Citation Nr: 21069969 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-04 762A DATE: November 22, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for a service-connected lumbar spine disability is denied. Entitlement to an initial rating in excess of 10 percent for service-connected mild left mandibular paresthesia is denied. FINDINGS OF FACT 1. The Veteran's service-connected lumbar spine disability was manifested by forward flexion limited to 55 degrees but not by forward flexion limited to 30 degrees or less nor ankylosis. 2. The Veteran's service-connected left mandibular disability was manifested by incomplete, mild paralysis but not by incomplete, severe paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a service-connected lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Code 5237. 2. The criteria for an initial rating in excess of 10 percent for a mild left mandibular paresthesia disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, Diagnostic Codes 8205, 8207. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2011 to January 2016. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2016 and September 2021 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in October 2018 for additional development. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that this matter has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). INCREASED RATING Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). With the initial rating assigned with the award of service connection for a disability, "staged" ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). 1. Entitlement to an initial rating in excess of 20 percent for service-connected lumbar spine disability The Veteran was afforded an in-person VA examination for his service-connected lumbar spine disability in June 2015. The VA examiner noted a diagnosis of degenerative arthritis of the lumbar spine and herniated nucleus pulposus of the lumbar spine. At the time of the examination, the Veteran reported that he was not being treated for his back at the time. Initial range of motion was all normal with forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The Veteran did not report flare ups of the thoracolumbar spine nor functional loss or functional impairment of the thoracolumbar spine. Pain was noted on forward flexion but did not result in or cause functional loss. There was no evidence of pain with weightbearing. The Veteran did have objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine described as general discomfort along the whole back on both sides of the spine with no midline tenderness, step offs, or deformities. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time and the VA examiner noted that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time because the VA examiner was unable to say without mere speculation. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The Veteran retained 5/5 strength on hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension bilaterally. The Veteran did not have any muscle atrophy. The Veteran had normal deep tendon reflexes in his knees and ankles bilaterally. The Veteran also had normal sensation to light touch at the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes bilaterally. Straight leg raising tests were negative bilaterally. The Veteran did not have radicular pain or signs or symptoms due to radiculopathy. The Veteran also did not have ankylosis or IVDS of the spine. The Veteran did not use any assistive devices. Imaging studies were available and documented arthritis of the thoracolumbar spine. The VA examiner determined that the Veteran's back condition did not impact his ability to work. The VA examiner noted that the pain noted on examination was due to subjective responses not objective findings. In addition, there was no decrease in range of motion on examination and none seen after repetitive motion during the examination. On his December 2016 VA Form 9, the Veteran asserted that his back pain did not impact just his lower back but rather his entire back, although mostly his mid and lower back. An April 2018 VA treatment record notes that the Veteran's low back pain had been worsening and was characterized by constant pain localized in the lumbar area with irradiation to the left lower extremity described as a pulling and sharp sensation associated with a shooting pain on the back of his thigh and lateral leg to his left knee. The pain was described as 5/10 but could increase to a 9/10 in intensity on shooting pain episodes worse with flexion or prolonged standing. The Veteran's pain was alleviated by lying supine on a bed. The Veteran ambulated without assistive devices but sometimes used a cane. He remained independent with activities of daily living. A June 2018 VA treatment record noted the Veteran's complaints of chronic back pain currently at 5/10 severity in his low back area. He also had tenderness in his lumbar area. The Veteran walked independently and was totally independent with activities of daily living. He reported increased pain with prolonged sitting, standing, or walking. July 2018 VA treatment records noted that the Veteran had chronic low back pain that was 5-6/10. The Veteran ambulated independently with adequate gait. An August 2018 VA treatment record noted that the Veteran had 7/10 low back pain and attended physical therapy ambulating unassisted with adequate gait. The Veteran had tenderness to palpation on spinal process of the lumbar area. The Veteran retained normal range of motion and normal strength in his lower extremities. In a September 2018 Informal Hearing Presentation, the Veteran's representative explained that the VA examiner did not adequately assess the Veteran's flare ups that were productive of guarding with spasms and pain warranting an increased rating. A May 2019 VA treatment record notes that the Veteran had lumbago manifested by pain at baseline. The Veteran was afforded an in-person VA examination for his service-connected lumbar spine disability in September 2021. The VA examiner noted diagnoses of degenerative disc disease and herniated nucleus pulposus diagnosed in December 2014. The Veteran reported continued lower back pain and denied incapacitating episodes requiring bed rest in the past 12 months. The Veteran reported that the course of his condition had stayed the same since onset. The Veteran reported flare ups that occurred twice each month and lasted 1 to 3 hours. The flare ups were characterized as localized pain precipitated by lifting, carrying heavy objects, and household chores and were of mild severity. The Veteran further explained that during flare ups he had difficulty with flexion anteriorly and poor tolerance in prolonged standing and ambulation activities. The Veteran also reported functional loss or functional impairment of the joint after repeated use over time described again as difficulty with flexion anteriorly and poor tolerance in prolonged standing and ambulation activities. Initial range of motion measurements were abnormal or outside of normal range but range of motion itself did not contribute to a functional loss. The Veteran had forward flexion to 70 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The Veteran exhibited pain on all ranges of motion. Passive range of motion was not performed because it could cause the Veteran severe pain or risk of further injury. On active motion, the Veteran had evidence of pain that did not result in or cause functional loss. There was no objective evidence of crepitus nor localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repeated us over time but pain was noted as causing functional loss. Described in terms of range of motion forward flexion was to 65 degrees, extension to 25 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. The Veteran also was not examined during a flare up but pain was noted as causing functional loss during flare ups. Described in terms of range of motion forward flexion was to 55 degrees, extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees. The Veteran did not have localized tenderness, guarding or muscle spasm. The Veteran retained normal muscle strength and had no muscle atrophy. Deep tendon reflexes were normal at the knees and ankles bilaterally and sensory examination was normal bilaterally as well. Straight leg raising test was negative. And, the Veteran did not have ankylosis of the spine nor IVDS of the thoracolumbar spine. The Veteran did not use any assistive devices. The Veteran's lumbar spine condition impacted his ability to perform occupational tasks because he was instructed to avoid prolonged standing, ambulation activities, and heavy lifting. The VA examiner further explained that the Veteran was able to obtain, perform, and secure sedentary employment such as an administration job as a clerk or answering telephones in an office. The VA examiner further determined that the Veteran's lumbar spine disability did not limit his ability to function in daily living and noted that the Veteran remained independent with activities of daily living. The Veteran seeks a higher rating for his service-connected lumbar spine disability, which is currently rated as 20 percent disabling under Diagnostic Code 5237 (General Rating Formula for Diseases and Injuries of the Spine). 38 C.F.R. § 4.71a, Schedule of ratings musculoskeletal system. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5237 was not changed. Under Diagnostic Code 5237, a 20 percent rating is assigned for evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. §4.71a. A 40 percent rating is assigned for evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for evidence of unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is assigned for evidence of unfavorable ankylosis of the entire spine. Id. Normal thoracolumbar spine motion includes forward flexion from 0 to 90 degrees and normal combined range of motion of the thoracolumbar spine is 240 degrees. 38C.F.R. §4.71a, Plate V. When evaluating musculoskeletal disabilities based on limitation of motion, 38C.F.R. §4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. §4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown,8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. §4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. §4.59, painful motion is a factor to be considered with any form of arthritis; however, 38C.F.R. §4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. §4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." 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 The Board finds that an initial rating in excess of 20 percent is not warranted for the Veteran's service-connected lumbar spine disability. In order to be entitled to a higher, 40 percent rating the Veteran must have forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Here, the Veteran's forward flexion was limited at most to 55 degrees during unobserved flare-ups. See September 2021 VA examiner's report. In addition, no evidence suggests that the Veteran had ankylosis nor IVDS of his thoracolumbar spine. See June 2015 and September 2021 VA examiner's reports. The Board acknowledges that the Veteran reports increased limitation of range of motion during flare-ups as well as functional loss and impairment. However, even during flare ups, the Veteran did not report limitation of flexion to 30 degrees or less. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In conclusion, as the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for a lumbar spine disability, the claim must be denied. 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 in excess of 10 percent for a service-connected mild left mandibular paresthesia The Veteran was provided an in-person VA dental examination in June 2015. The VA examiner noted a diagnosis of paresthesias with numbness and tingling. The course of the condition remained stable with mild left mandibular paresthesia to gingiva. The VA examiner documented the Veteran's reports of left jaw pain and lingering mild gingival paresthesia. No functional impairment was noted upon examination and mastication was within normal limits. The VA examiner determined that the Veteran's dental condition did not impact his ability to work. An April 2017 VA treatment record noted that the Veteran had occasional discomfort associated with temporomandibular joint dysfunction (TMJ) but normal mandibular relationship. In a September 2018 Informal Hearing Presentation, the Veteran's representative explained that the VA did not adequately assess the Veteran's flare ups described as spasms and pain. A September 2019 VA treatment record noted that the Veteran had no symptoms associated with TMJ and occlusal findings revealed a normal mandibular relationship. The Veteran was afforded an in-person VA dental examination in January 2020 due to his reports of increased sensitivity to cold and decreased sensitivity to hot on his left side and complaints of pain. The VA examiner noted a diagnosis of paresthesia. The Veteran's oral condition did not impact his ability to work. The Veteran was afforded another in-person VA examination for his service-connected left mandibular paresthesia in September 2021. The VA examiner noted a diagnosis of mild mandibular paresthesia diagnosed in June 2015 and characterized by numbness, tingling, and jaw pain on his left side. The Veteran reported symptoms of mild left mandibular paresthesia, tingling sensation, and pain. The Veteran reported that he was able to masticate and chew solid food without functional limitation. The Veteran denied flareups. The VA examiner also noted that at the time of evaluation there was no subjective or objective evidence of functional loss or flare ups. The Veteran reported that his condition had stayed the same since onset. The Veteran's cranial nerve V, trigeminal, was affected by his condition. Symptoms included mild left lower face intermittent pain, mild left lower face paresthesias or dysesthesias, and mild left lower face numbness. Muscle strength testing was all normal. Sensory examination revealed decreased sensation at the left lower face cranial nerve V. The Veteran's also had incomplete, moderate cranial nerve paralysis at cranial nerve V. The VA examiner determined that the Veteran's cranial nerve condition did not impact his ability to work. At the outset, the Board notes that the Veteran has been consistently rated under Diagnostic Code 8207 for his mild left mandibular paresthesia. Diagnostic Code 8207 is used in rating the seventh facial cranial nerve. The Board notes, however, that the September 2021 VA examiner's report indicates that the Veteran's fifth cranial nerve, not seventh cranial nerve is impacted. Accordingly, the Board finds that application of Diagnostic Code 8205, the rating criteria the fifth crania nerve, is more appropriate. Regardless, application of neither Diagnostic Code 8207 nor 8205 would result in a higher rating for the Veteran's mild left mandibular paresthesia because both rating criteria require that the Veteran's paralysis be severe in order to be entitled to the next highest rating. Under Diagnostic Code 8207, a 10 percent rating is warranted for incomplete, moderate paralysis of the seventh (facial) cranial nerve. A 20 percent rating is warranted for incomplete, severe paralysis of the seventh (facial) cranial nerve. A 30 percent rating is warranted for complete paralysis of the seventh (facial) cranial nerve. Under Diagnostic Code 8205, used in evaluating paralysis of the fifth (trigeminal) cranial nerve, a 10 percent rating is warranted for moderate incomplete paralysis of the nerve; a 30 percent rating is warranted for severe incomplete paralysis of the nerve; and a 50 percent rating is warranted for complete paralysis of the nerve. See 38 C.F.R. § 4.124a, Diagnostic Code 8205. The rating is dependent on relative degree of sensory manifestation or motor loss. Throughout the period on appeal, the Veteran's fifth cranial nerve paralysis has consistently been described as mild. See June 2015 and September 2021 VA examiners' reports. No evidence whatsoever suggests that the Veteran had incomplete, severe paralysis to warrant a higher rating. The Board has considered the September 2018 argument made by the Veteran's representative that the Veteran's flare ups were not considered in rating his service-connected left mandibular paresthesias; however, the Board emphasizes that no evidence of record indicates that the Veteran experienced flare ups of left fifth cranial nerve disability. To the contrary, the Veteran denied flare ups during his September 2021 VA examination. Accordingly, no higher rating is available due to flare ups since the evidence of record does not support a finding that the Veteran experienced flare ups. Entitlement to a rating in excess of 10 percent for a mild left mandibular paresthesias is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.