Citation Nr: 21065183 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-13 084 DATE: October 25, 2021 ORDER From July 1, 2011 to January 23, 2019, a 40 percent rating, but no higher, for a lumbosacral strain with degenerative arthritis disability is granted. From December 14, 2017, to November 18, 2019, a 20 percent rating, but no higher, for right lower extremity radiculopathy is granted. From December 14, 2017, to November 18, 2019, a 20 percent rating, but no higher, for left lower extremity radiculopathy is granted. Beginning November 19, 2019, a rating in excess of 20 percent for right lower extremity radiculopathy is denied. Beginning November 19, 2019, a rating in excess of 20 percent for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. From July 1, 2011, to January 23, 2019, the probative medical evidence of record reflects that the Veteran's lumbar spine disability was manifested by forward flexion of the thoracolumbar spine to 30 degrees when considering additional functional loss during flare-ups. 2. At no time during the rating period from July 1, 2011, to January 23, 2019, has the Veteran's service-connected low back disability been manifested by unfavorable ankylosis of the entire thoracolumbar spine, or by incapacitating episodes of IVDS. 3. From December 14, 2017, to November 18, 2019, the Veteran's right and left lower extremity radiculopathy more nearly approximated "moderate" incomplete paralysis of the sciatic nerve roots, but no worse. 4. Beginning November 19, 2019, the Veteran's right and left lower extremity radiculopathy disabilities did not more nearly approximate "moderately severe" incomplete paralysis of the sciatic nerve roots, but no worse. CONCLUSIONS OF LAW 1. From July 1, 2011 to January 23, 2019, the criteria for a 40 percent rating, but no higher, for lumbosacral strain with degenerative arthritis are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237. 2. From December 14, 2017, to November 18, 2019, the criteria for a 20 percent rating, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520. 3. From December 14, 2017, to November 18, 2019, the criteria for a 20 percent rating, but no higher, for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520. 4. Beginning November 19, 2019, the criteria for a rating in excess of 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520. 5. Beginning November 19, 2019, the criteria for a rating in excess of 20 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a November 2018 Central Office Board hearing in Washington, D. C. The transcript of the hearing is included in the record. In a September 2020 decision, the Board adjudicated the following issues: (1) granted service connection for a residual head scar associated with the service-connected traumatic brain injury disability; (2) denied service connection for a blood disorder; (3) denied a rating in excess of 10 percent rating for the lumbar spine disability from July 1, 2011, to February 9, 2016; (4) granted a rating of 20 percent rating, but no higher, for the lumbar spine disability from February 10, 2016, to December 13, 2017; (5) denied a rating in excess of 20 percent rating for the lumbar spine disability from December 14, 2017, to January 23, 2019; (6) granted a 40 percent rating, but no higher, for the lumbar spine disability from January 24, 2019, to November 18, 2019; (7) denied a rating in excess of 40 percent for the lumbar spine disability beginning November 19, 2019; (8) granted a 10 percent rating, but no higher, for right lower extremity radiculopathy from September 4, 2014, to December 13, 2017; (9) denied a rating in excess of 10 percent for right lower extremity radiculopathy from December 14, 2017, to November 18, 2019; (10) denied a rating in excess of 20 percent for right lower extremity radiculopathy beginning November 19, 2019; (11) granted a 10 percent rating, but no higher, for left lower extremity radiculopathy from December 14, 2016, to December 13, 2017; (12) denied a rating in excess of 10 percent for left lower extremity radiculopathy from December 14, 2017, to November 18, 2019; and (13) denied a rating in excess of 20 percent for left lower extremity radiculopathy beginning November 19, 2019. The Board also remanded the claim for entitlement to a total disability based upon individual unemployability (TDIU) prior to October 17, 2017. The Veteran appealed the issues highlighted above to the United States Court of Appeals for Veterans Claims ("Court"). In May 2021, the Court vacated the September 2020 Board decision regarding the highlighted issues listed above and remanded the issues to the Board pursuant to a Joint Motion for Partial Remand (JMPR). The Board also notes that an October 2020 rating decision awarded the Veteran a TDIU effective July 1, 2011 (for the entire rating period on appeal). As a TDIU has been granted for the entire appeal period, that issue is no longer on appeal. Lumbar Spine Disability In the May 2021 JMPR, the parties agreed that a remand was warranted because the Board failed to provide an adequate statement of reasons or bases addressing whether the August 2012 and December 2017 VA examinations were adequate for rating purposes. The September 2020 Board decision discussed the relevant legal criteria (including Diagnostic Codes for the spine) and addressed VA treatment records and VA examination reports dated in August 2012 and December 2017. Those sections of the Board's September 2020 decision are hereby incorporated by reference. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38C.F.R. §4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. Upon review, the Board finds that the August 2012 and December 2017 VA examination reports are inadequate for rating purposes. In this regard, the August 2012 examination recognized the Veteran's reports of flare-ups with prolonged standing, bending, and walking, but did not estimate the Veteran's functional loss due to flare-ups based on the evidence of record. See Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Moreover, the VA examiner did not provide an opinion regarding the Veteran's range of passive motion. See Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016) (according to 38 C.F.R. § 4.59, "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint"). Likewise, the December 2017 VA examination report is also inadequate for rating purposes as the examiner opined that he was unable to state whether pain, weakness, fatigability, or incoordination further limited the Veteran's functioning with repeated use over time or during flare-ups because "there is no conceptual basis for making such a determination without directly observing under these conditions." However, the Board may only "accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed." Sharp, 29 Vet. App. at 33. Therefore, the Board finds the August 2012 and December 2017 VA examination reports to be inadequate for rating purposes; as such, they are of reduced probative value. Due to the passage of time, there is no practicable method to obtain an adequate VA examination for that earlier period on appeal (i.e., from July 1, 2011 to January 23, 2019). Therefore, the Board finds it is only equitable to evaluate the Veteran's lumbar spine disability based on the adequate VA examination report and treatment records that were subsequently generated and added to the claims file. In this regard, a November 2019 VA examination indicated that, at worst (i.e., during flare-ups), the Veteran's lumbar spine would be limited to 15 degrees. The Veteran was not found to have ankylosis of the spine or IVDS. Therefore, based on the probative VA examination report of record, the Board finds that the criteria for a 40 percent rating have been more nearly approximated for the rating period from July 1, 2011 to January 23, 2019. The Board next finds that a rating in excess of 40 percent for the appeal period from July 1, 2011 to January 23, 2019 is not warranted. The medical evidence of record does not show that the Veteran has ankylosis of the spine or IVDS. As such, a higher rating in excess of 40 percent is not warranted from July 1, 2011 to January 23, 2019. Pursuant to the Board's decision herein, the Veteran is now in receipt of a 40 percent rating for his lumbar spine disability for the entire rating period on appeal. Neurological Abnormalities of the Lower Extremities In the May 2021 JMPR, the parties agreed that a remand was warranted because the Board had failed to provide an adequate statement of reasons or bases for denying the Veteran's claims for increased ratings for bilateral lower extremity radiculopathy from December 14, 2017, onward. In this regard, the parties indicated that the Board relied upon VA examinations of record that opined that the Veteran's condition was "mild" and "moderate" for pertinent periods of time to deny his claims. However, the Board never explained, in its statement of reasons or bases, a standard for comparing the terms of degree of severity. See Johnson v. Wilkie, 30 Vet. App. 245, 254-55 (2018) ("Without a standard for comparing and assessing terms of degree, such conclusory findings are unreviewable in this Court."). The JMPR also referenced the M21-1, Part III, Section iv, Chapter 4 (providing guidance for evaluating disabilities of the peripheral nerves based on terms of degree). Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve, 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, and an 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA 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, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Although Diagnostic Code 8520 describes the symptoms of complete paralysis as "the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost," it does not define the term "complete paralysis." Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 805-06 (Fed. Cir. 2010). Thus, the Board turns to the generally understood definition of "complete" and "paralysis." The word "complete" means "total, absolute." See Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/complete, definition 2.a. (last visited July 23, 2021). "Paralysis is the loss of muscle function in part of your body." See MedlinePlus Medical Encyclopedia, U.S. National Library of Medicine, https://medlineplus.gov/paralysis.html (last visited July 23, 2021). Accordingly, "complete paralysis" is the total or absolute loss of the muscle function. As it pertains to the rating period beginning December 14, 2017, the evidence includes the December 14, 2017 VA spine examination. At that time, the Veteran had only slight decreased strength in the right and left lower extremity (at worst 4/5). There was no muscle atrophy of the Veteran's extremities and a reflex exam was normal bilaterally. The Veteran's sensory exam of the thigh, knee, lower leg, ankle, feet, and toes was also normal bilaterally. The Veteran was noted to have a positive straight leg raise in both lower extremities with "moderate" pain in the right lower extremity, but no pain in the left. "Mild" intermittent pain was noted in both lower extremities. On the right, the Veteran was also found to have "mild" paresthesias and numbness, but none of these symptoms were reported in the left lower extremity. The examiner specifically indicated that the Veteran had "mild" radiculopathy of the right and left lower extremity (sciatic nerve root). During the November 2018 Board hearing, the Veteran testified that he was taking several pain medications to alleviate his "shooting pains" in his legs. The Veteran also reported becoming nauseous due to the pain. See id at pgs. 12-13. The evidence also includes a November 2019 VA spine examination, at which time the Veteran reported that his condition had worsened "over the years." Upon physical examination, the Veteran's muscle strength was normal with no atrophy. The reflex and sensory examinations were also normal. The examiner noted a positive straight leg raise bilaterally with "moderate" intermittent pain, paresthesias, and numbness bilaterally. The November 2019 VA examiner assessed "moderate" incomplete paralysis of the right and left sciatic nerve roots. Upon review of the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right and left lower extremity radiculopathy disabilities more nearly met or approximated "moderate" incomplete paralysis pf the sciatic nerve roots for the appeal period from December 14, 2017 to November 18, 2019. In this regard, the Board finds it unlikely that the Veteran's radiculopathy disability suddenly worsened on the day of the November 2019 VA examination, especially since the Veteran reported that his disability had worsened "over the years." Moreover, the Veteran was found to have "moderate" pain in the right lower extremity at the time of the December 2017 VA examination. He has also reported that his pain is "shooting" and severe enough to cause nauseousness. For these reasons, and resolving any reasonable doubt in the Veteran's favor, the Board finds that, for the appeal period from December 14, 2017 to November 18, 2019, 20 percent ratings for right and left lower extremity radiculopathy (sciatic nerve) are warranted. The Veteran is already in receipt of 20 percent ratings for right and left lower extremity radiculopathy beginning November 19, 2019. As such, he is now in receipt of 20 percent ratings for each lower extremity for the entire rating period beginning December 14, 2017. Next, the Board finds that ratings in excess of 20 percent for right and left lower extremity radiculopathy are not warranted for the rating period beginning December 14, 2017. In this regard, there is no objective medical evidence during this period that indicates that the Veteran's symptoms were more than moderate. The VA examinations discussed above showed only slight decreased strength in the right and left lower extremity (at worst 4/5), with no muscle atrophy of the Veteran's extremities. The Veteran's reflex and sensory examinations of the lower extremities have also been normal, bilaterally. VA treatment records indicate that the Veteran was unable to obtain an MRI of the spine due to metal fragments in his low back. As such, an additional remand for further testing would not be appropriate. VA treatment records since December 14, 2017 also do not indicate any weakness, atrophy, or other sensory deficit due to the Veteran's radiculopathy. In making the above determinations, the Board has considered the Court-adopted JMPR directing the Board to provide further reasons and bases for the determination that the severity of the service-connected right and left lower extremity radiculopathy, including the policies and guidance described in VA manual M21-1. In this regard, the Board has considered the evaluation factors contained in relevant VA manual M21-1, such as sensory disturbances and functions, reflex or motor changes, and muscle atrophy as noted in the December 2017 and November 2019 VA examination report. However, the Board is not bound by the VA manual M21-1. See Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). Therefore, the Board must evaluate all evidence to make an independent equitable and just determination. 38 C.F.R. § 4.6. As a lay person, the Veteran is competent to report what comes to him through his senses, such as experiencing pain, numbness, and tingling in his legs. However, the Board, as fact-finder, assesses all evidence to determine the severity of disability. As such, after considering all the lay and medical evidence of record, the Board finds that ratings in excess of 20 percent for right and left lower extremity radiculopathy are not warranted beginning December 14, 2017. As indicated above, an October 2020 rating decision awarded a TDIU effective July 1, 2011 (for the entire rating period on appeal). Moreover, the Veteran is in receipt of special monthly compensation pursuant to SMC under 38 U.S.C. § 1114 (s). (Continued on the next page) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.