Citation Nr: 21007696 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 09-38 216 DATE: February 10, 2021 ORDER Entitlement to an initial 40 percent rating, but no higher, for degenerative disc disease of the lumbar spine (back disability) is granted from September 1, 2004 to May 20, 2015. Entitlement to an initial rating in excess of 40 percent for back disability from May 20, 2015 is denied. Entitlement to a separate 20 percent rating, but no higher, for right lower extremity radiculopathy is granted from September 1, 2004. Entitlement to a separate 10 percent rating, but no higher, for left lower extremity radiculopathy is granted from September 1, 2004; a 40 percent rating, but no higher, is warranted from February 16, 2006. Entitlement to an initial rating in excess of 10 percent for right ankle sprain prior to May 16, 2015 is denied. Entitlement to an initial rating in excess of 10 percent for left ankle sprain prior to May 16, 2015 is denied. Entitlement to an initial 20 percent rating, but no higher, for right ankle sprain is granted from May 16, 2015. Entitlement to an initial 20 percent rating, but no higher, for left ankle sprain is granted from May 16, 2015. FINDINGS OF FACT 1. From September 1, 2004 to May 20, 2015, when considering pain, flare-ups, and corresponding functional impairment, the Veteran’s back disability has more nearly approximated forward flexion to 30 degrees. 2. The Veteran’s back disability has not been manifested by ankylosis or incapacitating episodes of intervertebral disc syndrome (IVDS) at any point during the appeal period. 3. The Veteran’s right lower extremity radiculopathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve throughout the appeal period. 4. The Veteran’s left lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis prior to February 16, 2006 and no more than moderately severe incomplete paralysis of the sciatic nerve thereafter. 5. Prior to May 16, 2015, the Veteran’s right and left ankle sprain was manifested by no more than moderate limitation of motion with no evidence of ankylosis. 6. Since May 16, 2015, when considering pain, flare-ups, and corresponding functional impairment, the Veteran’s right and left ankle sprain has more nearly approximated marked limitation of motion with no evidence of ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 40 percent rating, but no higher, for back disability are met from September 1, 2004 to May 20, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for entitlement to an initial rating in excess of 40 percent for back disability from May 20, 2015 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5237. 3. The criteria for entitlement to a separate 20 percent rating, but no higher, for right lower extremity radiculopathy are met from September 1, 2004. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a, DC 8520. 4. The criteria for entitlement to a separate 10 percent rating, but no higher, for left lower extremity radiculopathy are met from September 1, 2004, and a 40 percent rating, but no higher, are met from February 16, 2006. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a, DC 8520. 5. The criteria for entitlement to an initial rating in excess of 10 percent for right ankle sprain prior to May 16, 2015 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5271. 6. The criteria for entitlement to an initial rating in excess of 10 percent for left ankle sprain prior to May 16, 2015 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5271. 7. The criteria for entitlement to an initial 20 percent rating, but no higher, for right ankle sprain are met from May 16, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5271. 8. The criteria for entitlement to an initial 20 percent rating, but no higher, for left ankle sprain are met from May 16, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1980 to August 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the claims on appeal for further development in July 2015, May 2017, and February 2019. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. 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). The United States Court of Appeals for Veterans Claims (Court) later clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. 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. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Entitlement to an initial 40 percent rating, but no higher, for back disability is granted from September 1, 2004 to May 20, 2015 is granted. 2. Entitlement to an initial rating in excess of 40 percent for back disability from May 20, 2015 is denied. The Veteran’s back disability is currently evaluated pursuant to DC 5237, which is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Pursuant to that formula, as relevant here, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness that does not result in abnormal gait or abnormal spinal contour; or, vertebral body fracture is present with loss of 50 percent or more of the height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is 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 warranted when forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. Id., Note (1). Unfavorable ankylosis is defined by VA regulation as a condition in which the 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 on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Id., Note (5). Fixation in the neutral position of zero degrees always represents favorable ankylosis. Id. By way of background, a November 2004 rating decision awarded service connection for a back disability and assigned a 10 percent rating, effective September 1, 2004. A November 2010 rating decision increased the rating to 20 percent, effective February 16, 2006, and a July 2016 rating decision increased it to 40 percent, effective May 20, 2015. The appeal period before the Board is from the effective date of service connection, or September 1, 2004. From September 1, 2004 to May 20, 2015, a 40 percent rating for the Veteran’s back disability is warranted. While objective testing during this period does not reflect forward flexion of the lumbar spine to 30 degrees or less, when considering the Veteran’s competent and credible reports of severe limited lumbar spine motion and pain during flare-ups, resulting in periods of incapacitation, coupled with the September 2004 and March 2006 VA examiners’ assessment of a significant decrease in mobility and limitation in functional ability during these times, and affording him the benefit of the doubt, the Board finds that the record supports a 40 percent from the beginning of the appeal period, or September 1, 2004 through May 20, 2015. Specifically, during the both the September 2004 and March 2006 VA examinations, the Veteran reported flares two to three times per week, rendering him bedridden for four or five hours a few times per year and requiring emergency room treatment. The 2006 VA examiner noted that during these times the Veteran had “significantly decreased flexion” secondary to pain. A rating in excess of 40 percent is not warranted at any point during the appeal period, as the Veteran does not assert that he has ankylosis of the thoracolumbar spine, even when considering flare-ups and repetitive use, and the evidence does not indicate otherwise. See September 2004, March 2006, May 2017, and December 2019 VA examination reports, and May 2015 Disability Benefits Questionnaire (DBQ). Therefore, because there is no evidence of ankylosis, a rating higher than 40 percent is precluded. As 40 percent is the highest schedular rating for limitation of motion, consideration of the provisions of DeLuca are not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Similarly, since the Veteran is in receipt of the maximum rating for limitation of motion of the thoracolumbar spine, the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016) is not applicable, and any examination inadequacies regarding range of motion testing of the thoracolumbar spine as described in 38 C.F.R. § 4.59 would be inconsequential and would result in harmless error. Additionally, any deficiencies in the examiners’ inability or failure to provide an estimate of additional loss of range of motion during flare-ups is moot. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (finding orthopedic examination inadequate with regard to flare-ups where the examination was the basis for a denial of a higher disability rating and the Veteran was not receiving the maximum schedular rating based on limitation of motion). As already discussed, the Veteran does not assert, and the evidence does not show, unfavorable ankylosis of the thoracolumbar spine. Therefore, the Board finds that Correia and Sharp are inapplicable in this case. Additionally, the Board has considered whether evaluating the Veteran’s back disability under the IVDS Formula would be more beneficial to him. Although the Veteran reported having periods of incapacitation, he does not contend, and the record does not otherwise show, incapacitating episodes of IVDS having a total duration of at least 6 weeks over a 12-month period, to allow for assignment of a 60 percent rating. See 38 C.F.R. § 4.71a, IVDS Formula, Note (1). Moreover, the Veteran is currently in receipt of separate ratings for lower extremity radiculopathy associated with his back disability, which would not be available if he was rated using the IVDS Formula. Thus, an increased rating is not available under the IVDS Formula. 3. Entitlement to a separate 20 percent rating, but no higher, for right lower extremity radiculopathy is granted from September 1, 2004. 4. Entitlement to a separate 10 percent rating, but no higher, for left lower extremity radiculopathy is granted from September 1, 2004; a 40 percent rating, but no higher, is warranted from February 16, 2006. Regarding separate neurological manifestations, the Veteran’s is currently in receipt of separate ratings for right and left lower extremity radiculopathy associated with his back disability. By way of background, a March 2015 rating decision awarded service connection for bilateral lower extremity neuropathy and assigned a 10 percent for the right lower extremity and a 20 percent rating for the left lower extremity, effective January 20, 2015, under DC 8721 (common peroneal nerve). A July 2016 rating decision increased the ratings under DCs 8599-8520 (sciatic nerve) and assigned a 20 percent for right lower extremity radiculopathy and a 40 percent for left lower extremity radiculopathy, effective May 20, 2015. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. DC 8520 evaluates paralysis of the sciatic nerve, and provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, a 60 percent rating for severe incomplete paralysis with marked muscle atrophy, and a maximum 80 percent rating for complete paralysis. 38 C.F.R. § 4.124a, DC 8520. Here, examination reports and treatment records show the Veteran’s consistent reports of bilateral lower extremity pain, numbness, and weakness over the appeal period with an April 2006 electrodiagnostic study showing left S1 and bilateral L5 radiculopathies, for which the Veteran received injection therapy as treatment. See March 2006 VA examination reports; January 2006 VA treatment record; February, March, April, and May 2006 private treatment records; Board Hearing Transcript at 7-8, 15. Examiners have described the Veteran’s radiculopathies as “chronic” since February 21, 2006, and at that time the Veteran confirmed that his associated numbness and weakness was much more severe on the left side. While the Veteran reported only right lower extremity numbness at the September 2004 VA Examination (see also February 2005 VA Form 21-4138 (noting radiating pain on left side)), the Board notes that during private treatment in January 2006, the Veteran reported a six year history of radiating pain on the right side and burning sensation on the left side, and the Board will afford the Veteran the benefit of the doubt in this regard and conceded a slight radiculopathy on the left at the beginning of the appeal period. A January 2015 DBQ shows the Veteran’s report of moderate constant pain, moderate paresthesias and/or dysesthesia, and severe numbness in the left lower extremity, with the right lower extremity as having mild symptoms. Muscle strength testing was normal in the right leg while the left leg showed active movement against gravity (4/5) with no evidence of atrophy. Reflex testing was normal in the knees with hypoactive (1+) reflexes in the ankles bilaterally, and sensory testing was also normal bilaterally but decreased in the left thigh/knee and lower leg/ankle. Despite these findings, the examiner indicated that all lower extremity nerves were normal. In a May 2015 DBQ, the Veteran reported moderate to severe symptoms of constant pain, intermittent pain, dull pain, paresthesias and/or dysesthesia, and numbness, indicating the left lower extremity was severe. The examiner, who conducted the January 2015 DBQ, found involvement of the bilateral sciatic nerve, noting the right lower extremity was moderately affected and the left lower extremity was severely affected. On VA examination in December 2019, muscle strength testing indicated decreased strength in the bilateral hips and knees (3/5) and ankle plantar flexion (4/5) with no evidence of atrophy. Reflex and sensory testing was normal. Straight leg raise testing was positive in both legs. The Veteran reported radicular symptoms of moderate constant pain, mild numbness, and mild paresthesias and/or dysesthesia. The examiner noted involvement of the sciatic nerve and characterized the severity as moderate bilaterally. Since these finding demonstrate impairment of the sciatic nerve instead of the common peroneal nerve, the Board will rate the Veteran’s lower extremities under DC 8520, as that more accurately captures the nerves affected by his disability. Moreover, based on the Veteran’s competent and credible reports and affording him the benefit of the doubt, the Board will extend his separate 20 percent rating for the right lower extremity to the beginning of the appeal period, or September 1, 2004. The Board will also award a separate 10 percent rating for mild incomplete paralysis of the left lower extremity from September 1, 2004, given his 2006 report of a six year history of left leg pain and normal examination findings, and a 40 percent rating beginning February 16, 2006, when he first reported severe pain on the left side and radiculopathy was first diagnosed. 4. Entitlement to an initial rating in excess of 10 percent for right ankle sprain prior to May 16, 2015 is denied. 5. Entitlement to an initial rating in excess of 10 percent for left ankle sprain prior to May 16, 2015 is denied. 6. Entitlement to an initial 20 percent rating, but no higher, for right ankle sprain is granted from May 16, 2015. 7. Entitlement to an initial 20 percent rating, but no higher, for left ankle sprain is granted from May 16, 2015. The Veteran’s bilateral ankle sprain is rated under DC 5271, which provides ratings based on the limitation of motion of the ankle. A 10 percent rating is warranted for moderate limitation of motion and a maximum 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. Words such as “moderate” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Prior to May 16, 2015, ratings in excess of 10 percent are not warranted. In this regard, at VA examinations in September 2004 and March 2006, the Veteran reported bilateral ankle pain, use of ankle braces, and sporadic ankle rolls. At the September 2004 VA examination, physical examination showed dorsiflexion to 20 degrees and plantar flexion to 35 degrees bilaterally, with discomfort in the left ankle more than the right. The examiner noted no additional pain or loss of range of motion upon repetition and no symptoms of fatigability or incoordination. On VA examination in March 2006, the examiner found that the Veteran exhibited normal, full range of motion in both ankles, despite slightly increased laxity in the left ankle. Upon repetition, there was no additional loss of range of motion, although increased left ankle pain was noted. There was no evidence of weakened movement, incoordination, or fatigability. The Board finds that, even when considering DeLuca factors, as well as the Veteran’s reports of additional limited ankle motion during flare-ups, the evidence does not show that such symptoms cause further functional loss that more nearly approximates marked ankle limitation of motion, given the above-cited range of motion findings. Considering the September 2004 VA examiner’s assessment of “slightly decreased” flexion, along with full range of motion findings otherwise, with no additional loss after repetition despite noted pain, the Board finds the evidence is not indicative of marked, or severe, limitation of motion in either ankle. Thus, ratings higher than 10 percent are precluded for this period. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202; VAOPGCPREC 9-2004. Furthermore, the Board notes that the October 2020 VA examiner provided an adequate rationale as to why he was unable to provide an estimation of additional range of motion lost during a flare-up. From May 16, 2015, increased 20 percent ratings are warranted. In a DBQ dated May 16, 2015, an examiner noted right ankle dorsiflexion to 10 degrees and plantar flexion to 25 degrees, and left ankle dorsiflexion to 15 degrees and plantar flexion to 35 degrees. Additional functional loss after repetitive use over time and during flare-ups was indicated in terms of degrees, with dorsiflexion limited to 10 degrees and plantar flexion limited to 15 degrees, bilaterally, due to pain, fatigue, weakness, and lack of endurance. The examiner noted additional contributing factors of the ankles included less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with standing. Muscle strength testing was slightly reduced in both ankles (4/5) with no atrophy or ankylosis. Subsequent VA examination reports show the Veteran’s reports of worsening pain and flare-ups. Specifically, the July 2018 VA examination report shows right ankle dorsiflexion to 8 degrees and plantar flexion to 20 degrees, and left ankle dorsiflexion to 18 degrees and plantar flexion to 40 degrees, while the December 2019 VA examination report reflects dorsiflexion to 15 degrees and plantar flexion to 20 degrees, bilaterally, with pain, and right ankle dorsiflexion was additionally limited to 10 degrees and plantar flexion to 15 degrees after repetitive use. Here, when considering the demonstrated worsening of the Veteran’s ankles upon range of motion testing, as well as the May 2015 DBQ examiner’s assessment of functional impairment during flare-ups and after repeated use, the Board finds that the Veteran’s ankles more closely approximate marked limitation of motion, corresponding to a maximum 20 percent rating under DC 5271 for the right and left ankle. As such, any deficiencies in the VA examiners’ inability to provide an estimate of additional loss of range of motion during flare-ups or repetitive motion is moot, given the Veteran is now in receipt of the maximum rating for limitation of ankle motion bilaterally. Additionally, the Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. However, there is no indication of ankylosis, malunion of the os calcis or astragalus, or an astragalectomy in either ankle. See September 2004, March 2006, May 2017, July 2018, and December 2019 VA examination reports, and May 2015 DBQ. Thus, ratings under DCs 5270, 5272, 5273, and 5274 are not warranted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.