Citation Nr: 21064340 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-28 158 DATE: October 19, 2021 ORDER Entitlement to an increased rating greater than 20 percent for degenerative arthritis of the lumbar spine (low back disability) is denied. Entitlement to an initial rating greater than 20 percent for service-connected radiculopathy of the left lower extremity (femoral nerve) is denied. Entitlement to an initial 20 percent rating, but no higher, for radiculopathy of the left lower extremity (sciatic nerve) is granted, subject to the rules and regulations governing the award of monetary benefits. FINDING OF FACT 1. The Veteran's low back disability symptoms do not more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less or unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran's radiculopathy of the left lower extremity (femoral nerve) did not more nearly approximate severe or complete paralysis. 3. The Veteran's radiculopathy of the left lower extremity (sciatic nerve) more nearly approximated moderate paralysis, but did not more nearly approximate moderately severe or severe paralysis. CONCLUSION OF LAW 1. The criteria for an increased rating greater than 20 percent for low back disability have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for an initial rating greater than 20 percent for radiculopathy of the left lower extremity (femoral nerve) are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 3. The criteria for an initial 20 percent rating, but no higher, for radiculopathy of the left lower extremity (sciatic nerve) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1962 to January 1968. This case comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating greater than 10 percent for the Veteran's service-connected low back disability. In May 2014 the Veteran filed a notice of disagreement (NOD) and in June 2016 the RO issued a statement of the case (SOC). In August 2015 the Veteran filed a substantive appeal (via VA Form 9). In August 2019 the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In an October 2019 decision, the Board granted an increased rating of 20 percent for the Veteran's service-connected low back disability. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans' Claims (Court). In February 2021, while the matter was pending before the Court, the Veteran's then-attorney and VA's General Counsel filed a joint motion for remand (JMR). In February 2021, the Court granted the parties' motion and remanded the matter for action consistent with the JMR. In June 2021 the Board remanded the Veteran's claim for further evidentiary development, specifically, to schedule the Veteran for a VA examination to determine the current severity of the Veteran's low back disability. The Veteran was provided a VA examination and the RO substantially complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In August 2021 the RO issued a rating decision which granted service connection for radiculopathy of the femoral and sciatic nerves of the left lower extremity. The RO assigned a 20 percent rating as to the femoral nerve and a 10 percent rating as to the sciatic nerve, effective August 9, 2021. The Board notes the requirement that appealing downstream issues such as assigned initial ratings must be made via a separate NOD. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). However, given the recent decision in Chavis v. McDonough, 34 Vet. App. 1, 15-18 (2021), the Board will discuss the radiculopathy ratings despite the lack of a NOD. 1. Low back disability Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. VA must, in some circumstances, consider functional loss in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45. DCs 5242-5237 provide ratings pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. The Veteran's low back disability is currently rated under 38 C.F.R. § 4.71a, DC 5242. Under DC 5242, 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 is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. An August 2015 VA examiner conducted Range of Motion (ROM) testing which revealed forward flexion ended at 65 degrees and extension at 30 degrees. The Veteran was able to perform repetitive-use testing with at least three repetitions. The VA examiner noted that the examination was conducted during a flare-up, however, stated it is not possible without mere speculation to estimate either loss of ROM or describe loss of functionality due to pain, flare-ups, weakness, fatigability and or incoordination when joint is used repeatedly over a period of time. The VA examiner reasoned that there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances. The VA examiner noted that the Veteran did not have radiculopathy, ankylosis, or muscle atrophy. At the August 2019 Board hearing, the Veteran testified that he has difficulty putting on shoes, socks and undergarments and that cold weather intensifies the aches and pains in his back. The Veteran testified that he goes to a chiropractor for readjustments every two weeks. An August 2021 VA examiner conducted ROM testing which revealed forward flexion ended at 55 degrees and extension at 10 degrees. The VA examiner estimated that forward flexion would end at 50 degrees and extension at 5 degrees if ROM testing were conducted immediately after repeated use over time. The VA examiner noted that the Veteran denied flare-ups. The VA examiner noted that the Veteran did not have ankylosis or muscle atrophy. The VA examiner noted that the Veteran experienced radiculopathy and described the pain as moderate. For the following reasons, an increased rating is not warranted. The Veteran's ROM testing has at worst revealed forward flexion measured to 55 degrees which warrants a 20 percent rating under DC 5242. Even considering the Veteran's lay statements regarding pain and the corresponding functional impairment, the evidence of record is not reflective of, or consistent with, forward flexion measured to 30 degrees or less. More information as to functional impairment during this period would not warrant a higher rating. Thompson v. McDonald, 815 F.3d 781, 785 Fed. Cir. 2016) ("[I]t is clear that the guidance of 38 C.F.R. § 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 [or 4.73] criteria."). In accordance with the June 2021 Board remand, the August 2021 VA examiner was instructed to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The Board is cognizant of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), which held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. The Veteran did not report flare-ups at the August 2021 VA examination and therefore this VA examination is compliant with Sharp v. Shulkin because an opinion contemplating flare-ups is not required when the Veteran does not report flare-ups. Furthermore, there is no evidence of any ankylosis at any time during the claim period or evidence or argument that the Veteran experienced flare-ups that they resulted in symptoms more nearly approximating ankylosis. Chavis, 34 Vet. App. at 23-4) (ankylosis in VA's General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis during a flare up). Therefore, a rating greater than 20 percent is not warranted. For the foregoing reasons, the preponderance of the evidence is against an increased rating greater than 20 percent for the Veteran's low back disability. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Radiculopathy of the left lower extremity (femoral and sciatic nerves) Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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 Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. The Veteran's radiculopathy of the left lower extremity is rated under DC 8520 for paralysis of the sciatic nerve and DC 8526 for paralysis of the femoral nerve. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. A maximum 80 percent evaluation is assigned for complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Under DC 8526, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 30 percent rating is assigned for severe incomplete paralysis; and a maximum 40 percent rating is assigned for complete paralysis of quadriceps extensor muscles. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018) ("DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms."). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, DCs 8510-8730. The Board finds that the Veteran's radiculopathy of left lower extremity (femoral nerve) did not more nearly approximate severe or complete paralysis. Also, the Board finds that the Veteran's radiculopathy of the left lower extremity (sciatic nerve) more nearly approximates moderate symptoms, but not moderately severe or severe paralysis. At the August 2019 Board hearing the Veteran testified that a doctor informed him he experiences radicular pain. The Veteran testified that he receives massages down the sides of his back with some relief. An August 2021 VA examiner diagnosed the Veteran with radiculopathy of the left lower extremity and rated his pain an 8 out of 10 which increases to 10 out of 10 with aggravation (i.e. twisting, turning, bending). The VA examiner noted that the Veteran sees a chiropractor monthly and his antalgic gait requires use of single point cane. The VA examiner noted the Veteran experiences constant pain, paresthesias and/or dysesthesias, and numbness with moderate severity. No other signs or symptoms of radiculopathy were noted. In the present case, the August 2021 VA examiner did not distinguish between the pain caused by the Veteran's radiculopathy in the femoral nerve versus the sciatic nerve. The VA examiner simply noted that both nerve roots were involved. Therefore, as the VA examiner noted that the Veteran experiences moderate radicular symptoms of the left lower extremity, an initial 20 percent rating is warranted for radiculopathy of the sciatic nerve under DC 8520. An initial rating greater than 20 percent is not warranted at any time during the claim period for either the femoral or sciatic nerve. There is no evidence that the Veteran's radiculopathy has caused him pain to the extent that constitutes more than wholly sensory impairment. The August 2021 VA examiner noted that the Veteran experienced moderate symptoms and there is nothing to suggest this is not an accurate description of this paralysis for either the femoral or sciatic nerve. Also, none of the available examination reports or medical treatment notes suggest that the Veteran has experienced marked muscle atrophy at any time during the relevant appeal period. The Veteran has not indicated that his lower extremity symptoms included any muscle atrophy, let alone the "marked" muscle atrophy required for 60 percent disability ratings under DC 8520. For the foregoing reasons, the preponderance of the evidence weighs against the assignment of initial rating greater than 20 percent for the Veteran's radiculopathy of the left lower extremity for both the femoral and sciatic nerves. The benefit of the doubt doctrine is therefore not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.