Citation Nr: 21006777 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-06 754 DATE: February 5, 2021 ORDER Entitlement to a higher rating of 20 percent for lumbar spine degenerative disc disease (DDD) prior to September 9, 2019 is granted. Entitlement to a rating in excess of 20 percent for lumbar spine DDD beginning September 9, 2019 is denied. Entitlement to a separate compensable rating of 20 percent for right lower extremity (RLE) sciatic radiculopathy beginning May 8, 2012 is granted. FINDINGS OF FACT 1. The Veteran’s lumbar DDD manifests as forward flexion limited to 40 degrees, with no ankylosis. 2. The evidence supports a finding that a separate rating of 20 percent for RLE sciatic radiculopathy was warranted beginning May 8, 2012, the date the Veteran requested an increased rating for his lumbar spine DDD with RLE sciatica. CONCLUSIONS OF LAW 1. The criteria for a higher rating of 20 percent for lumbar spine DDD prior to September 9, 2019 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5239 (2019). 2. The criteria for a rating in excess of 20 percent for lumbar spine DDD beginning September 9, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5239 (2019). 3. The criteria for a separate compensable rating of 20 percent for RLE sciatic radiculopathy beginning May 8, 2012 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.124(a), Diagnostic Code (DC) 8520 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2000 to July 2008. This matter is before the Board of Veterans’ Appeals (Board) on appeal from March 2013 and March 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a prior remand in October 2018. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.    Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.    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). 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). 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. Id. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.   The Veteran’s lumbar spine DDD is rated under DC 5239 for spondylolisthesis or segmental instability, which falls under the general rating formula for diseases and injuries of the spine. Under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, for ratings for the thoracolumbar 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 assigned if there is forward flexion of the thoracolumbar spine of 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is assigned if there is unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating may be assigned if there is unfavorable ankylosis of the entire spine.  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 Veteran’s RLE sciatic radiculopathy is rated under DC 8520 for paralysis of the sciatic nerve. A rating of 10 percent is warranted for mild incomplete paralysis, a rating of 20 percent is warranted for moderate incomplete paralysis, a rating of 40 percent is warranted for moderately severe incomplete paralysis, and a rating of 60 percent is warranted for severe, with marked muscular atrophy incomplete paralysis. Finally, a rating of 80 percent is warranted for complete paralysis. 1. Entitlement to a rating in excess of 10 percent for lumbar spine DDD prior to September 9, 2019. 2. Entitlement to a rating in excess of 20 percent for lumbar spine DDD beginning September 9, 2019. 3. Entitlement to a separate compensable rating for RLE sciatic radiculopathy. In a March 2010 rating decision, the Veteran was initially granted service connection for lumbar spine DDD with RLE sciatica, evaluated at 10 percent, effective July 31, 2009. The Veteran did not appeal this rating decision. However, in May 2012, the Veteran requested an increased rating for his lumbar spine condition. The RO continued to rate this condition at 10 percent and the Veteran appealed the issue up to the Board. In October 2018 the Board remanded the claim to provide the Veteran with another VA examination compliant with recent caselaw. Following this examination, the RO issued a March 2020 rating decision, increasing the Veteran’s lumbar DDD evaluation to 20 percent, beginning September 9, 2019, the date of the most recent VA examination, and granting the Veteran a separate compensable rating of 10 percent for RLE sciatic radiculopathy, also beginning September 9, 2019. The Veteran was first given a VA examination for his back in February 2010, prior to the instant claim. Here, the examiner diagnosed the Veteran with mild DDD of the lumbar spine with RLE sciatica. On physical examination, the examiner found paravertebral muscle spasm throughout the lower lumbar spine and a straight leg raising was positive at 40 degrees for the RLE. The Veteran’s forward flexion was to 70 degrees with pain, and his RLE extremity showed diminished strength of 4/5 and an absence of sensation to light touch in the great right toe. The Board notes that a separate peripheral nerve examination was not completed at this time. This examination resulted in the initial 10 percent rating for lumbar spine DDD with RLE sciatica. Following his request for an increased rating, the Veteran provided July 2012 correspondence noting that he had received a steroid injection into his lower back on June 29, 2012 and was referred to pain management for continued injections. Treatment records from August 2012 note that the Veteran was prescribed gabapentin 100mg three times per day for his sciatica. Moreover, treatment records beginning September 2012 show the Veteran entering pain management for his lumbar DDD with radiculopathy and undergoing monthly (at times bi-weekly) LESI injections thru February 2013, as well as beginning chiropractic treatment. At a February 2013 pain clinic appointment, the Veteran was noted to have been seen in the clinic with symptoms and exam suggesting lumbar radiculopathy. In March 2013 correspondence, the Veteran reported that his back pain had worsened and he was now receiving bi-weekly injections. The Veteran was given another VA examination for his back condition in March 2013. Here, the examiner diagnosed lumbar spine DDD with RLE sciatica. He found the Veteran’s forward flexion of the thoracolumbar spine to be limited to 65 degrees with pain, with a combined range of motion of 200 degrees. The examiner found no additional limitation of motion following repetitive-use testing, nor was guarding or muscle spasms found. Sensory examination was normal, as was the straight leg raising test. The examiner found no radiculopathy or any other neurologic abnormalities and indicated that there was no change from the current service-connected diagnosis. In April 2013 correspondence, the Veteran contended that his March 2013 VA examination lasted approximately 7 minutes and he was not given a thorough examination. He further argued that his back pain has worsened since his initial rating, to include requiring back injections for the past 8 months. The Veteran explained that this was why he initially requested an increased rating and further requested that VA review his provided treatment records and provide him with another VA examination. The Veteran also noted that the pain management clinic was referring him to another doctor with the possibility of surgery. Treatment records show that in June 2013, the Veteran again presented for maintenance of LESI injections. In October 2013, the Veteran provided a completed back condition disability benefits questionnaire (DBQ). Here, he was diagnosed with DDD, and the examiner gave eyeball estimates that the Veteran’s forward flexion was limited to 45 degrees, noting that no goniometer was used. The examiner found the Veteran to have localized tenderness of the thoracolumbar area as well as guarding or muscle spasms that do not result in abnormal gait or spinal contour. The examiner found the Veteran to have moderate intermittent pain of the RLE and indicated that the Veteran suffered from moderate radiculopathy of the RLE. The Board finds that the range of motion estimates on this DBQ are inadequate as they were not made using a goniometer. However, the Board also notes that this examiner found moderate RLE radiculopathy, indicating that a separate evaluation for such was warranted. The Veteran was given another VA examination for his back in January 2015. Here, the examiner diagnosed DDD of the lumbar spine with RLE sciatica but wrote “without current diagnosis of RLE sciatica supported.” The examiner noted that the Veteran denied radiating into either lower extremity or altered sensation in either lower extremity writing “Was recently prescribed chiropractor treatment, goes ‘once a week’ x last 12 months > ‘little better’. Went to physical therapy 6 months ago x 1 ½ months > ‘better during’ the treatments > then LBP returned back to baseline. LBP occurs intermittently, not activity related, located in same area of lumbar spine as during service, described as ‘dull on left and needle and stinging on right’, episodes lasting ‘a good hour.’ Takes daily naproxen and ibuprofen for LBP since 2005 > 20% relief, and ‘occasionally’ takes tramadol for LBP – ‘once a week’ > 30% relief.” Despite this explanation, the examiner noted no back flareups. The Veteran’s forward flexion was found to be to 80 degrees with no pain noted on exam, his combined range of motion was to 200 degrees. No additional range of motion loss was noted after repetitive use. The examiner found no guarding or muscle spasms. Sensory exam was all normal as was the straight leg raising test. The examiner found no radiculopathy and no ankylosis. The Board notes that this examiner also provided a negative nexus opinion, despite the fact that the Veteran is already service connected for his back condition and wrote that there is no scientific basis for the question regarding range of motion following repetitive use as “there is generally no relationship between range of motion and functional loss with repeated use (ROM may increase, decrease, or stay the same).” On his Form 9 appeal to the Board, the Veteran wrote “I feel 20% is warranted, based on the severity of my back condition. I would consider this a full grant of benefits.” Following remand, the Veteran was given another VA examination in September 2019. Here, the examiner diagnosed the Veteran with degenerative arthritis of the spine, noting the prior diagnosis of lumbar spine DDD with RLE sciatica had progressed. The examiner noted that the Veteran suffers from flare-ups multiple times throughout the day increasing his pain from a 5/10 to a 6/10. With regard to flareups the Veteran stated, “I have sharp, needle-like pain in my lower back that sends sharp tingling pain down the back of my right leg.” The examiner noted pain on exam that causes functional loss, finding the Veteran’s forward flexion to be limited to 40 degrees after repetitive use and during flareups. The examiner found no guarding, muscle spasms, or ankylosis. However, decreased sensation of the lower leg/ankle and foot/toes on the right side was found. A straight leg test was positive on the right side and the examiner opined that the Veteran had moderate constant pain and numbness of the RLE, and severe intermittent pain and paresthesias and/or dysesthesias of the RLE. Overall, the examiner opined that the Veteran had mild radiculopathy of the RLE. The examiner also opined that the Veteran has intervertebral disc syndrome noting under remarks “imaging from 2011 shows the Veteran now has IVDS and degenerative arthritis of the lumbar spine. This is consistent with the progression of the Veteran’s s/c DDD and consistent with the findings of exam.” The Board notes that these examination findings are consistent with a 20 percent rating under DC 5239. While the Veteran’s forward flexion of the thoracolumbar spine was not less than 65 degrees and was not shown to have guarding or muscle spasms severe enough to result in an abnormal gait or abnormal spinal contour prior to September 9, 2019, the September 2019 VA examiner found that the Veteran’s forward flexion is limited to 40 degrees after repetitive use and during flareups. Thus, in light of the Veteran’s complaints coupled with the 2019 VA examination findings, resolving reasonable doubt in favor of the Veteran, entitlement to a 20 percent rating prior to September 9, 2019 is warranted. However, the record does not contain any evidence that the Veteran’s forward flexion has ever been limited to 30 degrees or less, which is required for the next higher rating of 40 percent. Accordingly, entitlement to a higher rating of 20 percent for lumbar spine DDD prior to September 9, 2019 is granted, and entitlement to a rating in excess of 20 percent for lumbar spine DDD beginning September 9, 2019 is denied. With regard to the Veteran’s RLE sciatic radiculopathy, treatment records consistently note that the Veteran has been suffering from RLE radiculopathy since his request for an increased rating in May 2012, including being prescribed medication for such and receiving repeated back injections as well as undergoing chiropractic care and physical therapy. While the record contains VA examinations wherein no radiculopathy is found, the Veteran provided a back DBQ dated October 2013 wherein it was opined that he suffered from moderate radiculopathy of the RLE and the 2019 VA examiner opined that the Veteran had mild radiculopathy of the RLE. Taking this DBQ into consideration, as well as the Veteran’s treatment records, his lay statements, and the most recent VA examination, the Board finds that the Veteran is entitled to a separate evaluation of 20 percent for his mild to moderate RLE sciatic radiculopathy beginning May 8, 2012, the date he first requested an increased rating. Accordingly, entitlement to a separate compensable rating of 20 percent for RLE sciatic radiculopathy beginning May 8, 2012 is granted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.