Citation Nr: 21074071
Decision Date: 12/14/21	Archive Date: 12/14/21

DOCKET NO. 14-10 407
DATE: December 14, 2021

ORDER

Entitlement to an initial 40 percent disability rating for thoracolumbar spine scoliosis with spondylosis and degeneration (back disability), for the appeal period prior to February 27, 2019, is granted. 

Entitlement to an initial rating higher than 40 percent for back disability is denied. 

Entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy for the appeal period prior to February 27, 2019 is denied. 

From February 27, 2019, entitlement to an initial rating of 20 percent for right lower extremity radiculopathy is granted. 

Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy for the appeal period prior to February 27, 2019 is denied. 

From February 27, 2019, entitlement to an initial rating of 20 percent for left lower extremity radiculopathy is granted. 

FINDINGS OF FACTS

1. Resolving reasonable doubt in the Veteran's favor, the severity of the Veteran's back disability most nearly approximates a level consistent with forward flexion limited to 30 degrees throughout the appeal period. 

2. The Veteran's back disability is not manifested by unfavorable ankylosis of the entire thoracolumbar spine throughout the appeal period. 

3. Prior to February 27, 2019, the Veteran's radiculopathy of the right lower extremity is not manifested by moderate level of impairment. 

4. Effective February 27, 2019, resolving reasonable doubt in the Veteran's favor, his radiculopathy of the right lower extremity is manifested by moderate level of impairment. 

5. Prior to February 27, 2019, the Veteran's radiculopathy of the left lower extremity is not manifested by moderate level of impairment. 

6. Effective February 27, 2019, resolving reasonable doubt in the Veteran's favor, his radiculopathy of the left lower extremity is manifested by moderate level of impairment. 

CONCLUSIONS OF LAW

1. The criteria for an initial 40 percent rating for back disability, for the appeal period prior to February 27, 2019, have been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242-5237. 

2. The criteria for an initial rating higher than 40 percent for back disability have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a DC 5242-5237. 

3. The criteria for an initial rating higher than 10 percent for radiculopathy of the right lower extremity, for the appeal period prior to February 27, 2019, have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, 4.124a, DC 8520. 

4. From February 27, 2019, the criteria for an initial 20 percent rating for radiculopathy of the right lower extremity have been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, 4.124a, DC 8520. 

5. The criteria for an initial rating higher than 10 percent for radiculopathy of the left lower extremity, for the appeal period prior to February 27, 2019, have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, 4.124a, DC 8520. 

6. From February 27, 2019, the criteria for an initial 20 percent rating for radiculopathy of the left lower extremity have been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, 4.124a, DC 8520. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1983 to May 2013. 

In June 2019, the Board of Veterans' Appeals (Board) granted a 10 percent rating for back disability for the appeal period prior to February 27, 2019 and a 40 percent rating thereafter. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which issued a Joint Motion for Partial Remand (JMR) in May 2019. The claim was returned to the Board and remanded to the agency of original jurisdiction (AOJ) for further development in November 2020 and April 2021. 

In January 2021, the AOJ awarded a separate 10 percent rating for the right lower extremity radiculopathy and left lower extremity radiculopathy. In April 2021, the Board took jurisdiction of those issues as part and parcel of the claim for increased rating for back disability.

Notably, an August 2021 rating decision increased the rating for the Veteran's back disability to 20 percent for the appeal period prior to February 27, 2019. The issue of increased rating for back disability, however, remains on appeal as the maximum rating possible has not been granted throughout the appeal period. Ab v. Brown, 6 Vet. App. 35 (1993).

Increased Rating

The Veteran contends that higher ratings for his back disability and bilateral lower extremity radiculopathy are warranted.  

The VA's Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, DCs are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999).

1. Entitlement to an initial 40 percent disability rating for back disability, for the appeal period prior to February 27, 2019, is granted. 

2. Entitlement to an initial rating higher than 40 percent for back disability is denied

The Veteran's back disability was rated as 20 percent disabling under DC 5242- 5237 for the appeal period prior to February 27, 2019, and 40 percent thereafter. Notably, both DC 5237 and DC 5242 are part of the General Rating Formula for Disease and Injuries of the Spine.

Under the General Rating Formula, a 40 percent rating is assigned, if forward flexion is limited to 30 degrees or less; or favorable ankylosis of the entire lumbar spine is present. Where there is unfavorable ankylosis of the entire thoracolumbar spine, a 50 percent rating is assigned. Finally, a maximum 100 percent rating is assigned where there is unfavorable ankylosis of the entire spine.

Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Note (5) of the General Rating Formula states that, for VA compensation purposes, unfavorable ankylosis is a condition in which the thoracolumbar 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 of 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 a neutral position (zero degrees) always represents favorable ankylosis

In general, VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided by DeLuca must be followed in adjudicating claims where a rating under the DCs governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment).

In this case, the Board finds that staged rating is not warranted. Rather, reviewing the evidence of record in light most favorable to the Veteran and affording him the benefit of the doubt, the Board finds that a 40 percent rating, but no higher, is warranted throughout the entire appeal period.

To that end, during the April 2013 and August 2016 VA examinations, the Veteran reported that he gets "really achy crampy back pain" and that his back can "lock-up," during flare-ups. The April 2013 and August 2016 VA examiners, however, did not fully consider the severity of the Veteran's condition during flare-ups. In fact, the February 27, 2019 private examination was the first examination of record that provided the Veteran's range of motion or functional loss during flare-ups or when the joint is used repeatedly over a period of time. That examination shows that the Veteran's range of flexion was limited to 30 degrees during such periods. 

The Board is cognizant that the Veteran was provided a VA examination in June 2021, in part, to cure the deficiencies in the April 2013 and August 2016. That is, the examiner was asked to estimate the Veteran's range of flexion during flare-ups throughout the appeal period that starts in June 2013. The examiner's initial opinion was internally inconsistent as he wrote

it is at least as likely as not that during flare-up or repetitive use, [the Veteran's] flexion of thoracolumbar spine was limited to 60[degrees] after June 1, 2013 and also due to a flare-up or repetitive use, his flexion of thoracolumbar spine was limited to 30 degrees or less at some point past 6/1/2013 even if these measurements were not confirmed by any specific examination.

The same examiner provided an addendum opinion in August 2021, where he stated that the Veteran's range of flexion is less likely than not limited to 30 degrees or less during flare-ups. The examiner's opinion appears to only rely on the initial range of motion testing conducted during the June 2021 VA examination without fully considering the Veteran's description of his symptoms during flare-ups. Therefore, the Board does not assign probative weight to the examiner's conclusion regarding the severity of the Veteran's flare-ups during the appeal period prior to February 27, 2019.  

In sum, the February 27, 2019 examination is the first adequate examination of record that fully considered the Veteran's functional impairment during flare-ups or after repetitive use over a period of time. It is not factually ascertainable that the Veteran's back disability was less severe prior to that date. Accordingly, based on the February 2019 examination, the Veteran had range of forward flexion limited to 30 degrees or less, and thereby has a level of impairment contemplated by a 40 percent rating throughout the appeal period.

However, the evidence does not show unfavorable ankylosis of the entire thoracolumbar spine to warrant a higher 50 percent rating. Specifically, the February 2019 and June 2021 examination reports document that ankylosis of the spine was absent. The February 2019 examination found that the Veteran had an initial range of flexion that was limited to 75 degrees, which will likely be reduced to 30 degrees due to pain and/or functional loss during flare-ups or after repetitive use over a period of time. Similarly, the June 2021 VA examination found that the Veteran's initial range of flexion was limited to 60 degrees but would likely reduce to 40 degrees after repetitive use overtime. Based on these examinations, while the Veteran has significant limitation of range of motion of the spine, such limitation is fully contemplated by the 40 percent rating assigned. Furthermore, the range of motion the Veteran had during the exams of record, while limited, demonstrates that he can move and that he does not have stiffening or fixation of the spine.

The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e., functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Veteran reports that his back can "lock up" during flare ups. See April 2013 VA examination. He also explained that he has extremely restricted range of motion that prevent physical activity during flare-ups. See February 2019 Disability Benefits Questionnaire (DBQ). In general, the Veteran's description of the severity of his symptoms during flare-ups is consistent with severe restriction of his range of motion or the Veteran's ability to bend, which is fully considered by the 40 percent disability assigned. His statements, however, do not reflect a level of impairment that approximate functional immobility of the joint that is equivalent to ankylosis, as he is still able to move. The Board finds that the requirement of unfavorable ankylosis of the entire thoracolumbar cannot be met with evidence of the functional equivalent of ankylosis in this particular case.

In sum, the Board finds that throughout the appeal period the criteria for a rating of 40 percent, but no higher have been met. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for rating higher than 40 percent, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102.

3. Entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy, for the appeal period prior to February 27, 2019, is denied. 

4. From February 27, 2019, entitlement to an initial rating of 20 percent for right lower extremity radiculopathy is granted. 

5. Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy for the appeal period prior to February 27, 2019 is denied. 

6. From February 27, 2019, entitlement to an initial rating of 20 percent for left lower extremity radiculopathy is granted. 

The Veteran's radiculopathy of the right and left lower extremities are assigned 10 percent disability rating each under DC 8520. 

DC 8520 provides ratings based on paralysis of the sciatic nerve. The minimum 10 percent rating is warranted for incomplete mild paralysis. 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 severe incomplete paralysis with marked muscular atrophy. The maximum 80 percent rating is warranted for complete paralysis, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a , DC 8520.

In rating peripheral nerve injuries and their residuals, attention should be given to the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120.

The words "mild," "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of such terminology by VA examiners and others, 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 C.F.R. §§ 4.2, 4.6.

In this case, the Board finds that a staged rating is warranted. That is, the severity of the Veteran's impairment caused by his right and left lower extremity radiculopathy is fully contemplated by the 10 percent disability rating currently assigned for the appeal period prior to February 27, 2019. However, effective February 27, 2019, it is factually ascertainable that the Veteran's condition increased in severity, and the evidence of record does support a 20 percent disability rating, each, but no higher. 

To that end, the Veteran underwent a VA peripheral nerves condition examination in September 2013, where he reported that he had decreased sensations on the right buttock. There were no other symptoms attributable to any peripheral nerve condition during that exam. He had normal muscle strength, and reflexes. There was no muscle atrophy noted during the exam, and his lower extremity nerves were normal. In addition, a May 2014 VA primary care note reflects that the Veteran had "no radiation of pain down his legs." Based on this evidence, the Veteran's bilateral lower extremity radiculopathy was not manifested by symptoms that cause a level of impairment contemplated by moderate incomplete paralysis. The evidence did not show impairment of motor function or trophic changes. In fact, other than some decrease sensation on the right buttock (notably attributed to a separate dirt bike injury), the Veteran did not have any other radiculopathy symptoms at that time. Thus, the 10 percent rating already assigned to the right and left lower extremity radiculopathy fully contemplates the level of disability reflected by the evidence of record during this appeal period. 

However, a DBQ completed on February 27, 2019 shows that the severity of the Veteran's right and lower extremity radiculopathy increased to warrant a 20 percent rating, but no higher. That is, the DBQ shows that in addition to decreased sensation to light touch, the Veteran also has moderate constant pain, intermittent pain, numbness as well as paresthesias and/or dysesthesias in the right and left lower extremity. The severity of the radiculopathy in the right and left lower extremities was classified as moderate. 

Furthermore, a June 2021 VA examination found that the Veteran's condition is manifested by moderate and mild intermittent pain in the right and left lower extremity, respectively. The Veteran otherwise had normal muscle strength, reflexes, and gait during that exam. Nor did he have muscle atrophy. The examiner classified the Veteran's right lower extremity radiculopathy as moderate and the left lower extremity radiculopathy as mild. 

Moreover, during a January 2021 VA examination, the Veteran was found to have moderate intermittent pain in both lower extremities. In addition, he had moderate paresthesias and/or dysesthesias, as well as numbness in the left lower extremity. The Veteran specifically reported decreased sensation in the left buttocks area. However, the Veteran had normal muscle strength and reflexes. There was no muscle atrophy or gait change noted. The examiner found that the Veteran has mild incomplete paralysis of the sciatic nerve in the right and left lower extremities. 

Overall, reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board finds that the severity of his pain, numbness, as well as paresthesias and/or dysesthesias, are consistent with a disability picture that approximates moderate level impairment as of February 27, 2019. However, the evidence does not show that the Veteran has impaired reflexes, reduction in muscle strength or tropic changes. His symptoms are wholly sensory, so the highest assessment available is moderate incomplete paralysis. Thus, a rating higher than 20 percent is not warranted for the Veteran's right or left lower extremity radiculopathy for the appeal period after February 27, 2019.   

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Solomon

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.