Citation Nr: 21007672 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-35 226A DATE: February 10, 2021 ORDER Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome with degenerative disk disease L5-S1 is denied. Entitlement to a rating in excess of 10 percent for right side lumbar radiculopathy is denied. Entitlement to a rating in excess of 10 percent for left side lumbar radiculopathy is denied. FINDINGS OF FACT 1. The Veteran’s intervertebral disc syndrome with degenerative disc disease is manifest by forward flexion of 40 degrees and overall range of motion of 100 degrees without evidence of ankylosis or any incapacitating episodes due to his symptoms requiring bedrest in the last 12 months. 2. The Veteran’s right lumbar radiculopathy is manifest by decreased sensation at L4/L5/S1 with moderate intermittent pain and mild paresthesias that involved the sciatic nerve. 3. The Veteran’s left lumbar radiculopathy is manifest by decreased sensation at L4/L5/S1 with moderate intermittent pain and mild paresthesias that involved the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for intervertebral disc syndrome with degenerative disk disease L5-S1 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243 (2019). 2. The criteria for a rating in excess of 10 percent for right side lumbar radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124, 4.124a, Diagnostic Code 8720 (2019). 3. The criteria for a rating in excess of 10 percent for left side lumbar radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124, 4.124a, Diagnostic Code 8720 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corp from June 1973 to June 1993. This October 2014 appeal comes before the Board of Veterans’ Appeals (Board) from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which granted an initial rating of 10 percent for service-connected bilateral lumbar radiculopathy and a rating of 40 percent, but no more, for thoracolumbar intervertebral disc syndrome with degenerative disc disease. The Veteran requested a hearing before a Veterans Law Judge. The hearing was set for August 2016 and the Veteran was duly notified. There is no indication in the claims file that the letter was returned or otherwise not received by the Veteran. The Veteran failed to appear at the August 2016 hearing and has not submitted good cause for his failure to appear, therefore the request for a hearing is deemed withdrawn. See 38C.F.R.§20.704(d) (failure to appear for a scheduled hearing treated as withdrawal of request). The Board remanded the appeal in January 2018 for additional development including a VA examination. The RO issued an August 2020 supplemental statement of case (SSOC) and the case was then returned to the Board for adjudication. 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 the various disabilities. See 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 considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking wok. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome with degenerative disk disease L5-S1 The Veteran’s service-connected spinal condition, diagnosed as intervertebral disc syndrome with degenerative disc disease is rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242-5243 (see also DC 5003). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, diagnostic code 5242 was assigned for degenerative arthritis of the spine (see also DC 5003) and diagnostic code 5243 for intervertebral disc syndrome. As of February 7, 2021, under the amended criteria, diagnostic code 5242 is assigned for degenerative arthritis and degenerative disc disease (DDD) other than intervertebral disc syndrome (see also either DC 5003 or 5010). It also amends diagnostic code 5243 for intervertebral disc syndrome (IVDS) allowing the diagnostic code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise diagnostic code 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating formula under each diagnostic code was unchanged. Under Diagnostic Code 5242, a 10 percent rating is assigned for 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 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical 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 the height. A 20 percent rating is assigned 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, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Under Diagnostic Code 5243, a 40 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. A 60 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the last 12 months. For purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. The Veteran contends that he should be granted a higher rating for intervertebral disc syndrome with degenerative disc disease due to the severity of his symptoms. The Veteran states that the conditions limit his job performance and activity level as he is unable to sit or stand for prolonged periods of time and has weekly spasms that require bedrest and medication for 24-36 hours at a time. In a September 2012 statement in support of claim, the Veteran stated he had severe back pain with shooting pain down his legs. He reported seeing a VA physician in 2008 that told him there was no change in his diagnosis. The Veteran reported that he cannot continue to perform any type of lifting or bending. Id. During an October 2012 VA examination the Veteran showed forward flexion of the thoracolumbar spine of 20 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees for a total range of motion of 130 degrees; painful motion did not further limit the Veteran’s range of motion. The Veteran was able to complete the repetitive-use testing without additional limitations to his range of motion. There was evidence of muscle spasm and/or guarding but it did not cause abnormal gait or spinal contour. The examiner opined the Veteran had IVDS but did not have any incapacitating episodes within the last 12 months. A spinal X-ray showed minimal scoliosis, early degenerative disc disease and arthritis. The VA examiner noted the Veteran had functional loss due to limitations of motion from severe lower back pain. During a January 2013 private medical treatment evaluation for physical therapy, the Veteran stated that standing and walking both cause pain and the pain shoots in a narrow band down his leg. See June 2013 Private Medical Treatment Record. He indicated that he works full-time and alternates between walking and sitting at a desk. He rated his pain 6-9/10. Id. Physical therapy was recommended to address his limitations and decrease his pain. Treatment was recommended two to three times per week for four weeks with re-evaluation every 30 days. The Veteran was discharged from physical therapy in May 2013 after having attended nine sessions with his last reported session in March of 2013. During an April 2013 private medical treatment evaluation with R.B., D.O., the Veteran reported moderate pain of 7/10 that was worse in the morning and evening. See June 2013 Private Medical Treatment Record. He stated his pain included sharp and shooting sensations in the low back that radiate into his legs and down to his feet. CT Scans indicated a L5-S1 disc bulge, lumbar degenerative disk disease, lumbar facet arthropathy, right side L5-S1 degenerative spondylosis, L5-S1 neuroforaminal stenosis, and bilateral L5, S1 radiculitis. The physician recommended bilateral L5-S1 transforaminal injections. Id. During an October 2014 follow-up appointment with Dr. R.B., the Veteran indicated that he had an increase in back pain radiating into his lower extremities. See October 2014 Private Medical Treatment Record. The Veteran stated that he had been in a motorcycle accident in April 2013 resulting in surgery to repair his broken right wrist. Id. The Veteran had been unable receive the recommended lumbar injections due to his wrist injury. See July 2013 Correspondence. Dr. R.B. again recommended a series of lumbar injections and stated surgery might be possible if the injections were unsuccessful. See October 2014 Private Medical Treatment Record. The October 2019 VA examiner reported the Veteran showed forward flexion of the thoracolumbar spine of 40 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees for a total range of motion of 100 degrees; painful motion was noted but did not cause additional loss of motion. After repetitive use the Veteran showed forward flexion of 35 degrees, extension at 10 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right lateral rotation at 10 degrees, and left lateral rotation at 10 degrees. There was evidence of pain with weight bearing and non-weight bearing back use, but no additional limitation of motion. The VA examiner opined that pain, weakness, fatigability and incoordination would significantly limit functional ability with flare ups and this would further limit the Veteran’s ROM to forward flexion of 30 degrees, extension at 10 degrees, right lateral flexion at 15 degrees, left lateral flexion at 15 degrees, right lateral rotation at 10 degrees, and left lateral rotation at 10 degrees. There was no evidence of muscle spasm or guarding causing abnormal gait and spinal contour. The VA examiner noted the Veteran had functional loss due to limitations of motion, pain, fatigue, weakness and interference with standing and sitting. There was no evidence of ankylosis. The examiner indicated that there were no episodes of bed rest within the last 12 months due to his symptoms. The examiner opined that the Veteran’s symptoms had worsened but that his diagnosis had not changed. The Board finds that during the period of appeal the Veteran had forward flexion of the thoracolumbar spine of 40 degrees and a combined range of motion of 100 degrees. The Veteran had had functional loss due to limitations of motion, pain, fatigue, weakness and interference with standing and sitting, but did not have ankylosis or any incapacitating episodes due to his symptoms requiring bedrest in the last 12 months. Applying the most favorable rating criteria under diagnostic code 5242, a rating in excess of 40 percent for intervertebral disc syndrome with degenerative disc disease is not warranted. 38 C.F.R. § 4.71a. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 40 percent for intervertebral disc syndrome with degenerative disc disease on a schedular basis. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran also contends that the current evaluations are not adequate for rating the severity of his symptoms and that his claims should be remanded for consideration of extraschedular evaluation. When determining entitlement to an extraschedular evaluation, the Board must first determine whether the evidence “presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom., Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). This obliges the Board to compare “the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. When this requirement is satisfied, the Board must determine whether the veteran’s exceptional disability picture exhibits other related factors such as “marked interference with employment” or “frequent periods of hospitalization.” Id. at 116 (quoting 38 C.F.R. § 3.321 (b)(1)). If both these inquiries are answered in the affirmative, the Board must refer the matter to the Under Secretary for Benefits or the Compensation Service Director for the third inquiry-a determination of whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular evaluation. Id. The Board finds that a referral for extraschedular rating in excess 40 percent for intervertebral disc syndrome with degenerative disc disease is not warranted, as the Veteran’s symptoms are contemplated by the schedular rating criteria, which is explained below. With respect to the first prong of Thun, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran’s intervertebral disc syndrome with degenerative disc disease is inadequate. A comparison between the level of severity and symptomatology of the Veteran’s intervertebral disc syndrome with degenerative disc disease with the established criteria shows that the rating criteria reasonably contemplate the Veteran’s disability level. The Veteran has indicated that his lumbar condition causes severe back pain, difficulty bending, standing, walking, lifting, and flares that result in the need for medication and rest for 24-36 hours. His private physician recommended physical therapy, L5-S1 lumbar injections to assist with the pain and noted the possibility of surgery if the lumbar injections are unsuccessful. See October 2012 and October 2019 VA Examinations, October 2012 Statement in Support, June 2013 and October 2014 Private Medical Treatment Records. The Veteran contends that his symptomatology is not fully contemplated by the rating criteria because he cannot carry anything heavy, cannot sit or stand for long periods of time and therefore his condition adversely affects his ability to work. However, all the Veteran’s symptoms are specifically contemplated under DC 5242 and 5243. Specifically, the rating criteria provides for ratings based on limitation of motion of the spine including due to pain and other orthopedic factors and incapacitating episodes. 38 C.F.R. §§ 4.40, 4.45, 4.59. The symptomology and impairment caused by the Veteran’s lumbar spine disability, to include pain, weakness, fatigue, and decreased range of motion is contemplated by the pertinent schedular rating criteria. Accordingly, the schedular rating currently assigned contemplates the Veteran’s level of disability and symptomatology for the entire appellate period. The Board finds the evidence of record does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. The Veteran’s current symptoms of his intervertebral disc syndrome with degenerative disc disease are contemplated by his 40 percent rating. The preponderance of the evidence of record is against the Veteran’s claim for a disability evaluation in excess of 40 percent for service-connected intervertebral disc syndrome with degenerative disc disease on an extraschedular basis. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a rating in excess of 10 percent for right side lumbar radiculopathy 3. Entitlement to a rating in excess of 10 percent for left side lumbar radiculopathy The Veteran’s service-connected nerve condition, diagnosed as bilateral lumber radiculopathy is rated pursuant to 38 C.F.R. § 4.124 and §4.124a, Diagnostic Code 8720. Diagnostic Code 8720 provides rating for neuralgia of the sciatic nerve and is to be rated on the same scale with a maximum equal to moderate incomplete paralysis of the sciatic nerve. Incomplete paralysis of the sciatic nerve assigns a 10 percent rating for mild incomplete paralysis and a 20 percent rating is assigned for moderate incomplete paralysis. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes and pain. See 38 C.F.R. §§ 4.123, 4.124. The Veteran reported pain, including pain radiating into the lower extremity, at various times during this appeal. Pain, including radiating pain, is expressly contemplated in the General Ratings Formula for the spine discussed above. Including pain in the neurological rating without objective findings would result in pyramiding. 38 C.F.R. § 4.14. The Board will address the evidence regarding whether the Veteran has neurological impairment amounting to mild or moderate incomplete paralysis for his bilateral lumber radiculopathy based on motor, sensory, or reflex impairment. In an October 2012 statement in support of claim the Veteran stated he had severe lower back pain with shooting pain down his legs. He stated the pain usually lasts 2-3 days and occurs approximately 5-6 times per year, although it has increased in frequency. During an October 2012 VA examination the Veteran’s lower extremities had normal sensation bilaterally. He had positive straight leg test results suggesting radiculopathy. The Veteran had bilateral severe intermittent pain in his lower extremities involving the sciatic nerve. The examination indicated a 5/5 muscle strength in all testing movements and all reflexes were normal. The examiner opined the severity of Veteran’s radiculopathy was mild. During an October 2019 VA examination the Veteran’s lower extremities had decreased sensation in the lower leg and foot bilaterally. He had positive straight leg test results suggesting radiculopathy. The Veteran had bilateral moderate intermittent pain and mild paresthesias in his lower extremities involving the sciatic nerve. The examination indicated a 5/5 muscle strength in all testing movements and all reflexes were hypoactive. The examiner opined the severity of Veteran’s radiculopathy was mild. The Board finds that the preponderance of the evidence does not demonstrate objective neurological abnormality resulting in impaired motor function as the Veteran’s muscle strength was 5/5 for all muscle movements. The evidence does not demonstrate more than intermittent and mild sensory disturbance during this rating period. As mentioned, the General Ratings Formula for spinal disabilities includes radiating pain. Thus, the Board has excluded it from consideration here to prevent pyramiding. The Veteran had decreased sensation at L4/L5/S1 in addition to moderate intermittent pain and mild paresthesias of the lower extremity bilaterally, and the VA examiner opined in both the October 2012 and October 2019 VA examinations that the Veteran’s radiculopathy was mild. The Board finds that the Veteran’s bilateral lumbar radiculopathy was productive of no more than “mild” incomplete paralysis for this period. There is no evidence of trophic changes. Motor strength was preserved, and the sensory examination revealed a minor decrease in sensation with no associated functional impairment in the Veteran’s activities. Therefore, the level of impairment during this period was most analogous to “mild” incomplete paralysis. The Board finds that during the period of appeal the Veteran had mild incomplete paralysis of the sciatic nerve and therefore a rating in excess of 10 percent for right and left side lumbar radiculopathy is not warranted. 38 C.F.R. § 4.124a. For the foregoing reasons, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for right and left side lumbar radiculopathy. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, 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.