Citation Nr: 21014570 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-02 572 DATE: March 15, 2021 ORDER Entitlement to a rating in excess of 40 percent for lumbar strain is denied. Entitlement to a rating in excess of 10 percent for radiculitis of the right lower extremity is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s forward flexion of the thoracolumbar spine has been limited to 30 degrees or less during flare-ups and after repetitive use over time. 2. Throughout the period on appeal, the Veteran’s right lower extremity radiculitis has manifested as mild, incomplete sciatic nerve impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbar 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 5237. 2. The criteria for a disability rating in excess of 10 percent for radiculitis of the right lower extremity 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 in the United States Navy from December 1981 to December 1987. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In May 2018, the Veteran testified at a video conference hearing in the St. Petersburg, Florida RO before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript of the hearing is available in the record. These matters have previously come before the Board. Most recently, in August 2020, the Board remanded these issues for a medical examination to be conducted by VA discussing range of motion during flare-ups, as required by Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In September 2020, the Veteran was afforded a new VA examination which provided estimates of range of motion during flare-ups. Increased Rating 1. Entitlement to a rating in excess of 40 percent for lumbar strain is denied. The Veteran seeks an increased rating for his lumbar strain disability. During the pendency of the Veteran’s appeal, the rating for his lower back strain condition was increased from 10 percent disabling to 40 percent disabling for the entire period on appeal. As this was not a complete grant of the benefits on appeal, the issue is still before the Board. For the reasons that follow, the Board concludes that the 40 percent rating is appropriate. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1995). A veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). 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. Separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Effective February 7, 2021, the schedule for rating disabilities of the musculoskeletal system has been revised. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable diagnostic codes to the period on or after the effective dates of the new diagnostic codes if the prior versions were in effect during the pendency of the appeal, as is the case here. Therefore, the Board may evaluate the Veteran’s lumbar strain under both earlier and current diagnostic codes, as of their effective dates, in order to determine which version would accord the Veteran the highest rating. However, the revised rating schedule did not change the criteria within the General Rating Formula for Diseases and Injuries of the Spine, and thus the changes will not affect the Veteran’s lumbar strain rating. The General Rating Formula for Diseases and Injuries of the Spine provides for a 10 percent rating 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 assigned 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. 38 C.F.R. § 4.71a. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable 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 entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). Unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran underwent a VA examination in May 2010. The examiner diagnosed the Veteran with a lumbar strain. The Veteran reported functional limitations in walking limited to 100 yards or less, and pain and weakness in his back which caused difficulty standing for long periods of time. Physical activity including bending or stooping aggravated his condition. The examiner measured the Veteran’s range of motion for his lower back as follows: flexion limited to 60 degrees, and to 30 degrees upon repetitive use; extension limited to 15 degrees, and to 10 degrees upon repetitive use; right lateral flexion limited to 15 degrees, and to 10 degrees upon repetitive use; left lateral flexion limited to 30 degrees, and to 0 degrees upon repetitive use; right rotation limited to 20 degrees, and to 5 degrees upon repetitive use; and left rotation limited to 30 degrees, and to 0 degrees upon repetitive use. After use over time, the Veteran experienced increased pain, fatigue, weakness, lack of endurance. Muscle spasms caused were reported to produce an abnormal gait. There was no evidence of muscle weakness or ankylosis. See April 2010 VA Examination. The Veteran underwent another VA examination in April 2019. The examiner confirmed previous diagnoses of lumbar strain with right lower extremity radiculitis. The Veteran reported flare-ups approximately 2 times per year resulting in his back going out, and he reported wearing a brace when needed. Flare ups were reported to last 3 to 7 days. The examiner measured the Veteran’s range of motion as follows: forward flexion from 0 to 70 degrees; extension from 0 to 20 degrees; right lateral flexion from 0 to 20 degrees; left lateral flexion from 0 to 20 degrees; right lateral rotation from 0 to 25 degrees; and left lateral rotation from 0 to 20 degrees. The examiner found no additional loss of function or range of motion after repeated use, including over time. The examiner reported there was no additional functional limitation during flare-ups. No atrophy or ankylosis was found. See April 2019 Compensation and Pension (C&P) Examination. In June 2019, the same examiner who conducted the above examination wrote an addendum opinion clarifying that the review of the medical record and evidence from her own examination did not show evidence that the Veteran’s condition was worsening. Medical records did not document flare-ups of the Veteran’s back condition, and so the examiner had no basis to offer additional functional losses of motion after repetitive use or during flare-ups. See June 2019 C&P Examination. In September 2020, the Veteran underwent another VA Examination for his back condition. The examiner confirmed the diagnoses of lumbar strain with radiculitis of the right lower extremity. The Veteran reported soreness, spasms and tightness on a daily basis, which was exacerbated by physical activity such as bending forward. The Veteran reported being limited to walk for no more than 10-15 minutes, and could not perform heavier physical activities such as prolonged standing, walking, running, lifting heavy objects, climbing, or stooping. The Veteran reported during flare-ups he could not move at all due to his spasms. The examiner documented the Veteran’s range of motion as follows: forward flexion from 0 to 15 degrees; extension from 0 to 10 degrees; right lateral flexion from 0 to 20 degrees; left lateral flexion from 0 to 25 degrees; right lateral rotation from 0 to 20 degrees; and left lateral rotation from 0 to 10 degrees. No additional loss was shown after three repetitions. The examiner estimated that the Veteran suffered additional loss of range of motion after repetitive use over time, and even further limited during flare-ups as follows: forward flexion from 0 to 5 degrees; extension 0 degrees; right lateral flexion 0 to 10 degrees; left lateral flexion 0 to 15 degrees; right lateral rotation 0 to 10 degrees; and left lateral rotation 0 degrees. No atrophy or ankylosis were found. See September 2020 C&P Examination. The preponderance of evidence supports a finding that throughout the period on appeal, the Veteran’s forward flexion of the thoracolumbar spine is limited to 30 degrees or less during flare-ups and after repetitive use over time. Accordingly, the current 40 percent evaluation is appropriate. A higher evaluation of 50 percent or greater is not appropriate, as ankylosis of the Veteran’s spine is not shown at any time during the appeal period. As the preponderance of evidence goes against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The claim for an evaluation in excess of 40 percent for a lower back strain is denied. 2. Entitlement to a rating in excess of 10 percent for radiculitis of the right lower extremity is denied. The Veteran seeks an increased rating for his radiculitis of the right lower extremity, presently evaluated at 10 percent disabling. The Veteran’s radiculitis is shown to affect his sciatic nerve. Impairments of the sciatic nerve are evaluated under DC 8520. Under DC 8520, a 10 percent evaluation is warranted for mild, incomplete paralysis; a 20 percent evaluation is warranted for moderate, incomplete paralysis; a 40 percent evaluation is warranted for moderately severe, incomplete paralysis; a 60 percent evaluation is warranted for severe, incomplete paralysis with marked muscular atrophy; and the maximum evaluation of 80 percent is warranted for complete paralysis in which the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. See 38 C.F.R. § 4.124A, DC 8520. The term “incomplete paralysis,” with this and other peripheral nerve injuries, 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. At his VA examination in April 2010, the VA examiner found evidence of radiculitis due to the Veteran’s lumbar strain condition, which caused sporadic impairment of the hip and buttock. Neurological examination of the spine revealed no sensory deficits from L1-L5, and no sensory deficits of S1. The Veteran’s knee jerk and ankle jerk reflexes were within normal limits. See April 2010 C&P Examination. At the Veteran’s April 2019 VA examination, the examiner confirmed the Veteran’s previous diagnosis of right lower extremity radiculitis. Reflex and sensory testing yielded normal results. The examiner documented mild intermittent pain in the Veteran’s right lower extremity due to radiculopathy of the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on the right side. See April 2019 C&P Examination. In a June 2019 addendum / clarification opinion, the VA examiner who conducted the above examination clarified that the Veteran’s right lower extremity was mild in overall severity, while the left side was not affected. See June 2019 C&P Examination. In September 2020, a VA examiner again confirmed the previous diagnosis of radiculitis of the right lower extremity. Reflex and sensory testing showed normal results. The examiner indicated moderate, constant pain in the right lower extremity due to sciatic nerve root involvement. The examiner assessed the overall severity of the radiculopathy to be mild. See September 2020 C&P Examination. The Veteran’s lay statements regarding his disabilities have largely focused on pain in his lower back. However, the medical record shows consistently that the Veteran experiences right leg radicular pain due to impairment of his sciatic nerve in his lower back. VA examiners throughout the period on appeal have characterized this radiculitis as mild in severity. The preponderance of evidence therefore supports a finding that throughout the period on appeal, the Veteran’s condition has manifested as mild, incomplete sciatic nerve impairment. Accordingly, the current 10 percent rating is warranted by the record. A higher evaluation of 20 percent is not appropriate, as moderate, incomplete nerve impairment has not been shown in the record at any time during the period on appeal. As the preponderance of evidence goes against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Veteran’s claim for an evaluation in excess of 10 percent for lower right extremity radiculitis is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.