Citation Nr: 21012051 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-61 506 DATE: March 3, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, lumbar spine, L1, L5-S1 prior to January 20, 2021 is denied. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, lumbar spine, L1, L5-S1 beginning May 1, 2021 is denied. Entitlement to a disability rating of 20 percent, but no higher, for radiculopathy of the right lower extremity with sciatica is granted. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity with sciatica is denied. Entitlement to service connection for a mid-back disability, previously claimed as left shoulder pain is denied. FINDINGS OF FACT 1. Prior to January 20, 2021, the Veteran’s back disability did not more nearly approximate forward flexion greater than 30 degrees but not greater than 60 degrees. 2. Beginning May 1, 2021, the Veteran’s back disability did not more nearly approximate forward flexion greater than 30 degrees but not greater than 60 degrees. 3. The Veteran’s radiculopathy of the right lower extremity is characterized by moderate incomplete paralysis. 4. The Veteran’s radiculopathy of the left lower extremity is characterized by moderate incomplete paralysis. 5. The Veteran’s mid-back condition, previously claimed as left shoulder pain, did not have its onset in service and is not otherwise related to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for degenerative arthritis, lumbar spine, L1, L5-S1 prior to January 20, 2021 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2018). 2. The criteria for entitlement to a disability rating in excess of 10 percent for degenerative arthritis, lumbar spine, L1, L5-S1 beginning May 1, 2021 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2018). 3. The criteria for entitlement to a disability rating of 20 percent, but no higher, for radiculopathy of the right lower extremity with sciatica have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124a, DC 8520 (2018). 4. The criteria for entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity with sciatica have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124a, DC 8521 (2018). 5. The criteria for entitlement to service connection for a mid-back disability, previously claimed as left shoulder pain have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1999 through December 2003, with a period of honorable service from October 1999 to January 2002 and a period of other than honorable conditions for misconduct from January 31, 2002 to December 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015 and December 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in March 2020. These matters were remanded by the Board in May 2020 for additional development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to 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. When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Limitation-of-motion determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint’s range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. 1. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, lumbar spine, L1, L5-S1 prior to January 20, 2021. 2. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis, lumbar spine, L1, L5-S1 beginning May 1, 2021. The Veteran’s back disability is rated under Diagnostic Code 5237 at 10 percent disabling for the period from April 27, 2012 to October 24, 2014. For the period from October 24, 2014 to January 20, 2021, the Veteran’s back disability is rated under Diagnostic Code 5242 at 10 percent. For the period from January 20, 2021 to May 1, 2021, the Veteran’s back disability is rated under Diagnostic Code 5237 at 100 percent. Beginning May 1, 2021, the Veteran’s back disability is rated under Diagnostic Code 5237 and 5242 at 10 percent disabling. The Board notes that various manifestations of a single disability may be assigned separate disability evaluations, but VA regulations preclude the practice of “pyramiding,” which is the evaluation of the same manifestation of a disability under different diagnoses. See 38 C.F.R. § 4.14; See Esteban v. Brown, 6 Vet. App. 259 (1994). The Board notes in the present case, the Veteran may have been overcompensated for her back disability, as she received separate ratings under DC 5237 and 5242 during the appeal period. However, the Board will not disturb the assigned schedular rating during this period. Further, the Board notes that after undergoing surgery, the Veteran’s disability is temporarily rated at 100 percent, effective January 20, 2021 to May 1, 2021, based on convalescence. As the RO assigned a temporary total rating based on convalescence for the period, the Board will not address the time period when the Veteran is temporarily rated totally disabled. 38 C.F.R. § 4.30. 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 requires that the condition be manifested by 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 requires unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Higher ratings are warranted where there is ankylosis of the entire spine. During the pendency of the appeal, the criteria for rating the musculoskeletal system changed, with the new regulation becoming effective February 7, 2021. Effective February 7, 2021, the new regulation changed Diagnostic Code 5242 to include degenerative disc disease other than intervertebral disc syndrome. The new regulation also added Diagnostic Code 5244 for paraplegia and quadriplegia. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for back disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements about back pain when lifting, pain with prolonged standing, sitting, and driving, the Veteran’s pain 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, at this time, 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. The Veteran’s forward flexion was limited at most to 80 degrees during the appeal. No pain was noted on examination and no additional factors were found that contribute to the disability. See VA Examination, November 2020. At this time, she was also noted as not having Intervertebral Disc Syndrome (IVDS). The Board acknowledges the June 2017 finding of forward flexion limited to 40 degrees and the examiner’s statement that the Veteran displayed exaggerated verbal pain response during examination of the lower back. However, medical records before and after the June 2017 examination note forward flexion limited to 85 or 90 degrees. See VA Examination, March 2015, October 2015, and November 2020; see also Private Treatment Records, July 2016. As a result, the Board finds that no more than a rating of 10 percent is warranted during the appeal period. 3. Entitlement to a disability rating of 20 percent, but no higher, for radiculopathy of the right lower extremity with sciatica. 4. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity with sciatica. During the March 2020 hearing, the Veteran testified that her radiculopathy has worsened. Specifically, she testified that she has fallen due to numbness in her legs and has seen an acupuncturist and received pain injections described as “nerve blockers.” See Hearing Transcript, March 2020. The Veteran’s right lower extremity radiculopathy is currently rated under Diagnostic Code 8520 at 10 percent and her left lower extremity radiculopathy is rated under Diagnostic Code 8521 at 20 percent. Sciatic nerve neurological manifestations are rated under Diagnostic Code 8520, 8620, or 8720 as, respectively, paralysis, neuritis, or neuralgia of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate, or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied levels of the nerve lesion or to partial regeneration. External popliteal nerve (common Peroneal) neurological manifestations are rated under Diagnostic Code 8521. Complete paralysis of the external popliteal nerve, which is rated at 40 percent disabling, contemplates foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. Incomplete paralysis warrants a 30 percent rating if severe, a 20 percent rating if moderate in severity, and a 10 percent rating if mild in severity. The Board acknowledges that the terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Based on the evidence of record, the Board finds that a rating of 20 percent, but no higher, for the Veteran’s right and left lower extremity radiculopathy is warranted. At the March 2015 VA examination, the examiner noted mild radiculopathy in both sides with moderate intermittent pain. However, the October 2015 and June 2017 examinations did not note any radiculopathy. During the November 2020 VA examination, the examiner noted that the Veteran’s left side is not affected but found mild radiculopathy in the right side. The examiner noted constant moderate pain, moderate paresthesias and/or dysthesias, and moderate numbness in the right side. In the left side, the examiner noted moderate intermittent pain, moderate paresthesias and/or dysthesias, and moderate numbness. The Board acknowledges that the Veteran has continued to report pain and functional loss and the Board finds the Veteran’s reports of the onset and continuation of her symptoms to be competent and credible. See 38 C.F.R. § 3.159(a); see also Layno v. Brown, 6 Vet. App. 465 (1994) (noting that a veteran is competent to report on that of which he or she has personal knowledge). However, as a preponderance of the evidence in the record shows that the Veteran’s symptoms do not rise to the level of moderately severe, the Board concludes that the evidence supports the criteria for a 20 percent rating, but no higher for her right and left lower extremity radiculopathy. Service Connection To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service-connected disability; or, aggravated beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310 (2018); see also, El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). 5. Entitlement to service connection for a mid-back disability, previously claimed as left shoulder pain. The Veteran seeks service connection for left shoulder pain, which she contends is secondary to her low back disability. See Hearing Transcript, March 2020. In October 2015, an examination of the Veteran’s left shoulder was conducted. After a review of the Veteran’s record, the examiner opined that the Veteran’s left shoulder condition is less likely than not proximately due to or the result of the Veteran’s service-connected back disability. The examiner reasoned that the Veteran’s records were unremarkable for any documented evidence of a shoulder condition, the examination of the Veteran’s left shoulder, including x-ray results, was unremarkable and no current diagnosis was found. The examiner also noted that the Veteran gave submaximal effort and exaggerated response to pain throughout the examination. Due to the Veteran’s March 2020 hearing testimony that showed that her left shoulder condition is really a mid-back claim affecting her spine, the issue of entitlement to service connection for left shoulder pain was recharacterized by the Board in its May 2020 decision as service connection for a mid-back disability in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). In November 2020, a VA examination was conducted to address the Veteran’s contentions. After an in-person examination and a review of the Veteran’s record, the examiner opined that the Veteran’s claimed condition is less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that the Veteran’s subjective report of radicular pain is not consistent with the area of the spine affected and there is no diagnosis to support a mid-back disability. Further, the examiner noted that the Veteran denied any mid-back pain or dysfunction. Although the Veteran credibly testified about her condition during the March 2020 hearing, the Board finds that the question regarding the potential relationship between the Veteran’s mid-back condition and her service to be complex in nature. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran does not possess the medical knowledge to attribute her mid-back condition to her military service or a service-connected disability. Therefore, the Veteran’s contention that her mid-back condition is related to service or her service-connected disability is not competent and therefore not probative. As there is no competent evidence, lay or otherwise, showing that the Veteran’s mid-back condition was aggravated by service, evidence showing an in-service event or injury that could cause such disability, or evidence showing a relationship between her condition and a service-connected disability, the preponderance of the evidence is against the Veteran’s claim and there is no doubt to be resolved. Therefore, service connection for a mid-back condition is not warranted. 38U.S.C. §5107(b); 38C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.