Citation Nr: 21011382 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-11 260 DATE: March 1, 2021 ORDER Entitlement to a rating of 40 percent, but no higher, from April 27, 2015 to January 7, 2016 for lumbosacral strain syndrome with degenerative joint disease (DJD) and intervertebral disc syndrome, lumbar spine (hereinafter back disability), is granted, subject to the laws that govern the payment of monetary benefits. Entitlement to a rating in excess of 20 percent prior to April 27, 2015 and from January 8, 2016 thereafter for the service-connected back disability is denied. Entitlement to a rating in excess of 20 percent for radiculopathy, left lower extremity (sciatic nerve), is denied. Entitlement to a rating in excess of 10 percent for radiculopathy, right lower extremity (sciatic nerve), is denied. FINDINGS OF FACT 1. From April 27, 2015 to January 7, 2016, the Veteran’s back disability showed evidence of a forward flexion, when flare-ups were taken into account, of, at the lowest range of motion, to 30 degrees. 2. Throughout the appeal period, prior to April 27, 2015 and after January 8, 2016, the Veteran’s back disability has been productive of forward flexion of 70 degrees, painful motion, and arthritis. There have been no showings of worsened ranges of motion, whether due to active/passive ranges or flare-ups; ankylosis; or incapacitating episodes. 3. Throughout the appeal period, the Veteran’s radiculopathy of the left lower extremity has been manifested by, at worst, moderate impairment. 4. Throughout the appeal period, the Veteran’s radiculopathy of the right lower extremity has been manifested by, at worst, mild impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 40 percent, but no higher, from April 27, 2015 to January 7, 2016 for service-connected back disability are met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.159, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2019). 2. The criteria for a disability rating in excess of 20 percent prior to April 27, 2015 and from January 8, 2016 thereafter for service-connected back disability are not met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.159, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2019). 3. The criteria for a disability rating in excess of 20 percent for service-connected clinical left lower extremity radiculopathy are not met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.159, 4.124a, DC 8520 (2019). 4. The criteria for a disability rating in excess of 10 percent for service-connected clinical right lower extremity radiculopathy are not met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.159, 4.124a, DC 8520 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1966 to November 1968. These claims come to the Board from a rating decision by the VA Regional Office (RO). The Veteran’s claim was initiated February 26, 2015. At a March 2019 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. These claims were previously before the Board in July 2019, at which time they were remanded for additional development. That development having been completed; these claims are once again before the Board. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Back Disability The Veteran contends that his current evaluation of 20 percent for his back disability inadequately reflects the severity of his disability. Effective February 7, 2021, VA amended its Schedule for Rating Disabilities of the Musculoskeletal System. However, the Board notes that the included amendments do not result in any appreciable change the instant case. 38 C.F.R. § 4.71a. Therefore, no further discussion of the amendments shall ensue. Under the Rating Schedule, a 20 percent rating is assigned 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 there is 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 if the medical evidence shows forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. These ratings are warranted if the above-mentioned manifestations are present, 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. Additionally, the Rating Schedule has addressed separate evaluation criteria for intervertebral disc syndrome. These provide for a 10 percent evaluation with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is 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. Id. at Note 1. A review of the Veteran’s outpatient treatment records shows that he has been generally treated for pain and loss of motion related to his back disability. There have been no showings of ankylosis or incapacitating episodes. The Veteran was provided with a VA examination in April 2015. The Veteran was diagnosed with lumbosacral strain syndrome with degenerative disc disease and intervertebral disc syndrome. The Veteran described daily pain with limitations on walking, stair climbing, and sexual relations. There were no flare-ups reported with this condition. Range of motion testing revealed a forward flexion of 40 degrees, extension of 15 degrees, right lateral flexion of 25 degrees, left lateral flexion of 15 degrees, right lateral rotation of 25 degrees, and left lateral rotation of 15 degrees, all with pain on motion. The Veteran was unable to perform repetitive testing due to pain. The Veteran had paraspinal tenderness, guarding, and altered gait. There was no ankylosis or incapacitating episodes. The effects on employment included limitations on lifting, walking distance, and sitting times. The examiner also opined that the Veteran could experience an additional 5 to 10 degrees loss of range of motion on flexion, lateral flexion, and lateral rotation due to pain, weakness, and fatiguability during a flare-up or when the joint is used repeatedly over time. This would result in an overall flexion to 30 degrees. The Veteran was provided with an additional VA examination in January 2016. The Veteran was diagnosed with a low back condition, degenerative disc disease, and intervertebral disc syndrome. The Veteran indicated that he was unable to walk more than 200 yard, bend, or twist without significant pain. It was noted that the Veteran cannot bend forward to pick up anything, cannot stand or sit for extended periods, and cannot put socks on without assistance. The Veteran reported daily flare-ups of a severity of 10 on a scale of 1 to 10 that last for up to 3 hours. Range of motion testing revealed a forward flexion of 75 degrees, extension of 5 degrees, right lateral flexion of 10 degrees, left lateral flexion of 10 degrees, right lateral rotation of 20 degrees, and left lateral rotation of 20 degrees, all with pain on motion. Repetitive testing revealed a forward flexion of 50 degrees, but no other changes. There was no additional loss due to pain, weakness, or flare-ups. The Veteran had no paraspinal tenderness, guarding, and altered gait at this examination. There was no ankylosis or incapacitating episodes. Effects on employment would include an inability in occupations requiring the bending over and picking up of objects. The Veteran was provided with an additional VA examination in March 2017. The Veteran was diagnosed with lumbosacral strain, degenerative arthritis of the lumbar spine, and intervertebral disc syndrome. The Veteran complained of daily pain, particularly when bending. Pain was at a severity of 10 on a scale of 1 to 10 on the day of examination. There were no flare-ups reported. Range of motion testing revealed a forward flexion of 80 degrees, extension of 10 degrees, right lateral flexion of 10 degrees, left lateral flexion of 10 degrees, right lateral rotation of 5 degrees, and left lateral rotation of 5 degrees, all with pain on motion. There was no additional loss of motion or pain on repetition. There was guarding, muscle spasm, and tenderness resulting in altered gait. Functional effects on occupation would be a limitation on jobs requiring lifting. The Veteran was provided with an additional VA examination in November 2019. The Veteran was diagnosed with lumbosacral strain, degenerative joint disease, and intervertebral disc syndrome. The Veteran reported significant pain resulting in prevention of many activities of daily living. In particular, the Veteran indicated that he could not stand without a walker or support, walk longer than 2 to 3 blocks with a walker, perform home maintenance/repair, or play with his grandkids. Flare-ups were reported and resulted in increased back and leg pain with too much walking and sitting. Range of motion testing revealed a forward flexion of 70 degrees, extension of 15 degrees, right lateral flexion of 30 degrees, left lateral flexion of 30 degrees, right lateral rotation of 25 degrees, and left lateral rotation of 25 degrees, all with pain on motion. There was no additional loss of motion or pain on repetition or flare-ups. There was no guarding, muscle spasm, and tenderness resulting in altered gait. Functional effects on occupation would be a requirement of being able to change positions often throughout the workday. Based on the above, the Board finds that an increased rating to 40 percent, but no higher, for the Veteran's low back disability is warranted for the period from April 27, 2015 to January 7, 2016. This is because during this time period, beginning with the results shown on the April 2015 VA examination, the Veteran showed evidence of a decreased forward flexion of 40 degrees that was further decreased up to 30 degrees during flare-ups in the view of the VA examiner. Such loss of motion would warrant an evaluation of 40 percent. A higher evaluation is not warranted during this time period because the Veteran has shown no evidence of ankylosis or incapacitating episodes. However, prior to April 27, 2015 and from January 8, 2016 thereafter, the Veteran’s back disability only warranted an evaluation of 20 percent. This is because prior to the April 27, 2015 VA examination, the Veteran’s condition had only been shown to be manifest by pain, but there was no discussion of flare-ups or any loss of motion to 30 degrees or less. Likewise, beginning with the January 8, 2016 VA examination, the Veteran’s complaints of pain continued, but his ranges of motion appeared to be predominately in the 70 degree to 80 degree range without any further loss of motion on repetition or due to flare-ups. Notably, in 2017, flexion was to 80 degrees (nearer to a rating of only 10 percent level), even when the Veteran was experiencing his greatest degree of pain, (10/10). Additionally, there were no showings during these time periods of ankylosis or incapacitating episodes. As such, these findings would warrant only an evaluation of 20 percent. A higher evaluation would require showings of worsened range of motion to 30 degrees of flexion or less, ankylosis, or incapacitating episodes, which have not been shown by the evidence of record. The Board has considered the doctrine of reasonable doubt. However, as the most probative evidence of record is against the Veteran's claim, the Board finds that this doctrine is not for application. 38 U.S.C. § 5107 (b); see also, e.g., Gilbert, 1 Vet. App. at 49. 2. Radiculopathy The Veteran's service-connected radiculopathy of the bilateral lower extremities is rated as 20 percent disabling for the left extremity and 10 percent disabling for the right extremity. 38 C.F.R. § 4.124a, DC 8520. A 10 percent rating is warranted for incomplete paralysis of the sciatic nerve that is mild. Id. A 20 percent rating is warranted for incomplete paralysis of the sciatic nerve that is moderate. Id. A 40 percent rating is warranted for incomplete paralysis of the sciatic nerve that is moderately severe. Id. A 60 percent rating is warranted for incomplete paralysis of the sciatic nerve that is severe, with marked muscular atrophy. Id. An 80 percent rating is warranted for incomplete paralysis of the sciatic nerve that results in complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Veteran claims that his radiculopathy is worse than reflected by his current evaluations of 20 percent and 10 percent respectively. A review of the Veteran's outpatient treatment records shows that he has been treated for complaints of shooting pain from his back into his lower extremities, predominately more on the left side than the right. The Veteran was provided with a VA examination in April 2015. The Veteran was diagnosed with bilateral lower extremity radiculopathy (sciatic nerve). The Veteran was shown to have decreased sensation from the lower legs into the feet. There was constant pain, paresthesias, and numbness that was mild in the right extremity and moderate in the left extremity. The Veteran’s condition bilaterally was found to be of an overall mild nature. The Veteran was provided with an additional VA examination in January 2016. The Veteran was diagnosed with bilateral lower extremity radiculopathy. The Veteran was shown to have decreased sensation in the lower legs bilaterally and sensation to light touch testing of the foot/toes yielded an “absent” result. There was constant pain, intermittent pain, paresthesias, and numbness that was moderate in the left extremity. None of these were present on the right. The Veteran was provided with an additional VA examination in March 2017. The Veteran was diagnosed with bilateral sciatica. The Veteran indicated that he experienced nerve pain mostly in his left lower extremity. There was constant pain, intermittent pain, and numbness that was moderate in the left extremity and mild in the right extremity. There were also paresthesias that was mild in the left extremity and not present in the right extremity. Muscle strength and reflexes were diminished in the lower extremities, more so on the left than the right. The sciatic nerve was shown to have incomplete paralysis bilaterally that was characterized as of an overall mild nature. No impact on the Veteran’s ability to work was noted. The Veteran was provided with an additional VA examination in November 2019. The Veteran was diagnosed with bilateral radiculopathy. The Veteran had intermittent pain that was moderate bilaterally. There was also paresthesias and numbness that was moderate in the left extremity and mild in the right extremity. It was noted that the sciatic nerve was involved and represented overall moderate impairment for the left extremity and mild impairment for the right extremity. After having reviewed the evidence of record, the Board finds that the Veteran's radiculopathy of the left extremity more nearly approximates an evaluation no greater than 20 percent and of the right extremity more nearly approximates an evaluation no greater than 10 percent. For the left extremity, the evidence of record does not show more than moderate impairment, consistent with the sensory involvement shown. In fact, most earlier VA examinations (2015 and 2017) found overall impairment as mild for the left extremity as well as the right extremity. Despite this, the underlying symptoms of constant pain, intermittent pain, paresthesias, and numbness in the left extremity appear to be of a consistently moderate level for the majority of the time during the period of appeal. Therefore, due to such moderate impairment, the Veteran’s left extremity warrants the 20 percent, but no more. (Continued on the next page)   For the right extremity, the evidence of record does not show more than mild impairment throughout. The one exception to this is one-time showing of moderate intermittent pain at his most recent 2019 VA examination. However, the Veteran was still found to have mild impairment in all other categories and mild impairment overall, as consistent with the prior VA examinations and findings. Therefore, the Veteran’s impairment for his right extremity appears to be predominately mild throughout the period of appeal and, as such, warrants only an evaluation of 10 percent. The Board has considered the doctrine of reasonable doubt. However, as the most probative evidence of record is against the Veteran's claim, the Board finds that this doctrine is not for application. 38 U.S.C. § 5107 (b); see also, e.g., Gilbert, 1 Vet. App. at 49. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.