Citation Nr: 21068778
Decision Date: 11/12/21	Archive Date: 11/12/21

DOCKET NO. 14-24 102
DATE:    November 12, 2021

ORDER

Entitlement to a rating in excess of 40 percent for a low back injury with recurrent mechanical lumbosacral strain is denied.

Entitlement to a rating in excess of 20 percent for left lower extremity sciatic radiculopathy is denied.

Entitlement to a rating in excess of 10 percent for right lower extremity sciatic radiculopathy for the period prior to July 14, 2021, is denied.

Entitlement to a 20 percent rating for right lower extremity sciatic radiculopathy for the period beginning on July 14, 2021, is granted. 

FINDINGS OF FACT

1. The Veteran's low back injury with recurrent mechanical lumbosacral strain was not manifested by unfavorable ankylosis of the entire thoracolumbar spine during any period on appeal; the Veteran had IVDS but was not noted to have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months, nor were there flare-ups that equated to ankylosis.

2. The Veteran's left lower extremity sciatic radiculopathy was no more than moderate throughout the appeal period.

3. The Veteran's right lower extremity sciatic radiculopathy was mild prior to July 14, 2021, and moderate thereafter.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating in excess of 40 percent for a low back injury with recurrent mechanical lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 

2. The criteria for entitlement to a rating in excess of 20 percent for left lower extremity sciatic radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8520. 

3. The criteria for entitlement to a rating in excess of 10 percent for right lower extremity sciatic radiculopathy for the period prior to July 14, 2021, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8520. 

4. The criteria for entitlement to a rating in excess of 20 percent for right lower extremity sciatic radiculopathy for the period beginning on July 14, 2021, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8520. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in active duty in the United States Army from June 1987 to September 1987 and from June 1998 to July 1998.

In December 2019, the Board denied the Veteran's claim for entitlement to a rating in excess of 40 percent for a low back injury with recurrent mechanical lumbosacral strain, which the Veteran successfully appealed to the U.S. Court of Appeal for Veterans Claims (Court).

In a November 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the December 2019 denial of entitlement to a rating in excess of 40 percent for a low back injury with recurrent mechanical lumbosacral strain and remanded the issue for additional development consistent with the November 2020 JMPR. 

In June 2021, the Board remanded the above issue for additional development. The case has since returned to the Board for appellate review.

Increased Rating

The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999).

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In the instant case, the Veteran sought an increased rating for his back disability in an October 14, 2010 claim. Therefore, the period under consideration begins one year prior to the date of claim on October 14, 2009.

Staged ratings have been considered for the Veteran's low back injury with recurrent mechanical lumbosacral strain for the period on appeal. However, the Board finds that staged ratings are not appropriate for this condition as the evidence demonstrates that the Veteran's low back injury with recurrent mechanical lumbosacral strain has been consistent throughout the appeal period.

Musculoskeletal Disabilities

When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and 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. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40).

The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007); Fenderson, 12 Vet. App. at 126-27.

1. Entitlement to a rating in excess of 40 percent for a low back injury with recurrent mechanical lumbosacral strain is denied.

The Veteran's low back injury with recurrent mechanical lumbosacral strain has been rated under DC 5237. 38 C.F.R. § 4.71a. 

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5244, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 

The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (DC 5235), sacroiliac injury and weakness (DC 5236), lumbosacral or cervical strain (DC 5237), spinal stenosis (DC 5238), spondylolisthesis or segmental instability (DC 5239), ankylosing spondylitis (DC 5240), spinal fusion (DC 5241), degenerative arthritis of the spine (DC 5242) (for degenerative arthritis of the spine, see also DC 5003) (prior to Feb. 7, 2021), degenerative arthritis, degenerative disc disease other than IVDS (also, see either DC 5003 or DC 5010) (effective Feb. 7, 2021), IVDS (DC 5243), and complete traumatic paralysis (DC 5244) (effective Feb. 7, 2021).

The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the spine, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change.

The Board notes that, effective February 7, 2021, DC 5242 was amended to include degenerative disc disease other than IVDS. DC 5244 was also added to add paraplegia and quadriplegia. DC 5237, under which the Veteran's low back injury with recurrent mechanical lumbosacral strain is currently rated, was not changed. 

With respect to arthritis, DC 5010 was clarified to rate post-traumatic arthritis according to limitation of motion, dislocation, or instability. 

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a.

The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. 

The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate DC. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 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 combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. 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. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a.

In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, the Court has held that an adequate VA examination for the joints must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59.

However, in the present case, the Board notes that the Veteran is in receipt of the highest rating available for limitation of motion of the thoracolumbar spine, and a higher rating is not available absent ankyloses. The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Therefore, Correia and Deluca, and the provisions addressed therein, are not applicable here.

Additionally, as the Veteran is in receipt of the highest rating available based on limitation of motion, the Board will not discuss the Veteran's range of motion. Nor will the Board discuss symptoms that only relate to a rating lower than 40 percent, such as spasms or guarding. The Board also will analyze any evidence regarding sensory impairment or radiculopathy related to the Veteran's back, as he is already service connected for radiculopathy of the bilateral lower extremities.

Factual Background

As to the medical evidence, the Veteran underwent a VA examination for his back in December 2009. The report indicates diagnoses for lumbosacral strain and degenerative disk disease. The report does not comment on ankylosis of the spine but did note ranges of motion, indicating that there was no ankylosis by implication. The report indicates that neurologic and motor examinations were normal. The report does not indicate a diagnosis of IVDS but notes that the Veteran had no incapacitating events over the past 1 year requiring hospitalization. As to assistive devices, the report lists prior use of a cane.

The Veteran underwent VA examinations in November 2010 and December 2011 which similarly failed to comment on ankylosis, but again, noted range of motion in the spine, even with pain, and thus, indicate the absence of ankylosis by implication. 

The Veteran submitted a private June 2014 disability benefits questionnaire. The physician did not indicate a diagnosis of ankylosis and left "Section IX Ankylosis" blank.

In March 2018, the Veteran was afforded a new VA back examination. The report indicates diagnoses for lumbosacral strain and degenerative disc disease. The report indicates that there is no ankylosis of the spine. There were no neurologic abnormalities or findings related to the thoracolumbar spine (back) condition, including bowel or bladder problems. The Veteran was not noted to have IVDS. As to assistive devices, the report lists regular use of a walker. The report indicates there is no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The report indicates there were no other pertinent findings and no associated scars.

As to radiculopathy, the examiner noted that the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. 

In the July 2021 VA back examination, the noted the following diagnoses: degenerative arthritis, IVDS, and a low back injury with recurrent mechanical lumbosacral strain. Initial ROM testing was not performed. On the day of the examination, the Veteran reported back pain of an 8 out of 10 in severity and was unable to perform ROM testing due to fear of aggravating the pain in his back and the sharp shooting pain in his bilateral legs. The examiner noted that there was no evidence of pain and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran also did not perform observed repetitive use ROM testing. He was also not examined immediately after repeated use over time. As to repeated use over time, the examiner noted that pain significantly limited functional ability. In terms of ROM, forward flexion was further limited to 45 degrees, extension was limited to 15 degrees, right and left lateral flexion was limited to 15 degrees, right lateral rotation was limited to 15 degrees, and left lateral rotation was limited to 10 degrees. The Veteran did not report flare-ups of the thoracolumbar spine. The Veteran was not examined during a flare-up, and the examiner noted that functional loss was not further limited due to flare-ups. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The Veteran did not have muscle atrophy. There was no ankylosis of the spine. The Veteran declined strength testing, reflex testing, and sensory exam testing as the Veteran believed the testing would aggravate sharp pains in his lower extremities. The Veteran was unable to perform the straight leg raising test. 

As to functional loss, the Veteran reported that he cannot stand or walk for prolonged periods. Repetitive back movement such as bending and twisting causes lower back pain. The examiner noted that the Veteran is either in constant or regular use of a brace, cane, or walker due to his back condition. The Veteran reported that he experiences lower back pain; tingling and sharp shooting pains in the bilateral lower extremities; incontinence of bowel and bladder; and frequent bowel and bladder movements. The Veteran was noted to have IVDS of the thoracolumbar spine, but the Veteran was not noted to have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. As to functional loss, the Veteran stated that he was unable to stand and walk on the concrete all day at work, as it was causing pain in both legs and lower back. The Veteran reported that the prison in which he worked did not have a light duty job, so he had to resign from his position.

With respect to radiculopathy, the Veteran was noted to have a diagnosis of bilateral lower extremity radiculopathy. The July 2021 VA examiner noted that the Veteran had mild constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the bilateral lower extremities. The Veteran did not have any other signs of symptoms of radiculopathy. In terms of right and left radiculopathy, the examiner noted irritation of the nerve root. The Veteran further reports that he wears slip on shoes because of sharp shooting legs pains and numbness in feet. The Veteran stated that he has constant sharp shooting pain that radiates down his posterior legs.

As to other abnormalities, the examiner noted that the Veteran had bowel frequency and incontinence due to lower back condition. The Veteran reported that he believes his nerve problem in his lower back has caused him to urinate frequently and become incontinent of bowels. 

In July 2021, the Veteran also underwent a VA examination for urinary tract conditions, to include bladder and urethra conditions. The VA examiner did not note any diagnosis of a urinary tract condition. The examiner acknowledged that the Veteran reported he was experiencing urinary frequency and incontinence. The Veteran reported that he has to change his brief approximately four times a day and urinate at least every hour and half (approx. 11 times within a 24 hr period). The examiner noted that the Veteran had voiding dysfunction that caused daytime voiding between 1 and 2 hours and nighttime awakening to void 3 to 4 times. The examiner also noted that the Veteran's bladder condition affected his ability to work. Specifically, the Veteran stated having to go to the bathroom frequently interferes with his job duties, and he did not want to be around co-workers smelling like urine. However, the examiner noted that the claims file was reviewed and did not reveal a diagnosis for urinary incontinence or urinary frequency related to any medical condition. A diagnosis of urinary frequency and urinary incontinent was not given the day of the VA examination. The examiner reasoned that his medical records do not reveal diagnoses nor treatments for a chronic issue with urinary incontinence or urinary frequency related to a lumbar condition or another medical condition. The examiner also noted that the Veteran's medical records do not show a diagnosis for voiding dysfunction related to a chronic medical condition. Furthermore, the Veteran was not noted to have a urethral or bladder calculi, symptomatic bladder or urethral infection, or other bladder or urethral conditions. The Veteran did not have a benign or malignant neoplasm or metastases related to a bladder or urethra condition. 

Additionally, in July 2021, the Veteran underwent a VA examination for rectum and anus conditions. However, the VA examiner did not note any diagnosis of a rectum and anus condition. The examiner acknowledged that the Veteran reported a history of bowel incontinence and bowel frequency with worsening symptoms since 2012. The Veteran reported using incontinent briefs due to bowel incontinence, and he reported having approximately five loose stools a day. The examiner also noted that the Veteran's bladder condition affected his ability to work. Specifically, the Veteran stated having to go to the bathroom frequently interferes with his job duties, and he did not want to be around co-workers with his bowel incontinence. However, the examiner reasoned that the medical records do not reveal a diagnosis or treatment for bowel incontinence or bowel frequency related to a lumbar condition or another medical condition. The claim file was reviewed and did not reveal a diagnosis for bowel incontinence or bowel frequency related to any medical condition. Therefore, a diagnosis of bowel frequency and bowel incontinence was not given at the VA examination. 

Analysis

Given the evidence above, the Board finds that a rating in excess of 40 percent for the Veteran's low back injury with recurrent mechanical lumbosacral strain is not warranted.

As noted, a higher rating requires some form of ankylosis. In this case, there is no indication of ankylosis. The January 2018 or July 2021 VA back examinations indicated that the Veteran does not have ankylosis of the spine. Nor has the Veteran indicated that his back is ankylosed. Lacking competent evidence of ankylosis of either the lumbar or the entire spine, there is no basis for a higher rating under the General Rating Formula for Disease and Injuries of the Spine.

Nor is a higher rating warranted for pain. Initially, the Board notes that pain is accounted for in the General Rating Formula for Disease and Injuries of the Spine as it notes that the criteria are with or without pain or stiffness. See 38 C.F.R. § 4.71a, Diagnostic Code 5235-42. Therefore, although the rating criteria does not explicitly list pain, it allows for a rating based on pain. Moreover, the Veteran is in receipt of a higher rating for limitation of motion due to additional functional loss based on pain. There is no evidence that his pain causes him to be ankylosed or causes the functional equivalent of ankylosis, even during flare-ups, particularly as the Veteran denied flare-ups at his most recent examination. Chavis v. McDonough, Vet.App. , No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare."). The Board notes that the Veteran declined to do range of motion testing at his most recent examination for fear of aggravating his back pain, but he did not indicate that he could not move his back due to pain. Further, as noted, the impact of his pain on his range of motion and functional capacity is already being compensated in his current 40 percent rating. Thus, a higher rating due to functional loss associated with pain is not warranted. 38 C.F.R. § 4.59.

Nor is a higher rating warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. The July 2021 VA examiner noted that the Veteran had IVDS associated with his lumbar spine. However, the Veteran was not noted to have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Nor is there any other evidence in the record showing that the Veteran's IVDS required bed rest prescribed by a physician and treatment by a physician in the past 12 months. As the Veteran was did not have incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months at any point during the appeal period, a higher, 60 percent rating under the formula for IVDS is not warranted.

The Board acknowledges that the Veteran has contested the adequacy of the March 2018 and July 2021 VA examinations. Specifically, in a May 2019 statement, the Veteran reported that the March 2018 VA examiner did not account for the pain he experiences due to his low back condition. The Veteran also reported that he felt the March 2018 VA examiner did not listen to his issues. However, the Board notes that the March 2018 VA examiner did note the Veteran's pain in the VA examination. The VA examiner noted that the Veteran has had pain in his lower back that was gradually worsening. The examiner also noted that the Veteran reported daily constant diffuse low back pain, and the pain increases with all movement, especially bending. Therefore, the Board finds the March 2018 VA examination adequate for rating purposes. Moreover, as noted above, the Board reiterates that the Veteran is already being compensated for pain in his 40 percent disability rating. A rating in excess of 40 percent for his low back disability is not available absent ankylosis or its functional equivalent. 

In addition, in September 2021, the Veteran contested the adequacy of the Veteran's July 2021 VA examination. Specifically, he contended that the examiner did not listen to his complaints of having a bowel and bladder condition since 2012. The Board notes, however, that the July 2021 VA examiner did note that the Veteran experiences frequent bowel and bladder movements in all three VA examinations  his July 2021 VA examinations for his back, anus and rectum, and urinary tract conditions. Indeed, separate VA examinations were completed to determine whether the Veteran had any diagnoses related to bowel and bladder problems. Therefore, the Board finds the July 2021 VA examinations for his back, anus and rectum, and urinary tract conditions adequate for rating purposes. 

Accordingly, in light of the evidence of record, which does not indicate any form of ankylosis of the lumbar or entire spine or its equivalent during flare-ups, a rating in excess of 40 percent is not warranted for the Veteran's lumbar spine disability.

Neurological Abnormalities

The Board also considered whether separate ratings were warranted for any additional neurologic abnormalities, particularly the Veteran's radiculopathy or his complaints of bladder and bowel movements. 

As to radiculopathy, the Board notes that the Veteran is already being compensated for his radiculopathy in the bilateral lower extremities. Specifically, as noted above, the Veteran is in receipt of a separate 20 percent rating for radiculopathy in his left lower extremity and a separate 10 percent rating for radiculopathy in his right lower extremity under Diagnostic Code 8520, governing evaluation of impairment of the sciatic nerve. Under this provision, a 10 percent rating is assigned for mild incomplete paralysis, a 20 percent for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, a 60 percent rating for severe incomplete paralysis with marked muscular atrophy, and an 80 percent rating for compete paralysis where the foot dangles and drops, no active movement is possible for the muscle below the knee. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Based on the evidence of record, the Board finds that the Veteran's left lower extremity is properly evaluated as moderate impairment of the sciatic nerve. There was no indication of radiculopathy or symptoms of such at the 2018 examination, and at the 2021 examination, although the Veteran declined to participate in neurological testing, the examiner noted that there was mild pain with moderate paresthesia and numbness, and no muscle atrophy. Thus, a higher rating of moderately severe impairment is not warranted. As for the right lower extremity, the Board finds that a rating greater than 10 percent is not warranted prior to July 14, 2021, the date of the examination. The evidence does not show more than mild impairment of the right sciatic nerve. As noted, the 2018 examiner found no neurological abnormalities or symptoms present and the evidence does not support that the Veteran had moderate impairment. However, at the July 14, 2021 examination, the examiner noted moderate paresthesia and numbness along with mild pain bilaterally, thus, the Board finds that as of July 14, 2021, a higher 20 percent rating is warranted for the right lower extremity for sciatic neuropathy. 

A separate rating for associated scars is also not warranted as the medical evidence indicates the Veteran does not have any scars associated with his back condition. Nor has he asserted as such. Therefore, Diagnostic Codes 7800-7805 for scars are not applicable. 38 C.F.R. § 4.118. While the Veteran uses a walker, there is no indication of amputation or the need for amputation. As such, diagnostic codes pertaining to amputation are not applicable.

As to his bladder and bowel movements, the Board also notes that any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). In the instant case, the Veteran has consistently complained of abnormal bladder and bowel movements. Specifically, in September 2014, the Veteran testified that "[i]t feels like I'm going to the bathroom a little bit more often now than I normally would go," and asserted that such issues "pertain[ed] to [his] back." However, the Veteran does not have a diagnosis of an abnormal bowel or bladder movement. The Veteran was examined in July 2021 for any urinary tract, anus, or rectum conditions and no diagnosis for such a condition was provided, nor is there a diagnosis of a bowel or bladder issue in his medical records. Moreover, the examiner was unable to attribute any bowel symptoms to the Veteran's lumbar spine disability. Therefore, any separate or additional compensation for neurological manifestations aside from his radiculopathy in his bilateral lower extremities of the Veteran's low back disability is not warranted. 

 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. E. Grossman, 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.