Citation Nr: 21007581 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-34 168 DATE: February 10, 2021 ORDER Entitlement to a rating greater than 20 percent for intervertebral disc syndrome with lumbar spine degenerative arthritis, is denied. Entitlement to a 20 percent rating for left lower extremity radiculopathy, for the rating period prior to July 16, 2015, is granted. Entitlement to a rating greater than 20 percent for left lower extremity radiculopathy for the rating period since July 16, 2015, is denied. FINDINGS OF FACT 1. The Veteran’s intervertebral disc syndrome with lumbar spine degenerative arthritis is manifest by pain on motion and tenderness to palpation, with functional loss due to pain, weakness, and fatigue upon movement; flexion is limited to 45 degrees, but no less than that, and the Veteran does not experience incapacitating episodes or ankylosis. 2. For the entire rating period on appeal, the Veteran’s left lower extremity radiculopathy is productive of neuralgia manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 20 percent for intervertebral disc syndrome with lumbar spine degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2019). 2. The criteria for a 20 percent disability evaluation, but no higher, for left lower extremity radiculopathy for the rating period prior to July 16, 2015 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8720 (2019). 3. The criteria for a disability rating higher than 20 percent for Veteran’s left lower extremity radiculopathy for the period beginning on July 16, 2015, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8720 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Navy from November 1971 to February 1982. These matters come before the Board of Veterans’ Appeals (Board) on an appeal of an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. During the pendency of the appeal, in a July 2015 rating decision, the Veteran was awarded an increased, 20 percent disability evaluation for his left lower extremity radiculopathy, effective July 16, 2015. As the Veteran has not been granted the maximum benefit allowed, the claim for an increased disability rating remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In October 2018 and April 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in August 2020. The case has since been returned to the Board for appellate review. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). 1. Entitlement to an increased disability evaluation for intervertebral disc syndrome with lumbar spine degenerative arthritis, currently 20 percent disabling. The Veteran’s intervertebral disc syndrome with lumbar spine degenerative arthritis is rated as 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (“general rating formula”). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as 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. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing Intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as 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 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 20 percent evaluation is to be assigned 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 evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235 for vertebral fracture or dislocation; 5236 for sacroiliac injury and weakness; 5237 for lumbosacral strain; Diagnostic Code 5238 for spinal stenosis; Diagnostic Code 6239 for spondylolisthesis or segmental instability; Diagnostic Code 5240 for ankylosing spondylitis; Diagnostic Code 5241 for spinal fusion; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. The Veteran contends that he is entitled to a higher rating and that his symptoms have been consistent throughout the appeal period. After a review of all the evidence, the Board finds that the Veteran’s disability picture more nearly approximates the criteria for the currently assigned 20 percent disability evaluation for his service-connected intervertebral disc with lumbar spine degenerative arthritis. The Board acknowledges that the Veteran’s December 2019 VA examination reflects that the Veteran has intervertebral disc syndrome. Regardless, the July 2015 VA examiner indicated that the Veteran experiences incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; the December 2019 VA examiner indicated that the Veteran does not have any incapacitating episodes as a result of his intervertebral disc syndrome with lumbar spine degenerative arthritis. Thus, the Veteran’s intervertebral disc syndrome with lumbar spine degenerative arthritis does not afford the Veteran a rating in excess of 20 percent. At the November 2012 VA examination, the Veteran had forward flexion to 55 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees; the Veteran had pain on motion and tenderness to palpation. There was no muscle spasm, guarding, or muscle atrophy. Strength and reflex testing were normal. There was no evidence of ankylosis. The VA examination report indicated that there was functional loss due to pain on motion; the Veteran reported pain is exacerbated by bending, twisting, repetitive lifting of about 15 pounds, and standing still for 15 minutes. The VA examiner stated that the Veteran did not have intervertebral disc syndrome, or incapacitating episodes. At the July 2015 VA examination, the Veteran had the Veteran had forward flexion to 55 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 10 degrees. Upon repetitive motion, he had flexion to 50 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 0 degrees. The VA examiner observed pain on motion and tenderness to palpation, without abnormal gait or spinal contour; there was no evidence of muscle atrophy, guarding, muscle spasm, or ankylosis. The VA examiner noted that the Veteran reported flare-ups 8 times per year, occasionally requiring an emergency room visit. The VA examiner indicated that the Veteran had intervertebral disc syndrome with incapacitating episodes equivalent to episodes of bed rest having a total duration of at least one week but less than two weeks during the past 12 months; the VA examiner indicated that this assessment was based on the Veteran’s report of 2 -3 periods of bed rest per year, which last up to 3 days each. At the December 2019 VA examination, the Veteran had forward flexion to 455 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. Upon repetitive motion, he had pain on motion without decreased range of motion; the VA examiner indicated that the Veteran’s functional impairment was due to pain on motion and upon weight-bearing, but without any additional decrease in range of motion. The VA examiner observed pain on motion and tenderness to palpation, with guarding that did not result in abnormal gait or spinal contour; there was no evidence of muscle atrophy, muscle spasm, or ankylosis. The VA examiner indicated that the Veteran had intervertebral disc syndrome without any incapacitating episodes. VA treatment records dated throughout the rating period on appeal reflect that the Veteran was treated for back pain and reduced range of motion; however, no measurements were provided. The lay and medical evidence demonstrates that the Veteran’s symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating at any time during the appeal period. The evidence shows that the Veteran experiences forward flexion of the thoracolumbar spine which is better than 30 degrees. Here, the lay evidence has been considered; however, that evidence when accepted as correct does not establish that he is functionally limited to 30 degrees or less. He does not experience incontinence or bowel complaints as a result of his intervertebral disc syndrome with lumbar spine degenerative arthritis. Further, the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine during the rating period on appeal. There was no atrophy or decrease in strength. Additionally, the Veteran is already being compensated for radiculopathy of the right and left lower extremities. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment, as well as estimated limitation of motion during a flare-up; the projected limitation of motion was based on the Veteran’s report of symptomatology and reports of functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Therefore, the lay and medical evidence demonstrates that the Veteran’s symptoms do not result in additional functional limitation to a degree that would support a rating in excess of the current 20 percent disability rating. With respect to a higher evaluation based on incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as noted earlier, the Veteran’s intervertebral disc syndrome with lumbar spine degenerative arthritis has not been productive of incapacitating episodes requiring physician prescribed best rest having a total duration of at least 4 weeks during a 12-month period as contemplated by a higher evaluation. Review of the Veteran’s treatments record also do not reveal any periods of physician prescribed bed rest as a result of his intervertebral disc syndrome with lumbar spine degenerative arthritis. Moreover, the Veteran’s self-reported incapacitating episodes are equivalent to a total duration of at least one week, but less than 2 weeks during the past 12 months; this is equivalent to a 10 percent disability evaluation under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran was granted service connection for radiculopathy of the right and left lower extremities and assigned separate disability evaluations for each lower extremity. As the Veteran is separately evaluated for his lower extremity neurological deficits, it is not for consideration here. As such, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for service-connected intervertebral disc syndrome with lumbar spine degenerative arthritis at any time during the rating period. 2. Entitlement to a disability rating greater than 10 percent for left lower extremity radiculopathy, for the rating period prior to July 16, 2015. 3. Entitlement to a rating greater than 20 percent for left lower extremity radiculopathy, for the rating period since July 16, 2015. The Veteran is currently assigned a 10 percent disability evaluation for his left lower extremity radiculopathy for the rating period prior to July 16, 2015, and a 20 percent disability evaluation for per extremity for his left lower extremity radiculopathy thereafter pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8720. Under Diagnostic Code 8720, a 10 percent disability evaluation is warranted for neuralgia of the sciatic nerve with mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis of the sciatic nerve and a 30 percent disability rating requires moderately severe incomplete paralysis. A 50 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent disability rating requires complete paralysis; the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8720. 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. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). After a review of all the evidence, the Board finds that the Veteran’s left lower extremity radiculopathy most closely approximates the criteria for a 20 percent disability evaluation, for the entire rating period on appeal. At the November 2012, July 2015, and December 2015 VA back examinations, and the July 2015 and December 2019 VA peripheral nerves examination, the Veteran’s left lower extremity manifestations were described as mild and moderate. To that extent, the Board points out that the Veteran had mild numbness and pain at the November 2012 VA examination, but at the July 2015 and December 2019 VA examinations, the Veteran had mild to moderate pain, paresthesias and/or dysesthesias, and numbness. Likewise, his reflexes were decreased, but intact; muscle strength was full and there was no evidence of atrophy. The Board acknowledges that the Veteran’s left lower extremity radiculopathy was first shown to be sufficient to meet the rating criteria for a 20 percent disability rating at the July 2015 VA examination. However, the Board points out that the Veteran’s symptomatology has been relatively consistent throughout the rating period on appeal. Moreover, the Board notes that the Veteran’s symptoms could not be fully evaluated in the absence of a VA examination in the years between the November 2012 and July 2015 VA examinations, as the Veteran’s available VA treatment records do not provide sufficient detail; further, the Veteran has asserted that his symptoms have been consistent and ongoing throughout the appeal period. Therefore, his symptomatology most closely approximates the criteria for the currently assigned 20 percent disability evaluation for moderate incomplete paralysis of the sciatic nerve. The evidence of record does not show that he experiences moderately severe incomplete paralysis of the left sciatic nerve. In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. §§ 4.120, 4.123, and 4.124. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent per extremity for left lower extremity radiculopathy for the entire appeal period, and the evidence supports the assignment of 20 percent rating for the entire rating period for left lower extremity radiculopathy. 38 C.F.R. §§ 4.3, 4.7. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.