Citation Nr: 21073186 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-04 903 DATE: December 7, 2021 ORDER Entitlement to an evaluation in excess of 20 percent prior to July 4, 2020, and to 40 percent thereafter for degenerative arthritis of the spine is denied. Entitlement to a disability rating in excess of 20 percent prior to June 16, 2021 for left lower extremity radiculopathy is denied. Entitlement to a disability rating in excess of 20 percent prior to June 16, 2021 for right lower extremity radiculopathy is denied. Entitlement to a 40 percent rating after June 16, 2021 for left lower radiculopathy is granted. Entitlement to a 40 percent rating after June 16, 2021 for right lower radiculopathy is granted. FINDINGS OF FACT 1. For the period on appeal prior to July 4, 2020, the Veteran's service-connected arthritis of the spine was manifested by subjective complaints of pain and most approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; but no ankylosis was shown, and the Veteran did not experience incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. For the period on appeal after July 4, 2020, the Veteran's service-connected arthritis of the spine was manifested by subjective complaints of pain and most approximated forward flexion of the thoracolumbar spine 30 degrees or less; but no ankylosis was shown, and the Veteran did not experience incapacitating episodes of at least 6 weeks in any 12-month period. 3. Prior to June 16, 2021, the Veteran's service-connected left lower extremity radiculopathy approximated moderate incomplete paralysis. 4. Prior to June 16, 2021, the Veteran's service-connected right lower extremity radiculopathy approximated moderate incomplete paralysis. 5. After June 16, 2021, the Veteran's service-connected left lower extremity radiculopathy approximated moderately severe incomplete paralysis. 6. After June 16, 2021, the Veteran's service-connected right lower extremity radiculopathy approximated moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for arthritis of the spine prior to July 4, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.59, Diagnostic Codes 5242 and 5243. 2. The criteria for a disability rating in excess of 40 percent for arthritis of the spine after July 4, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.59, Diagnostic Codes 5242 and 5243. 3. Prior to June 16, 2021, the criteria for a disability rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.59, Diagnostic Codes 8520. 4. Prior to June 16, 2021, the criteria for a disability rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.59, Diagnostic Codes 8520. 5. After June 16, 2021, the criteria for a disability rating of 40 percent for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.59, Diagnostic Codes 8520. 6. After June 16, 2021, the criteria for a disability rating of 40 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.59, Diagnostic Codes 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1983 to December 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran participated in a hearing before the undersigned in February 2019; a transcript is associated with the claims file. In October 2019, the Board remanded this claim for a contemporary VA examination, as the Veteran testified that his symptoms have worsened over the course of the appeal period. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In June 2021, the Board again remanded the claim for an adequate VA examination as the December 2019 and July 2020 VA examinations failed to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. 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). Where there is a question as to which of two ratings should 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. Entitlement to a disability rating in excess of 20 percent prior to July 4, 2021, and to 40 percent thereafter, for arthritis of the spine Spine disabilities are rated pursuant to the criteria of a General Rating Formula for Diseases and Injuries of the Spine governing Diagnostic Codes 5235 to 5243, set forth in 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent rating is warranted for 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The United States Court of Appeals for Veterans Claims (CAVC) recently has held that, while in the past the focus of applying the factors contained in 38 C.F.R. §§ 4.40 and 4.45 were limited to that of range of motion, nothing "suggests that those factors should not apply in the context of ankylosis, particularly as ankylosis is, in essence, a complete limitation of motion." Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *19 (April 16, 2021). Thus, the "application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis." Id. at *20. It should be noted that the ratings listed above apply unless the disabilities rated under Diagnostic Code 5243 are evaluated separately under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 20 percent disability rating with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Generally, in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca, 8 Vet. App. at 206. However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation on the particular range of motion. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). At an April 2015 VA examination, the Veteran was diagnosed with lumbar arthritis. At the examination, the Veteran did not report any flare ups. On initial range of motion testing, flexion was limited to 50 degrees, extension was limited to 10 degrees, right and left lateral bending was limited to 20 degrees, and right and left rotation was limited to 20 degrees. Pain on motion and with weight bearing was indicated resulting in limited bending, twisting, standing, walking, and sitting. No ankylosis or IVDS were noted. At the February 2019 hearing, the Veteran testified that his back pain was getting worse. He also testified that he currently experienced flare-ups and shooting pain into his buttocks. As a result of his testimony that his back injury was worsening, the October 2019 Board decision remanded the claim for a contemporary VA examination. As a result, December 2019 and July 2020 VA examinations were obtained. However, these examinations failed to estimate the loss of range of motion during flare-ups per Sharp. Nevertheless, as the Veteran currently has a staged rating, it is important to document his initial range of motion testing for reference only, which is not deficient. The December 2019 VA examiner listed the Veteran's initial range of motion as flexion to 40 degrees, extension was limited to 10 degrees, right and left lateral bending was limited to 20 degrees, right rotation was limited to 30 degrees, and left rotation was limited to 20 degrees. The July 2020 VA examiner indicated that the Veteran's flexion was limited to 30 degrees, extension was limited to 5 degrees, right and left lateral bending was limited to 15 degrees, right rotation was limited to 20 degrees, and left rotation was limited to 15 degrees. The December 2019 and July 2020 VA examiners additionally failed to document IVDS. A June 2021 VA examination was obtained. Therein, the Veteran reported that his back pain was worsening and that he was currently in a flare-up. The Veteran estimated that his flare-ups lasted as long as a couple months, that he "always has a dull ache and then will have radicular pain into his buttocks. The radicular pain is intermittent but occurs anytime he sits, stands, or walks for more than 5 minutes," and that he has difficult with any back movement. On range of motion testing, to include during flare-up, flexion was limited to 10 degrees, extension was limited to 0 degrees, right and left lateral bending was limited to 10 degrees, and right and left rotation was limited to 10 degrees. The examiner noted difficulty with prolonged sitting, standing, bending, and lifting; he additionally stated that pain was evidenced on weight-bearing and non-weight bearing, and active motion. While the examiner noted muscle spasm resulting in abnormal gait, no ankylosis was noted. The examiner lastly diagnosed the Veteran with IVDS but no bed rest was prescribed at all. Prior to July 4, 2020, the Board finds that the Veteran's service-connected arthritis of the spine was not manifested by forward flexion limited to 30 degrees at any point during the appeal period. Additionally, there are no documented findings of ankylosis. Moreover, the December 2015, December 2019, and July 2020 VA examiners all indicated the Veteran had no intervertebral disc syndrome. For this period, the Veteran's reported symptomatology does not, when viewed in conjunction with the medical evidence, tend to establish additional limitation of motion to the degree that would warrant a rating in excess of 20 percent for the service-connected lumbar spine disability with limitation of motion under 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id. As discussed below, the 40 percent criteria was not clearly met until the July 2020 VA examination (i.e. forward flexion limited to 30 degrees); the adequate initial range of motion testing between December 2019 and July 2020 provides significant evidence that the Veteran's disability picture worsened in severity at the latter time. As such, the Board concludes that the Veteran's pain was not of such severity as to merit a rating in excess of 20 percent even when contemplating pain, repetitive motion, and flare-ups, as these symptoms did not cause sufficient functional limitation. After July 4, 2020, the Board finds that, based on the above, a rating in excess of 40 percent is not warranted. The July 2020 VA examiner, while deficient per Sharp, clearly noted that the Veteran's forward flexion was limited to 30 degrees. This is the first indication that the Veteran met the 40 percent criteria; these criteria were again met by the June 2021 VA examination's showing that the Veteran's forward flexion was limited to 10 degrees. In this regard only, the July 2020 VA examination is afforded some probative weight. However, the evidence of record does not support evaluating the Veteran's back disability in excess of 40 percent. As noted above, the Board now must consider whether a veteran's functional impairment is the equivalent of ankylosis. Chavis, 2021 U.S. App. Vet. Claims LEXIS 660, at *20. The Veteran currently receives a 40 percent evaluation, which contemplates favorable ankylosis. Furthermore, he is not service connected for any condition of the cervical spine. Thus, the only remaining question becomes whether the Veteran's functional loss is the equivalent to that of unfavorable ankylosis of the entire thoracolumbar spine. The Board finds that it is not. VA has defined unfavorable ankylosis as 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. 38 C.F.R. § 4.71a, DCs 5235, 5242 at Note (5). After July 4, 2020, the Veteran has always had some range of motion of his thoracolumbar spine. While the Board acknowledges that the Veteran's lumbar spine disability causes severe back pain, which makes it hard for him to move, there is neither an indication that the Veteran cannot move it at all nor any additional debilitating symptoms that are required to accompany unfavorable ankylosis as contemplated by the rating criteria. Indeed, it is emphasized that the Veteran's now-current 40 percent rating already contemplates favorable ankylosis, and the Board finds that his symptoms, at worst, more closely would approximate that condition. As such, a rating in excess of 40 percent is not warranted. See Chavis, 2021 U.S. App. Vet. Claims LEXIS 660, at *20; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 5235, 5242. Additionally, after July 4, 2020, while the Veteran had a diagnosis of IVDS, it did not result in any acute symptoms or bedrest. Further consideration under Diagnostic Code 5243 is thus not warranted. In sum, the Board finds that the assigned 20 percent rating prior to July 4, 2020, and the rating of 40 percent thereafter, is appropriate for arthritis of the spine. Increased ratings are not warranted, and the claim is denied. Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy Preliminarily, pursuant to Chavis, while the issues of an increased rating for bilateral lower radiculopathy were not explicitly placed in appeal status by way of the filing of an NOD by the Veteran, the Board may still have jurisdiction of these issues if the lay and medical evidence through the appeal period of the lumbar spine reflect neurologic signs and symptoms. Here, the lay evidence, including the Veteran's testimony, and the medical evidence, including the June 2021 VA examination, clearly show that the Veteran has neurologic involvement related to his back disability. The Board therefore finds that it has jurisdiction of these issues at this time. Radiculopathy involving the sciatic nerve is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this diagnostic code, a 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for incomplete paralysis that is severe with marked muscular atrophy. A maximum 80 percent rating is warranted for complete paralysis. 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. The December 2015 VA examination did not find any radicular symptoms. The first showing of "radiating pain" in the lower extremities was September and October 2016 pain consults. The December 2019 VA examiner noted that the Veteran had moderate right and left lower intermittent pain due to the sciatic nerve. The July 2020 VA examiner also indicated that the Veteran had radiculopathy and that these symptoms had worsened to include moderate intermittent pain, paresthesias, and numbness of the sciatic nerve resulting in moderate incomplete paralysis. Lastly, the June 16, 2021 VA examiner indicated that the Veteran's radiculopathy had again worsened. Specifically, the examiner estimated that the Veteran exhibited severe intermittent pain, moderate paresthesias, and moderate numbness of the sciatic nerve. The examiner also noted that the Veteran "always has a dull ache and then will have radicular pain into his buttocks. The radicular pain is intermittent but occurs anytime he sits, stands, or walks for more than 5 minutes." Upon review of the record, the Board finds, first, that prior to June 16, 2021, the assigned ratings of 20 percent for both the left and right lower extremity sciatic radiculopathy are appropriate. In this regard, findings of the December 2019 and July 2020 VA examiners show that the Veteran's right and left lower extremity radiculopathy is moderate. Indeed, the July 2020 VA examiner estimated that his symptoms resulted in moderate incomplete paralysis. Accordingly, the Board finds that a 20 percent rating for radiculopathy of each lower extremity is appropriate prior to June 16, 2021. Increased ratings are thus not warranted for this period. However, after June 16, 2021, the Board finds that the Veteran's bilateral lower extremity radiculopathy worsened to a degree that satisfies the 40 percent criteria. Specifically, the June 2021 VA examiner indicated that the Veteran's symptoms were severe intermittent pain, moderate paresthesias, and moderate numbness of the sciatic nerve. Additionally, the examiner noted that the Veteran "always has a dull ache and then will have radicular pain into his buttocks. The radicular pain is intermittent but occurs anytime he sits, stands, or walks for more than 5 minutes." The Board interprets this observation as indicating that the Veteran's bilateral lower extremity radiculopathy is moderately severe. Thus, 40 percent ratings are warranted for the Veteran's bilateral lower extremity radiculopathy from June 16, 2021. Furthermore, after June 16, 2021, the Board finds that the criteria for a higher 60 percent rating have not been met, as the Veteran did not demonstrate marked muscular atrophy. Accordingly, the Board finds that 40 percent ratings, but no higher, for each lower extremity are appropriate after June 16, 2021. In conclusion, the Board finds that prior to June 16, 2021, the Veteran's bilateral lower extremity radiculopathy best approximated the 20 percent criteria currently assigned for that period. After June 16, 2021, and affording the Veteran the benefit of the doubt, his bilateral lower radiculopathy best approximates the 40 percent criteria. To this extent, the appeal is granted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.