Citation Nr: 21006798 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 13-16 410 DATE: February 5, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for thoracic strain with degenerative changes, prior to April 10, 2017, is denied. Entitlement to an evaluation of 20 percent, but no greater, for thoracic strain with degenerative changes, from April 10, 2017 to July 1, 2019, is granted. Entitlement to an evaluation in excess of 20 percent for thoracic strain with degenerative changes, after July 1, 2019, is denied. Entitlement to a compensable rating for left lower extremity radiculopathy associated with thoracic strain with degenerative changes, prior to July 1, 2019, and in excess of 10 percent thereafter. Entitlement to a compensable rating for right lower extremity radiculopathy associated with thoracic strain with degenerative changes, prior to July 1, 2019, and in excess of 10 percent thereafter. FINDINGS OF FACT 1. Prior to April 10, 2017, the Veteran’s thoracic strain with degenerative changes is manifest by a forward flexion range of motion measured at 70 degrees, with no pain in range of motion testing, and no muscle spasms. 2. After April 10, 2017 and before July 1, 2019, the Veteran’s thoracic strain with degenerative changes is manifest by a forward flexion range of motion measured at 70 degrees, pain in all range of motion movements, muscle spasms, and no favorable ankylosis. 3. From July 1, 2019, the Veteran’s thoracic strain with degenerative changes is manifest by a forward flexion range of motion measured at 50 degrees, pain in all range of motion movements, and muscle spasms, with no favorable ankylosis. 4. Prior to July 1, 2019, the Veteran did not have lower extremity radiculopathy. 5. On and after July 1, 2019, the Veteran’s left lower extremity radiculopathy is manifest by no more than mild incomplete paralysis. 6. On and after July 1, 2019, the Veteran’s right lower extremity radiculopathy is manifest by no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to April 10, 2017, the criteria for a rating in excess of 10 percent for thoracic strain with degenerative changes are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5010-5237. 2. After April 10, 2017 and before July 1, 2019, the criteria for a rating in excess of 20 percent for thoracic strain with degenerative changes are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010-5237. 3. After July 1, 2019, the criteria for a rating in excess of 20 percent for thoracic strain with degenerative changes are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010-5237. 4. Prior to July 1, 2019, the criteria for separate compensable ratings for lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 5. On and after July 1, 2019, the criteria for a rating in excess of 10 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 6. On and after July 1, 2019, the criteria for a rating in excess of 10 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from December 1987 to August 1994. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Board has remanded this case on two separate occasions. The first time, February 2017, it was remanded for a VA examination and additional development. The second time, in October 2018, it was remanded due to an inadequate examination and for additional development. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Diagnostic Code 5010 is applicable to arthritis, due to trauma, and DC 5237 is applicable to lumbosacral or cervical strain. Traumatic arthritis, DC 5010, will be rated as degenerative arthritis DC 5003. 38 C.F.R. § 4.71a, DC 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. At the outset, the Board notes that a rating in excess of the currently assigned 20 percent disability rating, after July 1, 2019, is not available under Diagnostic Code 5010. As stated above, DC 5003 allows for degenerative arthritis established by X-ray findings to be rated on the basis of limitation of motion under the appropriate DC for the specific joint or joints involved (DC 5200 etc.). Accordingly, the RO looked to DC 5237, lumbosacral or cervical strain, to see if the Veteran qualified for a higher rating based on his limitation of motion. Under this Rating Formula a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is in order for unfavorable ankylosis of the entire thoracolumbar 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. Id at Note (2). The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined ROM of the thoracolumbar spine is 240 degrees. Id. 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 ROM. Id. ROM measurements are to be rounded to the nearest five degrees. Id at Note (4). 1. Entitlement to an evaluation in excess of 10 percent for thoracic strain with degenerative changes, prior to July 1, 2019 The Veteran seeks a rating in excess of 10 percent for his service-connected thoracic strain with degenerative changes prior to July 1, 2019. The Veteran underwent a VA examination in April 2011. During this examination, the Veteran reported having severe weekly flare-ups causing difficulty in prolonged walking, standing, sitting, bending, twisting, lifting, and carrying. His range of motion measured at: flexion 0 to 75 degrees, extension 0 to 25 degrees, left and right lateral flexion 0 to 25 degrees, and left and right lateral rotation 0 to 25 degrees. His reflexes, sensory examination, muscle strength and tone all measured normal, and it was noted he did not have muscle atrophy. In July 2013, the Veteran underwent a VA examination. His range of motion measured at: forward flexion 70 degrees, extension 30 degrees or greater, right and left lateral flexion 30 degrees or greater, and his right and left lateral rotation 30 degrees or more. It was noted for all these range of motion movements that there was no objective evidence of pain. The Veteran reported that after standing for fifteen minutes his calves begin to burn, and his thoracic back, in between his shoulders, begins to hurt. He indicated that he has flare-ups induced by prolonged standing but has no muscle spasms or muscle atrophy. The examiner reported the Veteran had normal muscle strength, normal reflexes, and normal sensory responses. He also had no radiculopathy or Intervertebral Disc Syndrome (IVDS). In February 2017, the Board remanded this case for a more current VA examination and to determine the current severity of the Veteran’s disability. In April 2017, the Veteran had another VA examination. The Veteran complained of progressive pain, stiffness, weakness, and that he suffered from moderate to severe daily symptoms. He also said he suffered from weekly flare-ups, and functional impairment limiting prolonged walking, standing, sitting, squats, stairs, jogging, jumping, lifting and carrying. His range of motion measured at: forward flexion 0 to 70 degrees, extension 0 to 20 degrees, right and left lateral flexion 0 to 20 degrees, and right and left lateral rotation 0 to 20 degrees. The Veteran reported having pain with each range of motion movement, and that he suffered muscle spasms, but they do not result in abnormal gait or abnormal spinal contour. The examination showed the Veteran has normal muscle strength with no muscle atrophy, normal reflexes, normal sensory responses, and no radicular pain or ankylosis. It is noted that in an October 2018 remand, the Board determined this examination was inadequate because it did not meet all the requirements set forth in Correia v. McDonald, 28 Vet. App. 158 (2016), specifically range of motion results for pain on both active and passive motion, weightbearing and non-weightbearing, and a discussion on flare-ups and functional loss during flare-ups. DC 5003 says when determining limitation of motion, findings such as swelling, muscle spasms, satisfactory evidence of painful motion should be considered. In the April 10, 2017 VA examination, the Veteran reported pain with all the range of motion testing movements, and that he had moderate to severe daily symptoms, and weekly severe pain due to flare-ups. He also was reported as having muscle spasms. When applying those findings to the schedular disability ratings, the Veteran’s thoracic strain with degenerative changes was at a 20 percent disability rating as of the VA examination on April 10, 2017. Thus, in evaluating the claim, the Board finds that the VA examination is competent and probative, and therefore, the preponderance of the evidence is for the Veteran’s claim. A rating of 20 percent disabled, but no more, for thoracic strain with degenerative changes from April 10, 2017 to July 1, 2019, shall be granted. A rating in excess of 10 percent prior to April 10, 2017, is denied. 2. Entitlement to an evaluation in excess of 20 percent for thoracic strain with degenerative changes, after July 1, 2019 The Veteran claims he is entitled to a rating in excess of 20 percent for thoracic strain with degenerative changes from July 1, 2019 forward. He was granted a rating of 20 percent disabling in a July 2020 supplemental statement of the case. Pursuant to the October 2018 Board remand, the Veteran underwent a VA examination in July 2019. The Veteran described having constant and intermittent pain, pain radiating into bilateral lower extremities that worsens with prolonged sitting, standing, bending, lifting, and when attempting high impact activities. He also reported having flare-ups where his back is really painful, and that sometimes he has to roll out of bed because he cannot get up. It is reported that he has difficulty with putting his shoes on, and that if he sits more than forty-five minutes he cannot get up because of the aches. His range of motion results measured at: forward flexion 0-50 degrees, extension 0-10 degrees, right lateral flexion 0-10 degrees, left lateral flexion 0-15 degrees, and right and left lateral rotation 0-10 degrees, noting pain with each motion at the furthest extent of motion and with weightbearing. The examination was not conducted during a flare-up, and the examiner noted he cannot predict with any precision the specific range of motion during the flare-ups; however, he did opine that the Veteran’s range of motion during a flare-up is likely less than the above measured range of motion, and if pressed further he indicated he would opine that the range of motion was approximately 5 degrees less per measured direction during a flare-up. It is noted that the Veteran does suffer radiculopathy with mild intermittent pain in his right and left lower extremities with mild paresthesias in his right and lower extremities, as well. The Veteran had normal muscle strength, no muscle atrophy, normal reflexes, normal sensory responses, no ankylosis, and no IVDS. As noted above, the Veteran is already rated at the highest contemplated rating under DC 5003, and the RO contemplated rating the Veteran’s limitation of motion under DC 5237. However, in order for the Veteran to be evaluated at a 30 percent rating, he has to have forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. At the July 2019 VA examination, it was noted the Veteran’s forward flexion measured at 0-50 degrees, and that the examiner opined that during his flare-ups, it would only measure at 5 degrees less, 0-45 degrees. It was also noted he did not have ankylosis. Therefore, he does not meet the schedular criteria for a higher rating under DC 5237. The Board finds these examinations to be competent and probative, and therefore, the preponderance of the evidence is against the Veteran’s claim. A rating in excess of 20 percent for thoracic strain degenerative changes after July 1, 2019, is denied. 3. Entitlement to a compensable rating for left lower extremity radiculopathy associated with thoracic strain with degenerative changes, prior to July 1, 2019, and in excess of 10 percent thereafter. 4. Entitlement to a compensable rating for right lower extremity radiculopathy associated with thoracic strain with degenerative changes, prior to July 1, 2019, and in excess of 10 percent thereafter. Any objective neurologic abnormalities associated with a service-connected spinal disability are to be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Ratings Formula for Diseases and Injuries of the Spine, Note (1). During the course of seeking an increased rating for his service-connected low back disability, the Veteran was granted service connection and a 10 percent rating for bilateral lower extremity radiculopathy in a July 2020 rating decision effective July 1, 2019. For the reasons that follow, the Board finds that the Veteran did not have lower extremity radiculopathy prior to July 1, 2019, and that his bilateral radiculopathy was no more than mild on and after that date. a. Prior to July 1, 2019 In evaluating the claim, the Board finds that the Veteran first indicated radiculopathy pain in his July 2019 VA examination. Prior to the July 2019 VA examination, the record does not reflect the Veteran suffered from radiculopathy in either his left or right lower extremity, and that the first report of radiculopathy was in the July 2019 VA examination, where the examiner reported the Veteran’s bilateral radiculopathy to be mild. Moreover, that examination was ordered after the Board determined that the April 2017 VA examination discussed above was inadequate for other reasons. See October 2018 Board remand. In the Veteran’s April 2017 VA examination, the Veteran did not report radicular pain. The examiner concluded the Veteran did not suffer from radicular pain or any other signs or symptoms due to radiculopathy. The neurological findings contained in the April 2017 VA examination report are complete and find no evidence of objective neurological abnormalities. The Board finds the preponderance of the evidence shows the first ascertainable date showing the Veteran had bilateral lower extremity radiculopathy is July 1, 2019. As a result, separate compensable ratings are not warranted prior to that date. 38 C.F.R. § 3.400(o). b. On and After July 1, 2019 The July 1, 2019, VA examination report indicates that the Veteran had radiculopathy involving the nerve roots of the bilateral femoral nerves. Report at 7. The RO assigned separate 10 percent disability ratings under DC 8526, which rates incomplete to complete paralysis of the anterior crural nerve (femoral). This rating is for “mild” incomplete paralysis. 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve. 38 C.F.R. § 4.120. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Id. Under DC 8526, a 10 percent disability rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 30 percent rating is warranted for severe incomplete paralysis. A 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral) resulting in paralysis of the quadriceps extensor muscles. During the Veteran’s July 2019 VA examination, the examiner diagnosed the Veteran with bilateral lower extremity radiculopathy. The Veteran said that it gets worse with prolonged sitting, standing, bending, lifting, and when attempting high impact activities, and that his lower extremities get swollen on a daily basis. It was reported he suffered mild intermittent pain (usually dull) in his right and left lower extremities, and from mild paresthesias and/or dysesthesias in his right and left lower extremities. The examiner reported the nerve involvement to include L2/L3L/L4 (femoral nerve) in both his left and right sides, and that the severity of the radiculopathy in both sides was mild. The Veteran’s reflexes, motor strength, and sensation to light touch were normal during the examination. The Veteran has bilateral straight leg raise tests. The Veteran did not have muscle atrophy. The Board finds the Veteran’s bilateral lower extremity radiculopathy was no more than mild in severity. The Veteran did not have more than sensory impairment. Moreover, his sensation was intact during the examination. Thus, the sensory impairment is not constantly present. On balance, the Board finds that the symptoms described are most analogous to ‘mild’ incomplete paralysis. Thus, the preponderance of the evidence is against the Veteran’s claim. Ratings in excess of 10 percent on and after July 1, 2019, for left and right lower extremity radiculopathy is not warranted. 38 C.F.R. § 4.124a. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.