Citation Nr: 21068528 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-55 127 DATE: November 10, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine (back disorder), from December 23, 2019 until February 4, 2021, is denied. Entitlement to a 40 percent rating for a back disorder, from February 4, 2021 until April 21, 2021, is granted. Entitlement to a rating in excess of 40 percent for a back disorder, beginning April 21, 2021 is denied. Entitlement to a 10 percent rating for sciatic nerve radiculopathy of the left lower extremity (LLE), from April 13, 2015 until April 21, 2021, is granted. Entitlement to a 20 percent rating for sciatic nerve radiculopathy of the LLE, beginning April 21, 2021, is granted. Entitlement to a 10 percent rating for sciatic nerve radiculopathy of the right lower extremity (RLE), from April 13, 2015 until April 21, 2021, is granted. Entitlement to a 20 percent rating for sciatic nerve radiculopathy of the RLE, beginning April 21, 2021, is granted. FINDINGS OF FACT 1. From December 23, 2019 to February 3, 2021, the Veteran's service-connected back disorder manifested in flexion of no less than 60 degrees, but did not manifest in ankylosis or intervertebral disc syndrome (IVDS). 2. Beginning February 4, 2021, the Veteran's service-connected back disorder manifested in flexion of 30 degrees, but did not manifest in ankylosis or IVDS with incapacitating episodes. 3. The Veteran's service-connected back disorder manifested in mild incomplete paralysis of the right and left sciatic nerves from the April 13, 2015 date of claim until April 21, 2021, and then moderate incomplete paralysis as of that date. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for the service-connected back disorder, from December 23, 2019 until February 4, 2021, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. The criteria for entitlement to a 40 percent rating for the service-connected back disorder, from February 4, 2021 until April 21, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242-5243. 3. The criteria for entitlement to a rating in excess of 40 percent for the service-connected back disorder, beginning April 21, 2021 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242-5243. 4. The criteria for entitlement to a 10 percent rating for the service-connected LLE radiculopathy, from March 13, 2015 until April 21, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.124(a), Diagnostic Code 8520. 5. The criteria for entitlement to a 20 percent rating for the service-connected LLE radiculopathy, beginning April 21, 2021 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.124(a), Diagnostic Code 8520. 6. The criteria for entitlement to a 10 percent rating for the service-connected RLE radiculopathy, from March 13, 2015 until April 21, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.124(a), Diagnostic Code 8520. 7. The criteria for entitlement to a 20 percent rating for the service-connected RLE radiculopathy, beginning April 21, 2021, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.124(a), Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to August 2004. In March 2021, the Board of Veterans' Appeals (Board) remanded the claim of an increased rating for the service-connected back disorder, beginning December 23, 2019. During the pendency of the appeal, in June 2021, the agency of original jurisdiction (AOJ) granted an increased rating of 40 percent, effective April 21, 2021. The grant by the AOJ is not considered a full grant of the benefits sought on appeal, and the issues are still before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In June 2021, the AOJ also granted entitlement to service connection for right and left lower extremity radiculopathy, with separate 10 percent evaluations effectuated as of April 21, 2021, in connection with the Veteran's increased rating claim. In Chavis v. McDonough, 34 Vet. App. 1 (2021), the United States Court of Appeals for Veterans Claims (Court) held that the Board has jurisdiction to address ratings for associated radiculopathy without requiring a separate notice of disagreement (NOD) as to the radiculopathy ratings when those issues were part of the Veteran's claim for an increased rating. Thus, the Board finds, like in Chavis, the Board has jurisdiction to address the ratings for right and left lower extremity radiculopathy as well as any other neurological impairments. The Veteran's has not asserted that his service-connected disabilities render him unemployable, in conjunction with the increased-rating claims currently before the Board. Accordingly, the Board finds that a TDIU claim is not part of the Veteran's claim for a higher initial rating. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In May 2021, the Veteran's representative requested a copy of the April 2021 VA back examination. In July 2021, the Veteran's representative requested a copy of the April 2021 VA back examination and the March 8, 2021 VA letter which was cited in the June 2021 supplemental statement of the case (SSOC). In August 2021, the Board fulfilled the privacy request by sending the requested documents on CD/DVD to the representative's address on file. In October 2021 the representative asserted that the April 2021 examination was never received. Later in October 2021, the Veteran's representative sent a letter to the Board, which documented the findings of the April 2021 VA examination. There is a presumption of regularity that government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. See Marsh v. Nicholson, 19 Vet. App. 381 (2005); see also Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). A claimant may rebut the presumption by submitting clear evidence to the effect that VA's regular mailing practices were not followed. An "assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process." Jones v. West, 12 Vet. App. 98, 102 (1998). Here, there is insufficient evidence to rebut the presumption of regularity. The address to which the August 2021 letter was sent is the same address listed on the representative's letterhead and VA Form 21-22. The August 2021 letter was not returned as undeliverable, and the representative listed the findings of the April 2021 VA examinations in the most recent letter addressed to the Board. Accordingly, the Board finds there is no outstanding privacy request. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to increased ratings for a service-connected back condition When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. Spinal conditions are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. §§ 4.25, 4.71a, Diagnostic Codes 5242, 5243. The General Rating Formula (Diagnostic Codes 5235-5242) provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion (ROM) 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. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5242). Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees; extension from 0 to 30 degrees; lateral flexion bilaterally from 0 to 30 degrees; and rotation bilaterally from 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. Note (1). A 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks during the past 12 months. A 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is assigned with incapacitating episodes of at least 6 weeks during the past 12 months. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. These amendments did not change the criteria for compensation based on limitation of motion of the thoracolumbar spine under the general rating criteria and are therefore not relevant to this appeal. 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020). There is a newly enacted Diagnostic Code 5244 addressing complete traumatic paralysis, but this particular spine disability is not shown in the present case. The Veteran was afforded a VA examination in December 2019. The Veteran reported moderate flare-ups which would vary in duration. The flare-ups were caused by ROM and weight-bearing. Forward flexion measured at 90 degrees, with evidence of pain with weight bearing; but the pain noted on examination did not result in functional loss. There was no additional functional loss caused by flare-ups, weight bearing or ROM. Neither pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time. Pain did significantly limit functional ability with flare-ups, and the forward flexion was described as 60 degrees with flare-ups. There was no guarding or muscle spasms. The straight leg test was normal. There was no evidence of any neurological abnormalities, ankylosis, or IVDS. The Veteran's standing/ambulation was limited to 10-30 minutes, and his weightbearing was limited to 10-20 lbs. In February 2021, the Board received an affidavit from the Veteran. The Veteran reported that his lumbar spine symptoms had worsened since the December 2019 VA examination. His back had become stiffer and had increased his limitation of motion. Since December 2019, it had become harder to bend over to put on his shoes and socks. He had increased pain in his low back and right leg when he would walk, sit or stand for long periods of time. It was hard to shower and bathe due to his back pain, and the pain would prevent him from leaving his home sometimes. Pain would still rate at 5/6 out of 10 with medication. The Veteran was provided with a VA examination in April 2021. The Veteran was diagnosed with bilateral lower extremity radiculopathy. The Veteran did not report flare-ups. Forward flexion measured at 30 degrees, and this decreased ROM was reflective of the Veteran's difficulty walking and difficulty with weight bearing. Passive ROM was the same as active ROM. There was evidence of crepitus and sharp throbbing pain due to palpation of the joint. There was no evidence of limitation of functional ability due to repetitive use testing, repeated use over time, or flare-ups. Muscle spasms and guarding resulted in an abnormal gait. There was no muscle atrophy. The examiner noted bilateral sciatic and femoral nerve involvement. There was no evidence of ankylosis, or incapacitating episodes due to diagnosed IVDS. The Board notes the 2021 VA examination complies with the criteria outlined in Sharp and Correia in terms of specific forms of motion testing and addressing flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). From December 23, 2019 to February 3, 2021, the Veteran's back disability most closely approximates a 20 percent rating. The lowest forward flexion ROM finding is 60 degrees, which is the highest flexion measurement within the criteria for a 20 percent rating. The Veteran's ROM findings do not warrant consideration of a rating in excess of 20 percent, and the Veteran's record is negative for findings of ankylosis or IVDS with incapacitating episodes to warrant a rating in excess of 20 percent. There is evidence of additional functional loss caused by prolonged sitting, pain, and repetitive use. However, the Veteran's 60-degree flexion accounted for pain due to flare-ups as normal active motion flexion measured at 90 degrees. When taking into account the additional functional loss, the Board is unable to find evidence that the ROM in conjunction with the additional functional loss would closely approximate a 20 percent rating. The ROM would need to decrease by more than 30 degrees, and there is no evidence to support such a change in ROM even when considering functional loss under. 38 C.F.R. § 4.45; DeLuca, supra. In the absence of ankylosis, IDVS, or lower ROM findings, the Board finds the evidence does not warrant a rating in excess of 20 percent prior to February 4, 2021. Beginning February 4, 2021, the Board finds the Veteran's back disorder warranted a 40 percent rating. In an affidavit received by the Board on February 4, 2021, the Veteran reported a worsening of his symptoms since the December 2019 VA examination. The Veteran described decrease range of motion an increased pain. The Board notes this is the first evidence of worsening, either medical or lay, which shows worsening of the Veteran's symptoms since the December 2019 VA examination. Based upon the Veteran's lay evidence of increased symptoms, a VA examination was provided approximately 2 months later in April showed active motion ROM had decreased by 60 degrees since December 2019. The 30 degrees of flexion warrants a 40 percent rating. The Board has searched the record for additional evidence which would warrant a 40 percent rating prior to February 4, 2021; however, there is no such evidence. The Board acknowledges that the February 2021 affidavit reports that the Veteran's symptoms had worsened since December 2019, but there is no contemporary evidence for approximately 13 months upon which the Board can glean when the Veteran's disability most closely approximated a 40 percent rating. Beginning April 21, 2021, the Board does not find evidence which warrants a rating in excess of 40 percent for the service-connected back disorder. The General Rating Formula applies with or without symptoms such as pain. DeLuca and associated regulations do not apply because a 40 percent evaluation is the maximum allowable disability rating for limitation of motion of the thoracolumbar spine. See Johnston v. Brown, 10 Vet. App. 80 (1997). A higher rating under the General Rating Formula is not warranted unless there is unfavorable ankylosis present. The record is negative for any probative evidence of ankylosis. Thus, the Board finds that a higher rating based on ankylosis is not warranted under the General Rating Formula. The Board has considered the evidence of IVDS, but there is no evidence of IVDS or incapacitating episodes to warrant a higher rating under Diagnostic Code 5243. Accordingly, entitlement to a rating in excess of 20 percent rating a back disorder from December 23, 2019 to February 3, 2021 is denied; entitlement to a 40 percent rating for a back disorder, beginning February 4, 2021 is granted; and entitlement to a rating in excess of 40 percent, beginning April 21, 2021 is denied. Regarding neurological impairment, the lower extremity radiculopathy are addressed later in the decision, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. 2. Entitlement to increased ratings for lower extremity radiculopathy Under Diagnostic Code 8520, complete paralysis of the sciatic nerve, where the foot dangles or drops, there is no active movement possible of muscles below the knee, flexion of the knee weakened or lost, is rated as 80 percent. Severe paralysis of the sciatic nerve, with marked muscular atrophy, is rated as 60 percent. Moderately severe, moderate, and mild incomplete paralyses of the sciatic nerve are rated as 40, 20, and 10 percent, respectively. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The terms "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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 is for the mild, or at most, the moderate degree. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The December 2019 VA examination was negative for reports of or diagnoses for radiculopathy. In February 2021, the Veteran reported pain in his right leg. In the report of the April 2021 VA back examination, the Veteran was diagnosed with bilateral lower extremity radiculopathy, with a date of diagnosis of 2015. The Veteran reported moderate constant pain, moderate paresthesias, and moderate numbness in both lower extremities. The examiner found the femoral and sciatic nerves were affected bilaterally. In a June 2021 addendum opinion, the April 2021 VA examiner clarified the diagnosis provided for radiculopathy, finding that there was no evidence of femoral nerve involvement, and the Veteran's radiculopathy was due to moderate bilateral sciatic involvement. The Veteran's claim in this case was received on April 13, 2015, and the April 2021 VA examiner dated the bilateral lower extremity radiculopathy back to 2015. For this reason, the Board finds that 10 percent evaluations for mild symptoms are warranted from April 13, 2015, the date of claim. Given the results of the December 2019 VA examination and the dearth of any other findings of symptoms that were more than mild prior to April 21, 2021, there is no basis for higher evaluations between April 13, 2015 and April 21, 2021. A more significant disability picture was shown on the April 21, 2021 examination, and the Board finds this to be consistent with moderate incomplete paralysis bilaterally. That said, the record is negative for evidence of motor function deficiencies or trophic changes due to the lower extremity radiculopathy. Radiculopathy symptoms, which are wholly sensory, are limited to moderate severity. Based on the foregoing, the Board finds the Veteran's service-connected lumbar strain manifested in lumbar radiculopathy of the right and left sciatic nerves to a moderate degree, beginning April 21, 2021. Accordingly, entitlement to a 20 percent rating for radiculopathy of the right sciatic nerve and entitlement to a 20 percent rating for radiculopathy of the left sciatic nerve is granted for this period. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.