Citation Nr: 21070861 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 13-25 503 DATE: November 26, 2021 ORDER Prior to March 1, 2021, an initial rating of 40 percent for degenerative disc disease (DDD) of the thoracolumbar spine with intervertebral disc syndrome (IVDS), exclusive of periods of a temporary total rating, is granted. A rating in excess of 40 percent for DDD of the thoracolumbar spine with IVDS is denied. Beginning November 19, 2020, a separate rating of 20 percent for right lower extremity radiculopathy is granted. Throughout the period on appeal, an initial rating of 20 percent for DDD of the cervical spine, exclusive of a period of a temporary total rating, is granted. A rating in excess of 20 percent for DDD of the cervical spine, exclusive of a period of a temporary total rating, is denied. Prior to September 5, 2017, a rating in excess of 20 percent for left upper extremity radiculopathy is denied. From September 5, 2017 to August 10, 2020, a rating of 30 percent, but not higher, for left upper extremity radiculopathy is granted. Beginning August 10, 2020, a rating in excess of 30 percent for left upper extremity radiculopathy is denied. FINDINGS OF FACT 1. Throughout the period under review, the Veteran's DDD of the thoracolumbar spine with IVDS has more nearly approximated an estimated 20 degrees of forward flexion during flare-ups and with repeated use over time; there is no objective evidence of ankylosis, incapacitating episodes requiring prescribed bed rest and treatment by a physician for a total duration of at least six weeks during the past 12 months, or neurologic abnormalities other than the Veteran's separately evaluated bilateral lower extremity radiculopathy and neurogenic bladder. 2. Beginning November 19, 2020, the Veteran had a diagnosis of moderate right lower extremity radiculopathy related to his service-connected thoracolumbar spine disability. 3. Throughout the period on appeal, the Veteran's DDD of the cervical spine has more nearly approximated an estimated 20 degrees of forward flexion during flare-ups and with repeated use over time; and there is no objective evidence of ankylosis, incapacitating episodes requiring prescribed bed rest and treatment by a physician for a total duration of at least four weeks, but less than six weeks, during the past 12 months, or neurologic abnormalities other than the Veteran's separately evaluated left upper extremity radiculopathy. 4. Prior to September 5, 2017, the Veteran's left upper extremity radiculopathy has been manifested by no more than mild incomplete paralysis of the left upper radicular group. 5. Beginning September 5, 2017, the Veteran's left upper extremity radiculopathy has more nearly approximated moderate incomplete paralysis of the left upper radicular group. CONCLUSIONS OF LAW 1. Throughout the period under review, the criteria for an initial rating of 40 percent, but not higher, for DDD of the thoracolumbar spine with IVDS have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 (2020). 2. Beginning November 19, 2020, the criteria for a separate rating of 20 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § Diagnostic Code 8520 (2020). 3. Prior to September 5, 2017, the criteria for a rating in excess of 20 percent for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8510. (2020). 4. Beginning September 5, 2017, the criteria for a rating of 30 percent, but not higher, for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8510. (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2009 to May 2011, with additional service in the National Guard, including a period of active duty for training (ACDUTRA) from May 2004 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in June 2016, July 2020, and June 2021 and was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 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). 1. Entitlement to a higher rating for DDD of the thoracolumbar spine and IVDS With the exception of two periods of temporary 100 percent ratings for convalescence from June 11, 2013, through September 20, 2013, and from June 23, 2015, through September 30, 2015, the Veteran's service-connected thoracolumbar spine disability has been assigned a 20 percent rating prior to March 1, 2021, and a 40 percent rating thereafter. The Veteran is also in receipt of separate ratings for left lower extremity radiculopathy and neurogenic bladder throughout the period on appeal and a separate rating for right lower extremity radiculopathy beginning March 1, 2021. As the Veteran has not appealed those ratings, they are not presently before the Board. However, the Board will consider entitlement to a separate compensable rating for right lower extremity radiculopathy prior to March 1, 2021, as part of his claim for an increased rating for a thoracolumbar spine disability. Under the Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is 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, General Rating Formula. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. 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; gastro-intestinal 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. Id. at Note (5). The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id. at Note (1). Alternatively, IVDS can be rated based on incapacitating episodes under the Formula for Rating IVDS (IVDS Formula) or the General Rating Formula, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Id. at Note (6). Under the IVDS Formula, a 20 percent rating is assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. Id. A maximum 60 percent rating is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Upon review of the record, the Board finds that a rating of 40 percent, but not higher, is warranted throughout the period under review. Prior to the assignment of a 40 percent rating beginning March 1, 2021, the Veteran underwent VA examinations in May 2011, March 2013, and September 2017. At worst, forward flexion of the thoracolumbar spine was limited to 45 degrees during the May 2011 VA examination. During the March 2013 and September 2017 VA examinations, the Veteran described flare-ups manifested by increased pain running down his back into his leg, which he characterized as a 9, out of 10, in severity. However, none of the VA examiners provided an estimate of additional limitation of motion during flare-ups or with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017) (a VA examiner must provide an estimate as to additional limitation of motion during flare-ups and with repeated use over time or explain why such an opinion cannot be provided). When the Veteran most recently underwent a VA examination in March 2021, the examiner estimated that the Veteran's thoraco-lumbar spine would exhibit 20 degrees of flexion during flare-ups and with repeated use over time. Based on the foregoing, and after resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's thoracolumbar spine disability more nearly approximated flexion to 20 degrees during flare-ups and with repeated use over time throughout the period under review. Accordingly, a rating of 40 percent is granted prior to March 1, 2021. The Board finds that a rating in excess of 40 percent is not warranted at any time during the period under review. The Board has reviewed and considered the Veteran's assertions in support of his claim, including his reports of back pain and stiffness, which limit his ability to lift, bend, and walk for prolonged periods of time. However, even considering the Veteran's subjective complaints of pain and other symptoms described in DeLuca, unfavorable ankylosis of the thoracolumbar spine has not been shown such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Board has also considered whether a higher rating is warranted under the IVDS formula. However, the evidence of record does not show incapacitating episodes requiring prescribed bed rest and treatment by a physician for a total duration of at least six weeks during the past 12 months. Accordingly, a higher rating is not warranted under the IVDS formula. See 38 C.F.R. § 4.71a, IVDS Formula. The Board has also considered whether a separate rating is warranted for an associated neurological disorder, including entitlement to a separate compensable rating for right lower extremity radiculopathy prior to March 1, 2021. The Board finds that a separate compensable rating for right lower extremity radiculopathy is warranted as of November 19, 2020, but not earlier. A review of the record reveals no diagnosis of right lower extremity radiculopathy prior to November 19, 2020. Indeed, a September 2020 VA treatment record notes that electrodiagnostic studies performed in April 2020 showed no evidence of radiculopathy involving the right lower extremity. However, a VA treatment record dated November 19, 2020, indicates that the Veteran reported bilateral leg pain and radicular symptoms, which the treatment provider believed may be due to lumbosacral radiculopathy. When the Veteran next underwent a VA examination in March 2021, he reported mild paresthesias and/or dysesthesias and moderate pain and numbness in the right lower extremity. Sensation was decreased in the right lower extremity, but no non-sensory symptoms were noted upon examination. The examiner diagnosed the Veteran with right lower extremity radiculopathy, and a 20 percent rating was subsequently granted for moderate right lower extremity radiculopathy, effective March 1, 2021. Accordingly, the Board finds that the 20 percent rating for right moderate lower extremity is warranted as of November 19, 2020, but not earlier. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve); see also 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves (when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree). A review of the record reveals no other neurologic abnormalities associated with the Veteran's thoracolumbar spine disability which have not already been separately compensated. 2. Entitlement to a higher rating for DDD of the cervical spine With the exception of a temporary 100 percent rating for convalescence from March 21, 2018, through April 30, 2018, the Veteran's service-connected cervical spine disability has been assigned a 10 percent rating prior to March 15, 2013; a 20 percent rating from March 15, 2013 to September 4, 2017; a 10 percent rating from September 5, 2017 through August 9, 2020; and a 20 percent rating beginning August 10, 2020. The Veteran is also in receipt of a separate rating for left upper extremity radiculopathy, which will be addressed below. Under the General Rating Formula, a 10 percent rating is assigned when forward flexion of the cervical spine is greater than 30 degrees, but not greater than 40 degrees; or the combined range of motion of the cervical spine is greater than 170 degrees, but not greater than 335 degrees; or where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or where there is vertebral body fracture of loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent rating is assigned when forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or the combined range of motion of the cervical spine is not greater than 170 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent rating is assigned when forward flexion of the cervical spine is 15 degrees or less; or when there is favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. Id. Upon review of the record, the Board finds that a rating of 20 percent, but not higher, is warranted throughout the period under review. The Veteran underwent VA examinations in May 2011, March 2013, September 2017, August 2020, and March 2021, during which forward flexion of the cervical spine was to 40 degrees, 30 degrees, 35 degrees, 25 degrees, and 30 degrees, respectively. Although forward flexion to 30 degrees or less was not shown during the May 2011 and September 2017 VA examinations, neither VA examiner provided an estimate of additional limitation of motion during flare-ups or with repeated use over time. See Sharp, 29 Vet. App. at 35-36 (2017). The August 2020 and March 2021 VA examiners estimated that the Veteran's cervical spine would exhibit 20 degrees of flexion during flare-ups and with repeated use over time. After resolving any doubt in favor of the Veteran, the Board finds the Veteran's cervical spine disability more nearly approximated forward flexion to 20 degrees. Accordingly, a 20 percent rating is warranted throughout the period under review. The Board finds that a rating in excess of 20 percent is not warranted at any time. The Board has reviewed and considered the Veteran's assertions in support of his claim, including his reports of neck pain and stiffness, which limit his ability to turn his head, particularly while driving. However, even considering the Veteran's subjective complaints of pain and other symptoms described in DeLuca, forward flexion of the cervical spine to 15 degrees or less or favorable or unfavorable ankylosis of the cervical spine has not been shown such that a higher rating would be warranted. See Thompson, 815 F.3d at 786. The Board has also considered whether a higher rating is warranted under the IVDS formula. However, the evidence of record does not show incapacitating episodes requiring prescribed bed rest and treatment by a physician for a total duration of at least four weeks, but less than six weeks, during the past 12 months. Accordingly, a higher rating is not warranted under the IVDS formula. See 38 C.F.R. § 4.71a, IVDS Formula. The Board has also considered whether a separate rating is warranted for an associated neurological disorder other than the Veteran's separately evaluated left upper extremity radiculopathy. However, the evidence of record does not show a diagnosis of right upper extremity radiculopathy or any other neurological disorder associated with the Veteran's cervical spine disability. Accordingly, a separate rating for an associated neurological disorder is not warranted. 3. Entitlement to a higher rating for left upper extremity radiculopathy The Veteran's left upper extremity radiculopathy has been assigned an initial 10 percent rating prior to August 10, 2020, and a 30 percent rating thereafter. The Rating Schedule distinguishes between the major/dominant extremity and the minor/non-dominant extremity for rating purposes. 38 C.F.R. § 4.69. In this case, the record shows that the Veteran is right-handed. Thus, his service-connected left upper extremity radiculopathy affects his minor extremity. Under Diagnostic Code 8510, a 20 percent rating is assigned for mild incomplete paralysis of the upper radicular group of the minor extremity; a 30 percent rating is assigned for moderate incomplete paralysis of the upper radicular group of the minor extremity; a 40 percent rating is assigned for severe incomplete paralysis of the upper radicular group of the minor extremity; and a maximum 60 percent rating is assigned for complete paralysis of the upper radicular group of the minor extremity where all shoulder and elbow movements are lost or severely affected. 38 C.F.R. § 4.124a, Diagnostic Code 8510. Words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The term "incomplete paralysis," with this and other peripheral nerve injuries, 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. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Upon review of the record, the Board finds that a 30 percent rating is warranted beginning September 5, 2017. However, a rating in excess of 20 percent is not warranted at any time prior to September 5, 2017, and a rating in excess of 30 percent is not warranted at any time on or after September 5, 2017. Prior to September 5, 2017 The Veteran underwent a VA examination in May 2011, during which he reported intermittent numbness in his left fourth and fifth fingers. The Veteran underwent another VA examination in March 2013, during which he reported moderate numbness and paresthesias and/or dysesthesias, and mild pain in the left upper extremity. A sensory examination revealed decreased sensation in the left shoulder area and inner/outer forearm and normal sensation in the left hand/fingers. Muscle strength and reflexes were normal, and there were no trophic changes. The examiner characterized the Veteran's radiculopathy as mild incomplete paralysis of the left upper radicular group. As noted above, the rating criteria indicates that wholly sensory nerve involvement is considered to be mild, or, at most, moderate. In this case, the Veteran reported mild to moderate subjective sensory symptoms. There was no objective evidence of non-sensory symptoms upon examination, and the examiner characterized the Veteran's radiculopathy as mild. Based on the foregoing, the Board finds that the evidence of record shows no more than mild incomplete paralysis of the left upper radicular group. Therefore, a rating in excess of 20 percent is not warranted at any time prior to September 5, 2017. Beginning September 5, 2017 The Veteran underwent a VA examination in September 2017, during which he reported a recent increase in his cervical radiculopathy symptoms, which he described as severe numbness in the left upper extremity. He denied any pain or paresthesias and/or dysesthesias. A sensory examination revealed decreased sensation in the left hand/fingers and normal sensation in the shoulder area and inner/outer forearm. Muscle strength and reflexes were normal, and there were no trophic changes. The examiner characterized the Veteran's radiculopathy as moderate. The Veteran underwent another VA examination in August 2020, during which he reported moderate numbness, paresthesias and/or dysesthesias, and intermittent pain in the left upper extremity. A sensory examination was normal throughout the left upper extremity. Muscle strength and reflexes were normal, and there were no trophic changes. The examiner characterized the Veteran's radiculopathy as moderate. The Veteran underwent another VA examination in March 2021, during which he reported moderate, intermittent left upper extremity pain and mild numbness and paresthesias and/or dysesthesias. A sensory examination revealed decreased sensation in the left shoulder area, inner/outer forearm, and hand/fingers. Muscle strength and reflexes were normal, and there were no trophic changes. The examiner characterized the Veteran's radiculopathy as moderate. As the Veteran reported an increase in his left upper extremity radicular symptoms beginning September 5, 2017, and the VA examiner characterized the Veteran's left upper extremity radiculopathy as moderate as of that date, the Board finds that the 30 percent rating is warranted beginning September 5, 2017. The Board finds that a rating in excess of 30 percent is not warranted at any time on or after September 5, 2017. As noted above, the rating criteria indicates that wholly sensory nerve involvement is considered to be mild, or, at most, moderate. In this case, the Veteran reported subjective sensory symptoms ranging between mild to severe. However, there was no objective evidence of non-sensory symptoms upon examination, and all of the VA examiners characterized the Veteran's left upper extremity radiculopathy as moderate. Based on the foregoing, the Board finds that the evidence of record shows no more than moderate incomplete paralysis of the left upper radicular group. Therefore, a rating in excess of 30 percent is not warranted at any time on or after September 5, 2017. In reaching the above conclusions, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning ratings in excess of those already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.