Citation Nr: 21068194 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-41 578 DATE: November 9, 2021 ORDER A 20 percent rating, but no more, for radiculopathy of the right lower extremity (RLE) is granted. A 20 percent rating, but no more, for radiculopathy of the left lower extremity (LLE) is granted. A rating in excess of 10 percent for lumbosacral strain prior to June 1, 2016, is denied. A rating in excess of 40 percent for lumbosacral strain since June 1, 2016, is denied. FINDINGS OF FACT 1. The Veteran had active duty from April 1984 to May 1992. 2. Radiculopathy of the RLE and LLE has been manifested by subjective complaints of pain and numbness; objective findings include, at worst, moderate incomplete paralysis of the right and left sciatic nerves. 3. Prior to June 1, 2016, a lumbar spine disability was manifested by subjective complaints of pain; objective findings included forward flexion to be, at worst, 90 degrees, the combined range of motion of the thoracolumbar spine to be, at worst, 180 degrees, and no muscle spasm, guarding or intervertebral disc syndrome (IVDS). 4. Since June 1, 2016, a lumbar spine disability has been manifested by subjective complaints of pain and muscle spasms; objective findings include no ankylosis and IVDS without incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no more, for radiculopathy of the RLE have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 8520 (2021) 2. The criteria for a 20 percent rating, but no more, for radiculopathy of the LLE have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, DC 8520 (2021) 3. The criteria for a rating in excess of 10 percent for a lumbosacral strain prior to June 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, DC 5237 (2021). 4. The criteria for a rating in excess of 40 percent for a lumbosacral strain since June 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, DC 5237 (2021) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in March 2019. A copy of the transcript has been associated with the claims file. In July 2019, the Board denied the claim. The Veteran appealed to the Veterans' Claims Court. In July 2020, the Court Clerk vacated the Board's decision in a Joint Motion for Partial Remand (JMPR) and remanded the claims for additional development. In February 2021, the Board remanded the claims as directed in the JPMR. These actions stem the basis for the current appeals. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. §§ 4.1. Separate diagnostic codes identify the various disabilities. Radiculopathy of the RLE and LLE Radiculopathy of the RLE and LLE have been rated at 10 percent under DC 8520. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under DC 8520, a 20 percent rating is warranted when the objective medical evidence shows moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted when the objective medical evidence shows moderately severe incomplete paralysis of the sciatic nerve. Turning to the medical evidence, at worst, moderate incomplete paralysis of the right and left sciatic nerves has been shown. Specifically, in an April 2014 VA examination, the Veteran complained of ongoing back pain. Upon examination, incomplete paralysis of the right and left sciatic nerves was rated as mild. Further, in a May 2015 clinical record, she denied numbness, and tingling. Upon examination, the clinician marked her neurologic examination as normal. In addition, in a June 2016 VA examination, she complained of numbness; however, the examiner marked that the Veteran did not have radiculopathy. In a December 2018 clinical record, weakness and numbness of the lower extremities was not shown. Further, in a June 2021 VA examination, the Veteran complained of moderate constant pain and numbness. Upon examination, incomplete paralysis of the right and left sciatic nerves was rated as moderate. Based on the above, the medical evidence supports a 20 percent rating, but no more, for radiculopathy of the RLE and LLE based on the most recent examination findings. In this regard, the medical evidence shows, at worst, moderate incomplete paralysis of the right and left sciatic nerves. Nonetheless, the medical evidence does not support a 40 percent rating, as the evidence does not show moderately severe paralysis of the right and left sciatic nerves. Therefore, the medical evidence supports a 20 percent rating, but no more, for radiculopathy of the RLE and Lumbar Spine The Veteran's lumbar spine disability has been rated at 10 percent under DC 5237 prior to June 1, 2016, and at 40 percent under DC 5237 since June 1, 2016. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Specifically, the amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine. Under the applicable rating criteria, a 20 percent rating is warranted when the objective medical evidence shows: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A rating in excess of 40 percent is warranted when the objective medical evidence shows: unfavorable ankylosis of the entire thoracolumbar spine (50 percent); or IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months (60 percent). Turning to the medical evidence for the first period on appeal, forward flexion has not been shown to be between 30 and 60 degrees. Specifically, in an April 2014 VA examination, the Veteran complained of ongoing back pain. Upon examination, forward flexion was limited to 90 degrees. While the examiner marked that the Veteran had functional loss, it was not described in terms of range of motion (ROM). Further, in an August 2014 clinical record, she complained of back pain that shot up to her neck and arm. However, upon examination, muscle tone and strength were normal. Next, the combined range of motion has not been shown to be 120 degrees or less. Specifically, in an April 2014 VA examination, forward flexion was 90 degrees, extension was 30 degrees or greater, right lateral flexion was 30 degrees or greater, and left lateral flexion was 30 degrees or greater. This equaled, at least, 180 degrees. In addition, the evidence does not show muscle spasm, guarding, or IVDS. Specifically, in an April 2014 VA examination, the examiner marked that the Veteran did not have muscle spasm, guarding, or IVDS. Based on the above, the medical evidence does not support a rating in excess of 10 percent for a lumbar spine disability prior to June 1, 2016. In this regard, the medical evidence showed forward flexion to be, at worst, 90 degrees, the combined range of motion of the thoracolumbar spine to be, at worst, 180 degrees, and no muscle spasm, guarding, or IVDS. While clinical records show treatment for a low back disability, they do not contradict the above findings. Therefore, the medical evidence does not support a rating in excess of 10 percent for a lumbar spine disability prior to June 1, 2016. Turning to the medical evidence for the second period on appeal, in a June 2016 VA examination, the Veteran complained of pain and muscle spasms. Upon examination, there was no evidence of ankylosis or IVDS. Further, in a September 2016 VA opinion, the clinician wrote that the Veteran had IVDS. However, the clinician did not write that IVDS resulted in capacitating episodes. In addition, in a June 2021 VA examination, the Veteran complained of daily flareups of pain. Upon examination, the examiner marked that the Veteran did not have ankylosis or IVDS. In an October 2020 clinical record, the Veteran complained of back pain. However, there was no evidence of ankylosis or IVDS. Based on the above, the medical evidence does not support a rating in excess of 40 percent for a lumbar spine disability since June 1, 2016. In this regard, the medical evidence showed no evidence of ankylosis and IVDS with no incapacitating episodes. Therefore, the medical evidence does not support a rating in excess of 40 percent for a lumbar spine disability since June 1, 2016. The Board has also considered the Veteran's lay statements and testimony that her disability is worse. While she is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which a lumbar spine disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by these disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, 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.