Citation Nr: 21011273 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-03 178 DATE: March 1, 2021 ORDER Entitlement to a higher rating for lumbar spine degenerative disc disease with degenerative arthritis and intervertebral disc syndrome (IVDS), rated as 10 percent prior to February 5, 2020 and in excess of 40 percent since that date, is denied. A 20 percent disability rating for left lower extremity radiculopathy and neuropathy (femoral nerve) associated with lumbar spine degenerative disc disease with degenerative arthritis and IVDS from June 22, 2012, is granted. FINDING OF FACT 1. Throughout the appeal period, the Veteran’s service-connected lumbar spine disability is manifested by complaints of pain as well as decreased range of motion, but without any resulting additional functional loss (to include when considering pain and flare-ups) not contemplated by the assigned ratings of 10 percent prior to February 5, 2020 and 40 percent since. 2. From June 22, 2012, the Veteran’s left lower extremity radiculopathy and neuropathy (femoral nerve) associated with lumbar spine degenerative disc disease with degenerative arthritis and IVDS was productive of moderate incomplete paralysis. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of 10 percent prior to February 5, 2020, for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242. 2. The criteria for an evaluation in excess of 40 percent for the lumbar spine disability from February 5, 2020, to the present have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242. 3. From June 22, 2012, the criteria for a 20 percent disability rating for left lower extremity radiculopathy and neuropathy (femoral nerve) associated with lumbar spine degenerative disc disease with degenerative arthritis and IVDS are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In support of his claims, the Appellant testified before the undersigned Veterans Law Judge in December 2017. This case was remanded in April 2018 and January 2020 and has been returned to the Board for review. 1. Spine disability The Veteran is seeking an increase disability rating for his lumbar spine disability. The VA’s Schedule for Rating Disabilities is used to determine disability ratings once a disability is service connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities. These DC designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.32, 4.10. In evaluating range of motion, VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes the United States Court of Appeals for Veterans Claims (Court) has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.” Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59, which addresses musculoskeletal claims where pain on motion is involved, indicates that “the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” However, the Court went on to indicate that range of motion testing of the opposite joint does not apply “for joints that do not have an opposite or whose opposite is also damaged.” Id. The Court’s findings in Correia v. McDonald were predicated on the observation that in that case, it “seemed obvious that VA has determined that range of motion testing is necessary in cases of joint disabilities.” Id. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the e-file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The record contains service treatment records (STRs); private medical records; VA outpatient and examination reports; as well as statements of the Veteran. In April 2012, the RO granted service connection for lumbar spine degenerative joint disease and degenerative disc disease, assigning a 10 percent rating, effective September 20, 2009. In August 2020, the RO increased the rating for lumbar spine degenerative disc disease, assigning a 40 percent rating, effective February 5, 2020. The RO also indicated that his lumbar spine disability had been amended to include IVDS, effective January 9, 2017. The RO also granted service connection for left lower extremity radiculopathy and neuropathy (femoral nerve) associated with lumbar spine degenerative disc disease with degenerative arthritis and IVDS, and assigned a 10 percent rating effective February 5, 2020.. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for nine different disabilities identified as DCs 5235 to 5243. Although there are nine different DCs, each is rated on the same scale based on the limitation of motion of the part of the spine being rated. The ratings are assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. DCs 5235-42, since specifically concerning limitation of motion of the spine, provide a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is between 120 and 235 degrees, or where muscle spasm or guarding does not result in an abnormal gait or abnormal spinal contour. A 20 percent rating is assigned where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or where 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 assigned if evidence shows forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, a 50 percent rating if the evidence shows unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating if the evidence shows unfavorable ankylosis of the entire spine (that is, when additionally considering the adjacent cervical segment). Generally, ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland’s Illustrated Medical Dictionary at 86 (27th ed. 1988). VA amended the criteria for rating musculoskeletal system effective from February 7, 2021. 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); VAOPGCPREC 3- 2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The revision applied to all applications received by VA on or after February 7, 2021. The earlier criteria apply to all applications received by VA prior to that date. In particular to this case, the changes affect Diagnostic Code 5242 and 5243 (as explained above). DC 5242 includes degenerative arthritis and degenerative disc disease other than IVDS. DC 5243 defines when to assign this diagnostic code for IVDS. However, these amendments do not affect the rating now assigned under DC’s 5242 and 5243. For reasons explained immediately below, upon review of all pertinent medical evidence, the Board concludes the Veteran is not entitled to a higher rating for his spine disability at any time period. For the purposes of clarity, the discussion below is separated into different time periods. Regardless of the time period or regulations examined, however, the Board notes the VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability. See Hazan v. Gober, 10 Vet. App. 511 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999). Prior to February 5, 2020 The RO received the claim for service connection in November 2010. For this period the Veteran was assigned a 10 percent evaluation for his lumbar spine disability, effective September 20, 2009. VA outpatient records dated in May 2010 examination the Veteran reported a history of chronic low back pain since 2002. This pain resolved but returned after deployment to Afghanistan. He had been treated with medication and physical therapy. He was also enrolled in a research study for back pain which initially seemed to be effective but 2 weeks later he began to suffer severe pain. He began occupational therapy. At the December 2011 examination, the Veteran reported his medical history as outlined above. The range of motion study was normal in all planes. Forward flexion was to 90 degrees; extension was to 30 degrees; left and right lateral flexion was 30 degrees; right and left lateral rotation was 30 degrees. There was pain noted on motion after reaching full range of motion. There was no loss of function on repetitive motion. Muscle strength testing was normal. The reflex examination was normal. There was no muscle atrophy. Straight leg raising was negative. There was no radicular pain, IVDS or other neurologic abnormalities. Radiological studies revealed arthritis and DDD. VA outpatient records show that the Veteran provided a private medical report that show that he underwent lumbar radiofrequency (RF) ablation for left sciatica on June 22, 2012 and August 3, 2012. See VA treatment record dated April 23, 2013. He underwent RF ablation again in August 2013. At VA examination in January 2017, the Veteran reported activity-related pain and soreness. He no longer runs rapidly and limits his jogging to 10-15 minutes. He avoids walking, standing or sitting more than 40-50 minutes. He has flareups that are activity related. On examination the range of motion study was normal. There was no pain on weightbearing. There was mild bilateral lumbosacral paraspinal tenderness. There was no loss of function on repetitive testing. Muscle strength testing was normal. The reflex and sensory examination were normal. There was no muscle atrophy, muscle spasm, or guarding. Straight leg raising was negative. There was no radicular pain or other neurologic abnormalities. There was IVDS. A hearing was held in December 2017. The Veteran reported his medical history. He indicated that his past treatment included an experimental research study that he took part in. However, this treatment caused numbness in his legs and after two weeks he stopped attending. Since then he has been experiencing muscle spasms. However, he treats it with Icy Hot and over-the-counter medication such as Aleve. He indicated that he is limited in exercising. He has to dip into his sick leave due to back symptoms. He is unable to sit or stand for prolonged periods. His pain interferes with his sleep as well. However, the Board finds that a rating in excess of 10 percent is not warranted for the disability of the lumbar spine for this period. VA examinations show that the lumbar spine disability has been manifested by forward flexion greater than 60 degrees within this period. The Board has considered whether the examinations conducted during this period were adequate upon which to address functional impairment and finds that the evidence is sufficient to determine that a greater rating is not warranted during this period, to include based on functional impairment. The Board’s prior remand were to obtain updated VA examination based on evidence of increased severity, and not on the basis that the prior examinations were inadequate upon which to determine severity for this earlier period. The Veteran’s reports of pain and functional loss are adequately considered by the VA examination reports and findings of motion limitation by assigning a 10 percent rating based on pain. Therefore, a rating in excess of 10 percent is not warranted for this period. Since February 5, 2020 As of February 5, 2020, the Veteran has been assigned a 40 percent evaluation for his lumbar spine disability based on forward flexion of the thoracolumbar spine at 45 degrees. The Board finds that the Veteran is not entitled to an evaluation in excess of 40 percent for his lumbar spine disability from February 5, 2020 forward. A VA examination was conducted in February 2020. The Veteran reported his medical history. He indicated that his main complaint was pain. He could not sit, stand or walk for extended periods. He took Ibuprofen for pain. He had tried Botox, epidural steroid injections, acupuncture, electrical stimulation, chiropractic care and physical therapy. He reported flareups. The range of motion was as follows: forward flexion 0 to 45 degrees; extension 0 to 10 degrees; right and left lateral flexion 0-20 degrees; and left and right lateral rotation 0 to 30 degrees. There was no pain noted on examination. There was objective evidence of localized tenderness on palpation of the joint or associated soft tissue of the thoracolumbar spine. There was no pain on weightbearing. On repetitive motion there was decreased range of motion. The range of motion was as follows: forward flexion 0 to 35 degrees; extension 0 to 5 degrees; right and left lateral flexion 0-15 degrees; and left and right lateral rotation 0 to 20 degrees. Pain and fatigue were noted to cause this functional loss. During flareups the estimated range of motion were forward flexion 0 to 30 degrees; extension 0 to 5 degrees; right and left lateral flexion 0-10 degrees; and left and right lateral rotation 0 to 20 degrees. There was no muscle spasm or guarding. Muscle strength was normal. The reflex and sensory examinations were normal. There was moderate paresthesias and/or dysesthesias in the left lower extremity. There was mild numbness to the left lower extremity. The RO granted a 40 percent evaluation for lumbar disability as well as assigned a separate 10 percent rating for the femoral nerve, effective February 5, 2020. The Board finds this date for the grant of increase warranted as this is the first evidence of record that indicates there was increase with the necessary findings to support that higher rating. The evidence prior to this date does not reflect entitlement to this higher rating of 40 percent. Considering whether a higher rating is warranted, there is no evidence to suggest that the Veteran’s lumbar spine condition has been manifested by unfavorable ankylosis of the entire lumbar spine or the entire spine; or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. As there is otherwise no clinical evidence, for the period from February 2020, demonstrating entitlement to a rating in excess of 40 percent, the claim is denied. 38 C.F.R. §§ 3.400, 4.71(a), DC 5242. The Board finds that no other diagnostic code provides for a higher or separate rating. 38 C.F.R. §§ 4.3, 4.7, 4.71(a). Further, there is no evidence of incapacitating episodes resulting from intervertebral disc syndrome, and thus a higher rating under the IVDS formula is not proper.   Separate Rating for Neurologic Abnormality In considering the separately rated service-connected left lower extremity radiculopathy, it is rated under Code 8526 for paralysis of the femoral nerve. Under 38 C.F.R. § 4.124a, Diagnostic Code 8526 (femoral nerve impairment), mild incomplete paralysis warrants a 10 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Severe incomplete paralysis warrants a 30 percent rating. Complete femoral nerve paralysis warrants the assignment of a 40 percent rating and contemplates paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526. 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). The Board finds that the Veteran reported neurological symptoms during his December 2017 Board hearing that are consistent with the February 2020 VA neurological examination findings. Specifically, he testified that he has shooting pain as well as numbness. These findings are consistent with the findings of moderate paresthesias and/or dysesthesias in the left lower extremity and the Veteran’s report of inability of extended walking and standing documented during the December 2020 VA examination. The Board further has no reason to doubt the Veteran’s credibility of statements during the Board hearing. In light of the foregoing, the Board finds that 20 percent disability rating is warranted for moderate impairment of the left femoral nerves associated with the Veteran’s lumbar spine disability. The Board finds that a rating more than 20 percent is not warranted as there are no findings of symptoms that would indicate severe femoral nerve impairment that would warrant a 30 percent disability rating under Diagnostic Code 8526. Moreover, as noted above, the RO granted a separate rating for radiculopathy of the left lower extremity effective February 5, 2020, the date of the VA examination. However, the Board notes that the Veteran began receiving treatment for sciatica of the lower extremity in June 2012 according to VA treatment dated April 23, 2013. The Veteran presented a private medical record indicating that he had undergone two RF ablations for sciatica on June 22, 2012 and August 3, 2012. As such, the 20 percent separate rating for radiculopathy of the left lower extremity is effective June 22, 2012, the date of the initial RF ablation of the left lower extremity. In summary, the Board finds that the preponderance of the evidence is against a schedular rating higher than 10 percent prior to February 5, 2020, and 40 percent since for his lumbar spine disability. However, a 20 percent rating is granted for impairment of the femoral nerve of the left lower extremity, effective June 22, 2012. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.D. Jackson, 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.