Citation Nr: 21064811 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 13-25 943 DATE: October 21, 2021 ORDER Entitlement to a rating in excess of 40 percent for lumbosacral strain with degenerative joint disease and herniated disc at L4-5 and L5-S1, with intervertebral disc syndrome, and with impaired ejaculation and urinary hesitancy, is denied. Entitlement to an initial rating in excess of 20 percent for right lower extremity peripheral neuropathy with restless leg syndrome is denied. FINDINGS OF FACT 1. The Veteran's low back disorder has not resulted in unfavorable ankylosis of the entire thoracolumbar spine and has not resulted in incapacitating episodes of intervertebral disc syndrome having a duration of at least 6 weeks during a 12-month period. 2. The peripheral neuropathy of the right lower extremity has been productive of no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent lumbosacral strain with degenerative joint disease and herniated disc at L4-5 and L5-S1, with intervertebral disc syndrome, and with impaired ejaculation and urinary hesitancy are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5242, 5243. 2. The criteria for an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to November 1992. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. Increased Rating 1. Entitlement to a rating in excess of 40 percent for a low back disorder. The Veteran's claim for an increased rating for his low back disorder was received in March 2009. At his November 2017 hearing the Veteran reported that he had to be in bed and off his feet due to his back condition once or twice a week. He said that it could be even more times a week depending on the weather. The Board notes that effective February 7, 2021, the criteria for rating the musculoskeletal system changed. However, the relevant Diagnostic Codes in this case, 5237, 5242, and 5243 did not change. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Under Diagnostic Codes 5235-5242, the next higher evaluation for disabilities of the thoracolumbar spine is 50 percent. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. The Board has reviewed the VA and private medical records and finds that the Veteran's symptoms have not met the criteria for a rating in excess of 40 percent under these criteria. The VA examination reports and Disability Benefits Questionnaires (DBQ) dated in April 2009, November 2015, October 2018 and March 2021 all specifically state that the Veteran does not have ankylosis of the thoracolumbar spine. The Board acknowledges that the Veteran has continuously complained of low back pain. The 40 percent evaluation assigned contemplates the Veteran's limited range of motion and functional impairment. The evidence does not show that pain has caused a functional loss in excess of the 40 percent disability rating assigned. The Veteran's limitation of motion is not equivalent unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has also considered whether the Veteran is entitled to a rating in excess of 40 percent for his low back disability based on Diagnostic Code 5243, the diagnostic code for intervertebral disc syndrome. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides that a rating in excess of 40 percent (60 percent) requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a , Intervertebral Disc Syndrome, Note (1). Although the Veteran indicated at his hearing that he had incapacitating episodes of IVDS once or twice a week, the evidence of record shows that he has not had IVDS requiring bed rest prescribed by a physician, and treatment by a physician, on a frequent basis. To the contrary, the Veteran reported at his April 2009 VA examination that his low back disability did not result in any incapacitation. In March 2013 the Veteran reported that his low back disability caused him to be bedridden about once per month. The November 2015 VA examiner noted that the Veteran had not had any incapacitating episodes in the past 12 months. The October 2018 DBQ specified that the Veteran had had less than one week of episodes of bed rest (incapacitating episodes) over the past 12 months. The March 2021 DBQ specified that the Veteran's IVDS had not resulted in any incapacitating episodes over the past 12 months. The record clearly indicates that the Veteran has not had thoracolumbar intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during any 12-month period. Accordingly, the Veteran has not met the criteria for a rating in excess of 40 percent based on incapacitating episodes of IVDS. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that the Veteran is not entitled to separate compensable rating for impaired ejaculation component of his low back disability. The rating schedule does not provide a diagnostic code for rating erectile dysfunction (as the term applies in the instant case, i.e., the inability to maintain an erection). However, a compensable evaluation is available for penile deformity under Diagnostic Code 7522, which provides for a 20 percent rating when both deformity and loss of erectile power are present. 38 C.F.R. § 4.115b, Diagnostic Code 7522. Having only one or the other is insufficient. A July 2020 DBQ notes that the Veteran had difficulty with erection. It also indicated that the Veteran did not have any penile deformity. The Veteran has not alleged that he has any penile deformity, or indicated that he has ever been found to have an internal or external deformity of any kind. Accordingly, there is absolutely no evidence of record demonstrating that the Veteran's erectile dysfunction is manifested by impotency with deformity of the penis. Accordingly, a separate compensable rating for impaired ejaculation is not warranted. 38 C.F.R. §§ 4.31, 4.115b, Diagnostic Code 7522. The Board also notes that the Veteran is not entitled to separate compensable rating for the urinary hesitancy component of his low back disability. Voiding dysfunction is rated by the particular condition as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. Obstructed voiding symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year, warrants a noncompensable (0 percent) rating. 38 C.F.R. § 4.115a. Marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of: (1) Post void residuals greater than 150 cc, (2) Uroflowmetry; markedly diminished peak flow rate (less than 10 cc/sec), (3) Recurrent urinary tract infections secondary to obstruction, and (4) Stricture disease requiring periodic dilatation every 2 to 3 months, warrants a 10 percent rating. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. The Veteran is not entitled to a separate compensable rating based on obstructed voiding symptomatology as the record does not reveal that the Veteran has marked obstructive symptomatology. A July 2020 DBQ specifically notes that the Veteran did not have marked hesitancy. It further indicated that he did not have slow stream, did not have weak stream, did not have decreased force of stream and did not have stricture disease. Accordingly, the Veteran is not entitled to a separate compensable rating for his urinary hesitancy based on obstructive voiding. Urine leakage (continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence) that requires the wearing of absorbent materials which must be changed less than 2 times per day, warrants a 20 percent rating. Urine leakage that requires the wearing of absorbent materials which must be changed 2 to 4 times per day warrants a 40 percent rating. Urine leakage that requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day warrants a 60 percent rating. 38 C.F.R. § 4.115a. A July 2020 DBQ notes that the Veteran has dribbling, not leaking, and that he does not require the wearing of absorbent material. Consequently, he is also not entitled to a separate compensable rating based on urine leakage. The Board notes that the Veteran has not reported urinary frequency. Accordingly, the Veteran has not met the criteria for a separate compensable rating for the urinary hesitancy component of his low back disability. Based on the above, the Board finds that the criteria for a rating in excess of 40 percent for the Veteran's low back disability has not been met at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to an initial rating in excess of 20 percent for right lower extremity peripheral neuropathy. The Veteran's claim for service connection for a right leg disability was received in in March 2009. The July 2009 rating decision on appeal granted the Veteran service connection and a 10 percent rating for peripheral neuropathy of the right lower extremity. An April 2014 rating decision awarded the Veteran a 20 percent rating for his right lower extremity peripheral neuropathy, with restless leg syndrome, effective from March 24, 2009, the date service connection was granted. The Veteran seeks a rating in excess of 20 percent. At his November 2017 hearing the Veteran reported that he had numbness and tingling in the right leg. He stated that he was basically numb from the knee down. He said that he had to be careful on stairs because he could not feel his feet on the stairs. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a , Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. On VA examination in April 2009 the Veteran reported pain in the right leg that was radiating from the lower back. He reported bilateral radiating leg pain, frequent muscle twitching and cramping, and restless leg syndrome when examined by VA in March 2013. He had moderate constant pain in the right lower extremity, with mild intermittent pain, and mild paresthesias and/or dysesthesias. He denied numbness of the right lower extremity. The examiner noted that the Veteran had mild incomplete paralysis of the right sciatic nerve. Right lower extremity electromyography (EMG) in July 2011 was normal. A March 2015 private medical record notes that the Veteran had foot drop in both feet. He reported twitching and jerking in the right lower extremity. VA examination in September 2015 noted peripheral neuropathy with restless leg syndrome and foot drop. The examiner indicated that the Veteran had moderate incomplete paralysis of the right sciatic nerve. In November 2015 the Veteran was reexamined and the VA examiner stated that the Veteran did not have right foot drop. She further stated that the Veteran's right lower extremity neuropathy was moderate. October 2018 DBQ notes that the Veteran only had foot drop on the left. The Veteran was noted to have moderate constant pain in the right lower extremity. Intermittent pain, paresthesias/dysesthesias and numbness were also noted to be moderate in the right lower extremity. In August 2019 a VA physician noted that there had been some conflicting records as to whether the Veteran had right foot drop. She clarified that the Veteran did not have right foot drop. A March 2021 DBQ notes that the Veteran reported tingling, twitching, sharp pain, dull ache and cramping of muscles in the right lower extremity. He treated the symptoms with muscle relaxers. He said that it affected his ability to run, walk and hike and that his walking was limited. He reported that he used assistive devices to put his socks on and that it hurt to push a vacuum. His right leg disability limited his ability to climb ladders. He was able to do woodworking and sanding. He was noted to have mild constant pain in the right lower extremity. He was noted to have mild intermittent pain, and mild paresthesias or dysesthesias of the right lower extremity. He did not have numbness. He had 4/5 strength of the right lower extremity and normal reflexes of the right lower extremity. Sensory examination of the right lower extremity was normal. The examiner stated that the Veteran had mild incomplete paralysis of the right sciatic nerve. The above evidence, when applied to DC 8520 demonstrates that a rating in excess of 20 percent is not warranted. The symptoms described above reflect, at worst, moderate incomplete paralysis. See 38 C.F.R. § 4.124a , DC 8520. A higher rating of 40 percent requires evidence of moderately severe incomplete paralysis, which the evidence fails to show. Although the Veteran had, at times, subjective complaints of pain, paresthesias/dysesthesias, numbness and tingling, the objective medical evidence demonstrates that there has not been moderately severe incomplete paralysis of his right sciatic nerve and/or symptoms related thereto in the right lower extremity at any time since the grant of service connection. Accordingly, a ratings in excess of 20 percent for right lower extremity peripheral neuropathy is not warranted at any time since the grant of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.