Citation Nr: 21074252
Decision Date: 12/14/21	Archive Date: 12/14/21

DOCKET NO. 16-46 215
DATE: December 14, 2021

ORDER

An initial rating in excess of 40 percent for intervertebral disc syndrome (IVDS) and degenerative disc disease (DDD) of the lumbar spine, with herniated nucleus pulposus of L5/S1, is denied.

The assignment of a separate rating for radiculopathy of the left lower extremity (LLE), evaluated as 20 percent disabling as of January 1, 2012, is proper; the appeal is denied.

The assignment of a separate rating for radiculopathy of the right lower extremity (RLE), evaluated as 20 percent disabling as of January 1, 2012, is proper; the appeal is denied.

FINDINGS OF FACT

1. For the entire appeal period, the Veteran's IVDS and DDD of the lumbar spine, with herniated nucleus pulpous of L5/S1, did not result in ankylosis, incapacitating episodes of IVDS, or associated objective neurological abnormalities other than her separately service-connected radiculopathy of the LLE and RLE.

2. As of January 1, 2012, but no earlier, the Veteran's IVDS and DDD of the lumbar spine with herniated nucleus pulpous of L5/S1, is manifested by radiculopathy of the LLE that resulted in no more than moderate incomplete paralysis of the sciatic nerve.

3. As of January 1, 2012, but no earlier, the Veteran's IVDS and DDD of the lumbar spine with herniated nucleus pulpous of L5/S1, is manifested by radiculopathy of the RLE that results in no more than moderate incomplete paralysis of the sciatic nerve.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 40 percent for IVDS and DDD of the lumbar spine with herniated nucleus pulposus of L5/S1, have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1, 4.2., 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 

2. The assignment of a separate rating for radiculopathy of the LLE, evaluated as 20 percent disabling as of January 1, 2012, is proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.124a, DC 8520.

3. The assignment of a separate rating for radiculopathy of the RLE, evaluated as 20 percent disabling as of January 1, 2012, is proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.124a, DC 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 2007 to December 2011. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2013 by a Department of Veterans Affairs (VA) Regional Office. 

As requested, the Veteran was scheduled for a Board hearing before a Veterans Law Judge in July 2019 and February 2020; however, she did not appear for them. She has not provided good cause for her absence or requested that the hearing be rescheduled. Therefore, the request for a Board hearing is considered withdrawn. 38 C.F.R. §§ 20.702 (d), 20.704(d).

In June 2021, the Board remanded the initial rating claim for IVDS and DDD of the lumbar spine, with herniated nucleus pulpous of L5/S1, for additional development. While on remand, in a September 2021 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 40 percent rating for the Veteran's IVDS and DDD of the lumbar spine with herniated nucleus pulposus of L5/S1, effective January 1, 2012, the date of service connection. However, as the Veteran is presumed to seek the maximum available benefit for a disability, her claim for a higher initial rating remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Additionally, the Board notes that the Veteran did not appeal with respect to the propriety of the separate assigned ratings for radiculopathy of the LLE and RLE; however, such issues are part and parcel of her claim for an increased rating for her lumbar spine disability as the rating criteria governing the evaluation of such disability specifically indicates that any associated objective neurologic abnormalities be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Therefore, such issues have been included in the decision herein. 

Finally, the Board notes that in July 2021, the Board also remanded the claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In the September 2021 rating decision, the AOJ awarded entitlement to TDIU, for the entire appeal period. Therefore, as such is a full grant of the benefit sought on appeal with regard to such claim, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). 

Increased Rating Claims

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

The appeal period stems from January 1, 2012, the date of service connection for IVDS and DDD of the lumbar spine with herniated nucleus pulposus of L5/S1. 

1. Entitlement to an initial rating in excess of 40 percent for IVDS and DDD of the lumbar spine with herniated nucleus pulposus of L5/S1.

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

As noted above, for the entire appeal period, the Veteran's IVDS and DDD of the lumbar spine with herniated nucleus pulposus of L5/S1, has been rated as 40 percent disabling pursuant to DC 5242, which is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula). 

Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Such provides for a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 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. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

As noted above, IVDS may be evaluated under either the General Rating Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table).

The IVDS Rating Formula provides that a 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is 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.

As of February 7, 2021, VA amended the rule pertaining to the evaluation of musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 25,450 (November 27, 2020).  In this regard, while such did not amend the General Rating Formula or IVDS Rating Formula, DC 5243 now includes the following notation: assign this DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. Thus, such changes do not affect the criteria under which the Veteran's back disability is rated.

As an initial matter, the Board notes that the record does not show, and the Veteran does not contend, that she ever had an incapacitating episode of IVDS as defined by VA regulations, i.e., required physician prescribed bed rest. In this regard, the November 2011, March 2016, and September 2021 VA examiners found that the Veteran did have IVDS, however, such did not result in any incapacitating episodes as defined by VA regulations. Therefore, an increased rating under the IVDS Rating Formula is not warranted at any point pertinent to the appeal.

Upon review of the entirety of the evidence, to include VA treatment and Social Security Administration (SSA) records, and VA examination reports dated in November 2011, March 2016, and September 2021, the Board finds that while the lumbar ranges are limited, thereby warranting the assignment of a 40 percent rating, the Veteran can nevertheless move her spine, and VA examination reports fails to show that her back disability results in ankylosis of any part of the spine. Further, the September 2021 VA examiner stated that functional loss related to the Veteran's lumbar spine disability would result in her preclusion from performing physical or sedentary activities for extended periods, and recorded her estimation of the Veteran's ranges of motion when considering the limitations of pain, weakness, fatigability, and incoordination, with repeated use over a period of time and during flare-ups, thereby indicating that, even considering such factors, the Veteran would retain some lumbar spine motion. As such, the Veteran's symptoms cannot be characterized as more nearly approximating unfavorable ankylosis, so as to warrant a rating in excess of 40 percent at any time during the appeal period.

Additionally, the Board has considered Note (1) to the General Rating Formula, which provides that any associated objective neurologic abnormalities should be separately evaluated under an appropriate diagnostic code. In this regard, the Board observes that the Veteran has been awarded separate ratings for lumbar radiculopathy of the bilateral lower extremities associated with her lumbar spine disability. The propriety of the separate ratings assigned for such disabilities will be addressed further below. Furthermore, the Board finds that her IVDS and DDD of the lumbar spine, with herniated nucleus pulposus of L5-S1, does not result in any additional associated objective neurologic abnormalities, to include bladder or bowel incontinence. While a July 2016 VA treatment record suggested that the Veteran experienced bladder urgency, there is no evidence of incontinence or a recurrence of such symptoms. Indeed, the November 2011, March 2016, and September 2021 VA examiners reported that the Veteran's back disability did not result in any neurologic abnormalities. Therefore, absent evidence of objective neurologic abnormalities associated with the Veteran's lumbar spine disability, the Board finds that separate ratings for such conditions are not warranted. 

With regard to the Veteran's report that her lumbar spine disability causes poor sleep quality, and the pain mediation taken for such disability, results in fatigue and difficulty concentrating, the Board acknowledges that the rating schedule does not specifically address such symptoms in connection with the DCs under which such disability is rated. However, in Doucette v. Shulkin, the Court made clear that a DC need not list every work or type of symptom to contemplate the functional loss associated with such disability. In such case, the Court found that difficulty hearing sounds in crowds, televisions, or on telephones is not explicitly listed in the DC for evaluating hearing loss, but are nonetheless contemplated therein because they are the actual effects of hearing loss in daily life. Id., 28 Vet. App. 366 (2017). Here, although in the context of hearing loss, the Doucette decision reflects the Court's acknowledgement that functional effects associated with a service-connected disability need not be explicitly listed in a DC in order to show that such are indeed contemplated therein.

In the instant case, the Veteran has reported that her back pain is so severe at times that it results in difficulty with sleep. Moreover, the pain medication prescribed to threat pain associated with her lumbar spine disability, results in fatigue and difficulty concentration and staying on task to perform physical work or sedentary activities for extended periods.  As previously discussed, pain associated with the Veteran's back disability is explicitly considered in the DCs under which such disabilities are rated. Further, in applying the principles in Doucette, the Board finds that the natural consequences of severe pain, and prescribed pain medication, may include difficulty sleeping and/or excessive sleepiness. Therefore, such functional effects are indeed contemplated in the DCs under which such service-connected disabilities are evaluated. 

Overall, given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities and the broad inclusive ratings assigned for radiculopathy, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture associated with her lumbar spine disability. See, e.g., 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a.

2. Propriety of the assignment of a separate rating of radiculopathy of the LLE, evaluated as 20 percent disabling as of January 1, 2012.

3. Propriety of the assignment of a separate rating of radiculopathy of the RLE, evaluated as 20 percent disabling as of January 1, 2012.

For the entire appeal period, the Veteran has been in receipt of separate 20 percent rating for radiculopathy of the LLE and RLE affecting the sciatic nerves pursuant to DC 8520 associated with her back disability, effective January 1, 2012, the date of service connection for the Veteran's lumbar spine disability.

In this regard, in peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, a disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.

DC 8520 pertains to the sciatic nerve and provides that moderate incomplete paralysis is rated 20 percent disabling, moderately severe incomplete paralysis is rated as 40 percent disabling, and severe incomplete paralysis is rated 60 percent disabling. Complete paralysis, described as the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee wakened or (vary rarely) lost is rated 80 percent disabling. 

Although the words "mild," "moderate" and "severe" are not defined in the VA rating schedule the Board must evaluate all the evidence in order to render a decision that is "equitable and just." 38 C.F.R. § 4.6. However, regulations specifically state that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

At the November 2011 VA examination, the Veteran reported pain which radiates down her right and left lower extremities. Upon examinations, muscle strength testing, reflex examination, and sensory testing of bilateral lower extremities yielded normal results. The examiner noted that the Veteran had moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the bilateral lower extremities. Based on the foregoing, the examiner found that the Veteran had moderate radiculopathy of the left and right lower extremities, affecting the sciatic nerves. 

Upon examination in May 2016, muscle strength testing was normal for the right and left hip flexion and knee extension, and was 4/5 at the right and left ankle plantar flexion, ankle dorsiflexion, and great toe extension. Deep tendon reflexes were normal at the bilateral knees and hypoactive at 1+ at the bilateral ankles. Sensory examination revealed normal sensation in the bilateral lower extremities. The examiner also noted that the Veteran had moderate constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the right and left lower extremities. Overall, the examiner found that the Veteran's radiculopathy of the sciatic nerve resulted in mild incomplete paralysis of the of the right and left lower extremities.

At the September 2021 VA examination, muscle strength testing and reflex examination of the right and left lower extremities revealed normal results. Sensory examination revealed normal sensation, with the exception of the bilateral thigh/knee, which had decreased sensation. The VA examiner noted moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and mild numbness of the right and left lower extremities. The examiner noted that the Veteran's radiculopathy affected the sciatic nerve of the right and left lower extremities.

Upon review of the forgoing, the Board finds that, for the entire appeal period, the Veteran's radiculopathy of the LLE and RLE results in moderate incomplete paralysis of the sciatic nerve. In this regard, there is no evidence that the Veteran's symptoms result in moderately severe or severe paralysis of the sciatic nerve.  Consequently, the assignment of separate ratings for radiculopathy of the LLE and RLE, evaluated as 20 percent disabling, as of January 1, 2012, was proper.

Other Considerations

In reaching the foregoing determinations, the Board acknowledges the Veteran's sincerely held belief that the symptoms of her back disability, with associated radiculopathy of the BLE, are more severe than as reflected by the currently assigned ratings. While the Board recognizes that she is competent to describe her symptomatology and resulting functional difficulties, she is not competent to provide an opinion regarding the severity of her symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged her reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than her own reports regarding the severity of his disabilities.

The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's back disability, with associated radiculopathy of the BLE; however, the Board finds that her symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings for such disabilities is not warranted. Moreover, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial increased rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Based on the foregoing, the Board finds that increased ratings for the Veteran's back disability, with associated radiculopathy of the BLE, is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, such doctrine is inapplicable and her initial increased rating claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Waite