Citation Nr: 21006194 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-02 970 DATE: February 3, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected lumbar strain is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity is denied. FINDINGS OF FACT 1. For the whole period on appeal, the Veteran’s lumbar spine disability is manifested by pain and forward flexion to 80 degrees, but not combined range of motion of the thoracolumbar spine less 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. 2. For the whole period on appeal, the Veteran has no more than mild incomplete paralysis of the right lower extremity. 3. For the whole period on appeal, the Veteran has no more than mild incomplete paralysis of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for a disability rating more than 10 percent for lumbar strain are not met. 38 U.S.C. § 1155; 38 C.F.R. § 38 C.F.R. 4.71a, Diagnostic Code 5237. 2. The criteria for a disability rating more than 10 percent for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8521. 3. The criteria for a disability rating more than 10 percent for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to September 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs Regional Office (RO). The Veteran provided testimony at an April 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In July 2018 the Board granted the claims of an increased rating for the back and bilateral lower extremities and assigned a 10 percent rating for each disability effective July 26, 2007. The Veteran appealed this decision to the United States Court of Veterans Appeals (Court) in October 2019, claiming that the Board only considered the effective date of a 10 percent rating for these disabilities and did not consider an increased rating claim for the entire period on appeal. The Court issued a joint motion for remand (JMR), in which the parties agreed in pertinent part that the Board should consider the period following June 17, 2011, as the Veteran did not submit a written waiver of ratings in excess of 10 percent and his statements of record indicate he intended to file increased rating claims for the entire appeal period. Additionally, the parties to the JMR agreed that in assigning a 10 percent disability rating for the bilateral peripheral neuropathy, the Board did not explain, in relying on the June 2011 VA examination, why it assigned a “mild incomplete paralysis rating” for bilateral neuropathy despite the fact that the 2011 examiner found the pain was “mild to moderate.” In April 2020, the Board remanded the claims for the RO to address the claims for increased ratings for the entire appeal period. Such development was completed, and the Veteran’s claims folder has returned to the Board for further appellate consideration. Increased Ratings Pertinent legal criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). Lumbar strain The Veteran was originally denied service connection his low back disability in a July 1989 rating decision. Thereafter, the Veteran filed a claim to reopen his claim for service connection in July 2007. The RO denied reopening in an April 2008 rating decision and the Veteran perfected an appeal as to this denial. In a May 2011 decision, the Board reopened the Veteran’s claim for service connection for a low back disability and remanded the claim for a VA examination of the back. The RO granted the Veteran service connection thereafter in a May 2012 rating decision effective July 26, 2007 and assigned an initial noncompensable rating prior to June 17, 2011 and a 10 percent rating thereafter. In the above-referenced July 2018 decision, the Board awarded a 10 percent disability rating effective July 26, 2007. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237. The rating criteria, in pertinent part, provide a 10 percent rating is assigned when the evidence shows forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the thoracolumbar spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of height. A 20 percent rating is assigned when 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. 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. 38 C.F.R. § 4.71a, Note (2). Associated objective neurological abnormalities, including, but no limited to, bowel or bladder impairment, are rated separate under appropriate diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (1). Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, the following ratings will apply. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and prescribed by a physician and treatment by a physician. In 2007 the Veteran was afforded treatment at the VAMC. In July 2007 the Veteran presented with a history of low back pain dating back to his military service and noted that he gets pain in his lower back that radiates down to his right leg and to the back of his knees. He noted such was worse after prolonged standing. The July 2007 examiner suggested spinal stenosis may be the origin of the Veteran’s back pain. In October 2007, an MRI at the VAMC showed that the Veteran’s lumbar vertebral bodies were in satisfactory alignment without evidence of fracture, destructive process or degenerative disease. However, the Veteran was persistent in his reports of low back pain with radiation down his right leg. He noted that pain was worse at night and was relieved when he pulled his right leg up to his chest. He denied lower extremity weakness, numbness or incontinence. In October 2007 the Veteran submitted a private opinion by Dr. B. stating that according to his medical history he had lumbar spine pain radiating to both his legs. Dr. B. indicated that the Veteran’s records showed a chronic degenerative condition of the discs and vertebrae of the lumbar spine. Dr. B. further stated that the sudden onset of the Veteran’s current symptoms (in 2007) most likely represented an exacerbation and progression of the underlying condition. In February 2008 the Veteran’s records show he had private treatment at a private chiropractic clinic for his low back disability. The Veteran’s treatment showed low back pain, leg pain and aggravation of pain with standing, sitting and working. At the clinic the Veteran’s flexion was shown to go to 80 degrees in October 2007; extension was to 50 degrees. Also, in October 2007 the Veteran reported pain as being sharp and tingling with worsening symptoms since they began. He noted certain positions eased his pain and long periods of bending aggravated it. He noted that he found it difficult to sleep through the night, sit and work at a desk for an hour, cross his legs, stand for 30 minutes or shovel snow or dirt. He also indicated having back weakness. In June 2011 the Veteran was afforded a VA examination for his low back. At that examination the Veteran reported constant pain in his lower back that radiated to both his thighs and right lower leg. The Veteran reported that the pain is moderately severe and takes over the counter Advil for such pain. The Veteran did not report a history of flare ups but reported shooting pain down to his right leg occurring on and off without any warning or precipitating factors and lasting for three to five minutes at a time. There was no urinary or bowel incontinence reported. The Veteran did report stiffness of the lower back. The Veteran was only able to walk two blocks and stand for five minutes. He was able to walk without any assistive devices such as a cane or crutches and there was no history of falls or unsteadiness. The Veteran reported being able to perform activities of daily living. Upon examination, the examiner noted that the Veteran walked with a normal gait and there was no ankylosis of the spine. There was no scoliosis on forward bending and there were no palpable defects in the lumbar area. The Veteran did report tenderness along the lower lumbar processes. Active range of motion of the lumbar spine was associated with mild pain; forward flexion was to 80 degrees, extension was 0 to 12 degrees, right lateral flexion was 0 to 25 degrees, left lateral flexion 0 to 25 degrees, right lateral rotation 0 to 30 degrees and left lateral rotation 0 to 30 degrees. There was no functional loss with use due to pain, weakness, lack of endurance after repetitive use. X-ray of the lumbar spine performed on October 2007 was reported as normal with MRI in October 2007 unremarkable. The examiner diagnosed the Veteran with chronic lumbosacral strain. The Board notes that VA treatment records dated after the June 2011 VA examination document treatment for the Veteran’s back pain. The Veteran reported on and off low back pain and that physical therapy has helped the condition. See, e.g., a VA treatment record dated October 2019. A November 2018 VA evaluation noted “good” range of motion of the joints, although the Veteran used a back brace. In April 2017 the Veteran testified at a Board hearing for his lumbar spine disability. At that hearing the Veteran testified that his back disability became worse in about 2003 and that sometimes he was physically unable to do things he would normally be able to do. He testified that two or three times a year suddenly his back would go out of alignment. The Veteran testified that he was currently employed and that he worked as an independent contractor delivering payroll checks for a company. The Veteran also testified that he is having the same symptoms that he had at the time of his 2011 examination for his back. Based on the evidence of record, the Board finds that a disability rating more than 10 percent for the Veteran’s lumbar spine strain is not warranted. As discussed above, to warrant a 20 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must show forward flexion of the thoracolumbar spine between 30 degrees and 60 degrees; the combined range of motion of the thoracolumbar spine of 120 degrees or less; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. However, review of the evidence of record does not reveal symptomatology consistent with a 20 percent disability evaluation. Indeed, there are no findings during this period that document forward flexion of the thoracolumbar spine 60 degrees or less; the combined range of motion of the thoracolumbar spine of 120 degrees or less; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Accordingly, a higher 20 percent disability rating of the Veteran’s lumbar spine is not warranted. The Board also finds that a higher rating is not warranted at any period under consideration under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Crucially, the evidence does not indicate that he has been prescribed bed rest by a physician based on incapacitating episodes for a total duration of at least 2 weeks but less than 4 weeks during the past 12 months at any time during the period under consideration which would warrant a 20 percent rating. Therefore, the Veteran’s service-connected lumbar spine disability does not warrant an increased disability rating alternatively under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes at any time during the course of this appeal. Peripheral neuropathy of the right and left lower extremities The RO granted the Veteran service connection for his right and left peripheral neuropathy of the lower extremities in a May 2012 rating decision and assigned initial noncompensable ratings effective July 26, 2007 and 10 percent ratings effective June 17, 2011 under 38 C.F.R. § 4.124a, Diagnostic Code 8521. The Veteran filed a notice of disagreement to the effective dates of the 10 percent ratings and perfected an appeal as to the issues. As discussed above, in the July 2018 decision, the Board awarded the Veteran 10 percent ratings effective July 26, 2007. Under Diagnostic Code 8521, for the external popliteal (common peroneal) nerve, a 10 percent rating is provided for mild incomplete paralysis. A 20 percent rating is provided for moderate incomplete paralysis. A 30 percent rating is provided for severe incomplete paralysis. A 40 percent rating is provided for complete paralysis, manifested by foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In 2007 the Veteran was afforded treatment at the VAMC. In July 2007 the Veteran presented with a history of low back pain dating back to his military service and noted that he gets pain in his lower back that radiates down to his right leg and to the back of his knees. He noted such was worse after prolonged standing. In June 2011 the Veteran had a VA examination for his bilateral lower leg pain. He reported having pain in both his thighs and in his right lower leg in 1984 and noted he thinks the pain is radiation of pain from his lower back. The Veteran reported a tingling sensation of the right lower leg but no tingling of the left lower leg. The Veteran described the pain as moderately severe. The Veteran’s neurological examination showed no sensory abnormalities in the thigh, lower leg, feet or toes. The motor function was intact bilaterally, and the Veteran’s deep tendon reflexes were normal. There were no pathological reflexes, muscle atrophy, and the circumference of both claves was equal. The Lasegue and Waddell tests were negative bilaterally. With regard to his bilateral legs, the muscles involved are the bilateral thigh muscles and the right calf muscles. The bones and vascular structures are normal. The examiner reported a history of pain in the thighs and right lower leg which he claimed was mild to moderate in severity and did not affect the movement of the right knee or right ankle. There was full range of motion of the right knee and right ankle. The Veteran was able to perform full activities of daily living and he was able to perform his usual occupation as a courier. There was no tendon, bone or joint damage or nerve damage. No tremors were present and muscle strength was normal. There was no muscle herniation and no loss of muscle function due to pain, weakness or easy fatigability. There was no additional loss of muscle function due to pain, weakness or lack of endurance after repetitive use. Active and passive motion was normal and not painful. There were no pathological reflexes. The examiner diagnosed the Veteran with tingling sensation of the right lower leg was due to lumbar radiculopathy without neurologic abnormality. The Board notes that VA treatment records dated after the June 2011 VA examination document treatment for the Veteran’s lower extremities. Notably, these treatment records indicate essentially normal neurological findings of the lower extremities. See, e.g., a VA treatment record dated October 2019. Lay evidence includes the Veteran’s testimony at an April 2017 Board hearing at which point he noted that in 2003 his symptoms in his back and his legs became worse. He noted that out of the blue, he would feel shooting pain in both his legs and that it was more prevalent in the right leg. The Veteran testified that his symptoms at the time of the hearing were not any worse than the symptoms he was having at the time of his 2011 examination. Given the lay and medical evidence of record, the Board finds that disability ratings more than 10 percent for the Veteran’s peripheral neuropathy of the right and left lower extremities are not warranted. As discussed above, to warrant a 20 percent rating under Diagnostic Code 8521, the evidence must show moderate incomplete paralysis of the external popliteal nerve (common peroneal). The Board acknowledges the Veteran’s report of right and left lower extremity impairment. The Board also notes the June 2011 VA examination findings that the Veteran’s pain in the thighs and right lower leg were mild to moderate in severity. However, the Board finds that the evidence of record indicates that the Veteran’s peripheral neuropathy of the right and left lower extremities are manifested by no greater than mild incomplete paralysis. In this regard, the Board reiterates the June 2011 VA examination findings that the Veteran was able to perform full activities of daily living and he was able to perform his usual occupation as a courier. Moreover, there was no nerve damage, no tremors were present, and muscle strength was normal. The Board affords probative value to the neurological examination that showed no sensory abnormalities in the thigh, lower leg, feet or toes. The motor function was intact bilaterally, and the Veteran’s deep tendon reflexes were normal. There were no pathological reflexes, muscle atrophy, and the circumference of both claves was equal. The Lasegue and Waddell tests were negative bilaterally. The Board affords these findings probative value as these tests are specifically used to determine the degree of any neurological impairment. Therefore they are more accurate than subjective reports of pain. This is because the testing involved is specifically designed to ascertain the functional effects of neurological impairment – i.e. motor involvement, reflexes, etc. On testing, very little impairment (if any) was shown. Therefore, the Board finds that no more than mild impairment is present. Also, multiple VA treatment records indicate essentially normal neurological findings of the lower extremities. In light of the foregoing, the Board finds that disability ratings more than 10 percent are not warranted for the Veteran’s peripheral neuropathy of the right and left lower extremities. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.