Citation Nr: 21006063 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 11-26 527A DATE: February 3, 2021 ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease; lumbar spine, prior to March 7, 2018, is denied. Entitlement to a rating in excess of 40 percent for degenerative disc disease; lumbar spine, since March 7, 2018, is denied. Entitlement to secondary service connection for bilateral lower extremity sciatic radiculopathy is granted. FINDINGS OF FACT 1. Prior to March 7, 2018, the Veteran’s degenerative disc disease; lumbar spine, was manifested by subjective complaints of pain; the objective findings include forward flexion greater than 30 degrees; incapacitating episodes having a total duration of at least 4 weeks, requiring hospitalization or bedrest as prescribed by a physician were not shown. 2. Since March 7, 2018, unfavorable ankylosis of the lumbar spine, was not demonstrated. 3. Bilateral lower extremity radiculopathy of the sciatic nerve is associated with the Veteran’s service-connected degenerative disc disease; lumbar spine. CONCLUSIONS OF LAW 1. Prior to March 7, 2018, the criteria for a disability rating higher than 20 percent for degenerative disc disease; lumbar spine, were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. Since March 7, 2018, the criteria for a rating in excess of 40 percent for degenerative disc disease; lumbar spine, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.71a, DC 5237. 3. Bilateral lower extremity radiculopathy of the sciatic nerve is secondary to the Veteran’s service-connected degenerative disc disease; lumbar spine. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.310, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1999 to January 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board denied the Veteran’s claim in a February 2019 decision, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Remand (Joint Motion), and a November 2019 Order of the Court vacated the part of the Board’s decision that denied the Veteran’s claim for an evaluation in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine because it relied on an inadequate VA examination. The case was once again remanded for additional development in April 2020. An August 2020 supplemental statement of the case was most recently issued, and the claim is once again before the Board. The Board notes that documents in the Spanish have been translated to English in the file. Increased Ratings 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 illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings 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. 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, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In adjudicating below whether the Veteran meets the criteria for higher evaluations, the Board has not overlooked the Court’s holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016).  1. Entitlement to a rating in excess of 20 percent for degenerative disc disease; lumbar spine, prior to March 7, 2018. 2. Entitlement to a rating in excess of 40 percent for degenerative disc disease; lumbar spine, since March 7, 2018. The Veteran’s back disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237 prior to March 7, 2018, and at 40 percent disabling since March 7, 2018. The General Rating Formula for Diseases and Injuries of the Spine provides for the assignment of a 20 percent rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, when the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 40 percent is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is awarded for unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, 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 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. Note (3): 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): Round each range of motion measurement to the nearest five degrees. Note (5): 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): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Moreover, “chronic orthopedic and neurological manifestations” means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months warrants the assignment of a 20 percent rating. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1): For purposes of evaluations under diagnostic code 5243 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment provided that the effects in each spinal segment are clearly distinct evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Prior to March 7, 2018 Prior to March 7, 2018, the Veteran’s service-connected back disability is rated as 20 percent disabling. The Board has reviewed the extensive evidence of record and finds that the weight of evidence does not support the next-higher 40 percent rating during this time frame. At a December 2009 VA examination the Veteran reported low back pain with radiation to all the back. She reported taking medication to treat her condition. The Veteran reported being prescribed bed rest for one and a half months out of her job due to acute intervertebral disc syndrome and on another occasion during the last year she reported going to the ER for an injection and was recommended two days of bed rest. A physical examination at the time revealed normal posture and normal gait. There was no thoracolumbar spine ankylosis. Muscle spasms were noted but the examiner indicated that they were not severe enough to be responsible for abnormal gait or abnormal spina contour. A motor examination and sensory examination were normal. Range of motion was demonstrated to 45 degrees of flexion with objective evidence of pain. The examiner noted that there was objective evidence of pain following repetitive motion, but there were no additional limitations after three repetitions of range of motion. The examiner reiterated the Veteran’s reported incapacitating episodes due to intervertebral disc syndrome. The Board notes however, that a review of the extensive medical treatment record does not reflect that the Veteran was prescribed extended bed rest to corroborate her assertion. As such, the Board does not find that the evidence of record supports incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician sufficient to warrant an increased rating for this portion of the appeal. The Veteran underwent an additional VA examination in March 2012. She reported that her pain was worse. Range of motion testing revealed 60 degrees of forward flexion, with painful motion beginning at 15 degrees. Despite pain noted at 15 degrees, following repetitive testing, the Veteran exhibited forward flexion to 60 degrees. The examiner noted functional loss and/or functional impairment of the thoracolumbar spine. The examiner noted guarding and/or muscle spasm that was present but did not result in abnormal gait or spinal contour. Muscle strength testing, a reflex examination, and sensory examination revealed normal findings. The examiner noted no radiculopathy. The examiner additionally noted no intervertebral disc syndrome and no use of assistive devices. The Board has additionally reviewed extensive treatment records. After a review of all the evidence, prior to March 7, 2018, the Board finds that a rating in excess of 20 percent is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. The Veteran has complained about back pain, but even considering pain, the Veteran’s forward flexion was not 30 degrees or less during this period. As such, the Board concludes that the back pain was not of such severity as to merit a rating in excess of 20 percent rating even when contemplating pain, repetitive motion, and flare-ups, as these symptoms do not cause sufficient functional limitation. Additionally, although the Veteran alleged incapacitating episodes, with physician prescribed bed rest, medical documentation was not provided to support these assertions. Based on an extensive review of the available evidence, the Board finds that the Veteran’s painful range of motion symptoms were most consistent with a 20 percent disability rating, during this portion of the appeal period. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Since March 7, 2018 A 40 percent disability rating is the highest available for limitation of range of motion of the lumbar spine. The Veteran is in receipt of a 40 percent disability rating for her service-connected degenerative disc disease; lumbar spine, since March 7, 2018. As noted above, under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating in excess of 40 percent requires unfavorable ankylosis. There is no objective medical evidence showing ankylosis of the Veteran’s spine. Hence, a rating in excess of 40 percent is not warranted at any time during this portion of the appeal period. In this case, a thorough review of the extensive record, to include the VA examinations and treatment records, does not reflect the Veteran has ever been found to have ankylosis of the spine. The Veteran was initially provided a March 2018 VA examination which was subsequently determined to be inadequate by the Court in November 2019. The Veteran was most recently afforded a July 2020 VA examination. The examination report specifically notes no ankylosis of the spine. Consequently, she is not entitled to a rating in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine. The Board also notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). Finally, a higher rating is not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes because the evidence does not show that the Veteran suffered from incapacitating episodes having a total duration of at least 6 weeks at any point during this portion of the appeal period. The July 2020 VA examination report notes intervertebral disc syndrome with episodes of bed rest having a total duration of at least 1 week but less than 2 weeks during the past 12 months. For these reasons, the Board finds that the Veteran does not meet or nearly approximate the criteria for a rating in excess of 40 percent, since March 7, 2018 for her service-connected degenerative disc disease; lumbar spine. The Board has considered whether referral for extraschedular consideration is warranted, as it was briefly raised by the Veteran’s representative in a January 2021 brief. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran’s disability picture is adequately contemplated by the rating schedule. Thun, 22 Vet. App. 111. If not, the second step is to determine whether the Veteran’s exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Thun, 22 Vet. App. 111; 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. Here, the Veteran’s lumbar spine symptoms are contemplated by the rating criteria. The Veteran has not asserted, and the evidence does not show, symptoms that are not contemplated by the criteria. Additionally, there has not been frequent periods of hospitalization for a spine disability. Accordingly, the Board finds that referral for an extraschedular evaluation is not warranted. 3. Entitlement to secondary service connection for bilateral lower extremity sciatic radiculopathy. Notwithstanding the denial of increased ratings for the Veteran’s degenerative disc disease; lumbar spine, the Board finds that the evidence supports the grant of service connection for bilateral lower extremity sciatic radiculopathy as secondary to the lumbar spine disability. At the July 2020 examination, the VA examiner diagnosed lumbar radiculopathy. The examiner noted that the Veteran had radicular pain or any other signs or symptoms due to radiculopathy. The VA examiner noted involvement of the sciatic nerve on both sides. He characterized the Veteran’s right radiculopathy as moderate and the Veteran’s left radiculopathy as mild. No other neurological abnormalities were noted. The Board notes that complaints of radiating pain to her right leg were first noted in an August 2017 VA treatment record. Objective neurologic abnormalities associated with a spinal disability are evaluated as separate disabilities. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Under these circumstances, a grant of secondary service connection is warranted, as the radiculopathy is proximately due to or the result of a service-connected disability. 38 C.F.R. §§ 3.310, 4.71a. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.