Citation Nr: 21075527
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 15-19 994A
DATE: December 20, 2021

 ORDER

Prior to June 3, 2021, a 20 percent rating for spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 is granted. 

From June 3, 2021, a rating in excess of 40 percent for spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 is denied.

Prior to June 3, 2021, a 20 percent rating for right lower extremity radiculopathy associated with spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 is granted. 

From June 3, 2021, a rating in excess of 20 percent for right lower extremity radiculopathy associated with spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. Prior to June 3, 2021, the Veteran's back disability has manifested in forward flexion of the thoracolumbar spine of no less than 80 degrees, extension of no less than 15 degrees, no muscle spasms and no resulting abnormal gait; there is no unfavorable ankylosis of either the thoracolumbar or entire spine; there is no evidence of intervertebral disc syndrome (IVDS); however, there is functional loss due to difficulty with prolonged walking during flare-ups. The Veteran uses a cane and brace for locomotion due to his back condition. 

2. From June 3, 2021, the Veteran's back disability has manifested in forward flexion of the thoracolumbar spine of no less than 20 degrees, extension of no less than 10 degrees, no muscle spasms and no resulting abnormal gait; there is no unfavorable ankylosis of either the thoracolumbar or entire spine; there is no evidence of intervertebral disc syndrome (IVDS); however there is functional loss due to difficulty walking for more than 20 minutes, difficulty standing and sitting for prolonged periods of time, and difficulty bending and lifting, reaching behind his back, or going up/downstairs. The Veteran uses a cane and brace for locomotion due to his back condition. 

3. For the entire appeal period, the Veteran's radiculopathy in the right lower extremity associated with spondylolysis is manifested by no more than moderate incomplete paralysis.

CONCLUSIONS OF LAW

1. Prior to June 3, 2021, the criteria for a 20 percent rating for spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5239.

2. From June 3, 2021, the criteria for a rating in excess of 40 percent for spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5239.

3. Prior to June 3, 2021, the criteria for a 20 percent rating for right lower extremity radiculopathy associated with spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520.

4. From June 3, 2021, the criteria for a rating in excess of 20 percent for right lower extremity radiculopathy associated with spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service in the Army from May 1965 to May 1967.

In September 2020, the Board remanded the above issues to obtain a new VA examination for his back, which the Veteran underwent in June 2021. The case has since returned to the Board for appellate review. 

Increased Rating

The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999).

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Staged ratings have been considered for the Veteran's spondylolysis and associated right lower extremity radiculopathy. Staged ratings are appropriate for the Veteran's spondylolysis, as this condition has varied over time. However, staged ratings are not warranted for his associated right lower extremity radiculopathy, as his radiculopathy has been consistent throughout the appeal period.

Musculoskeletal Disabilities

When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40).

The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

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). However, where the question for consideration is the propriety of the initial rating 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 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.

1. Prior to June 3, 2021, a 20 percent rating for spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 is granted; from June 3, 2021, a rating in excess of 40 percent for spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 is denied.

The Veteran contends that he is entitled to a higher rating for his low back disability. 

The Veteran is in receipt of a 10 percent rating prior to June 3, 2021 and a 40 percent rating thereafter for his spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 under DC 5239.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (DC 5235), sacroiliac injury and weakness (DC 5236), lumbosacral or cervical strain (DC 5237), spinal stenosis (DC 5238), spondylolisthesis or segmental instability (DC 5239), ankylosing spondylitis (DC 5240), spinal fusion (DC 5241), degenerative arthritis of the spine (DC 5242) (for degenerative arthritis of the spine, see also DC 5003) (prior to Feb. 7, 2021), degenerative arthritis, degenerative disc disease other than IVDS (also, see either DC 5003 or DC 5010) (effective Feb. 7, 2021), IVDS (DC 5243), and complete traumatic paralysis (DC 5244) (effective Feb. 7, 2021).

The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the spine, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change.

The Board notes that, effective February 7, 2021, DC 5242 was amended to include degenerative disc disease other than IVDS. DC 5244 was also added to add paraplegia and quadriplegia. DC 5239, under which the Veteran's spondylolysis is currently rated, was not changed. 

The Board notes that the spine regulations were also amended to state that DC 5243 governing intervertebral disc syndrome (IVDS) should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that DC 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under DC 5243.

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a.

The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. 

The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate DC. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, 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; 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a.

Factual Background

The Veteran's VA and private treatment records document treatment and complaints of ongoing back pain. 

In the October 2013 VA back examination, the examiner noted a diagnosis of spondylolysis at L4-L5 of the lumbar spine, degenerative disc disease of the lumbar spine, and herniation of the nucleus pulposus L3-L4 of the lumbar spine. The examiner also noted a diagnosis of neurogenic pain. The examiner recommended that the Veteran undergo a decompression and most likely fusion. However, the Veteran declined fusion surgery. Initial ROM revealed forward flexion to 80 degrees, extension to 15 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. There was objective evidence of painful motion on all movement. The Veteran did not have additional limitation in ROM following repetitive use testing. There was no localized tenderness or pain on palpation of the back. The Veteran also does not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal. Reflex and sensory exams were normal. The straight leg raising test was positive in the right leg and negative in the left. The Veteran did not have IVDS of the thoracolumbar spine. The examiner noted that, on examination, the Veteran has full strength in all muscle groups; his ankle reflexes, as well as the patella reflexes, were normal. He was able to heel walk and toe walk. The October 2013 VA examiner also noted that a July 2013 MRI of the lumbar spine revealed L2-L3 degenerative changes with mild central canal and bilateral neural foraminal stenosis. In L3-L4, there was ovoid intermediate signal intensity mass. In L4-L5, there was grade 1 spondylolisthesis due to bilateral spondylolysis, moderate central canal stenosis, and severe right and moderate left neural foraminal stenosis. In L5-S1, there was moderate central canal stenosis due to broad-based disc protrusion as well as moderate bilateral neuroforaminal stenosis. The Veteran was noted to have grade I to II spondylolisthesis at L4-L5 level with bilateral pars defects and spinal canal stenosis. 

As to flare-ups, the Veteran reported flare-ups of the back that he described as a stabbing pain to the lumbar spine on the right side. The Veteran reported that flare-ups limit his ability to walk to 100 feet. The Veteran reported the flare-ups were an 8 out of 10 in severity, and the pain is managed by rest, taking Vicodin, and applying ice and heat. With respect to functional loss, the examiner noted that the Veteran experienced functional loss described as less movement than normal and pain on movement. The examiner noted that the Veteran uses a cane and brace due to his lumbar spine condition.

In a private chiropractic note received on September 2013 and June 2015, the Veteran reported that his back pain impinges on all aspects of his life. Specifically, the Veteran reported that the pain comes and goes and is severe; washing and dressing increases the pain; he can only lift very light weights; he can only walk using a cane or on crutches; he cannot sit or stand for prolonged periods; his back pain disturbs his sleep; he experiences extra pain when traveling; and he reported he has hardly any social life due to his back pain.

In a June 2021 VA back examination, the examiner noted a diagnosis of spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 and right leg radiculopathy. On initial ROM testing, forward flexion was to 50 degrees, extension was to 20 degrees, right and left lateral flexion was to 15 degrees, and right and left lateral rotation was to 20 degrees. Pain was noted on all movement and pain on all movement contributed to limitation of ROM. Passive ROM was not performed, as it would cause the Veteran severe pain and risk further injury. There was evidence of pain on weight-bearing, nonweight-bearing, active motion, passive motion, and on rest and movement. There is no objective evidence of crepitus. There is evidence of tenderness or pain on palpation of the lumbar spine that is moderate to severe. There was no additional loss of ROM on repetitive use testing. However, there was additional loss of ROM on repeated use over time, as the examiner noted that pain and weakness further limited ROM on repeated use over time. Specifically, forward flexion was further limited to 20 degrees, extension was limited to 10 degrees, right and left lateral flexion was limited to 5 degrees, and right and left lateral rotation was limited to 10 degrees. ROM was also further limited on flare-ups due to pain and weakness. Specifically, forward flexion was further limited to 20 degrees, extension was limited to 10 degrees, right and left lateral flexion was limited to 5 degrees, and right and left lateral rotation was limited to 10 degrees. The examiner noted there was muscle spasm of the low back resulting in abnormal gait or abnormal spine contour. Muscle strength testing noted active movement against some resistance. The Veteran does not have muscle atrophy. Reflex examination was normal. Straight leg raising test was negative. There is no evidence of ankylosis. The Veteran was not noted to have IVDS of the thoracolumbar spine. 

As to flare-ups, the Veteran reported daily flare-ups of the back that cause intermittent pain. The pain is constant at times. The Veteran reported that the back flare-ups are moderate to severe, last about 30 minutes to a few hours, and are precipitated by walking up and down stairs, tying shoes, and putting on clothes. The back flare-ups are alleviated by medication, a hot shower, and topical ointment. 

As to functional loss, the Veteran reported difficulty getting down to the ground and getting back up, lifting legs in and out of the car, and reaching behind back and arms. The Veteran reported that he feels he is living a lower quality of life. The examiner noted that additional contributing factors to his low back disability included disturbance of locomotion, interference with siting and standing, difficulty walking, and difficulty sitting and standing for long periods of time. The examiner noted that the Veteran regularly uses a back brace when awake and with activities. The examiner also noted that the Veteran had difficulty walking for more than 20 minutes, difficulty standing and sitting for prolonged periods of time, difficulty bending and lifting, reaching behind back, or going up/downstairs. The examiner noted the Veteran had limited ROM and loss of strength in back.

Analysis

Based on the evidence above, the Board finds that a 20 percent rating is warranted for the Veteran's spondylolysis for the period prior to June 3, 2021 based on functional loss. A rating in excess of 40 percent is not warranted for the Veteran's spondylolysis from June 3, 2021.

As noted above, the Veteran is in receipt of a 10 percent rating prior to June 3, 2021 and a 40 percent rating thereafter for his spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 under DC 5239.

At the outset, the Board notes that at no point during the appeal period does the probative medical evidence indicate that the Veteran has IVDS, nor has the Veteran asserted that he has incapacitating episodes that require him to rest in bed. As such, a rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not applicable. 

Therefore, the Board will only consider below whether higher or separate ratings are available for the Veteran's spondylolysis under the General Rating Formula for Diseases and Injuries of the Spine.

Prior to June 3, 2021, the Veteran's flexion of the thoracolumbar spine was greater than 60 degrees but not greater than 85 degrees. In the October 2013 VA examination, forward flexion was to 80 degrees at its most limited. At no point prior to June 3, 2021 did the Veteran have muscle spasm, guarding, localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height.

At no time prior to June 3, 2021 does the record show that the Veteran's flexion of the thoracolumbar spine was between 30 and 60 degrees, as required for a higher rating based on limitation of motion. Nor is there any indication of favorable or unfavorable ankylosis of the entire or thoracolumbar spine. To the contrary, the October 2013 VA examination indicates that the Veteran does not have ankylosis of the thoracolumbar or entire spine. Nor has the Veteran suggested that he experiences ankylosis of the spine. Thus, the evidence does not support a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine prior to June 3, 2021. 

However, the Board finds that, given the Veteran's reported functional loss, an increase to 20 percent rating is warranted. In the October 2013 VA examination, the Veteran reported flare-ups of the back that were an 8/10 in severity that he described as a stabbing pain to the lumbar spine on the right side. The Veteran reported that these flare-ups limit his ability to walk to 100 feet. The Veteran also reported functional loss described as less movement than normal and pain on movement. Moreover, the examiner noted that the Veteran uses a cane and brace due to his lumbar spine condition. Given that the Veteran's inability to walk more than 100 feet during flare-ups as well as his use of a cane and brace due to his back condition, the Board finds that a 20 percent rating is warranted based on functional loss for the period prior to June 3, 2021.

From June 3, 2021, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran's spondylolysis. At no point during the appeal period does the evidence show that the Veteran has ankylosis of the thoracolumbar spine or entire spine, which is required for a higher, 50 or 100 percent rating. In the June 2021 VA examination, the examiner explicitly noted that the Veteran did not have ankylosis of the spine.

The Board acknowledges that the Veteran continued to experience functional loss due to his back condition from June 3, 2021. However, the Board notes that the Veteran is already being compensated for his functional loss with his 40 percent rating.

The Board has also considered whether a higher or separate rating is warranted under other potentially applicable diagnostic codes. 

A separate evaluation for associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, is also not applicable. The June 2021 VA examiner indicated that the Veteran does not have any such conditions. Nor does the Veteran suggest that he has bowel or bladder problems. As such, a separate rating for neurological abnormalities is not applicable.

The Board has also considered whether a separate rating is warranted for scars under DCs 7800-7805. 38 C.F.R. § 4.118. However, the record consistently indicates that the Veteran does not have any notable scars associated with his thoracolumbar back condition or its treatment. As such, a separate rating for scars is not applicable.

As to radiculopathy, the Veteran's right lower radiculopathy associated with his back condition will be discussed below. 

Accordingly, the Board finds that, prior to June 3, 2021, a 20 percent rating for spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 is warranted based on functional loss. From June 3, 2021, a rating in excess of 40 percent spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 is not warranted.

2. Prior to June 3, 2021, a 20 percent rating for right lower extremity radiculopathy associated with spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 is granted; from June 3, 2021, a rating in excess of 20 percent for right lower extremity radiculopathy associated with spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 is denied. 

In addition to his spondylolysis, the Veteran also contends that he is entitled to a higher rating for his radiculopathy associated with his spondylolysis. Specifically, he adds that he is entitled to separate ratings for left and right lower extremity radiculopathies.  See June 2015 Form 9; see also May 2019 Correspondence.

The Veteran is in receipt of a 10 percent rating prior to June 3, 2021 and a 20 percent rating thereafter for right lower extremity radiculopathy associated with spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 under DC 8520.

Under DC 8520, for the sciatic nerve, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a.

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 is for the mild, or at most, the moderate degree.

The words "mild," "moderate," and "severe" as used in the various DCs 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 use of terminology such as "moderate" or "severe" 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.

Factual Background

The Veteran's VA and private treatment records note complaints of radicular symptoms. 

As to radiculopathy, in addition to the evidence regarding the Veteran's back condition above, the October 2013 VA examiner noted that the Veteran experienced radiculopathy symptoms. Specifically, the Veteran had moderate intermittent pain in the right lower extremity. The examiner noted that the severity of the Veteran's right side radiculopathy was moderate. The Veteran also reported radiculopathy and aching pain in the right leg stopping at the knee, but reported no numbness or tingling. 

In a June 2021 VA back examination, the examiner noted a diagnosis of spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4 and right leg radiculopathy. The Veteran was noted to have radiculopathy in the right sciatic nerve, involvement of L4/L5/S1/S2/S3 nerve roots, that causes moderate, intermittent pain. 

Analysis

Based on the evidence above, the Board finds that a 20 percent rating is warranted for his right lower extremity radiculopathy under DC 8520 prior to June 3, 2021. A rating in excess of 20 percent thereafter for right lower extremity radiculopathy associated with spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4, is not warranted.

As noted above, The Veteran is in receipt of a 10 percent rating prior to June 3, 2021 and a 20 percent rating thereafter for right lower extremity radiculopathy associated with spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4.

At the outset, the Board acknowledges the statements made by the Veteran's representative, in October 2021 correspondence, contending that the June 2021 VA examination showed that the Veteran experiences muscle strength in hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension on the left side and that this should have been considered as symptomatology of a left lower extremity nervous complication.  However, the Board notes that, while the Veteran contends that he is entitled to radiculopathy for his left lower extremity, the evidence of record, including the latest June 2021 VA examination, does not show that he has radiculopathy in the left lower extremity.  In this regard, the June 2021VA examiner indicated that the Veteran's radicular pain or other signs or symptoms due to radiculopathy were limited to his right side.  In particular, the examiner stated that the Veteran did not have constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness in his left lower extremity and did not have any other signs or symptoms of radiculopathy.  The examiner also indicated that no nerve roots were involved pertaining to the left side. 

As to the Veteran's right lower extremity radiculopathy, prior to June 3, 2021, the evidence does show that the Veteran had moderate paralysis in the right sciatic nerve. The October 2013 VA examiner specifically noted that his radiculopathy on the right side was moderate with normal reflexes, no atrophy, and no gait alteration. Therefore, the Board finds that a higher, 20 percent rating is warranted for the Veteran's radiculopathy prior to June 3, 2021. 

From June 3, 2021, the evidence does not show that the Veteran has, at minimum, moderately severe incomplete paralysis, which is what is required for a higher, 40 percent rating. In the June 2021 VA examination, the examiner noted that the Veteran's radiculopathy in the right sciatic nerve caused moderate, intermittent pain with normal reflexes, no atrophy, and no gait alteration. The Board finds these symptoms to indicate a moderate impairment of the sciatic nerve of the right lower extremity. 

At no point prior during the appeal period were the Veteran's right lower extremity symptoms indicative of a moderately severe impairment which is what is required for a higher, 40 percent rating. 

Accordingly, the Board finds that, prior to June 3, 2021, a 20 percent rating for right lower extremity radiculopathy associated with spondylolysis is warranted. From June 3, 2021, a rating in excess of 20 percent for right lower extremity radiculopathy associated with spondylolysis, L4-L5, lumbar spine with degenerative disc disease and herniated nucleus pulposus L3-L4, however, is not warranted.

REASONS FOR REMAND

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

Entitlement to TDIU may be raised during an increased rating appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009).  In October 2021 Correspondence, the Veteran's representative requested that the claim be remanded so that entitlement to individual unemployability could be considered. 

Additionally, in October 2021 Correspondence, the Veteran's son, M.F., DC (a chiropractor) stated that he has treated the Veteran's back on an as-needed basis.  He also stated that in his professional opinion, his back disorder renders him unemployable.  The AOJ should develop and adjudicate the TDIU issue in the first instance to ensure the Veteran is afforded the requisite due process. See 38 U.S.C. § 7104(a).

The matters are REMANDED for the following action:

Develop and adjudicate the issue of entitlement to TDIU, to include extra-schedular consideration under 38 C.F.R. § 4.16 (b) for any period in which it is determined the Veteran does not meet the schedular percentage requirement for TDIU outlined in 38 C.F.R. § 4.16 (a).

 

 

TIFFANY HANSON

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. E. Grossman, 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.