Citation Nr: 21067278 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 10-43 406 DATE: November 3, 2021 ORDER Entitlement to a rating in excess of 20 percent for a back disability is denied. Entitlement to a 10 percent rating for radiculopathy of the right lower extremity before February 5, 2014, is granted. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. REMANDED Entitlement to a compensable rating for a migraine headache disability before December 19, 2013, is remanded. Entitlement to a rating in excess of 10 percent for a migraine headache disability on and after December 19, 2013, is remanded. FINDINGS OF FACT 1. The Veteran's back disability has not resulted in forward flexion limited to 30 degrees or less, ankylosis, or incapacitating episodes of intervertebral disc disease (IVDS). 2. Before February 5, 2014, the Veteran's radiculopathy of the right lower extremity resulted in symptoms approximating, at worst, mild incomplete paralysis of the sciatic nerve. 3. The Veteran's radiculopathy of the right lower extremity has not resulted in symptoms approximating moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 2. Before February 5, 2014, the criteria for a 10 percent rating for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. The criteria for a rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2000 to April 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Agency of Original Jurisdiction (AOJ) that granted service connection for a back disability with an initial 20 percent rating and granted service connection for a migraine headache disability with an initial noncompensable rating. A December 2014 rating decision granted a 10 percent rating for radiculopathy of the right lower extremity effective February 5, 2014. A February 2015 rating decision increased the rating of the Veteran's migraine headache disability to 10 percent effective December 19, 2013. The Veteran participated in a videoconference hearing before the undersigned Veterans Law Judge in June 2021. A transcript of this hearing has been associated with the record. INCREASED RATING The Veteran contends that her back disability warrants a rating in excess of 20 percent. Spine disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides for the following ratings, in pertinent part: 40 percent: Forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 50 percent: Unfavorable ankylosis of the entire thoracolumbar spine. 100 percent: Unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. The criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Formula for Rating IVDS Based on Incapacitating Episodes rates lumbar spine disabilities as follows, in pertinent part: 40 percent: Incapacitating episodes having a total duration of at least four weeks but fewer than six weeks during the past 12 months. 60 percent: Incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5237. 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. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. This revision did not, however, change the General Rating Formula for Diseases and Injuries of the Spine, nor did it change the Formula for Rating IVDS Based on Incapacitating Episodes. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Therefore, the revised criteria effective February 7, 2021, are not applicable in this case and the Board will not consider them. Turning to the facts in this case, the Veteran filed her underlying claim for service connection in April 2009. The Veteran underwent a VA examination in July 2009, at which time the examiner diagnosed the Veteran with degenerative disc disease. The Veteran experienced continuous pain in her low back of a 5-7/10 severity, and she denied experiencing any flare-ups of back pain in the past year. The Veteran had flexion to 30 degrees, at which time she reported that she could not bend forward, and she did not repeat the motion for the examiner. With that said, the examiner observed that the Veteran could bend over to remove her socks from her feet, and she raised each leg above 90 degrees at the hip in order to put on her pants. The Veteran showed extension to 20 degrees with pain, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees. The Veteran had not experienced any incapacitating episodes of back pain during the past year. The Veteran underwent an additional VA examination in December 2013, at which time the examiner diagnosed the Veteran with degenerative disc disease and IVDS. The Veteran indicated that she experienced daily pain in her lower back of a 5/10 severity. The Veteran stated that she experienced flare-ups of worsened back pain when engaging in activities such as doing the dishes; during such flare-ups, she had to sit down. The Veteran had forward flexion to 80 degrees, extension to 30 degrees or greater, bilateral lateral flexion to 30 degrees or greater, and bilateral lateral rotation to 30 degrees or greater. Repetitive use testing did not result in an additional loss of motion or other functional loss. There was no ankylosis of the spine. There was no pain on palpation of the back, muscle spasm, or guarding. The Veteran's IVDS had not resulted in any incapacitating episodes over the preceding 12 months. The Veteran underwent an additional VA examination in October 2014, at which time the examiner diagnosed the Veteran with degenerative arthritis of the spine and IVDS. The Veteran indicated that she experienced "stable and continuing" pain in her lower back every few months, with each such episode lasting for a few hours. The Veteran otherwise denied experiencing flare-ups of back symptoms. The Veteran had forward flexion to 70 degrees, extension to 25 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees. Repetitive use testing did not result in an additional loss of motion or other functional loss. There was no ankylosis of the spine. There was no pain on palpation of the back, muscle spasm, or guarding. The Veteran's IVDS had not resulted in any incapacitating episodes over the preceding 12 months. An October 2014 x-ray of the Veteran's lumbar spine showed spondylosis at L5/S1. The Veteran underwent an additional VA examination in February 2020, at which time the examiner diagnosed the Veteran with degenerative disc disease. The Veteran indicated that her back pain interfered with her ability to engage in heavy lifting, twisting, and bending over. The Veteran stated that she experienced flare-ups of worsened back pain for a few days after engaging in heavy lifting. The Veteran had forward flexion to 65 degrees with pain, extension to 25 degrees with pain, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees. The Veteran's pain itself resulted in a functional loss, and she had pain with weight-bearing, but not with non-weight bearing. Repetitive use testing did not result in an additional loss of motion or other functional loss. While the Veteran was not being examined immediately after repeated use over time, the examiner found that pain associated with repeated use over time would significantly limit the Veteran's functional ability. With that said, the examiner did not express such functional loss in terms of lost motion because the examiner found that the pain associated with repeated use would not cause a loss of motion. The examiner found that the pain associated with the Veteran's flare-ups would result in a limitation of forward flexion to 55 degrees, extension to 20 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees. There was no ankylosis. The Veteran showed no guarding, but had occasional muscle spasm that did not result in an abnormal gait or abnormal spinal contour. The examiner found that the Veteran's back disability resulted in a disturbance of locomotion and interference with standing. The examiner found that the Veteran did not have IVDS. In addition to the results of these VA examinations, the Board has reviewed the Veteran's VA and private treatment records, which show that the Veteran has consistently received treatment for chronic low pain since filing her appeal. These treatment records show a symptom picture that is broadly consistent with the observations of VA examiners. For example, in January 2014, a physical therapist indicated that the Veteran had forward flexion to 60 degrees with pain, extension to 15 degrees with pain, full lateral flexion without pain, and full rotation without pain. In February 2014, a physical therapist noted that the Veteran had "75% full flexion" with pain, which, the Board notes, is approximately 68 degrees of flexion, and full left rotation with pain. Consideration has also been given to the lay contentions regarding the Veteran's symptoms. Throughout the appeal, the Veteran has described experiencing back pain that she believes warrants a rating in excess of 20 percent. For example, in October 2010, the Veteran described experiencing continuing pain despite treatment that included steroid injections, physical therapy, and physical exercise. During her June 2021 hearing before the undersigned, the Veteran described her history of back pain. The Veteran indicated, however, that she did not believe that her range of motion had worsened since the time of her February 2020 VA examination. Turning to an analysis of these facts, the Veteran's back disability is rated 20 percent disabling. A greater rating under the General Rating Formula for Diseases and Injuries of the Spine requires either ankylosis or forward flexion of the thoracolumbar spine to 30 degrees or fewer. The Veteran's medical treatment records and examination reports do not show ankylosis of the spine at any time or the functional equivalent of ankylosis or immobility. Consistent with the medical records, the Veteran has never contended that her spine is immobile. Though the Veteran has experienced painful movement of the spine throughout the appeal, the Veteran has consistently maintained a range of motion of the thoracolumbar spine. Similarly, the Veteran's back has not been functionally limited to 30 degrees of forward flexion or fewer at any time, even considering her symptoms following repeated use, with repeated use over time, and during flare-ups. In making this determination, the Board notes that during her July 2009 examination, the Veteran stated to the examiner that she could not engage in forward flexion beyond 30 degrees. With that said, the examiner otherwise observed that outside of formal range of motion testing, the Veteran showed flexion to 90 degrees when engaging in examination-room activities such as putting her pants on. The Veteran has not otherwise shown a limitation of forward flexion to 30 degrees at any time during the appeal period. The Board thus finds that the weight of the evidence is against a finding that the forward flexion of the Veteran's spine has been limited to 30 degrees or fewer at any time. With greater ratings unavailable based on the General Rating Formula for Diseases and Injuries of the Spine, the Board will next consider whether greater ratings are warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. The record shows that the Veteran indeed has IVDS. With that said, a greater rating based on IVDS requires not only such a diagnosis, but also the presence of incapacitating episodes with bed rest and treatment prescribed by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, the weight of the evidence, including the findings of all examiners, does not support a finding that the Veteran has experienced incapacitating episodes with physician-prescribed bed rest. The evidence does not show the presence of incapacitating episodes of IVDS, and the criteria for a greater rating based on IVDS have not been met. In making these determinations, the Board has considered the Veteran's functional loss due to factors such as pain, weakened movement, excess fatigability, and incoordination that cause additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board accepts the Veteran's competent and credible assertions that her service-connected back disability causes her to experience pain, and the Veteran's existing rating has been assigned based in part on those assertions. The rating schedule does not require a separate rating for pain itself. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board has also considered the effects of flare-ups on the Veteran's functioning. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Such flare-ups must be quantifiable and result in a limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of a sufficient length to establish a greater severity of overall impairment, rather than a brief snapshot in time. The Board's above analysis considers the Veteran's reports of the nature and extent of her flare-ups and finds that these reports do not warrant a greater rating than what is currently assigned. Generally, when evaluating diseases and injuries of the spine, the Board is to separately evaluate any associated neurological abnormalities. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Bowel and bladder disorders have not been found or endorsed. With that said, the Veteran is in receipt of a 10 percent rating for radiculopathy of the right lower extremity on and after February 5, 2014. The Board will address whether a greater rating of the Veteran's neurological symptoms are available at any time during the period on appeal. A 10 percent rating applies to mild incomplete paralysis of the sciatic nerve, a 20 percent rating applies to moderate incomplete paralysis, a 40 percent rating applies to moderately severe incomplete paralysis, and a 60 percent rating applies to severe incomplete paralysis with marked muscular atrophy. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. While an 80 percent rating applies to complete paralysis of the sciatic nerve, the record contains no clinical evidence of complete paralysis, nor has the Veteran alleged that she has complete paralysis. Id. Terms such as "mild", "moderate", and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. Turning to the facts in this case, the Veteran underwent a VA examination in July 2009, at which time the Veteran complained of experiencing pain that radiated into her legs. The Veteran indicated that she experienced momentary spasms in her right hip. Muscle strength, reflex, and sensory testing were all normal. The examiner found it to be at least as likely as not that the Veteran had radiculopathy of the right lower extremity as the result of her back disability. The Veteran underwent an additional VA examination in December 2013, at which time the Veteran complained of experiencing numbness and tingling in both feet a few times a day. Muscle strength testing was normal, and the Veteran had no muscle atrophy. Reflex and sensory testing were normal. The examiner found that the Veteran experienced mild paresthesias, dysesthesias, and numbness of the right lower extremity but no other signs or symptoms of radiculopathy of either extremity. The examiner indicated that the Veteran's symptoms resulted in mild sciatic radiculopathy of the right lower extremity. The Veteran underwent an additional VA examination in October 2014, at which time the Veteran complained of experiencing intermittent pain that radiated down her right leg into her toes. This pain occurred every few months, with each such episode lasting for a few hours. Muscle strength testing was normal, and the Veteran had no muscle atrophy. Reflex testing showed a hypoactive reflex at the right knee but was otherwise normal. Sensory testing was normal. The examiner found that the Veteran experienced mild paresthesias, dysesthesias, and numbness of the right lower extremity but no other signs or symptoms of radiculopathy of either extremity. The examiner indicated that the Veteran's symptoms resulted in mild sciatic radiculopathy of the right lower extremity. The Veteran underwent an additional VA examination in February 2020, at which time the examiner noted that the Veteran complained of experiencing pain radiating into her right leg since 2009. Muscle strength testing was normal, and the Veteran had no muscle atrophy. Reflex and sensory testing were normal. The examiner found that the Veteran experienced mild intermittent pain of the right lower extremity but no other signs or symptoms of radiculopathy of either extremity. The examiner indicated that the Veteran's symptoms resulted in mild sciatic radiculopathy of the right lower extremity. In addition to the results of these VA examinations, the Board has reviewed the Veteran's VA and private treatment records, which show that the Veteran has consistently complained of radiating pain into her right leg since filing her appeal. These treatment records show a symptom picture that is broadly consistent with the observations of VA examiners. For example, in October 2006, the Veteran's patellar reflexes were noted to be intact. In April 2021, a clinician noted that the Veteran had experienced sciatic pain of the right lower extremity since approximately 2006. Turning to an analysis of these facts, the Board finds that the Veteran's radicular symptoms of the right lower extremity have remained generally consistent since filing her underlying claim for service connection for a back disability. For example, during her July 2009 examination, the Veteran complained of radiating pain into her right leg, and in April 2021, a clinician noted that the Veteran had experienced sciatic pain of the right leg since 2006. The weight of the evidence does not support a finding that the Veteran's radicular symptoms of the right lower extremity either first manifested on February 5, 2014, or worsened as of that date. With the Veteran's symptoms of radiculopathy of the right lower extremity remaining relatively constant throughout the appeal, the Board thus finds that a 10 percent rating for radiculopathy of the right lower extremity is warranted for the entire appeal period (date of claim). With that said, a rating in excess of 10 percent for radiculopathy of the right lower extremity is unwarranted at any time. Such a rating requires at least moderate incomplete paralysis of the sciatic nerve. The Veteran has consistently complained of subjective symptoms such as pain and dysesthesias of the right lower extremity. With that said, examiners in December 2013, October 2014, and February 2020, found the radicular symptoms affecting the right lower extremity to be mild. Furthermore, the medical evidence shows that sensory, muscle, and reflex testing of the right lower extremity were generally either normal or mildly impaired. The Board finds that the weight of the evidence does not show moderate incomplete paralysis of the right sciatic nerve, and a rating in excess of 10 percent for radiculopathy of the right lower extremity is unwarranted at any time. Neurological symptoms affecting the Veteran's left lower extremity do not warrant a compensable rating at any time. To the extent the Veteran suffers from neurological symptoms affecting the left leg, such symptoms have been no more than slight. While the Veteran has consistently sought treatment for symptoms such as pain affecting her right leg, she has not generally sought treatment for symptoms affecting her left leg. Consistent with this observation, examiners in December 2013, October 2014, and February 2020 found the Veteran's left sciatic nerve to be normal. Accordingly, the Board finds that the neurological symptoms affecting the left leg do not rise to the level of mild incomplete paralysis, and a compensable rating addressing neurological symptoms of the left leg is unwarranted. REASONS FOR REMAND The Veteran last underwent an examination addressing the severity of her migraine headache disability in October 2014. At that time, the Veteran stated that the frequency of her headache pain had decreased, and the examiner indicated that the Veteran experienced characteristic prostrating attacks of headache pain less frequently than one in two months over the last several months. During her June 2021 hearing before the undersigned, however, the Veteran reported that she experienced five to seven prostrating attacks of headache pain a month. With the Veteran's allegation suggesting that her migraine headache disability has increased in severity since her October 2014 examination, the Veteran should be provided with an additional examination to address the current severity of her migraine headache disability. This matter is REMANDED for the following action: Schedule the Veteran for a VA examination addressing the current nature and severity of her migraine headache disability. The claims folder and a copy of this Remand must be provided to the examiner in conjunction with the examination. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.