Citation Nr: 21011785 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-01 152 DATE: March 2, 2021 ORDER Evaluation in excess of 40 percent for degenerative disc disease at L5-S1, status-post hemilaminectomy and discectomy, is denied. Evaluation in excess of 20 percent for chronic left L-5 radiculopathy is denied. FINDINGS OF FACT 1. The Veteran’s degenerative disc disease at L5-S1, status-post hemilaminectomy and discectomy, is not manifest by incapacitating episodes having a total duration of at least 6 weeks during a 12-month period or unfavorable ankylosis of the entire spine. 2. The Veteran's chronic left L-5 radiculopathy is not manifest by moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for L5-S1, status-post hemilaminectomy and discectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a rating in excess of 20 percent for chronic left L-5 radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1972 to December 1973, and from April 1977 to September 2000. The Board remanded the claims on appeal in March 2020. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). The Board is aware that VA CAPRI records were associated with the Veteran's eFolder after VA correspondence informed him that his appeal had been returned to the Board. These records include 2 months of additional treatment records that were not in the record at the time of a September 2020 supplemental statement of the case (SSOC). The additional treatment records contain no evidence of complaints, symptoms, findings or diagnoses related to radiculopathy. With respect to degenerative disc disease at L5-S1, status-post hemilaminectomy and discectomy, the additional treatment records are duplicative and cumulative of evidence already before the Agency of Original Jurisdiction at the time of the September 2020 SSOC (i.e., one notation in September 2020 that the Veteran took 60 mg Cymbalta a day for back pain). Accordingly, the Board finds that remand is unnecessary, and it may properly adjudicate the claims on the current record. 38 C.F.R. § 19.37 (b). Increased Ratings In general, ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, stage ratings are to be considered. Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 1. Evaluation in excess of 40 percent for degenerative disc disease at L5-S1, status-post hemilaminectomy and discectomy. The Veteran contends that his degenerative disc disease at L5-S1, status-post hemilaminectomy and discectomy, warrants a higher evaluation. He asserts that he has pain in the lower back, takes pain pills, walks with a cane and wears back support. See November 2013 Notice of Disagreement (NOD). The Veteran's disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings 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. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Unfavorable ankylosis is defined as “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.” 38 C.F.R. § 4.71a, General Rating Formula at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for degenerative disc disease at L5-S1, status-post hemilaminectomy and discectomy, based on incapacitating episodes. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. A July 2013 VA Back (Thoracolumbar Spine) Disability Benefits Questionnaire (DBQ) relates that the Veteran had IVDS of the thoracolumbar spine, with incapacitating episodes over the past 12 months having a total duration of at least 2 weeks but less than 4 weeks. An August 2016 VA Back (Thoracolumbar Spine) DBQ relates that the Veteran did not have IVDS and does not provide any information about incapacitating episodes. An August 2020 VA Back (Thoracolumbar Spine) DBQ relates that the Veteran had IVDS of the thoracolumbar spine, but had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. VA and private treatment records reflect treatment for back pain, but do not show IVDS with incapacitating episodes having a total duration of at least 6 weeks during a 12 month period. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. The preponderance of the evidence is also against a rating in excess of 40 percent for degenerative disc disease at L5-S1, status-post hemilaminectomy and discectomy, under the General Rating Formula. The July 2013, August 2016 and August 2020 VA DBQs reveal that the Veteran has actual range of motion of the thoracolumbar spine. The August 2016 and August 2020 DBQs specifically state that the Veteran did not have ankylosis. As noted, the Veteran's VA and private treatment records reflect treatment for back pain, but they do not include evidence of ankylosis. The Board acknowledges the Veteran’s lay reports of symptoms of pain. He is competent to report symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, even considering his lay reports of pain, the degree of additional limitation due to pain would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The August 2016 DBQ relates that the Veteran's pain did not result in/cause functional loss. The August 2020 DBQ relates that the Veteran reported constant, significant pain for which he had been seeing specialists for treatment including epidural injections and medications. The DBQ relates that the examination took place during a flare-up, pain significantly limited functional ability with flare-ups and the Veteran was unable to perform repetitive range of motion due to pain. The Board observes that nevertheless the Veteran had actual range of motion in all thoracolumbar movements. Thus, even when considering the functional limitation during a flare-up, the Veteran’s symptoms do not more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability other than his service-connected left Left-5 radiculopathy, addressed below. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for degenerative disc disease at L5-S1, status-post hemilaminectomy and discectomy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Evaluation in excess of 20 percent for chronic left L-5 radiculopathy. The Veteran contends that his chronic left L-5 radiculopathy warrants a higher evaluation. He asserts that he has pain in the lower back, takes pain pills, walks with a cane, wears back support and has left foot drop. See November 2013 NOD. The Veteran's disability is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve. Moderately severe incomplete paralysis is rated as 40 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. 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, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for chronic left L-5 radiculopathy. The evidence of record is against a finding that the Veteran has moderately severe incomplete paralysis of the sciatic nerve. The July 2013 VA Back (Thoracolumbar Spine) DBQ relates that due to radiculopathy, the Veteran had weakness of the foot and severe left lower extremity intermittent pain. The DBQ describes the Veteran's left sciatic radiculopathy as moderate. The August 2016 VA Back (Thoracolumbar Spine) DBQ relates that due to radiculopathy, the Veteran had moderate intermittent pain, moderate paresthesias and/or dysesthesias and mild numbness of the left lower extremity. The DBQ describes the Veteran's left sciatic radiculopathy as moderate. The August 2020 VA Back (Thoracolumbar Spine) DBQ relates that due to radiculopathy, the Veteran had moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness of the left lower extremity. The DBQ describes the Veteran’s left sciatic radiculopathy as moderate. An August 2020 VA Peripheral Nerves Conditions DBQ relates that due to radiculopathy, the Veteran had moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness of the left lower extremity. The Veteran’s muscle strength for knee extension, ankle plantar flexion and ankle dorsiflexion was active movement against some resistance. He had no muscle atrophy. The Veteran’s reflex examination was normal. Sensation for light touch was decreased on the left lower leg/ankle and left foot/toes. The Veteran had no trophic changes. He had an abnormal gait due to back problems and left lower radiculopathy. He had constant use of a cane due to left lower extremity radiculopathy and back problems. The DBQ describes the Veteran’s left sciatic radiculopathy as moderate. VA and private treatment records reflect treatment for the Veteran's radiculopathy but do not show that it is manifest by moderately severe incomplete paralysis of the sciatic nerve. Diagnostic Code 8520. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. The Board acknowledges the Veteran’s lay reports of symptoms of pain and left foot drop. He is competent to report symptoms. Layno, supra. The DBQs acknowledge the Veteran's complaints of pain foot drop, provide results of all relevant tests and summarize the overall severity of the Veteran's left L-5 radiculopathy as moderate. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for left L-5 radiculopathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.