Citation Nr: 21063859 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-41 460 DATE: October 18, 2021 ORDER A 40 percent rating is granted for degenerative disc disease with anterior osteophyte formation (low back disability) for the entire period on appeal, so since November 13, 2006 rather than just since December 12, 2012. However, a rating higher than 40 percent for this low back disability for any period on appeal is denied. Separate 40 percent ratings for associated right and left lower extremity radiculopathy involving the sciatic nerve are granted effective June 3, 2011, and higher 60 percent ratings, though no greater, as of May 20, 2015. FINDINGS OF FACT 1. For the entire period on appeal, so effectively since November 13, 2006, the Veteran's low back disability has manifested in flare ups causing what amounts to forward flexion of his thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of his entire thoracolumbar spine; however, it has not been manifested by unfavorable ankylosis of his entire thoracolumbar or entire spine, the latter meaning when additionally considering the adjacent cervical segment. 2. Since June 3, 2011, his bilateral (right and left) lower extremity radiculopathy owing to his low back disability has manifested in moderately severe symptoms, albeit without marked muscle atrophy. 3. Since May 20, 2015, his bilateral lower extremity radiculopathy has manifested in comparatively severe symptoms, including muscle atrophy and reduced muscle strength, but without foot drop, loss of movement of muscles below the knee, or complete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the entire period on appeal, so effectively since November 13, 2006, the criteria are met for a 40 percent rating, though no greater, for the low back disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5243. 2. The criteria also are met for separate 40 percent ratings for the associated bilateral (left and right) lower extremity radiculopathy involving the sciatic nerve as of June 3, 2011, and for even higher 60 percent ratings since May 20, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1978, from August 1979 to August 1981, and from April 1982 to April 1986. He also served in the Army National Guard (ANG) and had active service from August 1989 to January 1990 and additional unverified periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board) originated from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In December 2019, the Board, in part, granted service connection for sciatica of the lower extremities secondary to the already determined to be service-connected low back disability. The Board conversely denied a rating higher than 10 percent for this underlying low back disability prior to December 12, 2012 and instead remanded the remaining portion of this claim back to the RO (AOJ) as concerning whether a rating higher than 40 percent for this low back disability was warranted since December 12, 2012. A June 2020 RO decision, implementing the Board's grant of service connection for the bilateral lower extremity sciatica, assigned initial 10 percent ratings for the left and right lower extremity sciatica retroactively effective from November 13, 2006, higher 20 percent ratings as of April 29, 2009, and even higher 40 percent ratings as of May 20, 2015. Meanwhile, to the extent unfavorable, the Veteran appealed the Board's decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In September 2020, a Joint Motion for Partial Remand (JMPR) was filed asking the Court to vacate the portion of the Board's decision that was unfavorable and to remand this portion of the claims back to the Board for further development and readjudication. The Court granted that JMPR in an Order that same month. In May 2021, after receiving the case back from the Court, the Board, in turn, remanded the claim back to the RO (AOJ) concerning whether an initial rating higher than 10 percent was warranted for the low back disability prior to December 12, 2012, and regarding whether a rating higher than 40 percent has been warranted for this low back disability since December 12, 2012. The further development and consideration directed to occur on remand included obtaining a "retrospective" VA examination and medical opinion addressing the nature and severity of this low back disability in years past more specifically, prior to December 12, 2012. See Chotta v. Peake, 22 Vet. App. 80 (noting the duty to assist may include development of medical evidence through a retrospective medical evaluation when there is a lack of medical evidence for the period at issue). That additional development and consideration also included obtaining outstanding treatment records (VA and private) also relevant to this claim. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). On remand, the RO increased the initial rating for the Veteran's low back disability from 10 to 20 percent, effective November 13, 2006. However, the RO denied a rating higher than 40 percent for this low back disability since December 12, 2012. So this appeal now concerns whether an initial rating higher than 20 percent was warranted for this low back disability from November 13, 2006 through December 11, 2012, and whether a rating higher than 40 percent has been warranted for this low back disability since December 12, 2012, because the higher or additional ratings granted during the pendency of this appeal are not the highest possible ratings or maximum level of compensation for this low back disability and any associated impairment such as the bilateral lower extremity sciatica or radiculopathy. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, if the factual findings show distinct time periods when the service-connected disability exhibits symptoms that warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and employed for initial or established ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. A higher 40 percent initial rating for the low back disability is granted for the entirety of the appeal period so since November 13, 2006 rather than just since December 12, 2012, though no greater rating The Veteran's low back disability is rated under 38 C.F.R. § 4.71a, hyphenated DC 5010-5243. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. DC 5243 provides that intervertebral disc syndrome (IVDS) is rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula of the Spine) or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating IVDS, the next higher rating after 20 percent is 40 percent, which is warranted when IVDS symptoms cause incapacitating episodes having a total duration of at least 4, but less than 6, weeks during the past 12 months. A higher 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) in DC 5243 explains that, for IVDS rating purposes, an incapacitating episode is a period of acute IVDS signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician. Id., at Note (1). Under the General Formula of the Spine, the next higher rating after 20 percent is again 40 percent, warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating requires unfavorable ankylosis of the entire spine, meaning when additionally considering the adjacent cervical segment. 38 C.F.R. § 4.71a, General Formula of the Spine, DCs 5235-42. Associated objective neurological abnormalities, including, but not limited to bowel or bladder impairment, are evaluated separately under an appropriate DC. 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." Fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id., at Note (5). Musculoskeletal disability evaluations based on limited motion require considering functional loss due to pain or other listed factors that may occur during flare-ups or after repeated use, and so may not be reflected on range-of-motion testing. See 38 C.F.R. § 4.40. Also, consideration must be given to more as well as less motion than normal, weakened movement, excess fatigability, lack of coordination, and painful motion. See 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). However, even when these background factors in § 4.40 or 4.45 are relevant to evaluating a disability, the rating is assigned based on the extent of limited motion, pursuant to 38 C.F.R. § 4.71a. Separate or higher ratings under § 4.40 or 4.45 itself are not appropriate. 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."). According to 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). Preliminarily, the Board finds no evidence of a provider prescribing bedrest due to IVDS symptoms for more than 2 weeks out of 12 months during any period on appeal. As such, the record does not reflect qualifying incapacitating episodes of 4 weeks duration (let alone 6 weeks), so a higher rating based on the Formula for Rating IVDS is not supported by the evidence of record. The rest of the Board's analysis regarding this low back disability rating therefore will be for limited motion under the General Formula of the Spine. A September 2007 VA spine examination reflected forward flexion to 85 degrees and objective evidence of pain on palpation and movement, without muscle spasms or ankylosis. The Veteran reported constant pain with flare ups of more intense pain preventing standing precipitated by cold weather, over-exertion, or sitting for extended periods. At the time, his job required long hours driving. He denied incapacitating episodes but stated he was unable to get out of bed for 3 or 4 days after shoveling snow. At a June 2009 VA neurology examination, the Veteran reported missing several days of work in the 12 months prior due to constant back pain, treating symptoms with muscle relaxants and staying in bed. Medical records between April and September 2009 described low back pain requiring regular breaks from activities driving, sitting, etc. and his provider signed several work excusals due to low back symptoms. A June 2010 VA spine examiner found forward flexion to 70 degrees and objective evidence of pain on palpation and motion, without ankylosis. The Veteran reported constant pain with frequent flare ups triggered by prolonged sitting, standing, walking, and cold weather, with symptoms lasting 3 to 7 days all winter. He had missed 2 weeks of work during the prior year owing to back pain. Medical records from July and August 2010 report worsening symptoms. His May 2012 physical therapy records note low back muscle restriction caused by and causing difficulty bending, weight bearing, and decreased muscle mass. As already indicated, the Board previously remanded this claim for a "retrospective" (i.e., after-the-fact) medical opinion to assess the severity of the Veteran's condition in years past more specifically, prior to December 12, 2012. To this end, the examiner was asked to address whether, prior to December 12, 2012, the Veteran's thoracolumbar spine motion was limited to 60 degrees on forward flexion during a flare up or on repetitive or prolonged use as to, in turn, warrant increasing the initial rating from 10 to 20 percent rating and whether it was limited even more to 30 degrees or less on forward flexion under the same conditions, as would warrant an even higher 40 percent rating under the General Rating Formula for the Spine. See 38 C.F.R. § 4.71a, General Rating Formula of the Spine, DCs 5235-42. After a complete review of the record, the resulting June 2021 medical opinion found it as likely as not (50 percent probability or greater) that, during flare ups prior to December 12, 2012, the Veteran's thoracolumbar spine range of motion was limited to both less than 60 degrees and less than 30 degrees on forward flexion. But, despite that assessment, the RO only increased the Veteran's low back disability rating from 10 to 20 percent, not instead to the even higher 40 percent level warranted when forward flexion, as here, is limited to 30 degrees or less. Id. In other words, the RO only considered the 60-degree limitation, not also the even greater 30-degree limitation. Thus, when considering the entire record, the Board finds that the evidence at the very least is in relative equipoise if not more favorable to the claim, regarding whether the Veteran's low back disability warrants a 40 percent rating even prior to December 12, 2012. The June 2021 VA examiner found the Veteran's flare ups resulted in a reduced range of motion consistent with a 40 percent rating, as evidenced by his repeated reports of flare ups rendering him unable to walk upright or leave his bed for days at a time. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). As such, a 40 percent rating is warranted from November 13, 2006. 2. Entitlement to a rating greater than 40 percent The Veteran further contends that his low back disability warrants a rating even higher than 40 percent, but the Board contrarily finds that no greater rating is warranted. Considering the entire record, the Board finds no evidence of unfavorable ankylosis of the Veteran's entire thoracolumbar (thoracic and lumbar) spine, so also not of his entire spine when additionally considering the adjacent cervical segment. Despite multiple instances of functional, limited immobilization as cited above, the record does not reflect total fixation of his entire thoracolumbar spine or entire spine in either flexion or extension. Ankylosis contemplates total absence of motion due to "fixation" of a joint. For VA compensation purposes, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Notably, none of his medical records nor his VA spine or neurological examinations, including the June 2021 examination completed on remand, reflect a diagnosis of fixation or ankylosis. Hence, the evidence does not show he has a "frozen" spine in flexion or extension, or something akin to it or the "functional equivalent", including when his symptoms are most problematic such as during a flare up or prolonged or repeated use. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). Further, he has not alleged, and his personal statements and medical records do not reflect, limitations regarding his line of vision, chewing, or respiration, including pressure or restriction of his abdomen. And he already has separate ratings for the associated sciatica of his left and right lower extremities, and, in compliance with the other holdings in Chavis, in this appeal the Board is additionally adjudicating the propriety of these additional ratings for that associated neurological impairment affecting his lower extremities (i.e., he did not have to separately appeal those additional ratings since considered part and parcel of his appeal for a higher rating or additional compensation for his underlying low back disability). The Board acknowledges the Veteran's contentions but notes that, while he is competent, as a layman, to report observable symptoms such as increased pain and decreased range of motion, his statements that his symptoms render him immobile cannot establish unfavorable ankylosis, which is a complex medical determination, not instead something that is merely simple. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The question of whether lay versus medical evidence is needed to substantiate a claim is a case-by-case determination and dependent on the type of condition at issue in terms of whether complex versus merely simple. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran's low back disability is multi-faceted, so complex. Thus, the evidence of record does not support awarding a rating higher than 40 percent for the low back disability at any point during the evaluation period under review. There is no reasonable doubt to be resolved in the Veteran's favor, as the preponderance of the evidence is against this claim for an even greater rating. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a 40 percent rating for right and left lower extremity sciatica As already alluded to, the CAVC held in Chavis that the issue of higher ratings for lower extremity radiculopathies (so including sciatica) are part and parcel of a higher-rating claim for an underlying lumbar spine disability, not requiring a separate Notice of Disagreement (NOD) for the Board to have jurisdiction over these additional issues, based on the facts of the particular case. Here, the Veteran explicitly raised the issue in his recent September 2021 filing regarding his low back disability claim on appeal, maintaining that his bilateral lower extremity (BLE) radiculopathy warrants higher 60 percent ratings. So, these additional claims also are before the Board in this appeal. The Veteran's BLE radiculopathy is rated under DC 8520 for paralysis of the sciatic nerve. A minimum 10 percent rating is warranted for mild incomplete 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; and the maximum 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, no active movement possible of muscles below the knee, or flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to varied level of the nerve lesion or to partial regeneration. The terms "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. The Board must therefore evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2016). That said, wholly sensory involvement warrants an evaluation at a mild, or at most, a moderate degree. See 38 C.F.R. § 4.124a. Examples of sensory manifestations include, but are not limited to, pain (constant, intermittent or dull), numbness, paresthesias (abnormal touch sensation, burning or prickling, often in the absence of external stimulus), and dysesthesias (distortion of any sense, or unpleasant abnormal sensation produced by normal stimuli). Examples of physical manifestations include, but are not limited to, muscle weakness, muscle atrophy, and diminished or absent reflexes. When claims involve a mix of physical and sensory impairments, i.e., decreased reflexes and numbness, the Board finds that a rating of mild incomplete paralysis is warranted for less persistent sensory deficits affecting small areas, or for very minimal reflex or muscle strength impairment. Moderate incomplete paralysis may be warranted for combinations of significant sensory changes and mild or slight muscle or reflex impairment, or muscle and/or reflex impairment that has been noted by the examiner to be moderate in nature. Here, both the Veteran's left and right extremities carry the same sciatica ratings so, two separate ratings, one for each extremity as follows: 10 percent effective November 13, 2006, the date of his initial claim; 20 percent from April 29, 2009; and 40 percent from May 20, 2015. Preliminarily, the Board notes that the record does not reflect any evidence of complete paralysis, either as an explicit diagnosis or based on the symptoms indicated in the rating criteria. As such, the maximum rating available in this case is a 60 percent rating for severe incomplete paralysis of the sciatic nerve. VA spine and neurology examinations in September 2007, June 2009, and June 2010 reflect radicular symptoms including tingling and numbness, bilaterally. The September 2007 spine examination did not evaluate radicular symptoms, and the June 2010 examiner did not find any symptoms at the time of the examination. The June 2009 neurology examination evaluated the symptoms as "mild" but noted the Veteran was unable to complete a tandem walk and had decreased reflexes, justifying his rating increase to 20 percent. However, in June 2011, VA issued an addendum medical opinion regarding this disability. The examiner reviewed the entire available claims file and found the Veteran's "neurological symptoms have become progressively worse" since the June 2009 VA examination. The examiner noted complete loss of bilateral foot sensation resulting in loss of awareness causing loss of balance and preventing the Veteran from driving. Although able to walk, the examiner noted bilateral weakness, "foot drop tendency," and distorted sensations in the lower extremities, including sharp pains. The Veteran was unable to complete several physical exams, losing his balance and falling on 2 of the 5 administered. His reflexes were generally reduced. Muscle atrophy was not addressed. As such, the Board finds the Veteran's symptoms increased in severity beyond the criteria defined as "moderate" as early as June 3, 2011. However, the record does not reflect atrophy or total paralysis of the nerve or any other objective indication of a "severe" rating. Therefore, the Board finds a 40 percent rating warranted for moderately severe symptoms effective as of the date of the addendum opinion on June 3, 2011. 38 C.F.R. §§ 3.155, 3.400(o)(2). 4. Entitlement to a 60 percent rating for right and left lower extremity sciatica As already alluded to, the Veteran underwent physical therapy from May through November 2012. Those providers noted worsening numbness in the lower extremities and the Veteran's unwillingness to drive because he could not feel his feet on the car pedals a concern previously expressed in the June 2011 addendum opinion. His January 2014 VA spine examination evaluated his BLE radiculopathy as "severe," observing decreased sensation, constant pain increasing on flare ups and other sensory defects. However, neither the examiner nor concurrent medical records noted any muscle atrophy. The Veteran's next VA spine examination, completed on May 20, 2015, again found sensory defects, evaluated his BLE radiculopathy as "severe," but now also noted muscle atrophy. The examiner did not quantify the atrophy because it appeared symmetrically in both lower extremities, but these same findings were grossly repeated in VA examinations from July 2019, January 2021, and June 2021. Given the May 20, 2015 VA medical evaluation's findings of severe radiculopathy with muscle atrophy and considering it in conjunction with the marked physical defects noted in treatment records, the Board is resolving all reasonable doubt in the Veteran's favor and granting an even higher 60 percent rating based on symptoms approximating "severe" incomplete paralysis of the sciatic nerve under DC 8520. This rating is effective the date on which it arose, May 20, 2015. 38 C.F.R. §§ 3.155, 3.400(o)(2). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.