Citation Nr: 21073090 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-39 282 DATE: December 7, 2021 ORDER A rating of 40 percent, but no higher, for the service-connected chronic lumbar strain with degenerative disc, or bulging disc, disease is granted for the entirety of the appeal period, subject to the laws and regulations governing monetary benefit awards. A rating of 20 percent, but no higher, for the service-connected radiculopathy of the left lower extremity is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Throughout the appeal period (from April 30, 2009), the Veteran's chronic lumbar strain with degenerative disc, or bulging disc, disease has been manifested by no worse than forward flexion of the thoracolumbar spine to 20 degrees; unfavorable ankylosis of the thoracolumbar spine has not been shown at any time during the appeal period; and IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal has not been shown at any time during the appeal period. 2. Throughout the appeal period (from April 30, 2009), the Veteran's left lower extremity radiculopathy has been productive of no worse than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, for the service-connected chronic lumbar strain with degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a rating of 20 percent, but no higher, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.124(a) Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to July 2001 and from September 2004 to December 2005. The Board of Veterans Appeals (Board) remanded this appeal for further evidentiary development in October 2018, January 2020, and June 2021. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Chronic Lumbar Strain with Degenerative Disc, & Bulging Disc, Disease Spinal disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes 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 assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS requiring treatment, including bedrest, prescribed by a physician. Id. at Note (1). The evidence of record does not show that the Veteran has been prescribed bedrest to treat incapacitating episodes of IVDS at any time during the period on appeal, nor has he argued as such. As the prescription of bedrest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bedrest precludes a rating from being assigned under it. Thus, in the case at hand, a rating based on IVDS is not appropriate, and the Veteran's service-connected lumbar spine disability will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DCs 5235-5243. A 20 percent rating requires forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine 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. Id. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. And finally, a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Note 6 of the rating formula instructs VA to evaluate separately 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. 38 C.F.R. § 4.71a, Note 6. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Also, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran seeks a higher disability rating for his chronic lumbar strain with degenerative disc, and bulging disc, disease throughout the entirety of the appeal period. His lumbar spine disability, which is rated under DC 5237, was initially rated at 10 percent from April 30, 2009. In a September 2019 rating decision, the Agency of Original Jurisdiction (AOJ) increased his rating to 20 percent from July 2, 2019. Then, in an August 2021 rating decision, the AOJ increased his rating to 40 percent from July 21, 2021. Throughout the course of this appeal, the Veteran has been provided with VA examinations in August 2009, June 2016, July 2019, and July 2021. Regrettably, the August 2009, June 2016, and July 2019 examinations contained deficiencies rendering them not suitable for rating purposes. At the July 2021 VA examination, the Veteran reported that he has experienced lower back pain since he injured his back during service in 2005. He reported that his lower back is tender, and he described the pain as constant and dull. He explained that the pain is worse in the morning and when he performs activities, such as bending forward. He also reported experiencing shooting pain in both of his legs, with the pain being worse in his left leg. He denied experiencing flare ups and reported that his lumbar spine has stayed the same since it first onset in 2005. His initial range of motion measurements were: forward flexion to 20 degrees; extension to 10 degrees; right lateral flexion to 10 degrees; left lateral flexion to 10 degrees; right lateral rotation to 10 degrees; left lateral rotation to 10 degrees, and combined range of motion was 70 degrees. He reported experiencing pain with all motions tested. Passive range of motion testing was not performed, as the examiner determined that it was medically contra indicated and may cause the Veteran pain. Evidence of pain with active motion was noted, but the examiner determined that it did not result in functional loss. There was no evidence of crepitus, but mild tenderness on palpation was noted in the Veteran's lower back. The Veteran was able to perform repetitive use testing with at least three repetitions, and no additional loss of function or range of motion was noted. He was not examined after repeated use over time, and there was no evidence of pain, fatigability, weakness, lack of endurance, or incoordination significantly limits his functional ability with repeated use over time. He denied experiencing flare ups and thus was not examined during a flare up. There was no evidence of muscle spasm or guarding, but the Veteran did have localized tenderness that did not result in abnormal gait or abnormal spinal contour. No other factors were found to contribute to his lumbar spine disability. Muscle strength testing was normal bilaterally, there was no evidence of muscle atrophy, and the Veteran's reflex examination was normal on both sides. His sensory examination was normal bilaterally, and the straight leg raising test was negative on both sides. There was no ankylosis of the spine, no IVDS, or any other neurologic abnormalities. The Veteran denied using assistive devices, and there were no other pertinent physical findings noted. The examiner noted that the Veteran's lumbar spine disability impacts his ability to perform any type of occupational task, because he is unable to stand for extended periods of time due to pain and is unable to perform any activity that requires bending of his back. Of note, the Veteran's radiculopathy symptoms were not evaluated during this examination. The Board notes that the July 2021 VA examination was obtained in response to a remand directive from the June 2021 Board decision which specified only a new VA examination for the Veteran's lumbar spine disability. The Veteran is already service connected for radiculopathy of the left and right lower extremities, and an increased rating for his left lower extremity radiculopathy is on appeal and is addressed below. As to his right lower extremity radiculopathy, he was notified in a December 2017 Statement of the Case (SOC) that his rating at 10 percent was continued. As he did not perfect an appeal regarding the severity of the radiculopathy of his right lower extremity, that issue is not on appeal. There are no other medical treatment records associated with the claims file that indicate that the Veteran's low back symptoms are more severe than those exhibited at the July 2021 VA examination. Throughout the period on appeal, the Veteran has consistently argued that his lumbar spine symptoms are worse than the disability ratings he's been assigned. The Board has considered his lay statements regarding the history and severity of his symptoms throughout the appeal period and finds that they are consistent with the July 2021 VA examination findings. Considering the evidence as a whole, and resolving any reasonable doubt in the Veteran's favor, the Board finds that a rating of 40 percent, but no higher, is warranted for his chronic lumbar strain with degenerative disc, and bulging disc, disease for the entire period on appeal. While forward flexion of his thoracolumbar spine was found to be to 20 degrees, there is no evidence in the claims file that he has had ankylosis of his thoracolumbar spine, favorable or unfavorable, at any time during the period on appeal. Thus, a rating of 40 percent, but no higher, for the Veteran's chronic lumbar strain with degenerative disc disease is granted for the entire period on appeal. Radiculopathy of the Left Lower Extremity The Veteran seeks a higher disability rating for his radiculopathy of his left lower extremity, which is rated under DC 8520. 38 C.F.R. § 4.124a. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis, 20 percent for moderate incomplete paralysis, 40 percent for moderately severe incomplete paralysis, 60 percent for severe incomplete paralysis with marked atrophy, and 80 percent for complete paralysis, where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or, (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The words slight, 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 degree that its decisions are equitable and just. 38 C.F.R. § 4.6. The use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. Cranial or peripheral 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 that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. In rating diseases of the peripheral nerves, 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. 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement. When bilateral, they are combined with application of the bilateral factor. 38 C.F.R. § 4.124(a). Initially, service connection for radiculopathy of the Veteran's left lower extremity was granted and a 10 percent evaluation, effective from April 30, 2009, was awarded for this disability in a January 2014 rating action. In a January 2015 Notice of Disagreement (NOD), the Veteran argued that his left lower extremity radiculopathy symptoms were more severe than the mild rating assigned. He described his symptoms as burning and sometimes stabbing nerve pain with some numbness and tingling to various parts of his left leg. In June 2016, he was afforded a VA examination to assess the severity of his left lower extremity radiculopathy. He reported experiencing frequent bursts of shooting pains into his left calf and occasional numbness in his left foot. He reported that activities requiring moderate periods of standing, walking, repetitive bending or twisting, and carrying heavy loads increased the pain in his leg. The physical examination revealed his reflexes of the left knee and ankle to be hypoactive. His sensory examination was normal, and his left straight leg raising test was negative. He denied constant pain to his left lower extremity but was found to have mild intermittent pain, paresthesias and/or dysesthesias, and numbness of his left lower extremity. The examiner noted that the sciatic nerve root was involved and opined that the radiculopathy of the Veteran's left lower extremity was mild. In an August 2016 written statement, the Veteran again argued that his left lower extremity radiculopathy symptoms were more than mild. He was afforded another VA examination in July 2019, where he reported experiencing paresthesias and pain, including occasional bursts of very sharp pain, in his left lower extremity. He denied any leg weakness and stated that the pain is aggravated with most activity. His physical examination revealed hypoactive reflexes of the left knee and absent reflexes of the left ankle. Sensory examination was normal except for decreased sensation to his left foot and toes, and he was unable to perform the straight leg raising test. He denied constant pain to his left lower extremity but was found to have moderate intermittent pain and paresthesias and/or dysesthesias and mild numbness. The examiner confirmed the involvement of the sciatic nerve root and opined that the Veteran's left lower extremity radiculopathy was moderate. There are no other medical treatment records associated with the claims file that indicate that the Veteran's left lower extremity radiculopathy was more severe than as was exhibited at the July 2019 VA examination. The Board has also considered the Veteran's competent lay statements regarding the history and severity of his symptoms throughout the appeal period and finds that they are consistent with the findings of the July 2019 VA examination. Considering the evidence as a whole, and resolving any reasonable doubt in the Veteran's favor, the Board finds that a rating of 20 percent, but no higher, for his left lower extremity radiculopathy is warranted for the entire period on appeal. The medical evidence of record shows that the Veteran's left knee reflex is hypoactive, his left ankle reflex is absent, and he has decreased sensation in his left foot and toes. Further, he reports intermittent pain and paresthesias and/or dysesthesias of his left lower extremity, which has been found to be, at worse, moderate. However, his muscle strength is normal, there is no evidence of muscle atrophy, and he has denied experiencing constant pain in his left lower extremity. The severity of his radiculopathy has been found to be, at worse, moderate, which is consistent with his lay statements regarding his symptoms. There is no evidence of record to support an overall disability picture of moderately severe radiculopathy. Thus, the radiculopathy of the Veteran's left lower extremity has not been manifested by moderately severe incomplete paralysis of the sciatic nerve at any time during the period on appeal. As such, a rating of 20 percent, but no higher, for his left lower extremity radiculopathy is granted for the entire period on appeal. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, Associate 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.