Citation Nr: 21065703 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-40 119 DATE: October 27, 2021 ORDER Entitlement to an increased rating of 40 percent for lumbar spondylosis with degenerative disc disease and spinal stenosis (low back disability), from April 7, 2015 to November 18, 2019, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an increased rating for low back disability, now rated 40 percent for the entire appeal period, is denied. Entitlement to an initial rating of 40 percent for radiculopathy of the right lower extremity (sciatic nerve), from April 26, 2017 to November 18, 2019, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating for radiculopathy of the right lower extremity (sciatic nerve), now rated 40 percent for the entire appeal period, is denied. Entitlement to an initial rating of 40 percent for radiculopathy of the left lower extremity (sciatic nerve), from April 26, 2017 to November 18, 2019, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating for radiculopathy of the left lower extremity (sciatic nerve), now rated 40 percent for the entire appeal period, is denied. FINDINGS OF FACT 1. From April 7, 2015 to November 18, 2019, the symptoms of the Veteran's low back disability more nearly approximated forward flexion of the thoracolumbar spine greater than to 30 degrees or less, but did not at any time during the appeal period more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. 2. From April 26, 2017 to November 18, 2019, the symptoms of the Veteran's left and right lower radiculopathy (sciatic nerve) more nearly approximated moderately severe symptoms of incomplete paralysis but did not at any time during the appeal period more nearly approximate severe symptoms. CONCLUSIONS OF LAW 1. The criteria for an increased 40 percent rating from April 7, 2015 to November 18, 2019, for low back disability, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243-5242. 2. The criteria for an increased rating greater than 40 percent for low back disability, for the entire appeal period, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243-5242. 3. The criteria for an initial 40 percent rating from April 26, 2017 to November 18, 2019, for radiculopathy of the right lower extremity (sciatic nerve), have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. The criteria for an initial rating greater than 40 percent for radiculopathy of the right lower extremity (sciatic nerve), for the entire appeal period, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 5. The criteria for an initial 40 percent rating from April 26, 2017 to November 18, 2019, for radiculopathy of the left lower extremity (sciatic nerve), have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 6. The criteria for an initial rating greater than 40 percent for radiculopathy of the left lower extremity (sciatic nerve), for the entire appeal period, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1991 to May 2000. This case comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which continued a 20 percent rating for the Veteran's low back disability. In May 2016 the Veteran filed a notice of disagreement (NOD) and in June 2017 the RO issued a statement of the case (SOC). In July 2017 the Veteran filed a substantive appeal (via VA Form 9). Additionally, this case comes before Board from a June 2017 rating decision which granted service connection for radiculopathy of the right and left lower extremities and assigned a 10 percent rating for both extremities, effective April 26, 2017. As the rating criteria for the spine provide for separate evaluations for objective associated neurologic abnormalities, the issues of higher initial ratings for lower extremity radiculopathy are under the Board's jurisdiction as part and parcel of the underlying claim of an increased rating for the Veteran's service-connected low back disability. In March 2019 the Board remanded the Veteran's claim for further evidentiary development, specifically, to provide the Veteran with a medical examination to determine the current severity of the Veteran's low back disability and radiculopathy. The Veteran was afforded a VA examination which for the reasons discussed below is adequate to decide the claims. The RO therefore substantially complied with the March 2019 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 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. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 1. Low back disability The Veteran seeks a higher rating for his service-connected low back disability. He contends that the rating currently assigned does not reflect the current severity of his 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 20 percent prior to November 18, 2019 and 40 percent thereafter under 38 C.F.R. § 4.71a, DC 5243-5242. The Veteran filed the underlying increased rating claim on April 7, 2015. Thus, the rating period for consideration begins April 7, 2015, which includes the one year look back period for increased rating claims. 38 C.F.R. § 3.400(o). Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DCs 5243-5242 reflects that the Veteran's low back disability is described as degenerative arthritis under DC 5242 and that intervertebral disc syndrome (IVDS) is the residual disability under DC 5243. 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. Note (2) provides that normal forward flexion, extension, and left and right lateral flexion of the cervical spine are all zero to 45 degrees and left and right lateral rotation are both zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. A May 2015 VA examiner conducted ROM testing which revealed flexion ended at 90 degrees and extension ended at 30 degrees. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions. No flare-ups were reported. No radiculopathy was noted. No ankylosis was noted. An April 2017 VA examiner conducted ROM testing which revealed flexion ended at 50 degrees and extension ended at 25 degrees. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions. No flare-ups were reported. The VA examiner noted that the Veteran experienced moderate radiculopathy of the right and left lower extremities. IVDS of the thoracolumbar spine was noted without any episodes of acute signs and symptoms that required bed rest in the past 12 months. No ankylosis was noted. On the July 2017 VA Form 9, the Veteran stated that he is no longer able to carry out the rigors of his daily routines. He also stated he is unable to fulfill the physical demands at his job and missed 32 hours of work in the past four months due to his low back disability. The Veteran stated he has trouble sitting and standing for extended periods of time and is unable to sleep for longer than five hours at a time due to pain and stiffness. A November 2019 VA examiner conducted ROM testing which revealed flexion ended at 25 degrees and extension ended at 10 degrees. The Veteran was not able to perform repetitive use testing with at least three repetitions. The Veteran reported daily flare-ups and explained that it feels like he is having a hot poker iron shoved through his back with intense pain. The VA examiner noted that the Veteran's low back disability caused him functional loss. When described in terms of ROM, flexion ended at 20 degrees and extension ended at 5 degrees. The VA examiner noted that the Veteran experienced moderate radiculopathy of the right and left lower extremities. IVDS of the thoracolumbar spine was noted without any episodes of acute signs and symptoms that required bed rest in the past 12 months. No ankylosis was noted. Over the course of the Veteran's claim the Veteran has exhibited varying ROM results. At the most recent November 2019 VA examination, the Veteran's ROM measured forward flexion to 20 degrees and extension to 5 degrees. Based on these measurements his disability rating is more closely described by the criteria for a 40 percent rating under DC 5242. Although the ROM findings from the Veteran's May 2015 and April 2017 were less severe, the Veteran exhibited abnormal ROM findings on all of his VA examinations. Also, the Veteran's description of his low back symptomatology indicates that his disability impacts his daily routine. When a question arises as to which of two ratings under a code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Therefore, after resolving reasonable doubt in favor of the Veteran, the Veteran's ROM findings and lay statements indicate that a 40 percent rating is warranted from April 7, 2015, the date VA received a letter requesting an increased rating for his low back disability. In Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the Court held that an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested." In Swain, the Court held that the Board erred when it set an effective date based on the speech recognition scores required by 38 C.F.R. § 4.85(a), rather than 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o), which tie an effective date to the earliest date a disability is ascertainable. Id. Based on the above, the Board finds that the Veteran did not just suddenly get worse on November 18, 2019 and the evidence is approximately evenly balanced as to whether he more nearly approximated the criteria for a 40 percent rating prior to that date. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 40 percent rating from April 7, 2015 is warranted. As the degree of disability has remained uniform throughout the appeal period, a staged rating is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For the following reasons, an increased rating greater than 40 percent is not warranted. There is no evidence of any ankylosis at any time during the claim period. The Veteran indicated that there was increased pain during flare-ups, but there is no evidence or argument that flare-ups were so severe that they resulted in symptoms more nearly approximating ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021) (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 40 percent is not warranted. For the foregoing reasons, the preponderance of the evidence is against an increased rating greater than 40 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 right and left lower extremities (sciatic nerve) 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 right and left lower extremities are rated 10 percent prior to November 18, 2019 and 20 percent thereafter under 38 C.F.R. § 4.124a, DC 8520, which pertains to disease of the sciatic nerve. The Board notes that the Veteran is also service connected for radiculopathy of the right and left lower extremities for the femoral, external cutaneous, ilio-inguinal, and obturator nerves, however, those issues are not currently on appeal. 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. 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 will be equitable and just as contemplated by the requirements of the law." 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 the right and left lower extremities more nearly approximates moderately severe incomplete paralysis. The April 2017 VA examiner noted the Veteran experiences radiculopathy of the right and left lower extremities and described the severity as moderate. On the July 2017 VA Form 9, the Veteran stated that he has little to no sensation in his left lower extremity. The Veteran stated that he stumbles frequently due to the diminished strength in his left leg. The Veteran stated he has tingling and numbness in both feet and that his gait is not normal. The Veteran stated that he currently uses an assistive device to put on socks and trousers due to not being able to reach that far. The November 2019 VA examiner noted that the Veteran experienced moderately severe radiculopathy of the right and left lower extremities with regards to the sciatic nerve. The VA examiner noted that the Veteran experiences an intense burning sensation in his lower extremities. The Veteran receives steroid injections in his lower back which helps with the inflammation in his nerves. The VA examiner noted that the Veteran's gait was normal. The Veteran's radiculopathy has caused him pain to the extent that he missed work which constitutes more than wholly sensory impairment. Further, the November 2019 VA examiner noted that the Veteran experienced moderately severe radiculopathy in both his lower extremities. Although the April 2017 VA examiner described the Veteran's radiculopathy symptoms as moderate, the Veteran's competent and credible lay statements and other evidence contradict this finding. Delrio v. Wilkie, 32 Vet. App. 232, 243 (2019) ("the Board cannot uncritically adopt an examiner's assessment of the veteran's level of disability as its own without reconciling that assessment with the other evidence of record" or "outsource to a medical examiner its independent responsibility to make an adjudicative determination as to entitlement to a claimed disability evaluation"); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (it is the duty of VA adjudicators, not medical examiners, to apply the appropriate legal standards), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (noting the "distinctive responsibilities of medical examiners and rating officials"). Therefore, the evidence is at least evenly balanced as to whether the Veteran's symptoms more nearly approximate moderately severe symptoms. 38 C.F.R. § 3.102 (the benefit of the doubt doctrine applies to all aspects of a claim and not only its ultimate disposition). When considering the holding in Swain v. McDonald, 27 Vet. App. 219, 224 (2015), there is nothing in the record to suggest that the Veteran's radiculopathy could not be described as moderately severe throughout the appeal period. Therefore, the evidence is at least evenly balanced as to whether the Veteran's symptoms more nearly approximate moderately severe symptoms throughout the appeal period. 38 C.F.R. § 3.102 (the benefit of the doubt doctrine applies to all aspects of a claim and not only its ultimate disposition). Accordingly, a 40 percent rating is warranted. A rating greater than 40 percent is not warranted at any time during the claim period. None of the available examination reports or medical treatment notes suggest that he has experienced marked muscle atrophy. Also, 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. Because the preponderance of the evidence weighs against the assignment of initial rating greater than 40 percent for the Veteran's radiculopathy of the right and left lower extremities, the benefit of the doubt doctrine is not for application. For the foregoing reasons, the preponderance of the evidence is against an initial rating greater than 40 percent for radiculopathy of the left and right lower extremities. The benefit of the doubt doctrine is therefore not otherwise for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 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.