Citation Nr: 21014111 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-07 652 DATE: March 11, 2021 ORDER An initial rating in excess of 10 percent prior to November 26, 2019, for degenerative arthritis of lumbar spine with facet arthropathy is denied. As of November 26, 2019, a rating in excess of 40 percent for degenerative arthritis of the lumbar spine rated as intervertebral disc syndrome (IVDS) is denied. Prior to November 26, 2019, a separate rating for left lower extremity radiculopathy is denied. A rating in excess of 20 percent as of November 26, 2019, for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Prior to November 26, 2019, the weight of the competent and probative evidence is against finding forward flexion of the thoracolumbar spine less than 60 degrees; or, the combined range of motion of the thoracolumbar spine less 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. 2. As of November 26, 2019, the weight of the competent and probative evidence is against finding unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes due to IVDS. 3. Prior to November 26, 2019, the weight of the competent and probative evidence is against finding that the Veteran experienced radicular pain or signs and symptoms of incomplete paralysis or impairment of the femoral nerve. 4. As of November 26, 2019, the weight of the competent and probative evidence is against finding signs and symptoms of severe incomplete paralysis of the femoral nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for degenerative arthritis of lumbar spine with facet arthropathy prior to November 26, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5242, 5243. 2. As of November 26, 2019, the criteria for a rating in excess of 40 percent for degenerative arthritis of the lumbar spine, rated as IVDS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5242, 5243. 3. Prior to November 26, 2019, the criteria for a separate rating for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 4. As of November 26, 2019, the criteria for a rating in excess of 20 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to September 1995. June 2008 to June 2009, and from October 2009 to September 2010. This matter comes before the Board of Veterans’ Appeals (BOARD) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board and remanded for additional development in September 2019. There has been substantial compliance with remand directives and additional remands are not warranted. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). All regulations that are potentially applicable must be acknowledged and considered. Schafrath, 1 Vet. App. at 593. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These 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. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran’s degenerative arthritis of the spine, including intervertebral disc syndrome (IVDS), is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DCs 5242, 5243. Under the General Rating Formula, 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. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2). A 20-percent rating is warranted where there is 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 is 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. 38 C.F.R. § 4.71a, DC 5242. A 40-percent rating is warranted where there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 60-percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Id. Unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). A 100-percent rating, the highest schedular rating, is warranted where there is unfavorable ankylosis of the entire spine. Id. Alternatively, degenerative disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. This formula provides for ratings based upon the frequency and duration of incapacitating episodes during a 12-month period. An “incapacitating episode” is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). Under this formula, ratings are assignable based on the frequency and duration of incapacitating episodes in a 12-month period: 40 percent rating a total duration of at least 4 weeks but less than 6 weeks and 60 percent for a total duration of at least 6 weeks. By regulation, separate ratings for objective neurologic abnormalities are available only in tandem with evaluations under the General Rating Formula for Disease and Injuries of the Spine. Assigning both a rating under the Formula for Rating IVDS and ratings for associated radiculopathy would be impermissible pyramiding. See 38 C.F.R. § 4.14. IVDS is evaluated under whichever method results in the higher evaluation when all disabilities are combined under §4.25. 38 C.F.R. § 4.71a, DC 5243. The Veteran is currently assigned a 20 percent rating for radiculopathy in the left lower extremity under Diagnostic Code 8526 for impairment of the femoral nerve. Under Diagnostic Code 8526, a 10 percent rating is assigned for mild incomplete paralysis, a 20 percent rating is assigned for moderate incomplete paralysis, a 30 percent rating is assigned for severe incomplete paralysis, and a 40 percent rating is assigned for complete paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a, DC 8526. The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. An initial rating in excess of 10 percent for degenerative arthritis of lumbar spine with facet arthropathy prior to November 26, 2019, and a rating in excess of 40 percent for IVDS thereafter. 2. A separate rating for left lower extremity radiculopathy prior to November 26, 2019, and a rating in excess of 20 percent thereafter. Prior to November 26, 2019, the Veteran’s degenerative arthritis of the lumbar spine was rated as 10 percent disabling under Diagnostic Code 5242. As of November 26, 2019, the Veteran’s degenerative arthritis of the lumbar spine is rated as 40 percent disabling under Diagnostic Code 5243 and 20 percent disabling under Diagnostic Code 8526 for moderate left lower extremity radiculopathy. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine prior to November 26, 2019 and in excess of 40 percent thereafter is not warranted; and, a separate rating for left lower extremity radiculopathy prior to November 26, 2019, and in excess of 20 percent thereafter is not warranted. During a May 2015 VA examination, the Veteran reported daily pain in the lower back that is worse in the morning and aggravated with yard work. May 19, 2015, VA Examination. The Veteran stated that he could walk a mile but could not run. The Veteran’s thoracolumbar spine range of motion measurements showed forward flexion to 80 degrees, extension to 20 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 30 degrees. There was no additional loss of function or range of motion after three repetitions. The Veteran reported constant use of a brace and reported that his job performance is not affected by his back. The examiner could not opine whether pain, weakness, fatigability or incoordination would significantly limit functional ability with repeated use over a period of time or during flare ups without resorting to speculation. During a supplemental VA examination in July 2015, pain was not noted with weight bearing. July 18, 2015, VA Examination. There was tenderness with palpitation over the lower lumbar spine not resulting in abnormal gait. The Veteran did not have muscle spasm or guarding of the lumbar spine or radicular pain or symptoms due to radiculopathy. There was no IVDS or functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. Private treatment records indicate the Veteran complained of low back pain and intermittent left leg pain. February 18, 2016, Medical Treatment Record – Non-Government. The Veteran denied any frequent numbness, tingling or weakness in his legs. Bending forward and bending backward showed full range of motion. Muscles spasm, hypo-mobility of the joints and end point tenderness were noted throughout the spine and in the sacral and pelvic regions. These records contain January 2016 cervical and thoraco/lumbar range of motion testing from a chiropractic center. The private records indicate normal forward flexion of the thoracolumbar spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. As noted above, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Based on the given “normal” ranges of motion, the starting point of motion is not clear. During a November 2019 VA examination, the Veteran reported that he experiences intermittent sharp back pain, numbness in right buttock, morning stiffness, and frequent back spasms on both sides of the low back and denied flare ups. November 26, 2019, VA Examination. The Veteran explained that he could walk a half of a mile, stand and sit 20 minutes before repositioning, drive 15 to 20 minutes, squat and kneel, but could not run. The Veteran’s thoracolumbar spine range of motion measurements showed forward flexion to 45 degrees, extension to 30 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. Forward flexion was further limited to 30 degrees after three repetitions. The examiner opined that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over a period of time or during flare ups. Muscle strength testing was normal without muscle atrophy or ankylosis of the lumbar spine. The Veteran did not have muscle spasm or guarding of the lumbar spine, but moderate left radiculopathy involving the femoral nerve was noted. The Veteran had IVDS of the lumbar spine but did not have 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. He reported the regular use of lumbar support. There was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. A rating in excess of 10 percent for degenerative arthritis of the lumbar spine is not warranted prior to November 26, 2019, as the competent and probative evidence of record demonstrates that the Veteran’s forward flexion was greater than 60 degrees; the combined range of motion of the thoracolumbar spine was greater than 120 degrees; and, muscle spasm or guarding was not severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A separate rating for left lower extremity radiculopathy prior to November 26, 2019, is not warranted as the competent and probative evidence does not demonstrate that the Veteran experienced any radicular pain or symptoms associated with radiculopathy. As of November 26, 2019, a rating is excess of 40 percent for degenerative arthritis of the lumbar spine, rated as IVDS, is not warranted as the competent and probative evidence of record does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine. The Veteran could not receive a higher rating under the IVDS Rating Formula as the competent and probative evidence is against finding incapacitating episodes due to IVDS. A rating in excess of 20 percent for radiculopathy as of November 26, 2019, is not warranted as the weight of the competent and probative evidence is against finding symptoms of severe incomplete paralysis. The 2019 examiner noted normal muscle strength, normal reflexes and sensation, and negative straight leg raising test. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Here, the changes concerning the low back have no bearing on the Veteran’s appeal. The preponderance of the evidence is against awarding higher or additional ratings for degenerative arthritis of the lumbar spine, IVDS or radiculopathy. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.