Citation Nr: 21064933 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 13-05 935 DATE: October 22, 2021 ORDER A rating higher than 40 percent for a lumbar spine disability is denied. A rating higher than 10 percent for radiculopathy of the right lower extremity is denied. A rating higher than 10 percent for radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's lumbar spine disability has not been manifested by ankylosis or limitation of motion akin to ankylosis. 2. Throughout the appeal period, the radiculopathy affecting the Veteran's right and left lower extremities has caused what amounts to mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a rating higher than 10 percent for associated radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.124a, DC 8520, 8620. 3. The criteria for a rating higher than 10 percent for associated radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.124a, DC 8520, 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 2007 to June 2011. In September 2020, the Board remanded the issue of a rating higher than 40 percent for a lumbar spine disability for additional development. Subsequently, in a July 2021 rating decision, the Veteran was granted separate ratings of 10 percent for both left and right lower extremity radiculopathy, effective May 14, 2012. 1. A rating higher than 40 percent for a lumbar spine disability is denied. 2. A rating higher than 10 percent for radiculopathy of the right lower extremity is denied. 3. A rating higher than 10 percent for radiculopathy of the left lower extremity is denied. Disability ratings are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. Separate codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Board will consider entitlement to "staged" ratings to compensate for times when the disability may have been more severe than at others. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal exertion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. The Veteran's lumbar spine disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. VA's schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revisions to the General Rating Formula for Diseases and Injuries of the Spine do not include changes to DC 5242, contemplating degenerative arthritis, except for its inclusion of degenerative disc disease other than IVDS. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5242). In pertinent part, pursuant 38 C.F.R. § 4.71a, Diagnostic Code 5242, a 40 percent rating is warranted for forward flexion of the lumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion (side bending) are from zero to 30 degrees, and left and right lateral rotation (twisting) are from zero to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The revised schedule, in effect as of February 7, 2021, contemplating IVDS under DC 5243, provides that such criteria shall be used only when there is disc herniation with compression and/or irritation of the adjacent nerve root; in all other cases, DC 5242 should be used for all other disc diagnoses. IVDS shall be evaluated, preoperatively or postoperatively, either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). For evaluation of intervertebral disc syndrome under Diagnostic Code 5243, with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is assignable. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assignable. Id. For purposes of ratings 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. Id. In this case, the Board finds that a rating higher than 40 percent for the Veteran's lumbar spine disability is not warranted. Specifically, unfavorable ankylosis of the entire thoracolumbar spine has not been shown in this instance, or symptoms that would be considered similar or akin to ankylosis have not been shown. In that regard, the VA examinations conducted in September 2011, August 2015, December 2019, March 2021, and July 2021 do not show such symptoms. For example, in March 2021 and July 2021, the Veteran was able to forward flex to 55 degrees. Additionally, there is no evidence of incapacitating episodes meaning resulting in bed rest prescribed by a physician, certainly not of the required frequency and direction (in this case totalling a duration of at least 6 weeks in one year), which would alternatively warrant assigning a higher rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DC 5243, including Note (1). Additionally, the Board notes that the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. As noted above, the Veteran was granted separate ratings of 10 percent for both left and right lower extremity radiculopathy under 38 C.F.R. § 4.124a, DC 8621, effective May 14, 2012. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis that is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, DC 8520. (Continued on the next page) DC 8620 refers to neuritis of the sciatic nerve, and DC 8720 refers to neuralgia of the sciatic nerve. While the Veteran is rated under DC 8621, which refers to neuritis of the external popliteal nerve, his disability has been described as radicular in nature. Therefore, the Board will rate it according to the above codes. In so doing, the Board notes that there is no lesser benefit to the Veteran. The Board finds that the Veteran's right and left lower extremities have shown what amounts to mild impairment (incomplete paralysis) of his sciatic nerve, warranting a 10 percent rating for each lower extremity throughout the appeal period. The evidence reflects that the Veteran's neurological symptoms result in sensory loss, such as a feeling of numbness and tingling, but have not been shown to result in more than mild impairment in both a subjective and clinical sense. For instance, on July 2021 VA examination, there were no signs or symptoms of radiculopathy, to include on sensory, motor, and muscular examination. The same was true on December 2019 VA examination. The VA treatment records reflect that at various periods of time, to include in 2015, the Veteran reported a radiating pain into the lower extremities stemming from his low back. However, at this time, and in the remaining evidence of record, the Veteran has not shown clinical signs of neurological deficits on motor examination, muscle strength testing, or sensation testing that would be considered to be moderate or severe in degree (as opposed to mild). Therefore, ratings higher than 10 percent for radiculopathy of the lower extremities are not warranted. A. J. Spector Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.