Citation Nr: 21076131 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-10 594 DATE: December 22, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for thoracolumbar spine degenerative disc disease (DDD) and lumbosacral degenerative arthritis (low back disability) is denied. Entitlement to an initial disability rating of 20 percent, but no higher, for right lower extremity sciatic nerve radiculopathy is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran's thoracolumbar spine range of motion (ROM) does not more nearly approximate between 30 and 60 degrees of forward flexion or a combined ROM of less than 120 degrees. 2. The Veteran's right lower extremity sciatic nerve radiculopathy symptoms are wholly sensory. 3. The Veteran's right lower extremity sciatic nerve radiculopathy symptoms do not more nearly approximate severe or moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for low back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5003, 5237, 5242. 2. The criteria for an initial disability rating of 20 percent, but no higher, for right lower extremity sciatic nerve radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124a Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2010 to June 2012. He also performed periods of active duty for training in the Army Reserves from September 2005 to February 2006. This case comes before the Board of Veterans' Appeals (Board) from a February 2014 Department of Veterans Affairs (VA) Regional Office (RO rating) decision granting the Veteran, in pertinent part, service connection for low back disability and assigning an initial rating of 10 percent, effective June 22, 2012. The Veteran filed his Notice of Disagreement (NOD) in February 2015, disagreeing with the RO's initial rating percentage for his back disabilities. In a February 2017 rating decision, the RO granted the Veteran a separate 10 percent rating for right lower extremity sciatic nerve radiculopathy, also effective June 22, 2012. The RO also granted service connection for lumbosacral degenerative arthritis but evaluated the disability "along with [the Veteran's] already service-connected thoracolumbar spine [DDD]." In February 2017, the RO denied the Veteran entitlement to an initial rating in excess of 10 percent for thoracolumbar spine DDD. In July 2021, the Board remanded the initial rating claim for additional low back examination. The Agency of Original Jurisdiction (AOJ) complied with the Board's remand instructions by affording the Veteran a September 2021 VA examination, which, for the reasons below, is adequate to decide the claim. In September 2021, the AOJ continued the denial in a September 2021 supplemental statement of the case (SSOC). Increased Rating The Veteran claims the RO failed to consider his January 2017 statement and alleges the VA examiner "downplayed the true severity of the [range of motion (ROM)] and the pain associated with each movement[]" of his back. The Veteran maintains he is entitled to an initial rating in excess of 10 percent for his low back disability. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 118, 126 (1999). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (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. Johnson v. Brown, 9 Vet. App. 7 (1996). If two ratings are potentially applicable, 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 589. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran requested compensation for low back ROM loss with spasms in February 2013 and underwent a VA examination in April 2013. During this examination, the Veteran described experiencing back pain that shoots from the small of his back to his buttocks and right side after sitting greater than 30 minutes and standing in a slightly flexed position. According to the Veteran, changing position resolved the pain. The Veteran denied flare-ups impacted the function of his thoracolumbar spine. The Veteran's initial ROM measured 90 degrees or greater forward flexion, 30 degrees or greater extension, 30 degrees or greater right and left lateral flexion, and 30 degrees or greater right and left lateral rotation. The VA examiner noted no objective evidence of pain during the measurements. The Veteran was able to perform repetitive-use testing without limitations to his ROM. The VA examine revealed no functional loss or impairment, no localized tenderness or pain to palpation, and no guarding or muscle spasm of the Veteran's thoracolumbar spine. The Veteran exhibited no muscle atrophy, and his strength was normal. The VA examiner found no neurological abnormalities except for mild right lower extremity radiculopathy. A separate VA examination was conducted in January 2014 to assess whether the Veteran's back pain, weakness, fatigue, or incoordination could significantly limit his functional ability during a flare-up or with repeated use over time. While noting the Veteran demonstrated full ROM during the May 2013 examination, the VA examiner recognized that "it is feasible if [the Veteran] were ever in a position where he could not adjust his body [i.e.] change stance, sit, stand etc. to accommodate pain, he may have increased pain and limitation." After filing his NOD, the Veteran underwent another VA examination in December 2016. In addition to recounting his chronic right lower extremity radiculopathy, the Veteran described experiencing low back pain over half of the time that can flare up to a 6-7 on a pain scale of 10 after sitting for over than 10 minutes, standing in a "hunched" position, walking greater than half of a mile, and lifting greater than 20 pounds. The Veteran explained he avoids activities that movements that provoke his low back symptoms. In this examination, the Veteran's initial ROM measured 80 degrees forward flexion, 20 degrees extension, 25 degrees right lateral flexion, 30 degrees left lateral flexion, and 30 degrees right and left lateral rotation. The VA examiner noted pain during the Veteran's forward flexion, extension, and right lateral flexion ROM measurements. The Veteran was able to perform repetitive use testing without additional loss of function or ROM. The Veteran exhibited no muscle atrophy, and his strength was normal. The VA examiner identified severe right lower extremity numbness and mild radiculopathy but found no other neurological abnormalities. The VA examiner also found no ankylosis of the spine or thoracic vertebral fracture. However, the VA examiner determined the Veteran had IVDS and that the Veteran's thoracolumbar spine condition impacted the veteran's ability to work. In a January 2017 statement, The Veteran described his low back disability and its impact on his life. The claimed his pain "is something that affects even the smallest of chores," to include washing dishes, ironing clothes, and vacuuming. He explained that he cannot "go more than a few minutes of doing any of the activities without having to stop and take a break." The Veteran also described how his low back disability limited him from performing and enjoying the physical aspects of his job at a civilian military academy and as a basketball coach. The Veteran was examined again in September 2021. During this VA examination, the Veteran claimed his low back pain and stiffness are typically worse in the morning. He maintained activities like sitting at a desk for a prolonged time, dishwashing, ironing, and vacuuming aggravates his back pain. The Veteran also explained that his right leg radiculopathy is worsening, resulting in weakness in his gait. Although the Veteran did not report flare-ups of the thoracolumbar spine, he described having "more pain and stiffness at the end of the day especially after doing dishes or other bending activities." The Veteran's initial active ROM measured 90 degrees forward flexion, 20 degrees extension, 20 degrees right lateral flexion, 25 degrees left lateral flexion, and 30 degrees right and left lateral rotation. The Veteran exhibited no muscle atrophy, and his strength was normal; however, the VA examiner noted pain during the Veteran's forward flexion, extension, right lateral flexion, and left flexion ROM measurements. The VA examiner also witnessed evidence of pain during weight-bearing and active motion, observing the "Veteran's ability to extend and side bend are limited by his condition of spondylolisthesis and DDD." The VA examiner further noted localized tenderness at the right lumbar paraspinals and guarding. While the Veteran showed no evidence of crepitus, ankylosis, abnormal gait, or IVDS, the examination evidence suggested pain, fatigability, and stiffness that significantly limited functional ability with repeated use over time. After considering the evidence, to include the Veteran's statements, the VA examiner estimated the Veteran's ROM immediately after repeated use over time to be 75 degrees forward flexion, 15 degrees extension, 15 degrees right lateral flexion, 20 degrees left lateral flexion, and 25 degrees right and left lateral rotation. The Veteran also showed mild signs of radiculopathy, experiencing right intermittent pain, paresthesias and/or dysesthesias, and numbness. The VA examiner attributed the radiculopathy to "the progression of the veteran's condition of DDD." I don't think we need to capitalize veteran when quoting, interestingly the CAVC judges always take the time to take out the capitalization of veteran. The VA examiner assessed the functional impact of the Veteran's low back disability as follows: Veteran has significant disability of the back. His condition make[s] it difficult for him to do activities such as bending, squatting, lifting. He cannot sit longer than 30 mins without having to adjust his position...He would be best suited to a job requiring light duty and the ability to change his position frequently. Review of the Veteran's medical records reveals continual complaints and medical assessments consistent with those discussed above. The Veteran underwent periods of physical therapy and committed to home treatments, such as routine exercises, pain medications, routine change of positions, and pillows, to manage his low back pain. 1. Entitlement to increased rating for low back disability. The Veteran's low back disability has been rated using DC 5237. Spine disabilities are rated using the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Rating Formula). 38 C.F.R. § 4.71a, DC 5237. The General Rating Formula provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted in cases of 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 disability rating is provided for forward flexion of the thoracolumbar spine to 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 the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (5) states 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. Under the IVDS Rating Formula, a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) provides that an incapacitating episode is 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. As there is no such evidence in this case, the IVDS Rating Formula is not for application. The preponderance of evidence does not warrant an increased initial rating in excess of 10 percent for the Veteran's low back disability. The competent medical evidence and the Veteran's competent statements describing his symptoms do not establish or suggest any unfavorable ankylosis, abnormal gait, or abnormal spinal contour. The competent medical evidence and the Veteran's competent statements describing his symptoms also do not establish or suggest symptoms that more nearly approximate ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 23 (2021). Additionally, the lowest combined initial ROM measurements are 80 degrees forward flexion, 20 degrees extension, 20 degrees right lateral flexion, 25 degrees left lateral flexion, and 30 degrees right and left lateral rotation. While the initial ROM measurements did not account for flare-up or repeated use, the September 2021 VA examiner, consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017), estimated the Veteran's ROM immediately after repeated use over time to be 75 degrees forward flexion, 15 degrees extension, 15 degrees right lateral flexion, 20 degrees left lateral flexion, and 25 degrees right and left lateral rotation. Accordingly, the Veteran's worst and estimated ROM measurements remain well above the requirements for a 20 percent rating. A preponderance of the evidence, to include the competent medical evidence and Veteran's competent lay statements establishing his symptomology, squarely places the Veteran's low back disability picture within the criteria for a 10 percent rating. The Veteran's ROM measurements, functional impairment, muscle strength, sensations, flare-up conditions, and mitigation actions, most nearly approximate the criteria for the 10 percent rating. Thus, the benefit of the doubt doctrine is inapplicable, and an initial rating greater than 10 percent is not warranted for the Veteran's low back disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to increased rating for right lower extremity sciatic nerve radiculopathy. In his February 2015 NOD, the Veteran generally disagreed with the rating assigned for his back disability. Two years later in February 2017, the RO granted the Veteran a separate compensable rating of 10 percent for right lower extremity radiculopathy and on the same day issued a Statement of the Case (SOC) denying his request for an initial rating in excess of 10 percent for thoracolumbar spine degenerative disc disease and lumbosacral degenerative arthritis. In this SOC, the RO states the Veteran "did not specifically appeal the radiculopathy, and the radiculopathy has now been separately evaluated from your degenerative disc disease." The Veteran appealed to the Board also in February 2017, requesting the Board to "[n]ot only address with is in the SOC, but items were missing in the SOC that were listed on the NOD." The Veteran contemporaneously submitted a supporting statement with his appeal, claiming, in part, that "When having the back exam, the examiner downplayed the true severity of the ROM and the pain associated with each movement[]." Given the general nature of the Veteran's claims, his description of his low back symptoms and associated pain, and the VA's duty to consider the "general lenity rule" in determining the scope of the claim based on the claimant's filings and evidence of record, the Veteran's initial rating for right lower extremity sciatic nerve radiculopathy is properly before the Board to determine whether an increased rating is warranted. See Chavis v. McDonough, 34 Vt. App. 1, 13-18 (2021). Moreover, as the RO decided to separately compensate the Veteran for right lower extremity sciatic nerve radiculopathy at in initial rate of 10 percent after previously evaluating the disability with the Veteran's thoracolumbar spine DDD and lumbosacral degenerative arthritis, review of the Veteran's initial rating for right lower extremity sciatic nerve radiculopathy is not a downstream issue. See id. The Veteran's right lower extremity sciatic nerve radiculopathy was rated at 10 percent pursuant to DC 8520 under the Schedule of RatingsNeurological Conditions and Convulsive Disorders (Schedule), Sciatic Nerve. See 38 C.F.R. § 4.124A. DC 8520 provides an 80 percent rating for complete paralysis where "the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost." Id. The following ratings are applied in cases of incomplete paralysis: A 60 percent disability rating for "severe [impairment], with marked muscular atrophy;" A 40 percent disability rating for "moderately severe" impairment; A 20 percent disability rating for "moderate" impairment; and, A 10 percent disability rating for "mild" impairment. 38 C.F.R. § 4.124a; DC 8520. 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 impairment is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. Terms such as "moderate" and "severe" are not defined by the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just and just as contemplated by the requirements of the law." 38 C.F.R. § 4.6. The evidence, as discussed above, shows the Veteran's symptoms more nearly approximate a 20 percent moderate incomplete paralysis rating. The Veteran described the radiating pain he chronically experienced down his lower right side. VA examiners noted the Veteran experienced at least right intermittent pain, paresthesias and/or dysesthesias, and numbness while not experiencing a flare-up or after extended use. One VA examiner observed severe numbness during the Veteran's examination. The competent medical and lay evidence establishes the Veteran's radiculopathy symptoms as wholly sensory and, at most, warranting a 20 percent initial rating. Higher ratings were considered; however, the preponderance of the evidence weighs against an increase in excess of 20 percent. A preponderance of the evidence shows that the Veteran's radiculopathy symptoms, when observed, were characterized as mild except on one occasion. While an examiner's characterization of the level of severity is not binding on the Board, 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions ... as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination ... so that the current rating may accurately reflect the elements of disability present"), here they are consistent with the above evidence. A preponderance of the evidence also shows the Veteran does not suffer from non-sensory symptoms, such as loss of strength, muscle atrophy, or functional loss. The applicable regulation provides that when the impairment is wholly sensory, the rating should be for at most the moderate degree. Thus, the Veteran's right lower extremity sciatic radiculopathy symptoms cannot be considered to more nearly approximate moderately severe or severe incomplete paralysis. A preponderance of the evidence, to include the competent medical evidence and Veteran's competent lay statements establishing his symptomology most nearly approximate the criteria for 20 percent rating. Thus, the benefit of the doubt doctrine is inapplicable, and a right lower extremity sciatic radiculopathy rating of 20 percent, but no higher, is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The general rating formula for diseases and injuries of the spine indicates that its criteria apply 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. This broad language in the criteria thus contemplates all of the Veteran's symptoms even though they are not specifically listed. The Board therefore need not consider whether these disabilities cause marked interference with employment for purposes of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals 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.