Citation Nr: 21067111 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-19 306A DATE: November 3, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, for degenerative joint disease (DJD) of the thoracolumbar spine, prior to November 28, 2012, is granted. Entitlement to an initial rating in excess of 20 percent for DJD of the thoracolumbar spine, from February 1, 2013, is denied. Entitlement to a separate rating of 40 percent, but no higher, for right lower extremity (RLE) radiculopathy, from August 1, 2011, is granted. FINDINGS OF FACT 1. Prior to November 28, 2012, the Veteran's DJD of the thoracolumbar spine was manifested by forward flexion of less than 60 degrees but greater than 30 degrees. 2. From February 1, 2013, the Veteran's DJD of the thoracolumbar spine was not manifested by forward flexion at 30 degrees or less. 3. From August 1, 2011, the Veteran's RLE radiculopathy was manifested by moderately severe symptoms. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent, but no higher, for DJD of the thoracolumbar spine, prior to November 28, 2012, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for an initial rating in excess of 20 percent for DJD of the thoracolumbar spine, from February 1, 2013, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for a separate rating of 40 percent, but no higher, for RLE radiculopathy, from August 1, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1984 to July 2011. The Veteran appealed an August 2012 rating decision by the Agency of Original Jurisdiction (AOJ). In April 2021, the Board of Veterans' Appeals (Board) remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that while the case was remanded for further development, the Veteran submitted correspondence in May 2021 noting that he wished to withdraw his appeal as to the issues regarding the initial rating for the right foot and a total disability rating based on individual unemployability (TDIU). A withdrawal is effective when received. See 38 C.F.R. § 19.55. Therefore, the Board finds that the issues regarding the initial rating for the right foot and TDIU are no longer on appeal. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled "Painful motion," states, in pertinent part, "The intent of the 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." In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the new regulations do not impact the Veteran's ratings as to a higher rating. Therefore, the Board will not address them in this decision. 1. Back All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. If the Veteran has Intervertebral Disc Syndrome (IVDS), the Veteran may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ultimately, the Veteran's disability rating will depend on which diagnostic code results in the higher evaluation. Here, the Veteran has had IVDS. See April 2014 examination report. Therefore, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is applicable. The pertinent criteria under the General Rating Formula for Diseases and Injuries of the Spine are as follows: Unfavorable ankylosis of the entire spine - 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine - 30 percent disabling. 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 not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis - 20 percent disabling. Importantly, VA is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5243, Note (1). Here, the Veteran's service-connected back condition has associated RLE radiculopathy. The Veteran does not have other objective neurologic abnormalities that rise to compensable levels. Radiculopathy will be addressed below. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 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 ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5237, Note (2). Under the IVDS Formula a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. Although the Veteran has had IVDS, the Veteran is only noted to have IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. See April 2014 examination report. This would only warrant a 10 percent rating under the IVDS Formula. The Veteran noted having incapacitating episodes that far exceed a period of 6 weeks. See May 2016 VA notice of disagreement (NOD). However, the Veteran does not detail that this happened in the past 12 months and medical evidence does not note IVDS that would warrant a higher than 10 percent rating. Therefore, it would not be advantageous to rate the Veteran under the rating criteria for IVDS. The Board notes that the Veteran is already awarded a 100 percent rating from November 28, 2012 to January 31, 2013 for his back condition. As the maximum rating is already awarded for the back during this time period, the Board will not address this period in this decision. A. Prior to November 28, 2012 The April 2012 examination report noted painful motion of forward flexion begins at 50 degrees. The Board finds that the Veteran is entitled to a 20 percent rating prior to November 28, 2012. The April 2012 examination report clearly notes that painful motion of forward flexion begins at 50 degrees. However, a higher rating is not warranted. Medical evidence during the period on appeal does not note the existence of ankylosis. The Veteran and his representative do not contend that the Veteran has ankylosis or was completely unable to move his back at all. Overall, the medical evidence suggests the Veteran was still able to move and bend his back to a certain extent, even during flare-ups. During certain episodes, the Veteran experienced increased pain and decreased ROM. However, such does not constitute ankylosis of the spine or no ROM. Furthermore, medical evidence does not demonstrate forward flexion to 30 degrees or less, even during flare-ups. Therefore, a higher than 20 percent rating is not warranted. B. From February 1, 2013 The April 2014 examination report noted back surgery in November 2012, flare-ups with any type of physical activity, that the examination was conducted during a flare-up, and forward flexion at 35 degrees after repetitive use testing. The September 2019 examination report noted flare-ups with bending over and forward flexion at 85 degrees. The August 2021 examination report noted an improved condition since the 2012 surgery and forward flexion at 90 degrees. The Board finds that the Veteran's 20 percent rating is appropriate from February 1, 2013. Medical evidence shows forward flexion to only 35 degrees during flare-ups and repetitive use testing. Medical evidence during the period on appeal do not note the existence of ankylosis. The Veteran and his representative do not contend that the Veteran has ankylosis or was completely unable to move his back at all. Overall, the medical evidence suggests the Veteran was still able to move and bend his back to a certain extent, even during flare-ups. During certain episodes, the Veteran experienced increased pain and decreased ROM. However, such does not constitute ankylosis of the spine or no ROM. Furthermore, medical evidence does not demonstrate forward flexion to 30 degrees or less, even during flare-ups. Therefore, a higher than 20 percent rating is not warranted. 2. Radiculopathy Mild incomplete paralysis warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Descriptive words such as "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 for "equitable and just decisions." 38 C.F.R. § 4.6. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis 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. The Board notes that a March 2016 rating decision granted service connection for RLE radiculopathy at a 20 percent rating effective November 27, 2012. However, the Veteran has claimed RLE radicular symptoms for the entire period on appeal. See April 2011 VA Form 21-526. As discussed below, the Board finds the Veteran should be entitled to a separate rating for RLE radiculopathy for the entire period on appeal. The Veteran's December 2011 NOD noted that he had a surgical procedure that did not solve his foot numbness or leg pain, which has led to missed workdays, and has caused limitations with walking, bending, twisting, and driving. November 2012 treatment records noted debilitating RLE radiating pain and a chronic history of pain. The April 2014 examination report noted chronic right foot numbness, muscle spasms, cramping, and moderate constant pain, paresthesias and/or dysesthesias, and numbness in the RLE. The Veteran stated in his April 2016 VA Form 9 that his RLE radiculopathy is moderately severe so much that it impacts everything he does, he cannot sit for long periods, exercise, or drive for long periods, and that he has cramps at night that wake him. Overall, the Veteran states that his condition is severe and incapacitating, that he had to change jobs as a result, and that he should be given a rating of moderately severe. Id. Furthermore, the Veteran stated the condition existed prior to his 2012 surgery and since his retirement from the military. The September 2019 examination report noted moderate radicular symptoms. The August 2021 examination report noted constant pain, numbness, and tingling down the right leg, mild RLE constant pain, moderate RLE intermittent pain, severe RLE paresthesias and/or dysesthesias, and severe RLE numbness. Based on the evidence, the Board finds that the Veteran is entitled to a separate rating of 40 percent, but no higher, for his RLE radiculopathy for the entire period on appeal from August 1, 2011. The Veteran suffered from moderately severe RLE radicular symptoms due to his service-connected back condition. Medical examinations noted at least moderate radicular symptoms throughout the period on appeal. The Veteran has reported RLE radicular symptoms since filing his initial claim for service connection for his back condition. There is consistent medical treatment records for debilitating RLE radicular symptoms throughout the period on appeal. The Veteran has provided statements and details regarding his RLE radicular symptoms and argues that his condition is moderately severe and existed prior to his 2012 surgery. The Veteran is competent to attest to the existence and severity of his RLE radicular symptoms. The Board finds the Veteran's statements credible. As such, a separate rating of 40 percent, but no higher, is warranted for the Veteran's RLE radiculopathy for the entire period on appeal from August 1, 2011. However, the Veteran is not entitled to a higher rating. A higher rating would require there to be severe incomplete paralysis with marked muscular atrophy or complete paralysis. The Veteran has not been found to have muscular atrophy or complete paralysis. As such, a higher than 40 percent rating is not warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.