Citation Nr: 21012810 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 18-01 522 DATE: March 5, 2021 ORDER Entitlement to a rating in excess of 40 percent for lumbar disc degeneration and facet arthropathy, previously lumbosacral strain, (back condition) beginning November 13, 2013, is denied. Entitlement to an initial evaluation in excess of 10 percent for right lower extremity radiculopathy is denied Entitlement to an initial evaluation in excess of 10 percent for left lower extremity radiculopathy is denied. FINDING OF FACT 1. For the entire period on appeal, the Veteran’s back condition was not manifested by unfavorable ankylosis of the thoracolumbar spine; moreover, the preponderance of the evidence is against finding that the Veteran required doctor-prescribed bed rest for the treatment of intervertebral disc syndrome (IVDS) during this period. 2. The Veteran’s right lower extremity radiculopathy is manifested by mild incomplete paralysis of the sciatic nerve of an entirely sensory nature. 3. The Veteran’s left lower extremity radiculopathy is manifested by mild incomplete paralysis of the sciatic nerve of an entirely sensory nature. CONCLUSION OF LAW 1. The criteria for entitlement to a rating in excess of 40 percent for a back condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy manifested by incomplete paralysis of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 3. The criteria for entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy manifested by incomplete paralysis of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1991 to April 1995. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in March 2020. This matter was previously before the Board in May 2020. At that time, the Board remanded this matter for further development. It has not come back before the Board for final adjudication. By way of procedural history, the Veteran was service connected for his back condition in a March 1996 rating decision and issued a 10 percent rating effective April 17, 1995. He was issued a 20 percent rating from July 14, 1998. In November 2013, the Veteran filed the present claim for an increased rating. In an August 2020 rating decision, the Veteran was granted a 40 percent rating effective November 19, 2013, the date his claim was received. In addition, he was granted service connection for bilateral lower extremity radiculopathy individually rated at 10 percent effective November 19, 2013. The Board has considered the aforementioned radiculopathy issues on appeal as arising from the related claim for an increased rating for back condition, as separate ratings were established during the pendency of this appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Where there is a question as to which of two 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. See 38 C.F.R. § 4.7. An increase in disability compensation may be granted from the earliest date on which it is factually ascertainable that an increase in disability occurred if the claim for an increase is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When the increase in disability occurred prior to one year from the date of filing, an effective date of award cannot be awarded prior to the date of the application. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 1. Back Condition The Veteran is currently service connected for a back condition and rated as 40 percent disabling. He seeks a rating in excess of that 40 percent for the entire period on appeal. The period on appeal is the date the claim for an increased rating was received, November 19, 2013. The Board will consider evidence received one year prior to the date of his filed claim. The current rating was assigned pursuant to 38 C.F.R. §§ 4.25, 4.71a, Diagnostic Code 5237, corresponding to strain of the lumbosacral spine. Spinal conditions are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. §§ 4.25, 4.71a, Diagnostic Code 5237. The General Rating Formula provides for a 40 percent rating for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula (for Diagnostic Codes 5235 to 5243). Effective February 7, 2021, the Formula for Rating IVDS applies only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Prior to February 7, 2021, the Formula for Rating IVDS only require a diagnosis of IVDS and does not required disc herniation with compression and/or irritation of the adjacent nerve root. The General Rating Formula remains the same for both periods. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating requires evidence of 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. An “incapacitating episode” is defined as 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). If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Note (2). Evidence of record in this case includes VA examination from April 2014, May 2016, and August 2020. As indicated above, the assigned 40 percent evaluation contemplates all current limitation of motion and spasm-related symptoms. A higher evaluation is only warranted in cases of ankylosis or physician-prescribed bedrest, neither of which has been shown here. The Board has considered the lay evidence of record, to include the Veteran’s statements during the March 2020 hearing, but the Veteran’s description of his symptomatology does not suggest that he is entitled to a rating in excess of the 40 percent already in effect. Specifically, the Veteran, at no point, asserted that he was prescribed bed rest to address episodes of incapacitating pain. Furthermore, at no point has the Veteran asserted that he experienced ankylosis of the low back. Therefore, the Board finds that the assigned 40 percent rating adequately contemplates the functional impairment resulting from the Veteran’s service-connected back condition, and that a higher rating must be denied. For the period on appeal, the preponderance of the evidence is against the claim for a rating in excess of 40 percent for the Veteran’s service-connected back condition. 38 C.F.R. § 4.7. 2. Bilateral Radiculopathy While the Veteran has not separately appealed the assigned ratings for his service-connected bilateral lower extremities, the Board has considered whether higher ratings could be assigned for the service-connected disabilities, as the assignment of these ratings occurred during the pendency of this appeal. AB v. Brown, supra. The record reflects that the Veteran is currently service connected for bilateral lower extremity radiculopathy, with separate ratings of 10 percent effective November 19, 2013. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (which assigns ratings based upon complete or incomplete paralysis of the lower extremities). The ratings for bilateral lower extremity radiculopathy manifested by incomplete paralysis of the sciatic nerve were assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is warranted for incomplete paralysis of the sciatic nerve of mild severity, while a 20 percent rating is warranted for moderate severity, and a 40 percent rating is warranted for severe incomplete paralysis. Complete paralysis, in which the foot dangles and drops, no active movement is possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost, warrants an 80 percent rating. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. 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. During the April 2014 VA examination, the Veteran’s left leg experienced mild intermittent pain, paresthesias and/or dysesthesias, and numbness. He was evaluated overall as having left leg radiculopathy of mild severity. The Veteran’s right leg experienced mild intermittent pain. He was evaluated overall as having right lower extremity radiculopathy of mild severity. During the May 2016 VA examination, the Veteran’s left leg experienced moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. He was evaluated overall as having left lower extremity radiculopathy of mild severity. The Veteran’s right leg experienced no symptoms and was noted to not be affected. Upon the August 2020 VA examination, it was noted that the Veteran left leg experienced mild symptoms of numbness, mild constant pain, moderate paresthesias and/or dysesthesias, and moderate intermittent pain. He was evaluated overall as having left lower extremity radiculopathy of mild severity. The Veteran’s right leg experienced mild intermittent pain and paresthesias and/or dysesthesias. He was evaluated overall as his right lower extremity not being affected. After considering the evidence, the Board finds that the Veteran is entitled to no more than a 10 percent rating for his left lower extremity radiculopathy and no more than a 10 percent rating for his right lower extremity radiculopathy. These ratings correspond with his symptoms of numbness, pain, and paresthesias and/or dysesthesias. The Board notes that none of the VA examinations showed atrophy in either lower extremity As these symptoms are sensory in nature, however, and have been evaluated as being no more than mild in severity, a 20 percent rating, corresponding to moderate, is not warranted for either lower extremity radiculopathy. See 38 C.F.R. § 4.124a (“When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.”). Accordingly, an initial 10 percent rating, but not more, is warranted for mild right lower extremity radiculopathy and a 10 percent rating, but no more, is warranted for mild left lower extremity radiculopathy. In so finding the above, the Board notes that the Veteran is competent to report on symptoms and credible to the extent that he sincerely believes he is entitled to higher ratings. In those portions of the decision where his claims have been denied, however, his competent and credible lay evidence is outweighed by competent and credible medical evidence that evaluates the true extent of the back condition and bilateral lower extremities radiculopathy based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of back condition and bilateral lower extremity radiculopathy. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability (TDIU) is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. The Veteran did not report unemployability. The Board does note that the Veteran asserted that he found it necessary to leave his job for a new job because of pain in his wrist. See May 1996 Notice of Disagreement, October 2014 Correspondence. During the March 2020 Board hearing, neither the Veteran nor his representative asserted individual unemployability. Therefore, consideration of TDIU is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.