Citation Nr: 21008979 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-02 045 DATE: February 18, 2021 ORDER A rating in excess of 20 percent for the period from June 5, 2014 to November 18, 2019 for lumbosacral and thoracic strain, is denied. A rating in excess of 40 percent, for the period effective November 19, 2019 and thereafter, is denied. An initial rating in excess of 20 percent for right lower extremity radiculopathy, associated with lumbosacral and thoracic strain, is denied. FINDINGS OF FACT 1. During the period from June 5, 2014 to November 18, 2019, the Veteran’s lumbosacral and thoracic strain has been characterized by no more than forward flexion limited to 50 degrees, extension limited to 20 degrees, no neurological symptoms, and no ankylosis. 2. During the period effective November 19, 2019, the Veteran’s lumbosacral and thoracic strain has been characterized by no more than forward flexion to 30 degrees, extension limited to 20 degrees, no ankylosis, increased urinary frequency, and intervertebral disc syndrome (IVDS) with no instance of physician prescribed bedrest in the preceding 12 months. 3. During the appellate period, the Veteran’s right lower extremity has been characterized by no more than symptoms that are moderately severe. CONCLUSIONS OF LAW 1. The criteria to establish a rating in excess of 20 percent, for the period from June 5, 2014 to November 18, 2019, for lumbosacral and thoracic strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2020). 2. The criteria to establish a rating in excess of 40 percent, for the period effective November 19, 2019 and thereafter, for lumbosacral and thoracic strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2020). 3. The criteria to establish a rating in excess of 20 percent, for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1993 to October 1994 and from July 2006 to October 2006. Effective June 2014, the Veteran is rated as totally disabled resulting in individual unemployability due to service-connected disorders (“TDIU”). The Veteran’s appeal was remanded by the Board in May 2019 for additional development. The RO increased the Veteran’s rating for lumbosacral and thoracic strain to 40 percent, effective November 19, 2019 in a July 2020 rating decision. Increased Ratings Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). Diagnostic Code 5237 provides ratings for lumbosacral strain. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, for the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, for 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 warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, for 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. There are also several relevant note provisions associated with Diagnostic Code 5237. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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. 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 thoracolumbar spine is 240 degrees. 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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 (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5243 is an alternative provision for the evaluation of IVDS. A 10 percent rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. There are also two relevant note provisions associated with Diagnostic Code 5243. Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Lower extremity radiculopathy is rated according to Diagnostic Code 8520. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Treatment notes from July 2014 and September 2014 indicate that the Veteran had chronic low back pain, degenerative joint disease of the spine and chronic radicular pain. In September 2014, the Veteran was afforded a VA examination. The Veteran was noted to be diagnosed with lumbar and thoracic strain with radiculopathy. The examiner noted initial range of motion measurements including flexion to 50 degrees and extension to 20 degrees. Repetitive-use range of motion testing was not completed. The examiner noted that there was additional limitation of motion during flareups but was unable to replicate the limitation of motion at the time of the examination. The examiner noted guarding that does not result in an abnormal gait, no neurologic abnormalities, and no diagnosis of IVDS. The examiner noted moderate constant pain in both lower extremities and identified the Veteran’s bilateral radiculopathy as moderate. In a December 2017 cervical spine examination, the Veteran was noted to have right leg radiculopathy. In September 2018, the Veteran testified that his lumbar and thoracic strain condition had increased in severity. The Veteran reported that pain limits his ability to stand up, walk, sit or jog. The Veteran also indicated that his right lower extremity radiculopathy had increased in severity and had caused increased pain. The Veteran noted ongoing therapy for both conditions. In November 2019, lumbar spine radiographs revealed spondylosis at the L5-S1 level and mild convex left curvature of the lumbar spine. In December 2019, the Veteran was afforded a VA examination. The examiner noted a diagnosis for degenerative arthritis of the spine and IVDS. Initial range of motion testing indicated forward flexion from 0 to 30 degrees and extension from 0 to 10 degrees. The examiner noted no additional loss of range of motion following multiple repetitions. The examiner noted that ROM limitations during a flareup could not be determined because the examination did not take place during a flare up. The examiner noted no ankylosis, increased urinary frequency, and IVDS with no instance of physician prescribed bedrest in the preceding 12 months. The examiner noted moderate radiculopathy in the right lower extremity and mild radiculopathy in the left lower extremity, characterized by mild constant pain and moderate intermittent pain in the right lower extremity and mild paresthesias and/or dysesthesias and numbness in both lower extremities. During the period from June 5, 2014 to November 18, 2019, the Veteran’s lumbosacral and thoracic strain has been characterized by no more than forward flexion limited to 50 degrees, extension limited to 20 degrees, no neurological symptoms, and no ankylosis. The preponderance of the evidence is against the assignment of a rating greater than 20 percent for the period from June 5, 2014 to November 18, 2019 for lumbosacral and thoracic strain due to forward flexion limited to 50 degrees. A 40 percent rating is not warranted under Diagnostic Code 5237 because the Veteran’s lumbosacral and thoracic strain is not characterized by forward flexion of the thoracolumbar spine less than 30 degrees or favorable ankylosis of the entire thoracolumbar spine. The preponderance of the evidence is also against the assignment of a rating greater than the currently-assigned 10 percent for lumbar strain under Diagnostic Code 5237 for limitation of motion. In making these determinations, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). During the period effective November 19, 2019, the Veteran’s lumbosacral and thoracic strain has been characterized by no more than forward flexion to 30 degrees, extension limited to 20 degrees, no ankylosis, increased urinary frequency, and IVDS with no instances of physician prescribed bedrest in the preceding 12 months. The preponderance of the evidence is against the assignment of a rating greater than 40 percent for the period effective November 19, 2019 and thereafter for lumbosacral and thoracic strain due to forward flexion limited to 30 degrees. A 50 percent rating is not warranted under Diagnostic Code 5237 because the Veteran’s lumbosacral and thoracic strain is not characterized by unfavorable ankylosis of the entire thoracolumbar spine. The preponderance of the evidence is also against the assignment of a rating greater than 10 percent rating for lumbar strain under Diagnostic Code 5237. Deluca, above. In making these determinations, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). The Veteran is diagnosed with IVDS, which could be evaluated under Diagnostic Code 5243. However, the evidence shows that the Veteran has had no physician prescribed bedrest in the preceding 12 months. A compensable rating under Diagnostic Code 5243 is not appropriately assigned because it is more beneficial for the Veteran’s back disorder to remain rated under Diagnostic Code 5237. During the appellate period, the Veteran’s right lower extremity has been characterized by no more than symptoms that are moderately severe. The Board finds that the preponderance of the evidence is against the assignment of a rating greater than 20 percent. The Veteran’s right lower extremity radiculopathy has been characterized as moderate. A 40 percent rating is not warranted under Diagnostic Code 8520 because the Veteran’s right lower extremity radiculopathy is not characterized by moderately severe incomplete paralysis. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wozniak, 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.