Citation Nr: 21007311 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 18-06 142 DATE: February 9, 2021 ORDER A rating higher than 40 percent for degenerative arthritis of the spine and invertebral disc syndrome (herein after back disability) is denied. A rating of 40 percent, but no higher, for right lower extremity radiculopathy is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s back disability manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis; his back disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 2. Resolving reasonable doubt in the Veteran’s favor, his right lower extremity radiculopathy is manifested by no more than moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW The criteria for a rating higher than 40 percent for back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5242, 5243. 1. The criteria for a rating of 40 percent, but no higher, for right lower extremity radiculopathy 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 1966 to June 1968 in the U.S. Army. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in May 2020. A copy of the transcript is of record. This matter was previously before the Board in July 2020, at which time the case was remanded for a VA examination. This case has now been returned to the Board for further appellate action. Increased Rating for Back Disability The Veteran seeks a higher rating for his service-connected back disability. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran is currently assigned a 40 percent rating for his back disability under DC 5242-5243. DC 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides that 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 for forward flexion of the thoracolumbar spine of 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is awarded for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 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 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. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Notes (2), (4). 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 (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Veteran underwent VA examinations in January 2017 and June 2017. During the January 2017 VA examination, the Veteran reported that he has decreased range of motion during flareups due to pain, however the examiner did not describe range of motion in terms of degrees. Additionally, during the June 2017 VA examination, the examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time because the Veteran was not examined after repeated use over time. The Board finds that these VA examinations are inadequate for adjudication purposes. See Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Accordingly, the January 2017 and June 2017 VA examinations will not be considered. The Veteran underwent another VA examination in August 2020. The examiner diagnosed the Veteran with spinal stenosis, degenerative arthritis of the spine, and IVDS. The Veteran reported flare-ups that limit standing, bending, twisting, lifting, carrying, and walking. The examiner noted that the Veteran uses a cane constantly. Range of motion testing showed forward flexion, extension, and bilateral lateral flexion and rotation limited to 10 degrees. Pain was noted on examination and caused functional loss. The Veteran was able to perform repetitive use-testing with at least three repetitions, however there was no additional loss of function or range of motion. He was not examined immediately after repetitive use over time or during a flare up, however the examiner determined that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare up. The examiner determined that pain resulted in additional functional loss with repeated use over time and during flare up and estimated that range of motion for forward flexion, extension, and bilateral lateral flexion and rotation would be limited to 5 degrees with repeated use over time and 0 degrees during flare up. The Veteran did not have muscle spasm of the thoracolumbar spine. He had flattening of the spine and guarding due to IVDS and arthritis. He also had disturbance of locomotion, interference with standing, and limited standing and walking. The examiner found that the Veteran does not have ankylosis of the spine. The Board finds that the Veteran’s back disability has been consistent with the August 2020 VA examination throughout the period on appeal. The Board finds the VA examiner’s medical findings and opinions highly probative to the issue of the severity of the Veteran’s lumbar spine disability. Specifically, the examiner interviewed the Veteran and conducted physical examinations. Moreover, the examiner had the requisite medical expertise and had sufficient facts and data on which to base their conclusions. As such, the Board affords the VA examination findings and opinions great probative weight. Based on the foregoing, the Board concludes that a rating higher than 40 percent is not warranted as the medical evidence of record shows that the Veteran’s back disability did not manifest by unfavorable ankylosis of the entire thoracolumbar spine. The Board notes that during the May 2020 Board Hearing, the Veteran testified that he is treated for back pain at the VA. Additionally, he testified that he cannot really move from side to side, bend forward or backward, and he has constant pain that radiates from his back down his right leg and to his right foot. The Veteran also testified that his back pain prevents him from doing things that he used to be able to do, such as fishing, hunting, mowing the grass, and grocery shopping. The Board has considered the Veteran’s statements. The Board finds that though he is competent to report observable symptoms he experienced through his senses; he is not competent to identify a specific level of disability according to the appropriate DCs. Layno v. Brown, 6 Vet. App. 465 (1994). The identification of a spine disability and the determination of the range of motion of the spine requires medical expertise that the Veteran has not shown he possesses. The medical findings, as provided in the examination report, directly addresses the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs lay statements in support of his claim for a higher rating. The Board has considered whether a higher rating is warranted under DC 5243. While VA examiners found that the Veteran has IVDS, he did not have episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment prescribed by a physician within the past 12 months. Therefore, a higher rating under DC 5243 is not warranted. Note (1) of the General Rating Formula for Diseases and Injuries of the Spine requires the Board to evaluate any associated objective neurologic abnormalities separately under an appropriate DC. As such, the Veteran’s right lower extremity radiculopathy has been rated under DC 8520 (for sciatic nerve paralysis) and is discussed separately. No other neurologic abnormalities have been diagnosed. Increased Rating for Radiculopathy Throughout the period on appeal, the Veteran has had symptoms of radiculopathy in his right leg, which is associated with his service-connected back disability. The Veteran is assigned a separate 20 percent rating for right lower extremity radiculopathy under DC 8520, which addresses paralysis of the sciatic nerve. As this rating stems from the Veteran’s back disability, the Board has jurisdiction over whether a higher rating is warranted. The Board finds that a 40 percent rating, but no higher, is warranted throughout the period on appeal. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A higher 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis. Complete paralysis consists of the foot dangling and dropping, with no active movement possible of the muscles below the knee and flexion of the knee weakened or lost. 38 C.F.R. § 4.124a. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. See “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. The Veteran was afforded a VA examination for his right lower extremity radiculopathy in December 2019. He reported that he has pain that shoots down his right leg and across his foot to his great toe and has numbness and tingling from his toe to his knee. The examiner noted that he has moderate constant pain, paresthesias and/or dysesthesias, and numbness, and mild intermittent pain in his right lower extremity. On examination, the Veteran had active movement against some resistance in the right ankle plantar flexion and dorsiflexion, absent right knee and ankle reflexes, and decreased sensation to light touch in the right lower leg and foot. The Veteran did not have any trophic changes or muscle atrophy. The examiner found that the Veteran had incomplete paralysis of the right sciatic nerve, external popliteal nerve, and anterior tibial nerve. Regarding functional impairment, the Veteran reported that he works part time as a barber and the examiner noted that he would not be able to do any physical labor, including lifting, carrying, and standing, and sedentary work would be better suited for him. During the August 2020 VA examination for the Veteran’s back disability, muscle strength testing showed active movement against some resistance for right ankle dorsiflexion and great toe extension. The Veteran had hypoactive right knee reflexes, absent right ankle reflexes, and decreased sensation to light touch in the right foot and toes. The examiner found that the Veteran had moderate intermittent pain and parasthesia and/or dysesthesias in the right lower extremity and concluded that the Veteran had moderate right lower extremity radiculopathy. The medical evidence of record also demonstrates that the Veteran constantly uses a cane and has had symptoms of right foot drop throughout the appeal period. See e.g. VA Treatment Records Received January 2020; see also January 2017 VA Examination. Resolving reasonable doubt in the Veteran’s favor, the Board concludes that the Veteran’s right lower extremity radiculopathy manifested by moderately severe incomplete paralysis. His symptoms have been consistent throughout the period on appeal, including decreased reflexes and sensation, and symptoms of right foot drop. A higher rating is not warranted as the examinations do not show severe incomplete paralysis with marked muscular atrophy or complete paralysis. Accordingly, the Board finds that a 40 percent rating is warranted, effective December 13, 2016, the date VA received the Veteran’s claim for an increased rating for his back disability. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.