Citation Nr: 21076996
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 15-40 291
DATE: December 28, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent prior to October 24, 2019, and in excess of 20 percent thereafter, for intervertebral disc syndrome with spondylolisthesis (a low back disability) is denied.

Entitlement to an initial rating in excess of 20 percent for left lower extremity (LLE) radiculopathy is denied.

FINDINGS OF FACT

1. Prior to October 24, 2019, the preponderance of the evidence reveals that the Veterans low back disability did not more nearly approximate 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; there were also no incapacitating episodes requiring physician-prescribed bed rest.

2. From October 24, 2019, the preponderance of the evidence reveals that the Veteran's IVDS did not more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; and there were no incapacitating episodes requiring physician-prescribed bed rest.

3. The Veteran's radiculopathy, left lower extremity, has been manifested by symptoms that are, at most, moderate in severity, to include intermittent pain, paresthesias and/or dysesthesias, and numbness.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating in excess of 10 percent prior to October 24, 2019, and in excess of 20 percent thereafter, for intervertebral disc syndrome with spondylolisthesis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242, 5243 (2020) and (2021).

2. The criteria for entitlement to an initial rating in excess of 20 percent for left lower extremity (LLE) radiculopathy have not been met.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 2006 to June 2011.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

In September 2018, the Board remanded the claims for additional development. In a May 2020 rating decision, the RO granted a 20 percent rating for spine disability, effective October 24, 2019. As a higher evaluation is available under the rating schedule, this claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that Veterans are presumed to seek the maximum available benefit for a disability)

This appeal was most recently remanded by the Board in June 2021.  The Board is now satisfied there was substantial compliance with this Remand.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Specifically, additional medical records were obtained and associated with the claims file, and new VA examinations and opinions were obtained, which the Board finds adequate for adjudication purposes.  While the Veteran's August 2021 VA examiner did not offer retrospective opinions relating to the three previous examinations, he noted that this was because of a deficiency in the state of general medical knowledge, rather than an absence of relevant facts.  Accordingly, remand for further retrospective opinions is not likely to assist the Veteran's claim.

After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in October 2021.  Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability.  See 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994).

When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

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.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

1. Entitlement to an initial rating in excess of 10 percent prior to October 24, 2019, and in excess of 20 percent thereafter, for intervertebral disc syndrome with spondylolisthesis

Prior to October 24, 2019 

The Veteran is seeking a higher rating for his intervertebral disc syndrome.  

Prior to October 24, 2019, the Veteran's low back disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Code 5243, which specifically concerns IVDS. Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

The Formula for rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS 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 rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.

Note (1) to Code 5243 provides that, for purposes of ratings under Code 5243, 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.

Under the General Rating Formula for Diseases and Injuries of the Spine, 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 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 for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Codes 5235-5242, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id., at Note (1).

The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the IVDS prior to October 24, 2019.  As an initial matter, the evidence of record is against finding that the Veteran was prescribed bed rest by a physician during the appeal period, for a duration meeting the requirements for a higher rating for IVDS.  

Moreover, even considering his lay reports of symptoms and noted functional loss the preponderance of the evidence is also against a rating in excess of 10 percent for the Veteran's low back disability under the General Rating Formula.  

In January 2014, the Veteran underwent a VA examination for his back. The Veteran reported that his condition began with a dull ache and has gotten worse. He reported flare ups that cause limitation in walking and lifting. At this examination, he had full range of motion on all measurements (flexion, extension, lateral flexion, and rotation). The examiner noted no objective evidence of painful motion. Additionally, there was no muscle spasm, guarding, ankylosis, or IVDS.

The Veteran underwent another VA examination in October 2015. The examiner diagnosed the Veteran with IVDS left sciatic nerve with spondylolysis of L5. The Veteran reported that his pain has gotten worse with pain radiating down his left leg. He described his flare ups as sharp pain that limits his bending, lifting over 10-15 pounds, and walking. On examination, the Veteran exhibited forward flexion to 90 degrees and extension to 25 degrees. The examiner noted that the Veteran's range of motion contributes to functional loss with lower lumbar pain that limits bending and lifting. The examiner also noted pain on examination that causes functional loss. However, the Veteran exhibited normal muscle strength and no atrophy. This examination revealed no muscle spasm or guarding that resulted in an abnormal gait or abnormal spinal contour, no ankylosis of the spine. Additionally, while the examiner noted a diagnosis of IVDS, there were no reported incapacitating episodes within the year preceding this examination. 

The medical evidence of record does not show an explicit decrease in range of motion in the Veteran's back or any doctor-prescribed bedrest constituting an incapacitating episode in turn warranting a rating above 10 percent. As there is an absence of probative evidence showing that a rating higher than 10 percent is warranted for the period before October 24, 2019, the claim must be denied.

From October 24, 2019 

The Veteran's IVDS is rated 20 percent disabling from October 24, 2019 based on the presence of intervertebral disc syndrome (IVDS). He seeks a higher rating. The Board finds that the claim should be denied.

The Veteran's IVDS is rated under 38C.F.R. §4.71a, Diagnostic Code 5243 that evaluated IVDS. The regulations for evaluating musculoskeletal disabilities were amended, effective from February 7, 2021. Prior to February 7, 2021, Diagnostic Code 5243 directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Effective February 7, 2021, Diagnostic Code 5243 directs to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root and assign diagnostic code 5242, which evaluated degenerative arthritis and degenerative disc disease other than IVDS, for all other disc diagnoses. However, the rest of Diagnostic Code 5243 was not amended and still directs IVDS to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The criteria used under the General Rating Formula for Diseases and Injuries of the Spine and under the Formula for IVDS Based on Incapacitating Episodes were not amended.

Under the General Rating Formula for Diseases and Injuries of the Spine, 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 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 for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38C.F.R. §4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.

The preponderance of the evidence in this case is against the assignment of a rating in excess of 20 percent for the Veterans IVDS. 

The Veteran underwent a VA examination in October 2019. The Veteran reported daily aching and sharp pains in his lower back with standing, walking, and flexion of the spine. He reported taking gabapentin for pain and meloxicam for inflammation. The Veteran reported flare-ups that cause him to sit down and rest as he cannot continue walking or standing for very long. Further, he reported that his flare ups are moderate and occur daily, multiple times and last less than an hour. On examination, the Veteran exhibited flexion to 70 degrees and extension to 20 degrees. On repetitive use, the Veteran exhibited flexion to 60 degrees and extension to 20 degrees. The Veteran has function loss and/or functional impairment of the thoracolumbar spine due to pain on movement. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Further, the Veteran did not have ankylosis. The examiner noted IVDS, however the Veteran did not have any episodes of acute signs and symptoms that required prescribed bed rest by a physician. See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.

The Veteran's August 2021 VA examiner noted normal range of motion, including forward flexion.  Repetitive use motion testing, flare ups, and pain limited the Veteran's forward flexion to an estimated 85 degrees. While the examiner did not offer retrospective opinions relating to the three previous examinations, he noted that this was because of a deficiency in the state of general medical knowledge, rather than an absence of relevant facts.  Accordingly, remand for further retrospective opinions is not likely to assist the Veteran's claim.

The Board notes incomplete testing for active and passive ranges of motion, and in weightbearing and non-weightbearing positions.  Further, the Veteran's apparent complaints of flare-ups at each examination during the period on appeal, during which pain increased.  Unfortunately, however, the precise extent to which these flare-ups cause additional loss in range of motion was not recorded, because the examiner felt that there was no way to estimate additional loss without directly observing the flareup.  In any event, based on the observed range of motion and the Veteran's statements, it does not appear that the next higher rating is for contemplation, even in such situations.  

Based on the evidence, the Board finds that the Veteran did not exhibit forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine as required for the next higher rating.  In addition, the evidence reflects that the Veteran does not have any bowel or bladder problems related to his IVDS. Furthermore, there is no medical evidence of any neurological disability other than radiculopathy of the left lower extremity which he currently is service-connected. Thus, the Veteran is not entitled to a separate disability rating for bowel impairment, bladder impairment or any other neurological disability.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for IVDS. Accordingly, the benefit of the doubt doctrine is not applicable. 38U.S.C. §5107; 38C.F.R. §§4.3, 4.7.

2. Entitlement to an initial rating in excess of 20 percent for left lower extremity (LLE)radiculopathy

The Veteran is currently in receipt of a 20 percent rating for left lower extremity radiculopathy rated by 38 C.F.R. § 4.124a, DC 8520 which provides ratings for disability of the sciatic nerve, neuritis, or neuralgia.

A rating in excess of 20 percent under DC 8520 is warranted when the evidence shows: Moderate incomplete paralysis of the sciatic nerve (20 percent); or Moderately severe incomplete paralysis of the sciatic nerve (40 percent). 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 pictured for complete paralysis given with each nerve, where due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

The Veteran underwent VA examinations in January 2014, October 2015, and October 2019. During his January 2014 examination, no radiculopathy was diagnosed. In October 2015, the examiner noted hypoactive reflexes and decreased senses in the Veterans left thigh/knee and foot/toes. The examiner found that the Veteran experienced radiculopathy with moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in the left lower extremities. Further, the examiner noted the Veteran's radiculopathy affected the sciatic nerve and was moderate in severity. The October 2019 likewise found moderate pain, paresthesias and/or dysesthesias, and numbness in the left lower extremities, affecting his left sciatic nerve. 

The Veteran's medical records since October 2019 have not indicated an increase in severity of his left lower extremity radiculopathy.  Specifically, an April 2021 peripheral nerves DBQ indicates shooting pain down the left leg, about once a month, helped by medication.  The examiner also noted moderate intermittent pain, and mild paresthesias and/or dysesthesias.  The examiner noted left mild incomplete paralysis, involving the sciatic nerve.  Similar findings were noted at an August 2021 peripheral nerves examination, where the Veteran reported interference with bending, sitting prolonged periods, and walking prolonged distances.  The Veteran's left leg radiculopathy, during the period on appeal, was no worse than moderate.

Based on the evidence of record, the Board therefore finds that the criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. There is no indication in the VA examination report that the Veteran's symptoms were more than moderate in severity. The VA examiner described the severity of the Veteran's sciatic nerve disability as moderate. Based on these findings, the Board concludes that the Veteran's symptoms most nearly approximated the criteria for a 20 percent rating for moderate symptoms throughout the relevant rating period. See 38 C.F.R. § 4.124a, Diagnostic Code 8520.

In considering the appropriate disability ratings for the Veteran's left lower extremity radiculopathy, the Board has also considered the statements of the Veteran, that the severity of his disability is worse than the rating currently assigned. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined his during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated.

Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration.  The Veteran does not contend, and the evidence does not show, that his service connected disabilities render him unemployable.  Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  Accordingly, consideration for a TDIU rating is not warranted.

Therefore, an initial rating in excess of 10 percent prior to October 24, 2019, and in excess of 20 percent thereafter, for a low back disability is denied.  In the absence of moderately severe paralysis, the Board determines that the evidence does not warrant a rating in excess of 20 percent for the Veteran's left lower extremity radiculopathy. 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. 

 

ZAHEER MASKATIA

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica