical and lay evidence of record, the Board finds the Veteran is entitled to a rating of 40 percent based on flexion limited to 30 degrees or less during flareups, extreme pain, and repeated use over time. The Veteran is not, however, entitled to a rating greater than 40 percent at any time during the appeal period. The Veteran does not meet the criteria for the next highest rating, 50 percent, as the record does not reflect unfavorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Id. at note (5) (defining ankylosis as fixation of a joint in a particular position). As noted above, even during the Veteran's worst lumbar pain, he is able to move his back and neither the record not the Veteran contend otherwise. Additionally, the Board has considered whether the Veteran is entitled to a temporary total disability rating based on convalescence following his lumbar "left L5-S1 laminotomy with discectomy," conducted on March 11, 2019. See March 2019 Dr. P.P. treatment records; see also January 2020 claim for "temporary 100 percent due to surgery on service-connected back." The Veteran appealed the AOJ's denial for a temporary total rating under the Appeals Modernization Act (AMA) review system, which differs from the current Legacy system through which he has appealed this increased rating claim for his lumbar condition. However, as the Veteran is seeking an increased evaluation for his lumbar spine, and his back surgery occurred during the appeal period, it is presumed the maximum benefit allowed by law and regulation is sought and such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). VA has a duty to maximize benefits by examining all possible rating methods in search of the highest level of established schedular compensation. Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). Thus, the Board finds it has jurisdiction to decide whether he is entitled to a temporary total rating as the request is part and parcel of his increased rating claim. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted based on specific criteria set forth under 38 C.F.R. § 4.30(a). Such rating will be effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. See 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.30(a), temporary total disability ratings will be assigned if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity of house confinement, or the necessity for continued use of a wheelchair or crutches; or, (3) immobilization by cast, without surgery, or one major joint or more. Id. Convalescence is defined as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden v. West, 11 Vet. App. 427, 430 (1998). "Surgery necessitating at least one month of convalescence" means surgery "that would require at least one month for the veteran to return to a healthy state" and which is established by report at hospital discharge or outpatient release. Id. Here, the Veteran contends he is entitled to total temporary disability for his back surgery on March 11, 2019 necessitating convalescence. Specifically, he contends his doctor recommended he "stay off [his] feet, stay in bed for six months," but the Veteran was unable to take off work for that long and returned to work after only two weeks. See July 2021 Board Hearing Tr. at 7. As evidence, the Veteran submitted a letter from a physician's assistant of the surgeon who operated on the Veteran which noted the Veteran was "scheduled to stay off of work for six weeks for the healing process and post op care." See April 2020 medical letter. This letter was provided more than one year after the Veteran's surgery and contradicts his hearing testimony that his physician prescribed six months convalescence. Most importantly, the Veteran's testimony and the April 2020 medical letter conflict with the actual medical records immediately following the Veteran's surgery. Most notable is a March 2019 letter from the Veteran's surgeon noting the Veteran could return to work on March 20, 2019, less than ten days after his surgery, with activity restrictions of no repetitive bending, twisting, or lifting over ten pounds, which was not a concern for the Veteran's desk job. See March 2019 Dr. P.P. treatment records. Also, at the two-week post-operation consultation, the Veteran admitted his back was a little sore, but stated he was "doing well," his "left leg pain was fifty percent improved," and his return to work was "going well." See March 2019 Dr. P.P. treatment records. By six weeks post-surgery, the Veteran's lower back pain had increased and moved into the right lower extremity. See April 2019 Dr. P.P. treatment records. However, his left lower extremity pain had resolved, which the was the "main goal of the surgery" along with improving his back pain by fifty percent. Id. Thus, the Board finds the Veteran's statements at the July 2021 Board hearing not credible as they are not supported by the record. Further, the medical records immediately following the Veteran's surgery are the most probative evidence and reflect the Veteran did not require at least one-month convalescence. He is not entitled to a temporary total disability rating for his March 2019 lumbar surgery. As such, the Board finds the Veteran's lumbar spine symptom picture more closely approximates the criteria for a 40 percent rating during the entire appeal period. Thus, the Board grants entitlement to an increased rating of 40 percent, but no higher, prior to November 4, 2014 and from April 10, 2018 to November 18, 2019; however, the Board denies a disability rating greater than 40 percent from November 4, 2014 to April 9, 2018, and from November 19, 2019. Radiculopathy Pursuant to Note (1) of the General Formula, VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, DC 5242, Note (1). The Veteran does not report any bowel or bladder problems. See, e.g., April 2013 and December 2019 VA examination reports. However, the Veteran is currently rated under DC 8520 for bilateral lower extremity radicular symptoms, with the right lower extremity rated at 10 percent disabling, effective November 19, 2019, and the left lower extremity rated at 10 percent. See May 2021 rating decision codesheet. Under DC 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent rating, and severe incomplete paralysis with marked muscle atrophy warrants a 60 percent disability rating. See 38 C.F.R. § 4.124a, DC 8520. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id. Descriptive words such as "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence for "equitable and just decisions." See 38 C.F.R. § 4.6. However, when the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). For the right lower extremity radiculopathy, the record does not reflect radicular symptoms until after the Veteran's lumbar surgery. See, e.g., August 2013 PMS treatment records ("radiates to the left leg"); November 2014 PMS examination report; June 2018 Center for Pain Management records; January 2019 Dr. P.P. treatment records. The Veteran contends his radiculopathy began before 2019 and included "sharp shooting pains and weakness." See July 2021 Board Hearing Tr. at 13-14. However, he did not testify specifically addressing his right lower extremity and the first note of right lower extremity radiculopathy in the record occurred on April 24, 2019 when the Veteran noted his low back pain was now "radiating to his right hip." See April 2019 Dr. P.P. treatment records. At the December 2019 VA examination, the Veteran had moderate constant pain and dull intermittent pain with mild paresthesias and/or dysesthesias. Despite these symptoms, the Veteran tested normal on all sensory, reflex, and muscle strength testing. See December 2019 VA examination report. He had a positive straight leg raising test and the VA examiner concluded his right lower extremity radiculopathy was mild in severity. The Board finds the Veteran's reported symptoms more closely approximate moderate incomplete paralysis as he reported weakness and he was found to have moderate pain and mild numbness and tingling. His symptoms do not, however, reflect moderately severe incomplete paralysis as the record does not reflect any muscular, reflex, or sensory involvement. Further, the December 2019 VA examiner did not note any severe symptoms. As such, the Veteran is entitled to an initial rating of 20 percent, but no higher, for right lower extremity radiculopathy from April 24, 2019. For the left lower extremity, the Veteran noted weakness and pain in the left leg during flareups. See November 2014 PMS examination report. At the November 2014 PMS examination, the Veteran reported moderate constant pain with mild intermittent pain, but denied any numbness or tingling. Id. The examiner also noted the Veteran had full muscle strength, no sensory testing loss, and normal reflexes. Id. The examiner concluded the Veteran's left leg radiculopathy resulted in moderate incomplete paralysis. Id. In April 2018, a VA examiner noted the Veteran had normal muscle strength, reflexes, and sensation in his left lower extremity, concluding the Veteran did not have any radicular symptoms. However, this examination is not consistent with the record. For example, in December 2019, the VA examiner noted the Veteran had moderate constant pain and dull intermittent pain with mild paresthesias and/or dysesthesias even though the Veteran the Veteran tested normal to all sensory, reflex, and muscle strength testing. See December 2019 VA examination report. The Veteran consistently noted left lower extremity pain. See August 2013 PMS treatment records ("aching, burning, sharp, shooting, and throbbing pain" that "radiates to the left leg"); June 2018 Center for Pain Management records ("low back pain, primarily left sided and left knee"). October 2014 PMS treatment records reflect the Veteran's lumbar pain was "80 percent" in the low back with "20 percent" in the left lower extremity. January 2019 Dr. P.P. treatment records reflect the Veteran's back surgery was mainly to improve his left lower leg pain, which he described at the time as a "burning type pain in the posterior thigh and calf region" and was due to a "moderate compression of the left S1 nerve root." After the Veteran's surgery, the record reflects his left lower extremity radicular symptoms did improve, but have persisted. See, e.g., March 2019 Dr. P.P. treatment records; December 2019 VA examination report. For instance, the Veteran testified at the July 2021 Board hearing that he had "sharp shooting pains and weakness" to the extent his "left leg gave out" four months prior. Thus, the Board finds the Veteran's left lower extremity radicular symptoms more closely reflect moderate incomplete paralysis during the entire appeal period. His symptoms do not, however, reflect moderately severe incomplete paralysis as the record does not reflect any muscular, reflex, or sensory involvement. Further, the Veteran's private physician and December 2019 VA examiner noted the Veteran's symptom picture was moderate. (Continued on the next page) Accordingly, the Board grants entitlement to an increased initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy. Additionally, the Board grants an initial increased disability rating of 20 percent for right lower extremity radiculopathy from April 24, 2019. See Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.