Citation Nr: 21011799 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-27 554A DATE: March 2, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is denied. Resolving reasonable doubt in the Veteran’s favor, a separate rating of 10 percent for radiculopathy of the bilateral lower extremities is granted. FINDINGS OF FACT 1. At worst, the Veteran’s lumbosacral strain is manifested by a forward flexion of 70 degrees and combined range of motion of 170 degrees. 2. The competent and credible evidence show the Veteran has mild radiculopathy of the bilateral lower extremities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for separate, 10 percent ratings for radiculopathy of each of the bilateral lower extremities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to October 1988, September 1991 to October 1995 and from September 2001 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. In December 2019 this claim was remanded for further development. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Higher Ratings Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities.  38 U.S.C. § 1155.  Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition.  38 C.F.R. § 4.1.  Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of the two disability evaluations is 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.  After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran.  38 C.F.R. § 4.3. When rating the Veteran’s service-connected disability, the entire medical history must be reviewed.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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.”).  1. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is denied. The November 2012 rating decision on appeal granted service connection for lumbosacral strain and assigned an initial 10 percent disability rating, effective November 1, 2010 under 38 C.F.R. § 4.71a, DC 5237. The Veteran contends in his June 2013 notice of disagreement that a 10 percent rating for his lumbosacral strain (back disability) is disingenuous to his range of motion and the pain he deals with, daily. He further contends at his August 2019 Board hearing that his back disability worsened resulting in hip and leg pain. The Veteran’s lumbosacral strain is rated under 38 C.F.R. § 4.71a, DC 5237. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Diagnostic code 5237 was not changed. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, 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 the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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 to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. 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). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s back disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, stiffness and limited range of motion. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements that pain occurs with extended periods of sitting or experiencing seasonal flare-ups in cold weather, would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, as seen in his March 2011, October 2018, and October 2020 VA examinations, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. At his March 2011 VA examination, the Veteran’s forward flexion was limited to 75 degrees and his combined range of motion was 185 degrees. He reported an in-service back injury due to parachute jumping with continued back pain since. He described radiating pain to his right buttock but no pain into his legs. He reported continued intermittent pain in his back. He denied incapacitating episodes in the past year, flare-ups, incoordination, excess fatigue or lack of endurance. The examiner noted that there was no muscle spasm or loss of sensation to the thighs, legs or feet. The Veteran had good extension and halgus longus muscle strength. He had one plus reflex in the knees and ankles and negative straight leg signs bilaterally. With repetitive motion repeated three times, there was no change in range of motion, coordination, fatigue, endurance or pain level. At his October 2018 VA examination, the Veteran’s forward flexion was limited to 75 degrees and he had a combined range of motion of 215 degrees. The Veteran reported that his back condition had worsened with increased pain, specifically, constant lower pain. He reported flares making him unable to “get out of bed.” He described his functional loss as an inability to sit for extended periods of time; not lifting heavy weights; and not bending over fully. The Veteran was able to perform repetitive use testing with no additional loss in range of motion. Though the Veteran was not tested immediately after repetitive use over time, it was noted that pain significantly limited his functional ability, with repeated use over a period of time. The examiner also noted that pain significantly limited the Veteran’s functional ability with flare-ups. The examiner reported that the Veteran’s loss in range of motion was variable depending on his usage because at times, range of motion was minimal and other times, the Veteran could not move the joint at all depending on the severity of the flare-up. The examiner indicated that there were no signs of muscle spasm or guarding, ankylosis, other neurologic abnormalities or intervertebral disc syndrome (IVDS). The Veteran endorsed regular use of a back brace. The examiner noted the correct diagnosis of the Veteran’s back disability was degenerative disc disease of the lumbar strain per a February 2013 x-ray. At his August 2019 Board hearing, the Veteran described feeling stiffness when sitting for long periods of time. He shared that he had radiating pain down his leg; takes muscle relaxers and receives injections every six months to relieve his back pain. The Veteran also reported that his back pain worsened since his last VA examination. In December 2019, the Board remanded the claim for a new VA examination to determine the current severity of the Veteran’s back disability. Pursuant to this remand, the Veteran was afforded a VA examination in October 2020. The Veteran’s current symptoms included stiffness, throbbing, radiating pain to the hips, sleep disturbances, shooting pain in the bilateral lower extremities and infrequent tingling sensations. He denied bowel and bladder dysfunction. The examiner noted that the Veteran’s back disability progressed as he recently received injections and neurotomy in August 2020 due to pain secondary to spondylosis and worsening nerve pain with radicular signs and symptoms to bilateral extremities. On examination the Veteran’s forward flexion was limited to 70 degrees and his combined range of motion was 170 degrees. He denied flare-ups; did not have any additional loss in range of motion from repetitive use testing or repeated use over time. The examiner noted that muscle spasm and guarding were present however, they did not result in abnormal gait or spinal contour. The examiner reported that there was disturbance of locomotion as the Veteran had difficulty with bending, lifting over 15 pounds, patient transfer and standing. Ankylosis was not present. Although the examiner reported a recent diagnosis of IVDS, 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. See 38 C.F.R. § 4.71a, DC 5243. Upon review of the file, the Board finds that at no time during this appeal did the Veteran’s back disability warrant a rating higher than the assigned 10 percent. Range of motion testing has show that at worst, his forward flexion is limited to 70 degrees. Additionally, he denied having flare-ups at his recent VA examination in October 2020 and treatment records do not reflect otherwise. Although muscle spasm and guarding have been shown to be present, these symptoms did not result in abnormal gait or spinal contour. Finally, while acknowledging that the Veteran has a recent diagnosis of IVDS; the evidence of record does not reflect that he has been prescribed bed rest in the last 12 months. Thus, considering the evidence, a rating in excess of 10 percent is denied. The Board acknowledges the Veteran’s complaints of pain and stiffness and notes that the current disability rating accounts for pain and painful motion per 38 C.F.R. § 4.59. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a higher initial for his lumbosacral strain degenerative arthritis of the spine. In denying this claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107. 2. Resolving reasonable doubt in the Veteran’s favor, a separate rating of 10 percent for radiculopathy of the bilateral lower extremities is granted. Next, the Board finds that a separate rating of 10 percent, and no higher is warranted for the Veteran’s associated bilateral radiculopathy of the lower extremities pursuant to 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. 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 maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. As discussed earlier, the Veteran reported symptoms of radiating pain down his leg at his Board hearing in August 2019. At his VA examination in October 2020, the examiner reported that the Veteran had mild radiculopathy with mild intermittent pain, paresthesias and/or dysesthesias, and numbness in both his left and right lower extremities. The examiner found mild involvement of the sciatic nerve root bilaterally. Based on the examiner’s report that the Veteran has nerve pain with radicular signs and symptoms affecting the bilateral extremities and the Veteran’s competent and credible testimony of radiating pain into his legs, and complaint of infrequent tingling sensations, separate compensable ratings are warranted for radiculopathy of the bilateral lower extremities as associated neurologic impairment of the service-connected lumbosacral strain. The evidence reflects that bilateral lower extremity radiculopathy that is primarily manifested by mild, intermittent pain and sensory disturbance. He has not reported, nor does the record reflect, any other bowel and bladder associated dysfunctions. In assigning a 10 percent rating for each lower extremity, the Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. See 38 C.F.R. § 4.124a DC 8520. A separate or higher rating under a different Diagnostic Code is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.