Citation Nr: 21069192 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-40 188 DATE: November 17, 2021 ORDER Entitlement to a rating in excess of 40 percent for a back disability, to include lumbosacral strain, lumbar degenerative disc disease, and lumbar intervertebral disc syndrome (IVDS), is denied. Entitlement to an initial rating of 10 percent for sciatic radiculopathy of the right lower extremity is granted effective October 12, 2010. Entitlement to an initial rating of 10 percent for sciatic radiculopathy of the left lower extremity is granted effective October 12, 2010. FINDINGS OF FACT 1. The probative evidence of record does not demonstrate that the Veteran's back disability has manifested in unfavorable ankylosis or its functional equivalent. 2. Since October 12, 2010, the probative evidence of record establishes that the Veteran's radiculopathy of the right lower extremity manifested in mild incomplete paralysis, but no greater. 3. Since October 12, 2010, the probative evidence of record establishes that the Veteran's radiculopathy of the left lower extremity manifested in mild incomplete paralysis, but no greater. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237, 5242, 5243. 2. The criteria for an initial rating of 10 percent, but no higher, for radiculopathy of the right lower extremity have been met effective October 12, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.124a, Diagnostic Codes 8520, 8521. 3. The criteria for an initial rating of 10 percent, but no higher, for radiculopathy of the left lower extremity have been met effective October 12, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.124a, Diagnostic Codes 8520, 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to March 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified before the undersigned Veterans Law Judge at the RO in June 2019. A transcript of the hearing is included in the claims file. The Veteran's claim was most recently before the Board in December 2020 wherein it was remanded for additional development. This development was completed and the claims have returned to the Board for adjudication. The Board notes that in the December 2020 Board decision, the claim for a total disability rating based on individual unemployability (TDIU) was granted, but no effective date was assigned by the Board. In a January 2021 rating decision, the RO granted a TDIU effective May 1, 2010. This date is prior to the Veteran's application for an increased rating for his back disability. Therefore, the Board will not address the issue of a TDIU herein. By way of history, the Veteran applied for an increased rating for his back disability and his claim was received October 12, 2010. A March 2012 rating decision granted an increased rating to 40 percent effective October 12, 2010. An April 2013 rating decision continued this rating. After the Veteran timely noted his disagreement with the April 2013 rating decision, a November 2014 rating decision decreased the Veteran's rating for his back disability to 10 percent effective November 5, 2014. As there was not an overall reduction in the Veteran's combined rating, a rating decision proposing the reduction was not required. The Veteran then noted his disagreement with the November 2014 rating decision. Thus, the Veteran had two claims on appeal: one for an increased rating in excess of 40 percent; and, two, for the restoration of a 40 percent rating. After the Board remanded the Veteran's claim in December 2020, a February 2021 rating decision reinstated the Veteran's 40 percent rating. Given this, the Board does not need to address the reduction and will focus its analysis on the rating for the Veteran's back disability and any neurological manifestations thereof. Increased Ratings 1. Entitlement to a rating in excess of 40 percent for a back disability As explained above, the Veteran is in receipt of a 40 percent rating for his back disability effective October 12, 2010, the date of his claim for an increased rating. The Veteran contends that he has difficulty sitting, standing, and walking and that he is in pain management. The Veteran's representative asserts that the Veteran has separate diagnoses of degenerative disc disease of the lumbar spine and IVDS that the Board must consider. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In this case, separate evaluations are not warranted. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran is currently rated under Diagnostic Code 5237 for lumbosacral strain. The Veteran's diagnosis of degenerative disc disease of the lumbar spine is rated under Diagnostic Code 5242. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. While the Veteran, through his representative, asserts that separate ratings are warranted under Diagnostic Code 5237 and 5242, the representative has presented no argument as how the two disabilities manifest differently from each other. Further, the probative evidence of record does not demonstrate that the diagnoses manifest in separate symptomology from each other. Both Diagnostic Codes are considered under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. To warrant a rating higher than 40 percent, the evidence must show unfavorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., at Note 5. Ankylosis can also mean the "functional equivalent" of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Veteran has been diagnosed with intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a. The Formula for Rating IVDS Based on Incapacitating Episodes provides ratings from 10 percent to 60 percent, depending on the total duration of such episodes. Relevant to this appeal, a 40 percent rating is warranted for IVDS 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 rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that an incapacitating episode is 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. Id. at Note 1. As an initial matter, at no point does the record demonstrate that the Veteran was prescribed bedrest by a physician for treatment of his back. Therefore, without evidence of incapacitating episodes, as defined by regulation, a higher rating based on IVDS is not warranted. VA amended the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020), effective from February 7, 2021. With respect to the present disability, no changes were made to the applicable diagnostic codes. Therefore, further discussion is not warranted. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In addition to the general criteria for increased ratings claims, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Further, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). Evidence The Board has considered the medical record and finds the VA examinations to be the most probative evidence of record because the examiners have the medical expertise to assess objective limitations of motion and to assess subjective limitations given the Veteran's description of his symptoms. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran had VA examinations in June 2011, March 2013, November 2014, February 2021, and June 2021. At each examination, the Veteran described painful limitation of motion and difficulty sitting, standing, and walking. At later examinations, the Veteran complained of greater limitations and his range of motion was more limited than earlier examinations, to include during flare-ups and with functional loss. However, at each examination, ankylosis was not found. The Board has reviewed the Veteran's VA and private medical records, as well as the various correspondences he has submitted describing his disability. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). At no point has unfavorable ankylosis or the functional thereto been asserted or described. Given the above, the record does not substantiate a rating in excess of 40 percent since October 12, 2010. In order to warrant a higher initial rating, unfavorable ankylosis or the functional equivalent thereto would need to be shown. Even when considering flare-ups or functional loss, such disability is not evident from the record. The Board addressed IVDS and bed rest above. The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining whether ankylosis is present than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of pain and limitation of function. Despite the Veteran's contention of a greater degree of limitation on his back disability, the disability rating assigned herein indicates a significant impact on his functional ability. Such disability evaluations assigned by VA recognizes his limited motion. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for an increased rating for his back disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial rating of 10 percent for sciatic radiculopathy of the right lower extremity is granted effective October 12, 2010 3. Entitlement to an initial rating of 10 percent for sciatic radiculopathy of the left lower extremity is granted effective October 12, 2010 In addition to the back rating, the schedule directs that any associated objective neurological abnormalities, such as radiculopathy, are to be evaluated separately under an appropriate diagnostic code. See "General Rating for Diseases and Injuries of the Spine, at Note 1. Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. By way of history, the Veteran applied for an increased rating for his back disability October 12, 2010. On that same application, he claimed "bilateral lower extremities peripheral neuropathy" and later clarified that it was "secondary to his service-connected [back disability] and not related to [herbicides]." See VBMS, document labeled VA 21-4138 Statement in Support of Claim, receipt date January 25, 2011. A March 2012 rating decision denied his claim for service connection because he did not have a diagnosis of peripheral neuropathy. The Veteran submitted another application for service connection for peripheral neuropathy, this time as related to diabetes mellitus, type II, but his claim for peripheral neuropathy was again denied in February 2014. The Veteran was granted service connection for peripheral neuropathy of the bilateral lower extremities through a November 2014 rating decision. The effective date was September 18, 2013, the date he was service-connected for diabetes mellitus. The RO assigned an initial 10 percent rating for each lower extremity under Diagnostic Code 8521 finding "incomplete paralysis of foot movements which is mild." Through a February 2021 rating decision, the Veteran was granted service connection for sciatic radiculopathy of the bilateral lower extremities effective February 23, 2021. However, the Veteran's rating was combined with the rating of his service-connected peripheral neuropathy conditions. Thus, no increased or separate ratings were assigned. Effective February 2021, the RO rated the disability under Diagnostic Code 8520, rather than Diagnostic Code 8521. The rating decision noted: "Although the external popliteal and sciatic nerves were shown to be affected, only one evaluation is allowable in this case. This rating is based on the highest rated nerve. (38 C.F.R. § 4.14)." The Veteran's sciatic radiculopathy of the right lower extremity is rated under Diagnostic Code 8520 for paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted where there is moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is for application where there is complete paralysis of the sciatic nerve (i.e., the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). 38 C.F.R. § 4.124a. Paralysis of the external popliteal (common peroneal) nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8521. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis is rated at 40 percent disabling when there is evidence of the following: foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a. Thus, the Board notes that the RO's reference to 38 C.F.R. § 4.14 is applied correctly: under their respective rating criteria, the external popliteal and sciatic nerves, both affect paralysis of the foot. However, Diagnostic Code 8520 includes paralysis from the knee to the foot and has higher potential ratings. Thus, to assign ratings under both Diagnostic Codes would violate the rule against pyramiding. 38 C.F.R. § 4.14. The words mild, moderate, and severe as used in the various Diagnostic Codes are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type 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. Evidence As explained above, the Veteran was service-connected for peripheral neuropathy in September 18, 2013. The basis for this grant was a private disability benefit questionnaire (DBQ) received August 2014. See VBMS, document labeled VA examination, receipt date August 2021. In this DBQ, the clinician does not find that the Veteran has radiculopathy, but rather peripheral neuropathy. The Veteran reported bilateral numbness and tingling in his feet and moderate constant pain and paresthesias/dysesthesias bilaterally. He had decreased light touch, vibration, and cold sensation. The clinician assessed diabetic peripheral neuropathy, but does not state which nerve is affected (sciatic or femoral). While this was the basis for service connection, the Veteran claimed that his "peripheral neuropathy" was related to his back. The Board infers that he meant neurological manifestations in his legs were related to his back. To this end, the Veteran has carried a diagnosis of "sciatica" since November 2010. See VBMS, document labeled Medical Treatment Record-Government Facility, receipt date February 6, 2012. The Veteran had several VA examinations over the course of the appeal. In March 2011, the Veteran had some symptomology, but the clinician gave evidence to support exaggerating of symptoms in the Veteran's back and bilateral lower extremities. The clinician did not find objective evidence of radiculopathy or peripheral neuropathy, but noted that lumbar disabilities frequently give rise to such symptoms. In June 2011, the Veteran's radiculopathy symptomology was less severe than the March 2011 examination. The Veteran's third examination was March 2013. He had normal strength, his ankle reflex was slightly reduced bilaterally, his left ankle senses were decreased, and his straight leg raise was normal. The examiner did not find any signs or symptoms of radiculopathy. The VA examination in November 2014 had more severe symptomology than March 2013 because his reflexes were absent bilaterally and he had decreased senses from his ankle to his knee bilaterally. However, the Veteran still had negative straight leg raise bilaterally and the clinician did not find radiculopathy. The Veteran had two examinations in 2021. In February 2021, he had a slight reduction in strength and reflexes, decreased lower leg/ankle/foot senses, and a positive straight leg raise on the right. The clinician assessed mild sciatic radiculopathy. In May 2021, the Veteran's strength, reflexes, and senses were the same as before. Straight leg testing could not be performed as the Veteran could not lay flat on the table. He reported moderate intermittent, dull pain on the right, but none on the left. Further, he had mild paresthesias and/or dysesthesias and numbness bilaterally. Given this, the clinician found bilateral sciatic radiculopathy, but did not assess a severity. The Board has considered the remainder of the medical record. While the Veteran's private records note some treatment and diagnoses of radiculopathy or sciatica, the Veteran's VA records do not. Analysis Given the above, the Board finds that the Veteran's sciatic radiculopathy has been present since October 12, 2010, the date of his application for an increased rating. Further, the Board finds that during this period, the radiculopathy was mild in severity because while the Veteran reported some subjective limitations, the objective limitations (decreased sensory findings, numbness, and strength) were mild in severity. (Continued on the next page) The Board recognizes that when the involvement is wholly sensory, the rating is could be moderate in severity. 38 C.F.R. § 4.124a. However, the Board would expect to see more consistent complaints of radiculopathy in the Veteran's records to find a greater degree of severity. Thus, the Board finds no greater than mild radiculopathy of the bilateral lower extremities to have been present since October 12, 2010. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for increased ratings for his radiculopathy of the bilateral lower extremities. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.