Citation Nr: 21064775 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-01 518 DATE: October 21, 2021 ORDER The issue of entitlement to a disability rating greater than 20 percent for lumbosacral strain is denied. Entitlement to a disability rating of 10 percent for left lower extremity radiculopathy of the sciatic nerve is granted, effective March 23, 2017. FINDINGS OF FACT 1. The Veteran's lumbosacral strain was productive of, at worst, forward flexion of 50 degrees and combined range of motion of 125 degrees. 2. Intervertebral disc syndrome, ankylosis (including limitation of motion approximating ankylosis), and neurological abnormalities are not present. 3. The Veteran's lumbosacral strain did not manifest by guarding. It did manifest by tenderness and muscle spasm but neither sufficient to result in abnormal gait or spine contour. 4. Since March 23, 2017, the Veteran has experienced radiculopathy affecting the left lower sciatic nerves productive of subjective symptoms including mild intermittent pain, mild numbness, and mild paresthesias and/or dysesthesias. Objective findings include a positive straight leg test. There is no evidence of muscle atrophy or trophic changes. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbosacral strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for an initial disability rating of 10 percent for left lower extremity radiculopathy of the sciatic nerve are met, effective March 23, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1990 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by a Department of Veterans Affair (VA) Regional Office (RO). It was previously before the Board in April 2021at which time it was remanded for further development. The RO substantially complied with the Board's remand directives regarding the requested medical opinion and the matter is properly returned to Board for consideration. Stegall v. West, 11 Vet. App. 268, 271 (1998). In September 2020 the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and the transcript is of record. 1. The issue of entitlement to a disability rating greater than 20 percent for lumbosacral strain is denied The Board now finds that the Veteran is not entitled to a disability rating greater than 20 percent for lumbosacral strain. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 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, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, 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 assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when the symptoms are most prevalent ("flare-ups") due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The criteria for rating all disabilities of the spine are set forth in 38 C.F.R. § 4.71A which provides that spine disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or under the Formula for Rating intervertebral disk syndrome (IVDS) based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Ratings under the General Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As is relevant here, a 20 percent rating is assigned 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. 38 C.F.R. § 4.71A, General Spinal Formula. A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. See id. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. See id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. See id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. See id., at Note (2). The combined range of motion (ROM) refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. See id. The normal combined ROM for thoracolumbar spine is 240 degrees. See id. Each ROM measurement is to be rounded to the nearest five degrees. See id., at Note (4). Note 5 to the General Spinal Formula defines unfavorable ankylosis 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 dislocation; or neurologic symptoms due to nerve root stretching." VA does not consider ankylosis a diagnosis rather, ankylosis is considered an objective finding like limitation of motion, muscle spasm, guarding, and tenderness. Thus, application of 38 C.F.R. §§ 4.40 and 4.45 permit consideration under the Spinal Formula of a rating based on ankylosis, if a veteran's functional loss is the functional equivalent of ankylosis (i.e. bilateral lower extremity radiculopathy). Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). Here, the Veteran was afforded VA examinations for his lower back in August 2017 and July 2021. Throughout the appeal period, there has been no evidence of ankylosis (including limitation of motion approximating ankylosis), IVDS, neurological abnormality, or guarding or muscle spasms which resulted in abnormal gait or spinal contour, or a combined range of motion of 120 degrees or less. The August 2017 examination revealed forward flexion greater than 60 degrees, specifically 70 degrees, and a combined range of motion of 170 degrees. During the July 2021 VA examination, the Veteran's thoracolumbar spine measured with forward flexion of 60 degrees, 50 degrees at its worst (after repetitive use and during flare-ups). His combined range of motion measured as 125 degrees at worst. Thus, the Veteran's thoracolumbar strain fits squarely within the parameters of a 20 percent disability rating for lower back disability, even during a flare up, as estimated by the VA examiner. Because the Veteran's back disability is not productive of the limitations associated with the criteria for a rating in excess of 20 percent, even when considering pain on use and during flare ups, the Veteran's 20 percent disability rating is continued. 2. Entitlement to a disability rating of 10 percent for left lower extremity radiculopathy of the sciatic nerve is granted, effective March 23, 2017 Under the General Formula, any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. 38 C.F.R. § 4.71A, Note (1). In considering whether an additional rating is warranted for neurological abnormalities associated with the Veteran's lumbar spine disability, the Board now finds that a separate 10 percent disability rating for sciatic radiculopathy of the left lower extremities under 38 C.F.R. § 4.124a, Diagnostic Code 8520 is warranted. Diagnostic Code 8520 rates incomplete or complete paralysis of the sciatic nerve. A 10 percent evaluation is assigned for mild incomplete paralysis, a 20 percent evaluation is assigned for moderate incomplete paralysis, a 40 percent evaluation is assigned for moderately severe incomplete paralysis, and a 60 percent evaluation is assigned for severe incomplete paralysis, with marked muscular atrophy. The terms "mild," "moderate," and "severe" are not defined. Rather than applying a mechanical formula, the Board must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Private medical records noted radiculopathy to the left buttock in 2014 and a positive straight leg test on the left leg radiating to the anterior knee on September 22, 2016. See 6/9/2017 Medical Treatment Record- Non-Government Facility; 7/16/2017 CAPRI. VA medical records also note a positive straight leg test on the left leg in June 2021, and the Veteran testified that he experienced radiating pain and "pins and needles" down his left leg for the past three years. See 9/18/2020 Hearing Transcript; 7/1/2021 C&P Examination. The June 2021 VA examination noted no muscle atrophy; normal reflexes; normal muscle strength; and normal sensation in the left upper anterior thigh, left thigh/knee, and left toes. See 7/1/2021 C&P Examination. However, the examination did note decreased sensation in the left lower leg/ankle. Cumulatively, the Veteran's private and VA medical records are void of any indication that the Veteran's left lower extremity radicular symptoms were productive of more than mild incomplete paralysis of the sciatic nerve. As a general rule, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. §§ 3.400, 3.155, and 3.144. Although radiculopathy associated with the Veterans lower back disability is documented as far back as 2014, the Veteran's claim for an increased rating for his lower back pain was associated with the record on March 23, 2017. Therefore, based on the aforementioned, the Board finds that the Veteran's left lower extremity radiculopathy is productive of mild incomplete paralysis of the sciatic nerve which entitles him to a disability rating of 10 percent, effective March 23, 2017 (the date of his increased rating claim). In determining that this is the appropriate effective date, the Board reviewed evidence dated during the one year "look back period" preceding the submission of the claim. See 38 U.S.C. § 5110(b); 38 C.F.R. 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Here, because the record supports the onset of subjective radiculopathy symptoms prior to the one-year period preceding the filing of the increased rating claim, and thus that the worsening of the condition did not occur during that one year period, an effective date earlier than March 23, 2017 is not warranted. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.