Citation Nr: 21066070 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 16-36 671 DATE: October 28, 2021 ORDER A rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine is denied. A rating in excess of 20 percent for sciatic nerve radiculopathy of the right lower extremity is denied. A rating in excess of 20 percent for sciatic nerve radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. The Veteran's lumbar disability was not shown to result in forward flexion of the thoracolumbar spine functionally limited to 30 degrees or less; ankylosis of the spine has not been shown; and incapacitating episodes, requiring prescribed bedrest, having a total duration of at least one week during a 12-month period are not shown. 2. The Veteran's bilateral lower extremity radiculopathy has not been shown to have been productive of moderately severe incomplete paralysis, with marked muscular atrophy, or worse. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for a rating in excess of 20 percent for bilateral lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Codes 8520, 8620, 8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to January 1987. The Veteran provided testimony at a March 17, 2021 Board hearing before the undersigned Veterans Law Judge (VLJ). VA received the Veteran's increased ratings claims for the service-connected lumbar spine disability and for the bilateral lower extremity radiculopathy on September 25, 2015. This appeal was previously before the Board in March 2021. The March 2021 Board decision remanded the issues on appeal for further development. Specifically, the Board decision pointed out that the Veteran asserted that he was awaiting surgery because his conditions were so bad. See VA Form 9 dated July 26, 2016. The Board also pointed out that the Veteran had last been afforded VA examinations for his low back and radiculopathy in November 2015. The Board found that new VA examinations were required to evaluate the current nature and severity of the Veteran's service-connected lumbar and bilateral lower extremity disabilities. The Veteran was afforded VA examinations for the service-connected lumbar and bilateral lower extremity disabilities in April 2021. The respective VA examinations addressed the current severity of the low back and lower extremity radiculopathy. As such, the Board finds that there was substantial compliance with the March 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. A rating in excess of 20 percent for DDD of the lumbar spine is denied. The Veteran asserts that he is entitled to higher ratings, than those that have been assigned, for his lumbar spine disability because his VA orthopedic surgeon has told him that his ratings are too low. See VA Form 9 dated July 26, 2016. The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5237, for a lumbosacral strain. As a preliminary matter, the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Generally, claims pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. Here, however, the Veteran's DDD of the lumbar spine is rated under Diagnostic Code 5237 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula) did not change under the revised regulations. As such, the rating criteria for the Veteran's lumbar spine disability is unchanged and the Board will proceed with adjudication. Back disabilities are currently rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record shows that the Veteran has been diagnosed with IVDS. However, after a careful review of the Veteran's post-service medical records, there does not appear to have been any prescription of bed rest. Further, the Veteran did testify that he be taken off of work, as well as the need to stay down and stay off his feet as much as possible, but did not provide any indication that he was prescribed bed rest by a physician, or that he had incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period. Because the prescription of bed rest is a foundational requirement for a rating based on IVDS, it is more beneficial to evaluate the Veteran's lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237. The Veteran was afforded a VA examination in November 2015 at which he reported experiencing flare-ups of the lumbar spine, that resulted in his being unable to stand, sit, or sleep comfortably at times. He also reported functional loss and described difficulty with climbing, stooping, kneeling, crouching, and prolonged standing and walking. On examination, he demonstrated forward flexion to 70 degrees, extension to 0 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees, with pain noted in all planes of motion. There was no evidence of pain with weight-bearing. The Veteran was able to perform repetitive-use testing with no additional loss of range of motion. The examiner indicated that the examination did not take place during a flare-up, and was not able to describe any additional loss in terms of range of motion because the Veteran did not indicate a specific numerical loss of range of motion during flare-ups or after repetitive use. The examiner did acknowledge that the Veteran reported flare-ups that ranged from mild to severe; and opined that a very mild flare-up may not reduce range of motion at all, while an extremely severe flare-up may prevent any movement whatsoever. There was no evidence of guarding or muscle spasm of the lumbar spine. Muscle strength testing showed normal strength in all planes of motion. There was no evidence of ankylosis. The Veteran was noted to use a cane and a brace on a regular basis. The Veteran provided testimony at the March 2021 Board hearing. He testified that his lumbar disability was so bad, that he was recommended for surgery, but was prevented because his BMI was too high. He reported that he underwent physical therapy for walking and used a cane. He testified that he went to the emergency room three times in the previous year and a half, and reported that he could not stand for prolonged periods of time, and had a hard time playing sports and lifting things. The Veteran was afforded a second VA examination in April 2021 at which he reported having severe flare-ups of the lumbar spine that occurred 2-3 times a year. He reported that the flare-ups would begin with extended sitting, standing, or walking. He also reported having functional loss due to limited mobility, limited movement, and having to use a walker. On examination, he showed forward flexion to 60 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees, with pain noted on examination, in all planes of motion. Passive range of motion testing was not performed because the examiner reported that it was unable to be completed in a safe manner. The Veteran was able to perform repetitive-use testing with no additional loss of range of motion. The examiner indicated that the examination was during a flare-up, and reported that pain caused functional loss. The examiner reported that range of motion during this flare-up was the same as the initial range of motion testing. There was no evidence of guarding or muscle spasms. The examiner indicated that there were additional factors contributing to disability; disturbance of locomotion and interference with sitting. Muscle strength testing showed normal strength in all planes of motion. There was no evidence of ankylosis. The examiner indicated that the Veteran had IVDS, but did not have any episodes that required bed rest. The Veteran was noted to use a walker on a regular basis. The Veteran's medical records from throughout the appeal have been reviewed, but do not contain any range of motion testing or any other findings consistent with a rating in excess of 20 percent. Here, the weight of the evidence does not demonstrate limitation of motion consistent with a rating in excess of 20 percent. At worst, the Veteran showed forward flexion limited to 60 degrees in April 2021, which is well in excess of 30 degrees, the threshold required for a 40 percent rating. The April 2021 VA examiner also took into account the Veteran's reported flare-ups, but estimated that he would not lose any additional range of motion during a flare-up. The Board acknowledges that a more severe flare-up may cause some limitation in terms of range of motion, but there has been no indication by any competent medical professionals that his range of motion would be functionally limited to 30 degrees of forward flexion. Further, there is no evidence that the Veteran has ankylosis of the spine. In reaching this conclusion, the Board has considered whether a higher disability evaluation was warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the Veteran clearly experienced painful motion on range of motion testing. However, even if flexion and extension were limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. At worst the Veteran showed forward flexion to 60 degrees, and there has been no suggestion that functional limitation from pain or any other source would result in forward flexion of the thoracolumbar spine being functionally limited to 30 degrees or less. The Board has taken into account the Veteran's flare-ups, but the April 2021 VA examiner reported that his range of motion would not be limited during a flare-up. The Board acknowledges the Veteran's complaints of low back pain and the limitation it causes him due to difficulty standing, walking, lifting, climbing, stooping, kneeling, crouching, and having to use assistive devices. The Board does recognize that this causes him impairment. However, as explained the Veteran has not established findings consistent with a higher rating than is currently assigned. Accordingly, an initial rating in excess of 20 percent for a lumbar spine disability is denied. 2. A rating in excess of 20 percent for radiculopathy of the lower extremities is denied. The Veteran asserts that he is entitled to higher ratings than those that have been assigned for his bilateral lower extremity radiculopathy, asserting that his VA orthopedic surgeon had told him that his ratings are too low. See VA Form 9 dated July 26, 2016. The Board notes that when the Veteran submitted his claim for an increased rating for his bilateral lower extremity radiculopathy, he was assigned a 10 percent rating. However, after the April 2021 VA examination, an April 2021 rating decision increased his rating to 20 percent, effective September 25, 2015, the date of claim. As such, the Board will adjudicate whether the Veteran is entitled to a rating in excess of 20 percent for either lower extremity disability. The Veteran's bilateral lower extremity radiculopathy is rated under Diagnostic Code 8620. The criteria for evaluating the severity or impairment of the sciatic nerve is set forth under Diagnostic Codes 8520, 8620, and 8720. Under Diagnostic Code 8520, a 10 percent rating requires mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. Diagnostic Codes 8620 and 8720 address the criteria for evaluating neuritis and neuralgia of the sciatic nerve, respectively. The criteria are consistent with the criteria for evaluating degrees of paralysis as set forth above. 38 C.F.R. § 4.124a, Diagnostic Code's 8520, 8620, 8720. A note in the Rating Schedule pertaining to "Diseases of the Peripheral Nerves" provides that the term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diagnostic Code's 8510 through 8540. Neuritis of the peripheral nerves, 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 rating equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia of a peripheral nerve characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. The term incomplete paralysis, with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type 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 wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran was afforded a VA examination in November 2015 at which he reported experiencing severe constant pain in both lower extremities, severe paresthesias in both lower extremitates, moderate numbness in the right lower extremity, and severe numbness in the left lower extremity. Muscle strength testing showed normal strength in all areas tested. Reflex testing showed normal results in the lower extremities. Sensory testing showed decreased feeling in the lower leg and foot. The examiner noted that the Veteran had mild incomplete paralysis of both lower extremities. The examiner reported that the Veteran regularly used a brace and cane to help with ambulation. The Veteran testified that he experienced numbness a lot of the time, and sometimes had a hot feeling going down his legs. He also reported constant pain in his pinky toes. He testified that while sleeping at night, he got very bad cramps in his legs that felt like having his muscles pulled apart. The Veteran was afforded a VA examination in April 2021. The Veteran reported that he had pain and swelling in his legs and shrinkage on the right leg. He reported that he had very little activities, and used a walker because of decreased mobility. The Veteran was noted to have mild constant pain, moderate intermittent pain, mild paresthesias, and mild numbness in the lower extremities. Muscle strength testing showed normal strength in all areas tested. There was no evidence of atrophy. Reflex testing showed normal results. Sensory testing showed normal sensation in the thigh/knee and in the lower leg/ankle, but showed decreased sensation in the foot/toes. The examiner indicated that the Veteran's sciatic nerve was affected, and showed mild incomplete paralysis of the lower extremities. The Veteran was noted to use a walker on a regular basis. A review of the Veteran's post-service treatment records shows that he was being treated for both low back pain and its associated lower extremity radiculopathy. However, there was no description by the Veteran or the treating medical professionals of the severity of the symptoms. The Board finds that the Veteran's bilateral lower extremity radiculopathy has not been shown to have been manifested by moderately severe symptoms, such that evaluations in excess of 20 percent are warranted under Diagnostic Code 8620. At worst, the Veteran has been shown to have moderate symptoms in his lower extremities. At both the November 2015 and April 2021 VA examinations, the respective examiners found the severity of the Veteran's radiculopathy in both lower extremities to be mild incomplete paralysis. Although the clinical findings of record suggest mild incomplete paralysis, the regional office (RO) took into account the Veteran's flare-ups, and found his lower extremity radiculopathy to be more consistent with a finding of moderate incomplete paralysis. The Board acknowledges the Veteran's assertion that he is entitled to a higher rating, to include his testimony about the numbness, pain, and cramping he experiences; however, the clinical evidence of record indicates that he has suffered from mild incomplete paralysis, but in recognition of his flare-ups, more consistent with moderate incomplete paralysis. Here, the most probative evidence of record has indicated that he suffers from moderate symptoms of lower extremity radiculopathy. The Board recognizes the symptomatology experienced by the Veteran and does not wish to minimize them. However, the Board finds that the objective medical evidence of record regarding his lower extremity radiculopathy is best characterized by moderate incomplete paralysis, and not consistent with a finding of moderately severe or complete paralysis, related to his sciatic nerve condition. The Veteran's symptoms are predominantly, if not entirely sensory in nature. The examiner found in 2021 that the neurologic disability had not been productive of any trophic changes or any atrophy. Moreover, reflex and strength testing was normal. Accordingly, the criteria for ratings in excess of 20 percent for right and left lower extremity radiculopathy have not been met and the claims are denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.