Citation Nr: 21070452 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 10-26 952 DATE: November 24, 2021 ORDER 1. A rating in excess of 40 percent for lumbosacral spine with degenerative joint disease (DJD) and radiation pain is denied. 2. A separate rating of 10 percent for left sciatic radicular disability is granted. 3. A separate rating of 10 percent for right sciatic radicular disability is granted. FINDINGS OF FACT 1. The Veteran's lumbosacral spine with DJD and radiation pain had not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran's left sciatic radicular disability resulted in mild incomplete paralysis. 3. The Veteran's right sciatic radicular disability resulted in mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbosacral spine with DJD. have not been met. 38 U.S.C. § 1155, 5107, 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5237-5242. 2. The criteria for a separate rating of 10 percent, but not higher, for left sciatic radicular disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8520. 3. The criteria for a separate rating of 10 percent, but not higher, for right sciatic radicular disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1974 to May 1977. This case is on appeal from a January 2008 rating decision. The Veteran died in March 2016. The appellant is his surviving spouse. In August 2018, she was granted substitution to continue the appeal. In a June 2010 substantive appeal, the Veteran had requested a Board hearing. Ultimately, the appellant was scheduled for an August 2021 hearing. She failed to attend the hearing; thus, the request is considered withdrawn. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A rating in excess of 40 percent for lumbosacral spine with DJD and radiation pain. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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; 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 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 rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Following the rating criteria, Note 1 states: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 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 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5242. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Analysis The appellant continues the appeal for a higher rating for the Veteran's service-connected back disability. In an August 2010 statement, the Veteran reported that his back pain had worsened over the past few years. The Veteran was afforded an examination in regard to this claim in September 2007. He reported experiencing stiffness in the back after standing or sitting for too long, weakness in the legs, and constant radiating, sharp pain from the back to the legs, accompanied by muscle spasm. Furthermore, the Veteran reported that his symptoms prevented him from heavy lifting and walking or standing for prolonged periods. Also, the Veteran reported having incapacitation episodes once a month, lasting for 7 days but not in a year before this exam. The physician diagnosed Degenerative Joint Disease of Lumbar Spine (DJD) from the previous diagnosis of Lumbosacral Strain. The physician reported lower back forward with pain at 20 degrees on flexion, 10 degrees on extension with pain at 10 degrees, 15 degrees on left and right lateral flexion, and 15 degrees on left and right rotation with pain beginning at 15 degrees. Further, the physician reported that the Veteran experienced radiating pain on movement from his back to the lower extremities and that he required a cane for assistance due to lower back pain. Also, the physician remarked that the Veteran's spine joint function is limited after repetitive use by pain and "pain has the major functional impact." Also, the physician marked the Veteran's neurological examination for the lower extremities as normal. The physician found tenderness, abnormal curvatures of the spine loss of lumbar lordosis, and small marginal osteophytes in the lower back. The physician concluded that the Veteran had mild degenerative disc changes with narrowing occurring at L4 and L5 but no ankylosis. The Veteran was afforded another examination in May 2014. The Veteran reported experiencing limitations on walking unassisted, bending, lifting, or twisting. He reported needing to use his cane and brace. Further, he reported that his symptoms improved with rest and sitting down. He denied experiencing flare-ups. The examiner reviewed the claims file. Based on the lumbar spine tenderness found in this examination's x-ray findings and the Veteran reported pain in the lower back, the examiner diagnosed the Veteran for lumbosacral DJD L3-4, L4-5, and L5-S1 with lumbar radiculopathy from the previous September 2007 diagnosis. The examiner reported lower back forward flexion to 65 degrees with pain beginning at 65 degrees, extension at 15 degrees with pain beginning at 15 degrees, left and right lateral flexion at 15 degrees with pain beginning at 15 degrees, and left and right rotation at 15 degrees with pain beginning at 15 degrees. Furthermore, the examiner reported the Veteran experienced functional impairment after repetitive use caused by weakened movement, less movement than normal, pain on movement, excess fatigability, instability of station, interference with sitting, standing and/or weight-bearing, and lack of endurance. The examiner explained that this examination was conducted from the Veteran's chair because he had recently had a surgery and was dependent upon assistive device for stability in performing the upright activities in the examination. The examiner concluded that the Veteran did not have ankylosis. The Board finds that an increased rating is not warranted as unfavorable ankylosis of the entire thoracolumbar spine is not present. The evidence does not show that the Veteran had ankylosis in the September 2007 and the May 2014 back examinations. In addition, The Veteran has reported experiencing pain and other functional limitations, but the current 40 percent rating fully contemplates all functional loss due to pain, weakness, fatigability, lack of endurance, pain on motion in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59. In a recent decision, the United States Court of Appeals for Veterans Claims (Court) noted that when evaluating a disability under VA's General Rating Formula, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). Therefore, ankylosis can be shown via functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell, 25 Vet. App. at 32; DeLuca, 8 Vet. App. at 202. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to weakness, stiffness, pain, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that would not result in symptoms more nearly approximating unfavorable ankylosis, or its equivalent, of the entire thoracolumbar spine. The Board acknowledges that the Veteran experiences immobility of the spine caused by pain and stiffness. However, there is no indication that any such immobility resulted in the functional equivalent of unfavorable ankylosis. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In this regard, in the September 2007 examination, the Veteran reported a VA doctor recommended bed rest in 1977. He was not prescribed bed rest for any duration during the applicable period. The evidence does not show any associated neurologic abnormalities other than for the lower extremities addressed below. See 38 C.F.R. § 4.71a, Note 1. In sum, the Veteran's back disability has not manifested by unfavorable ankylosis of the entire thoracolumbar spine. As the preponderance of the evidence is against the claim for a rating in excess of 40 percent for lumbosacral DJD, there is no doubt to be resolved and a higher rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. A separate rating for left sciatic radicular disability. 3. A separate rating for right sciatic radicular disability. Legal Criteria Radicular disabilities are rated under DC 8520. 38 C.F.R. § 4.124a. Under DC 8520, a 10 percent rating is warranted where there is mild incomplete paralysis of the nerve; a 20 percent rating is warranted where there is moderate incomplete paralysis of the nerve; a 40 percent rating is warranted where there is moderately severe incomplete paralysis of the nerve; a rating of 60 percent is warranted for severe incomplete paralysis of the nerve, with marked muscular atrophy; and the highest rating of 80 percent is warranted with complete paralysis of the nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. For evaluating these conditions, moderate is "tending toward the mean or average amount or dimension." www.merriam-webster.com/dictionary/moderate. In contrast, "severe" is "of a great degree." www.merriam-webster.com/dictionary/ severe. Analysis As to whether a separate rating is warranted for neurologic problems affecting the lower extremities, in a June 2010 Form 9, the Veteran reported that he did not have an adequate VA examination in October 2008. In this regard, he reported that his leg was not examined. The Veteran reported having problems with his leg to include constant pain which has prevented him from working and required him to walk with assistance of a cane. Furthermore, he reported having gone to physical therapy for 2 months. The Veteran was afforded a peripheral nerve examination in October 2008. The Veteran reported experiencing numbness, tingling, painful paresthesia in the lower extremities extending up to the thighs and shooting radiating pain from the lower back to all the toes. He also reported experiencing numbness and tingling in the fingers of both hands. The physician found paresthesia and numbness in the Veteran's feet and distal aspect of lower extremities increasing in severity. The physician attributed the paresthesia and numbness to diabetic polyneuropathy since the upper extremities were also beginning to be affected. Also, the physician found that the presence of service connected spine degenerative spondylosis and the presence of L-4 and L-5 bilateral radiculopathy to be contributing factors to the Veteran's neuropathically conditions. The examiner recommended an additional examination In May 2014, the Veteran's upper and lower extremities were further evaluated. The Veteran reported pain radiating from his back disability. The examiner reported mild left and right lower extremity paresthesia and/or dysesthesias and intermittent pain and bilateral reduced muscle strength and reflexes. Also, the examiner noted the Veteran's regular use of a brace and cane, but found these assistive devices were required due to spine disabilities. The examiner reported pain on palpation and localized tenderness over paraspinal muscles in the lower lumbar spine at L4-5 and L5-S1. The examiner concluded that left and right sciatic nerves to have mild radiculopathy. Also, the examiner found that these conditions do not result in functional impairment. (Continued on the next page) The Board finds that separate ratings are warranted for these disabilities. In this regard, the October 2008 VA physician and May 2014 VA examiner found lower extremity symptoms present. Furthermore, in the May 2014, the VA examiner evaluated the severity of the lower extremity disabilities to be mild incomplete paralysis. The examinations do not indicate the presence of any moderate or severe symptoms or the presence of complete paralysis. Additionally, the Veteran consistently reported experiencing pain radiating from his back to his lower extremities which is associated with sciatic nerve conditions under DC 5254 and 8520. To the extent that the VA physician in September 2007 and VA examiner in May 2014 reported the use of assistive devices, they explained that they were needed due to his service-connected spine condition. In sum, the evidence shows that left and right sciatic radicular disabilities both result in mild incomplete paralysis. Therefore, the benefit-of-the-doubt doctrine is applicable, and separate ratings for 10 percent, but not higher, for these disabilities are warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.