Citation Nr: 21077117 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-30 146 DATE: December 28, 2021 ORDER Entitlement to an increased rating of 40 percent, but no higher, for lumbar spine strain with spondylosis, degenerative arthritis, and intervertebral disc syndrome (IVDS) (low back disability), from August 17, 2015, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial 20 percent rating, but no higher, for radiculopathy of the right lower extremity, from August 17, 2015, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial 20 percent rating, but no higher, for radiculopathy of the left lower extremity, from August 17, 2015, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. From August 17, 2015, the symptoms of the Veteran's low back disability more nearly approximated forward flexion of the thoracolumbar spine 30 degrees or less, but did not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. 2. From August 17, 2015, symptoms of the Veteran's left and right lower radiculopathy more nearly approximated moderate symptoms of incomplete paralysis but did not at any time during the appeal period more nearly approximate moderately severe or severe symptoms. CONCLUSIONS OF LAW 1. From August 17, 2015, the criteria for an increased 40 percent rating, but no higher, for low back disability, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 2. From August 17, 2015, the criteria for an initial 20 percent rating, but no higher, for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. From August 17, 2015, the criteria for an initial 20 percent rating, but no higher, for radiculopathy of the right lower extremity are 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 served on active duty from June 1982 to June 1985. This case comes before the Board of Veterans' Appeals (Board) from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which continued a noncompensable rating for the Veteran's low back disability and denied entitlement to service connection for left and right sciatica. In February 2016 the Veteran filed a notice of disagreement (NOD) and in May 2017 the RO issued a statement of the case (SOC). In May 2017 the Veteran filed a substantive appeal (via VA Form 9). In February 2019 the Board remanded the Veteran's claim for further evidentiary development, specifically, to provide the Veteran with a medical examination to determine the current severity of his low back disability the etiology of his radiculopathy. The Veteran was afforded a VA examination which for the reasons indicated in the discussion below is adequate to decide the claim and the RO therefore substantially complied with the February 2019 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In a subsequent July 2020 rating decision, the rating for the Veteran's low back disability was increased to 10 percent effective August 17, 2015 and 20 percent from December 31, 2019. This created a staged rating. Further, in the July 2020 rating decision, the RO granted service connection for radiculopathy of the right and left lower extremities and assigned a 10 percent rating, effective December 31, 2019. As this does not constitute a full grant of the benefits sought on appeal, these issues are still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Based on the facts below the issues of entitlement to higher initial ratings for right and left leg radiculopathy are before the Board. Chavis v. McDonough, 34 Vet. App. 1, 16-17 (2021) (holding that the Board properly had jurisdiction over the issues of increased evaluations for bilateral lower extremity radiculopathy because the radiculopathy was part of the claim seeking higher compensation for the lumbar spine disability on appeal). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. 1. Low back disability As an initial matter, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. The Veteran seeks a higher rating for his service-connected low back disability. He contends that the rating currently assigned does not reflect the current severity of his disability. The Veteran's low back disability is currently rated 10 percent from August 17, 2015 to December 31, 2019 and 20 percent thereafter under 38 C.F.R. § 4.71a, DC 5243 as IVDS. DCs 5242-5237 provide ratings pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under DC 5243 both prior to and since the regulatory change, IVDS (preoperatively or postoperatively) is rated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71A, DC 5243. Under DC 5243, a 10 percent rating is assigned 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 assigned 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 assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. A 60 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the last 12 months. Note (1) provides that for purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. Alternatively, limitation of motion of the thoracolumbar spine is rated under the General Rating Formula. Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, if there is 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 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 and a 100 percent rating is warranted for ankylosis of the entire spine. Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees and extension and left and right lateral flexion and rotation of the thoracolumbar spine are all 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 thoracolumbar spine is 240 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. A June 2015 VA physician noted that the Veteran experienced chronic pain which he described as 8/10. Also, the Veteran reported to another June 2015 VA physician that he goes to the emergency room for pain medication when his back goes out. A December 2015 VA examiner noted that the Veteran did not have IVDS of the thoracolumbar spine and did not indicate whether the Veteran had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The VA examiner conducted ROM testing which revealed flexion ended at 90 degrees and extension at 30 degrees. There was no evidence of pain noted at the VA examination. The Veteran was able to perform repetitive use testing with at least three repetitions. No ankylosis was noted. The Veteran reported flare-ups. A December 2015 VA treatment note indicates that the Veteran was hospitalized due to his back pain. On the February 2016 NOD the Veteran stated that the Veteran suffered from muscle spasms and frequent localized tenderness. A February 2016 VA physician noted that the Veteran's ROM was limited for both forward flexion and extension. An April 2016 VA examiner noted that the Veteran did not have IVDS of the thoracolumbar spine and did not indicate whether the Veteran had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The VA examiner conducted ROM testing which revealed flexion ended at 90 degrees and extension at 30 degrees. The VA examiner noted that the Veteran gave submaximal effort and ROM and muscle strength testing was unremarkable. The Veteran was able to perform repetitive use testing with at least three repetitions. No ankylosis was noted. The Veteran reported flare-ups. In December 2016 the Social Security Administration (SSA) furnished the VA with medical treatment records. These records include a February 2016 summary report of a complete orthopedic evaluation in which a physician conducted ROM testing which revealed flexion ended at 90 degrees and extension at 25 degrees. The physician noted no pain on palpation. In February 2019 the Board remanded the Veteran's claim to provide the Veteran a VA examination to determine the current severity of his low back disability and the January 2020 VA examination fulfilled this remand instruction. A January 2020 VA examiner noted that the Veteran has IVDS of the thoracolumbar spine. The VA examiner noted that the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The VA examiner conducted ROM testing which revealed flexion ended at 35 degrees and extension at 5 degrees. The VA examiner noted that the examination was conducted during a flare-up. The Veteran was able to perform repetitive use testing with at least three repetitions. No ankylosis was noted. The above evidence reflects that the Veteran has been diagnosed as having IVDS, however, there is no evidence of IVDS of the thoracolumbar spine that has required bed rest prescribed by a physician and treatment by a physician. Therefore, a higher rating is not warranted under the formula for IVDS based on incapacitating episodes. With respect to limitation of motion, over the course of the claim the Veteran has exhibited varying ROM results. At the most recent January 2020 VA examination the Veteran's ROM measured forward flexion to 35 degrees and extension to 5 degrees. The VA examiner noted that the examination was being conducted during a flare-up. Based on these measurements, the Veteran's disability rating meets the criteria for a 20 percent rating. Given, however, the proximity of 35 degrees to the 30 degrees or less, which is the criteria for a 40 percent rating, and the Veteran's hospitalization for back pain in December 2015, the Veteran's ROM measurements along with the impact it has had on him indicate the severity of his low back pain more nearly approximates the criteria for a 40 percent rating. Although the ROM findings from the Veteran's December 2015 and April 2016 VA examinations were normal, the Veteran's flare-ups were described as pain with decreased ROM. Further, the Veteran's description of his low back symptomatology indicates that his disability impacts his daily routine. When a question arises as to which of two ratings under a code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Therefore, after resolving reasonable doubt in favor of the Veteran, the Veteran's ROM findings and lay statements along with his prior hospitalization indicate that a 40 percent rating is warranted from August 17, 2015, the date VA received his Fully Developed Claim. The Board is cognizant of Swain v. McDonald, 27 Vet. App. 219, 224 (2015), in which the Court held that an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested." In Swain, the Court held that the Board erred when it set an effective date based on the speech recognition scores required by 38 C.F.R. § 4.85(a), rather than 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o), which tie an effective date to the earliest date a disability is ascertainable. Id. Based on the above, the Board finds that the Veteran did not just suddenly get worse on December 31, 2019 and the evidence is approximately evenly balanced as to whether his low back disability more nearly approximated the criteria for a 40 percent rating prior to that date. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 40 percent rating from August 17, 2015 is warranted. As the degree of disability has remained uniform throughout the appeal period, a staged rating is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For the following reasons, an increased rating greater than 40 percent is not warranted. There is no evidence of any ankylosis at any time during the claim period. The Veteran indicated that there was increased pain during flare-ups, but there is no evidence or argument that flare-ups were so severe that they resulted in symptoms more nearly approximating ankylosis. Chavis, 34 Vet. App. at 12-13 (ankylosis in VA's General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis during a flare up). Therefore, a rating greater than 40 percent is not warranted. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a rating higher than 40 degrees is warranted. Rather, the evidence persuasively weighs against such a rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Radiculopathy of the right and left lower extremities The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. The Veteran's radiculopathy of the right and left lower extremities are rated 10 percent prior to November 18, 2019 and 20 percent thereafter under 38 C.F.R. § 4.124a, DC 8520, which pertains to disease of the sciatic nerve. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. A maximum 80 percent evaluation is assigned for complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018) ("DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms."). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its "decisions will be equitable and just as contemplated by the requirements of the law." 38 C.F.R. § 4.6. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, DCs 8510-8730. The Board finds that the Veteran's radiculopathy of the right and left lower extremities more nearly approximates moderately severe incomplete paralysis. A December 2015 VA examiner noted that the Veteran was diagnosed with left and right sciatica but stated that at this time symptoms of this disability are quiescent. A February 2016 VA physician noted that the Veteran may have radiculopathies but did not elaborate any further. A February 2016 Function Report indicates that the Veteran's feet tingle and he experiences numbness. A March 2016 private physician noted that the Veteran experienced numbness and weakness in his limbs. On the May 2017 VA Form 9 the Veteran stated that pain shoots down his leg. The January 2020 VA examiner diagnosed the Veteran with radiculopathy of the right and left lower extremities. The VA examiner noted the Veteran experiences constant pain, paresthesias and/or dysesthesias, and numbness with moderate severity. No other signs or symptoms of radiculopathy were noted. Based on the foregoing, the Board finds that the Veteran's symptoms and impairment more nearly approximate a moderate disability for radiculopathy of the left and right lower extremities for entire appeal period. The Veteran's claim for service connection for left and right sciatica was received on August 17, 2015 and he is currently in receipt of a 20 percent rating for radiculopathy from December 31, 2019. The Veteran was diagnosed with left and right sciatica as early as December 2015 and the Veteran has consistently reported radicular symptoms throughout the appeal period. Giving the Veteran the benefit of the doubt, and considering these reported symptoms, the Board finds that the criteria for a 20 percent rating for radiculopathy of the left and right lower extremities under DC 8520 is warranted during the entire claim period from August 17, 2015. The Board also finds that the Veteran's radiculopathy of left and right lower extremities does not more nearly approximate moderately severe, severe, or complete paralysis, and a rating greater than 20 percent is not warranted at any time during the claim period. None of the available examination reports or medical treatment notes suggest that he experienced moderately severe symptoms. Further, sensory and muscle strength findings were normal and there was no evidence of marked muscle atrophy. While the January 2020 VA examiner's description of the level of severity is not binding on the Board, 38 C.F.R. § 4.10 (assigning to medical examiners the "the responsibility of furnishing... full description of the effects of disability upon the person's ordinary activity"); 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"), the moderate rather than moderately severe or severe characterization by the VA examiner in this case is consistent with the above evidence. Moreover, when the involvement is wholly sensory, the rating should be for at most the moderate degree and the involvement in this case was wholly sensory. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial rating greater than 20 percent for radiculopathy of the left and right lower extremities is warranted. Rather, the evidence persuasively weighs against such ratings. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3, is therefore not for application as to this claim. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 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). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.