Citation Nr: 21069535
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 15-31 892
DATE: November 18, 2021

ORDER

Entitlement to a rating in excess of 10 percent disabling for degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1 prior to December 12, 2018, except for the period from April 6, 2017 to July 1,2017, when the Veteran is receipt of a temporary 100 percent rating, is denied.

Entitlement to a rating in excess of 20 percent disabling for degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1 beginning on December 12, 2018, is denied.

Effective November 30, 2011, an initial rating of 10 percent, but no higher, for right lower extremity radiculopathy is granted.

Effective November 30, 2011, an initial rating of 10 percent, but no higher, for left lower extremity radiculopathy is granted.

FINDINGS OF FACT

1. For the period prior to December 12, 2018, the Veteran's degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1 has manifested with painful motion and corresponding functional impairment, and more nearly approximates limitation of forward flexion of the thoracolumbar spine of greater than 60 degrees but not greater than 85 degrees or a combined range of motion of the thoracolumbar spine greater than 235 degrees or muscle spasms or guarding not resulting in an abnormal gait or abnormal spinal contour without more limitation of flexion of greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, ankylosis, incapacitating episodes or bowel or bladder impairment.

2. For the period beginning December 12, 2018, the Veteran's degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1 has manifested with painful motion and corresponding functional impairment, and more nearly approximates limitation of flexion of greater than 30 degrees but not greater than 60 degrees or a combined range of motion of the thoracolumbar spine not greater than 120 degrees or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis without ankylosis, incapacitating episodes or bowel or bladder impairment.

3. As of November 30, 2011, the Veteran's right lower extremity radiculopathy approximates a mild incomplete paralysis.

4. As of November 30, 2011, the Veteran's left lower extremity radiculopathy approximates a mild incomplete paralysis.

CONCLUSIONS OF LAW

1. For the period prior to December 12, 2018, the criteria for a rating in excess of 10 percent disabling for degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

2. For the period beginning December 12, 2018, the criteria for a rating in excess of 20 percent for degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

3. The criteria for an initial rating of 10 percent, but no higher, effective November 30, 2011 for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.123, 4.124a, Diagnostic Code 8520.

4. The criteria for an initial rating of 10 percent, but no higher, effective November 30, 2011 for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.123, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from July 6, 1966 to July 31, 1991. The Veteran passed away on November 3, 2019, and the Veteran's surviving spouse filed for substitution in order to continue his pending claim on November 18, 2019. In December 2019 the RO granted the Veteran's surviving spouse's request for substitution. Therefore, the appellant in this claim is the Veteran's surviving spouse. 

In August 2018, the Board remanded the claim on appeal for further development and adjudication. 

A January 2020 Board decision denied increased ratings for the Veteran's service-connected degenerative changes of the lumbosacral spine. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 Memorandum Decision, the Court found that the Board erred in not expanding the claims to encompass earlier effective dates and increased ratings for service-connected right and left lower extremity radiculopathy. The Court vacated the January 2020 decision and remanded the claims for readjudication.

1. Entitlement to a rating in excess of 10 percent disabling for degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1 prior to December 12, 2018, except for the period from April 6, 2017 to July 1, 2017, when the Veteran is receipt of a temporary 100 percent rating, is denied.

2. Entitlement to a rating in excess of 20 percent disabling for degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1 beginning on December 12, 2018, is denied.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. 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.

Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation 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 disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Rather, pain may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id., quoting 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

The Veteran's service-connected degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1 is rated under Diagnostic Code 5242 for degenerative arthritis of the spine, which is evaluated under the General Rating Formula for Rating Diseases and Injuries of the Spine.

Under the General Rating Formula for Rating Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 10 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine was greater than 235 degrees or that muscle spasms or guarding not resulting in an abnormal gait or abnormal spinal contour. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine was not greater than 120 degrees or that muscle spasms or guarding were 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 warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.

The criteria also include the following provisions:

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): 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.

Note (3): 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): Round each range of motion measurement to the nearest five degrees.

Note (5): 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): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243.

An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation.

The Veteran contended that the severity of his service-connected degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1 warrants higher ratings. Furthermore, the Veteran filed his claim for entitlement to an increased rating on November 30, 2011, therefore the appeal period begins November 30, 2010.

Post-service VA and private treatment records reflect the Veteran's reports of low back pain and note diagnosis of and treatment for degenerative changes in his low back. The Veteran reported that his back pain worsened or flared depending on his activity level, however he denied any bowel or bladder problems. X-rays taken in August 2012 revealed moderate to marked degenerative changes and postsurgical changes. Magnetic Resonance Imaging (MRIs) conducted in June 2014, August 2015, and September 2016 and a computed tomography (CT) conducted in October 2016, reflected that the Veteran had spinal stenosis at L4-5 with rather prominent narrowing of the right L4-5 foramen from a bulging disc and spurs. The test results also noted postsurgical and degenerative changes. In April 2017, the Veteran underwent additional back surgery to remove prior hardware, replace it and extend it further up the Veteran's back. A September 2017 MRI reflected post op fusion and pedicle screw and rod fixation L3 through SI, no severe canal or foraminal stenosis, however the visualization was somewhat limited due to retained hardware. Furthermore, it was noted that the Veteran had lumbar radiculopathy.

In December 2011 the Veteran underwent a VA back examination with an accompanying Disability Benefits Questionnaire (DBQ) report. The examiner noted that the Veteran suffered from lumbar spondylosis multilevel status post fusion L5-SI, without any findings of radiculopathy or functional limitation. The Veteran reported flare-ups of pain following activity to include bending or lifting.

Range of motion testing revealed forward flexion to 90 degrees or greater with no objective evidence of pain; extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation all to 30 degrees or greater with no objective evidence of pain. The Veteran was able to complete repetitive use testing without any changes in his range of motion testing. The examiner found no additional limitation in range of motion following repetitive use testing and no functional loss and/or functional impairment of the Veteran's spine. The examiner further found no localized tenderness or pain to palpation or guarding or muscle spasms. Muscle strength and reflex testing were all normal. The Veteran's sensory examination was primarily normal except for noted decreased sensations in the left upper anterior thigh. Straight leg raising testing was negative, but mild radiculopathy was noted in intermittent pain, paresthesias and/or dysesthesias, and numbness in the bilateral lower extremities. The examiner found no other neurologic abnormalities but did find that the Veteran had IVDS without any incapacitating episodes in the prior 12 months.

In July 2015 the Veteran underwent an additional VA back examination with an accompanying DBQ report. The examiner noted the Veteran's degenerative arthritis of the spine which was diagnosed in 2010. The Veteran reported no flare-ups but did note functional impairment in that he could not bend over to put his shoes on without difficulty/pain, he could not drive more than 2 hours without taking a break due to pain, and he could not lift more than 10 to 15 pounds without pain.

Range of motion testing reflected forward flexion to 90 degrees, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation all to 30 degrees. Pain was exhibited on forward flexion, right lateral flexion, and left lateral flexion. The examiner noted that range of motion itself did not contribute to functional loss and that pain did not result in /cause functional loss. The examiner noted no pain with weight bearing but did find evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing and there was no additional loss of function on range of motion after repetitions. However, the examiner found that as the Veteran was not being examined after repetitive use testing, he could not say whether pain, weakness, fatigability or incoordination significantly limited functional ability. Muscle strength testing was primarily normal with active movement against some resistance noted in right hip flexion, right ankle dorsiflexion, and right great toe extension. The examiner noted no muscle atrophy and the Veteran's reflex and sensory examinations were entirely normal. Straight leg raising was negative and the examiner noted no radicular pain or any other symptoms due to radiculopathy. Furthermore, the examiner noted no neurologic abnormalities and found that the Veteran did not have IVDS. The examiner noted that the Veteran reported tingling in the anterior thighs, however the examiner found that such was a L2-L3 symptom, and it did not correspond with any significant findings on the Veteran's MRI and therefore it was not listed as a radiculopathy symptom.

In November 2016 the Veteran underwent a peripheral nerves examination with an accompanying DBQ report. The examiner diagnosed the Veteran with meralgia paresthetica. The Veteran reported pain in his legs and that worsened with walking, numbness that occurs without warning, and pain with spontaneous leg movement while sitting or lying down. The Veteran noted severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness in his bilateral lower extremities. Strength testing was primarily normal, except for some active movement against some resistant noted in his left and right grip. His reflex examination was primarily normal with some hypoactivity noted in his knees. The Veteran's sensory examination noted decreased sensitivity in his upper anterior thighs, thighs/knees, lower legs/ankles, and feet/toes. Finally, the Veteran's nerves were found to be normal.

In December 2018 the Veteran underwent a final VA back examination with an accompanying DBQ report. The examiner noted the Veteran's degenerative changes of the lumbosacral spine status post discectomy and fusion L5/S1. The Veteran reported that his back pain began in the 1980s and had gotten progressively worse. He noted severe lower back pain, tingling in the legs, and severe pain lifting or bending. He also stated that he was unable to do normal activities as a result of his pain and tingling. The Veteran reported flare-ups but no functional loss or functional impairment.

Range of motion testing revealed forward flexion to 60 degrees, extension, right lateral flexion and left lateral rotation all to 20 degrees and left lateral flexion and right lateral rotation to 30 degrees. The examiner found that the Veteran's range of motion did not contribute to functional loss. The examiner noted pain on examination in forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. The examiner found no evidence of pain with weight bearing, non-weight bearing or passive range of motion, but did note localised tenderness or pain on palpation. The examiner found that the Veteran was able to perform repetitive use testing and that there was not additional loss of function or range of motion after repetitions. The examiner noted that the Veteran was not being examined after repeated use over time or during a flare-up and therefore the examination was neither consistent or inconsistent with his statements describing functional loss with respect to such. The examiner found that pain, weakness, fatigability or incoordination does not significantly limit functional ability with repeated use over a period of time or with flare-ups. The examiner found that the Veteran did not have guarding or muscle spasms and no additional factors contributing to his disability. Muscle strength, reflex and sensory testing was all normal. The examiner found no muscle atrophy and straight leg raise testing was negative. The examiner noted that the Veteran did have radiculopathy symptoms to include moderate intermittent pain and paresthesias and/or dysesthesias in his right lower extremity and mild intermittent pain and paresthesias and/or dysesthesias in his left lower extremity. The examiner found no other symptoms of radiculopathy and no ankylosis. Furthermore, the examiner found no other neurologic abnormalities and that the Veteran did not have IVDS.

Throughout the appeal, the Veteran submitted statements in which he indicated his belief that his back-disability warranted ratings higher than those which have been assigned.

For the period prior to December 12, 2018

The Board finds that, when applying the General Rating Formula to the Veteran's service-connected degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1, the evidence does not warrant a rating in excess of 10 percent for the period prior to December 12, 2018. There have been no findings of limitation of flexion of greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and no evidence of ankylosis or incapacitating episodes having a total duration of at least two weeks during the past 12 months to warrant a rating of 20 percent. Furthermore, as the evidence of record does not support a 20 percent rating, it also does not support a 40 percent rating. The most restrictive range of motion found was 90 degrees of forward flexion documented on the December 2011 and July 2015 VA examinations. This is normal forward flexion.

The Veteran has reported chronic low back pain, and, thus, the Board recognizes the application of 38 C.F.R. §§ 4.40, 4.45, and Deluca. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of 10 percent. In the range of motion testing of record, pain was elicited at the limits of forward flexion, however it was noted that the pain itself did not result in or cause functional loss. The examiners further noted that the Veteran could do repetitive motion testing and there was no additional loss of function or range of motion after repetition. In sum, there is no objective evidence that flare-ups result in loss of range of motion meeting the criteria for a rating in excess of 10 percent. Again, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. See Mitchell, supra. In this case, no additional functional loss has been caused by pain. Therefore, a rating in excess of 10 percent is not warranted based on limitation of motion.

The Board has also considered whether it may be appropriate to rate the Veteran's service-connected degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1 under other diagnostic codes, but finds that no higher ratings are warranted.

A rating is not warranted based on incapacitating episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The evidence of record shows the Veteran has not experienced incapacitating episodes and while the December 2011 examiner found that the Veteran did have IVDS, he found no evidence of incapacitating episodes. Furthermore, the July 2015 VA examiner specifically found that the Veteran did not have IVDS, and there was no evidence showing that the Veteran suffered incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months to warrant a 20 percent rating for IVDS. In this regard, the Board finds a higher rating based on IVDS with incapacitating episodes is not warranted.

The Board finds that for the period prior to December 12, 2018, a higher rating is not assignable under any other potentially applicable rating criteria.

For the period beginning December 12, 2018

The Board finds that, when applying the General Rating Formula to the Veteran's service-connected degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1, the evidence does not warrant a rating in excess of 20 percent for the period beginning December 12, 2018. There have been no findings of forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant a 40 percent rating. The most restrictive range of motion found was 60 degrees of forward flexion documented on the December 2018 VA examination.

The Veteran has reported chronic low back pain, and, thus, the Board recognizes the application of 38 C.F.R. §§ 4.40, 4.45, and Deluca. However, a higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of 20 percent. In the range of motion testing of record, pain was elicited at the limits of forward flexion, however it was noted that the pain itself did not result in or cause functional loss. The examiner further noted that the Veteran could do repetitive motion testing and there was no additional loss of function or range of motion after repetition. In sum, there is no objective evidence that flare-ups result in loss of range of motion meeting the criteria for a rating in excess of 20 percent. Again, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. See Mitchell, supra. In this case, no additional functional loss has been caused by pain. Therefore, a rating in excess of 20 percent is not warranted based on limitation of motion.

The Board has also considered whether it may be appropriate to rate the Veteran's service-connected degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1 under other diagnostic codes, but finds that no higher ratings are warranted.

A rating is not warranted based on incapacitating episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The evidence of record shows the Veteran has not experienced incapacitating episodes and the December 2018 VA examiner specifically found that the Veteran did not have IVDS. There is no evidence showing that the Veteran suffered incapacitating episodes lasting a total of at least four weeks during the prior 12 months to warrant a 40 percent rating for IVDS. In this regard, the Board finds a higher rating based on IVDS with incapacitating episodes is not warranted.

The Board finds that for the period beginning December 12, 2018, a higher rating is not assignable under any other potentially applicable rating criteria.

With respect to neurological abnormalities pursuant to Note (1) of the General Rating Formula for Disease and Injuries of the Spine, the Board has considered earlier effective dates and increased ratings below with regards to the nerve impairment. The Veteran did not allege, and the record did not otherwise suggest, bowel or bladder impairment.

The Board has considered whether further staged ratings under Hart, supra, are appropriate for the Veteran's service-connected degenerative changes of the lumbosacral spine status post-operative diskectomy and fusion, L5-S1; however, the Board finds that his symptomatology has been stable for such disability throughout each stage. Therefore, assigning further staged ratings for such disability is not warranted.

In assessing the severity of the disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g. Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher ratings pursuant to any applicable criteria at any point pertinent to this appeal.

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for an increased rating, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

3. Effective November 30, 2011, an initial rating of 10 percent, but no higher, for right lower extremity radiculopathy is granted.

4. Effective November 30, 2011, an initial rating of 10 percent, but no higher, for right lower extremity radiculopathy is granted.

Initially, the Board notes that a June 2019 rating decision awarded a separate 10 percent ratings for right and left lower extremity radiculopathy, effective October 17, 2016, associated with the Veteran's degenerative changes of the lumbosacral spine. As the propriety of the separately assigned rating and effective date is part and parcel of the Veteran's claim for an increased rating for his degenerative changes of the lumbosacral spine, the Board has assumed jurisdiction over the issue.

In an October 2021 Brief, the appellant's representative asserted that the effective date for the Veteran's initial 10 percent ratings for right and left lower extremity radiculopathy should be November 30, 2011. The Board agrees. 

Turning first to the propriety of the effective date of October 17, 2016, for the initial assignment of the separate ratings for the Veteran's right and left lower extremity radiculopathy. The Board notes that the Veteran's complaints of bilateral lower extremity radiculopathy were noted on the December 2011 VA examination. At that time, the Veteran complained of bilateral radicular pain, paresthesia, and numbness. The examiner noted decreased sensation at the left thigh. A September 2012 private electromyography (EMG) report showed minimal, chronic neurogenic abnormalities of the right extensor hallucis longus (EHL), consistent with a chronic right L5 radiculopathy. In this case the appeal period before the Board begins on November 30, 2011, the date of claim for an increased rating for the Veteran's degenerative changes of the lumbosacral spine. Accordingly, as radiculopathy was present, as the Veteran's right and left lower extremity radiculopathy was first objectively shown prior to October 17, 2016, the effective date of November 30, 2011 is warranted for the assignment of a separate rating.

In regard to the propriety of the assigned rating, the Veteran's right and left lower extremity radiculopathy disabilities are currently each rated 10 percent under Diagnostic Code 8520.

Diagnostic Code 8520 provides for 10 percent rating where there is mild incomplete paralysis, moderate incomplete paralysis is rated 20 percent disabling, moderately severe incomplete paralysis is rated 40 percent disabling, and severe incomplete paralysis (with marked muscular atrophy) is rated 60 percent disabling. An 80 percent rating is warranted where there is complete paralysis and "the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost."

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 should be for the mild, or at most, the moderate degree. Id.

Descriptive words such as "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in VA's Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6.

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis-characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating-is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R.           § 4.123.

Turning to the evidence of record, as noted, the Veteran underwent multiple VA examinations. At the December 2011 VA examination, the Veteran reported mild radiculopathy was noted in intermittent pain, paresthesias and/or dysesthesias, and numbness in the bilateral lower extremities. The Veteran's sensory examination was primarily normal except for noted decreased sensations in the left upper anterior thigh. At the July 2015 VA examination, the Veteran reported tingling in the anterior thighs, however the examiner found that such was a L2-L3 symptom, and it did not correspond with any significant findings on the Veteran's MRI and therefore it was not listed as a radiculopathy symptom. Sensory examination was entirely normal. Straight leg raising was negative and the examiner noted no radicular pain or any other symptoms due to radiculopathy. Furthermore, the examiner noted no neurologic abnormalities. At the November 2016 VA examination, the Veteran complained of severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness in his bilateral lower extremities. The Veteran's sensory examination noted decreased sensitivity in his upper anterior thighs, thighs/knees, lower legs/ankles, and feet/toes. The examiner noted the Veteran's nerves were found to be normal. At the December 2018 VA examination, the examiner noted that the Veteran did have mild radiculopathy with symptoms to include moderate intermittent pain and paresthesias and/or dysesthesias in his right lower extremity and mild intermittent pain and paresthesias and/or dysesthesias in his left lower extremity.

In light of the foregoing positive and negative evidence, when resolving reasonable doubt in favor of the Veteran, the Board finds that his right and left lower extremity radiculopathy more nearly approximated the criteria (mild impairment) for a 10 percent rating from November 30, 2011. However, the evidence of record does not show that the Veteran's symptoms manifested in moderate incomplete paralysis of the right or left lower extremity, required for a 20 percent rating. Although the Veteran reported more severe symptoms, no more than mild radiculopathy has been noted. Accordingly, ratings of 10 percent effective November 30, 2011 are warranted, but ratings in excess of 10 percent for the Veteran's right and left lower extremity radiculopathy are not warranted.

Finally, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The Board finds, however, that a claim for a TDIU has not been raised in this case. The appellant's attorney asserts that entitlement to TDIU has been raised as the Veteran was noted to be unemployed during the December 2011 VA examination, and the July 2015 VA spine examiner indicated that the Veteran's service-connected spine disability impacted his ability to work. The representative asserts that TDIU is reasonably raised solely because he is unemployed. However, that is not the case. At no point during the appellate period has the Veteran asserted is unemployable solely due to his service-connected disabilities. Additionally, during his December 2011 VA examination, the Veteran reported he was in the military for 25 years and worked for 16 years in sales at Lowes and had retired. Although the Veteran is service-connected for multiple disabilities, there is no evidence that the Veteran is unable to secure or follow a substantially gainful occupation solely due to his service-connected disabilities. Therefore, the Board finds that the issue of a TDIU by reason of service-connected disability is not reasonably raised in this matter.

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Therefore, the Board finds that a 10 percent rating for the right and left lower extremity radiculopathy, both effective November 30, 2011 is warranted.  To that extent, the appeals are granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. M. Donahue Boushehri, 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.