Citation Nr: 21063817 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-28 798A DATE: October 18, 2021 ORDER Entitlement to a compensable rating for postoperative scar, lumbar spine is denied. Entitlement to a rating in excess of 40 percent for lumbar radiculopathy, right lower extremity (RLE) from January 28, 2021 is denied. Entitlement to a rating in excess of 40 percent for lumbar radiculopathy, left lower extremity (LLE) from January 28, 2021 is denied. FINDINGS OF FACT 1. The Veteran's postoperative scar, lumbar spine is neither painful or unstable, is not associated with underlying soft tissue damage, and covers an area of less than 144 square inches. 2. After January 28, 2021, the Veteran's radiculopathy of the RLE was characterized by moderately severe incomplete paralysis and has not been manifested by muscular atrophy. 3. After January 28, 2021, the Veteran's radiculopathy of the LLE was characterized by moderately severe incomplete paralysis and has not been manifested by muscular atrophy. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for postoperative scar, lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2020). 2. The criteria for a rating higher than 40 percent for radiculopathy of the RLE after January 28, 2021, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2020). 3. The criteria for a rating higher than 40 percent for radiculopathy of the LLE after January 28, 2021, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of a regional office (RO) of the Department of Veterans Affairs under VA's legacy appeal system. See 38 C.F.R. § 19.2. The Board issued a decision in August 2019, which was vacated on the Board's motion in May 2020. The Board subsequently remanded the claims in October 2020. While the claim was on remand, the RO granted a 40 percent rating for lumbar radiculopathy of the RLE and LLE each effective January 28, 2021. See February 2021 Rating Decision. The RO also continued the noncompensable rating for postoperative scar, lumbar spine. See February 2021 Supplemental Statement of the Case. In February 2021, the Veteran elected to opt-in some of the issues on appeal via the Appeals Modernization Act (AMA) review system by submitting a timely VA Form 10182, Decision Review Request (Notice of Disagreement). Specifically, the Veteran elected the AMA review system with respect to the issues of an increased rating for lumbar spine disability; a rating in excess of 20 percent for lumbar radiculopathy; RLE prior to January 28, 2021; a rating in excess of 20 percent for lumbar radiculopathy, LLE prior to January 28, 2021; and a total disability rating for individual unemployability (TDIU). Accordingly, the Board will review the issues of a rating in excess of 40 percent for lumbar radiculopathy of the RLE after January 28, 2021; a rating in excess of 40 percent for lumbar radiculopathy of the LLE after January 28, 2021; and a compensable rating for postoperative scar, lumbar spine under the existing Legacy Appeals System. Increased Rating 1. Postoperative Scar, Lumbar Spine The Veteran seeks a compensable rating (greater than zero percent) for his postoperative scar, lumbar spine. See June 2017 VA Form 9. Legal Criteria The Veteran's postoperative scar, lumbar spine is currently rated noncompensable under Diagnostic Code 7805. Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805. Diagnostic Code 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck that are deep and nonlinear. 38 C.F.R. § 4.118. A 10 percent rating is to be assigned when the scar(s) cover an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm). Area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) is assigned a 20 percent rating. Area or areas of at least 72 square inches (465 sq. cm) but less than 144 square inches (929 sq. cm) is assigned a 30 percent rating. Area or areas of 144 square inches (929 sq. cm) or greater is assigned a 40 percent rating. Diagnostic Code 7802 pertains to burn scars or scars due to other causes not of the head, face, or neck that are superficial and nonlinear. 38 C.F.R. § 4.118. Under this Diagnostic Code, a 10 percent rating is assigned when the scar(s) cover an area or areas of 144 square inches (929 sq. cm) or greater. No other rating is provided by this Diagnostic Code. Note (1) states that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation. 38 C.F.R. § 4.118. A 20 percent rating is warranted when three or four scars are unstable or painful. A 30 percent rating is warranted when five or more scares are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under codes 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Id. at Note (3). Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118. VA published a final rule amending its regulations on skin disabilities, effective August 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin (General Rating Formula) for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended diagnostic codes 7801,7802,7817,7819,7825, 7826, 7827, and 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). The August 13, 2018 skin amendments amended Diagnostic Codes 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity. In addition, under the amendments, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. See 38 C.F.R. § 4.118(b) (August 13, 2018). There are no changes to Diagnostic Codes 7800, 7804, 7805, and 7828 under the August 13, 2018 amended version of the skin criteria. In other words, Diagnostic Codes 7800, 7804, 7805, 7828 are exactly same both prior to and after August 13, 2018. Compare 38 C.F.R. § 4.118 (October 23, 2008) with 38 C.F.R. § 4.118 (August 13, 2018). Claims pending prior to the August 2018 effective date will be considered under both old and new rating criteria, and whichever criteria are more favorable to the Veteran will be applied. Factual Background The Veteran filed a petition to reopen his claim for service connection for a lumbar spine disability in June 2009. See June 2009 VA Form 119, Report of Contact. As such, the claim for an initial compensable rating for postoperative scar, lumbar spine dates back to June 11, 2009. Although not within the appeal period, the private medical treatment records confirm that the Veteran underwent a lumbar laminectomy in April 1995. See Williamsburg Community Hospital Operation Report. A March 2012 VA treatment record confirmed the Veteran had a well healed lumbar spine scar. See March 2012 VA History and Physical Note in CAPRI received August 2016. The Veteran was diagnosed with postoperative lumbar spine scar, during a March 2012 VA examination for scars. See March 2012 VA Scars/Disfigurement Disability Benefits Questionnaire (DBQ). The examiner indicated that the Veteran's scar was located on his posterior trunk. There were no scars or disfigurement of the head, face, or neck. Id. There was no scar of the extremities due to burns. The examiner found that the Veteran's scar was not painful, or unstable. The Veteran's scar was linear and the length of the scar 11.3 centimeters (cm). The examiner found that the Veteran's scar did not impact his ability to work. Id. In an April 2012 rating decision, the RO granted service connection for a lumbar spine disability, and postoperative scar, as secondary to the Veteran's lumbar spine disability. The Veteran was assigned a noncompensable rating because the Veteran's scar was not painful and unstable, and did not measure 39 square cm. The Veteran was provided another VA examination in August 2015 to assess the severity of his service-connected lumbar spine scar. See August 2015 Scars/ Disfigurement DBQ. The examiner found that the Veteran's scar was not painful or unstable. It is not the total area equal to or greater than 39 square centimeters (6 square inches). The examiner noted that the Veteran's scar was located on his low back and was a linear scar. The length of the scar was 12 cm. The examiner found no functional impact as a result of the Veteran's scar. She further noted that the Veteran's scar condition was asymptomatic. The RO continued the noncompensable rating for the Veteran's postoperative scar, lumbar spine in the November 2015 rating decision. The Veteran underwent another VA examination in January 2021 for his lumbar spine scar. See January 2021 VA Scars/ Disfigurement DBQ. The examiner found that the Veteran's scar was not painful or unstable. The Veteran's posterior trunk scar measured 15 cm x 0.1 cm. The examiner found that the scar without underlying tissue damage measured a total area of 1.5 square cm. Id. Analysis For the entire period on appeal, the Board finds that a compensable rating for postoperative scar, lumbar spine is not warranted under Diagnostic Code 7805. The evidence does not show that the Veteran's scar is painful or unstable. See March 2012 VA Scars/Disfigurement; August 2015 Scars/ Disfigurement DBQ; January 2021 VA Scars/ Disfigurement DBQ. Instead, the evidence shows that the Veteran has one scar that is neither painful nor unstable. See id. The Board considered whether any other relevant diagnostic codes may afford the Veteran a higher 10 percent evaluation for postoperative scar, lumbar spine. However, the Veteran's scar is not deep and nonlinear, nor does it exhibit any underlying soft tissue damage (Diagnostic Code 7801). See January 2021 VA Scars/ Disfigurement DBQ. It also does not cover an area of 144 square inches or greater (Diagnostic 7802). See March 2012 VA Scars/Disfigurement; August 2015 Scars/ Disfigurement DBQ; January 2021 VA Scars/ Disfigurement DBQ. Further, the evidence of record shows that there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 as contemplated under both pre- and post-August 13, 2018. See 38 C.F.R. § 4.118, Diagnostic Code 7805. Accordingly, throughout the appeal period, the Veteran's postoperative scar, lumbar spine does not warrant a compensable rating. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the appeal is denied. 2. Lumbar Radiculopathy, RLE from January 28, 2021 3. Lumbar Radiculopathy, LLE from January 28, 2021 The Veteran seeks a rating in excess of 40 percent for lumbar radiculopathy of the RLE and LLE See June 2017 VA Form 9. Legal Criteria The Veteran's lumbar radiculopathy of the RLE and LLE are assigned disability ratings under Diagnostic Code 8520. Diagnostic Code 8520 provides ratings based on paralysis of the sciatic nerve. The minimum 10 percent rating is warranted for incomplete mild paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. The maximum 80 percent rating is warranted for complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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. VA's Adjudication Procedures Manual (Manual), though not binding on the Board, also provides benchmarks for mild, moderate, moderately severe, and severe peripheral nerves conditions as held by the Court in Chavis v. McDonough. See 2021 U.S. App. Vet. Claims LEXIS 660, 2021 WL 1432578, at *13 (U.S. Vet. App. Apr. 16, 2021). Given such, mild incomplete paralysis is described as the disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. Additionally, a very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate incomplete paralysis is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment. Symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In this case, the Board considers "mild" to correspond to slight symptoms sufficient to support the diagnosis, generally characterized by less persistent sensory deficits, or those affecting a small area, and or very minimal reflex or motor abnormalities. The Board considers "moderate" to correspond to the maximum evaluation available for sensory-only impairment, characterized by symptoms described by the Veteran and considered significantly disabling medically, and/or involving a larger area in nerve distribution. Additionally, moderate can correspond to combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes with or without sensory impairment, graded as medically moderate. Finally, "severe" is characterized by motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. Although severe incomplete paralysis cases should show findings substantially less than those for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contains signs or symptoms that resemble some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve. Factual Background As noted in the introduction, the Veteran appealed the initial rating for lumbar radiculopathy for RLE and LLE prior to January 28, 2021 under the AMA. As such, the current Legacy appeal is limited to the issues of a rating in excess of 40 percent for lumbar radiculopathy of the RLE after January 28, 2021, a rating in excess of 40 percent for lumbar radiculopathy of the LLE after January 28, 2021. In January 2021, the Veteran underwent a VA examination for his claimed conditions. See January 2021 Peripheral Nerves Conditions DBQ. The Veteran reported residual pain and bilateral radiculopathy extending to his bilateral legs due to lumbar spine surgery in 1995. Id. The Veteran reported severe symptoms of constant pain and intermittent pain due to his RLE and BLE radiculopathy. He also endorsed severe paresthesias and/or dysesthesias and moderate numbness. The Veteran had normal muscle strength testing of his knee extension, ankle plantar flexion, and ankle dorsiflexion. There was no evidence of muscle atrophy. The Veteran's deep tendon reflexes (DTRs) were normal in his knees and ankles. The Veteran had normal sensory examination in his thigh/knee, lower leg/ankle, and foot/toes. There was no evidence of trophic changes. The examiner found the Veteran had moderately severe incomplete paralysis of the sciatic nerve of the RLE and LLE. Id. Analysis The Board will evaluate lumbar radiculopathy of the RLE and LLE together as the same facts and rating criteria are applicable. Based on the January 2021 VA examination, the Board finds that the Veteran's lumbar radiculopathy of the RLE and LLE is appropriately rated as 40 percent disabling under Diagnostic Code 8520. Notably, the medical evidence shows that his radiculopathy was manifested in moderately severe incomplete paralysis. In this regard the January 2021 VA examiner characterized the Veteran's RLE and LLE radiculopathy as moderately severe. See January 2021 Peripheral Nerves Conditions DBQ. The Veteran's RLE and LLE radiculopathy do not meet the criteria for a 60 percent rating because the evidence does not support that his lumbar radiculopathy of the RLE and LLE resulted in severe incomplete paralysis with marked muscular atrophy. Indeed, the Veteran had normal muscle strength and there was no evidence of muscle atrophy. See January 2021 Peripheral Nerves Conditions DBQ. Additionally, the evidence does not reflect severe incomplete paralysis of the median nerve. Severe incomplete paralysis involves more than sensory findings which are evidenced by atrophy, weakness, and diminished reflexes. Here, the evidence does not demonstrate that the Veteran experienced atrophy, weakness, and diminished reflexes of the frequency, severity, and duration consistent with severe incomplete paralysis as the Veteran displayed normal muscle strength and normal reflexes during the January 2021 VA examination. See January 2021 Peripheral Nerves Conditions DBQ. The Board has also considered the Veteran's contentions that his bilateral radiculopathy is more disabling than the currently assigned rating. The Veteran is competent to report that his symptoms of pain and/or numbness. However, under the guidance provided in the Note accompanying 38 C.F.R. § 4.124a, the Veteran's statements by themselves do not provide the basis for a higher rating given the mostly normal examination findings. Even considering the Veteran's reports of severe constant pain and intermittent pain as well as paresthesias and/or dysesthesias, there is no indication that the Veteran experienced foot dangles and drops or that there was no active movement possible of muscles below the knee, or flexion of the knee is weakened, or flexion of the knee is weakened or lost as is necessary for an 80 percent rating. Notably, as discussed above, the January 2021 VA examination showed normal muscle strength of the ankles. Accordingly, the Board finds that the preponderance of the evidence is against a rating greater than 40 percent for lumbar radiculopathy of the RLE and LLE for the period beginning January 28, 2021. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Thus, the claims for a rating in excess of 40 percent for lumbar radiculopathy of the RLE after January 28, 2021, a rating in excess of 40 percent for lumbar radiculopathy of the LLE after January 28, 2021 are denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.