Citation Nr: 21015484 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-20 507A DATE: March 17, 2021 ORDER Entitlement to a rating in excess of 40 percent for lumbar spine strain with degenerative disc and joint disease disability (lumbar spine disability) is denied. Entitlement to a separate 20 percent rating for right lower extremity radiculopathy associated with lumbar spine disability, effective from June 28, 2018, is granted. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability is manifested by pain and limitation of motion but is not productive of functional impairment comparable to unfavorable ankyloses of the entire thoracolumbar spine. 2. Prior to June 28, 2018, the competent evidence does not demonstrate that the Veteran has a separate neurologic impairment associated with his lumbar spine disability. 3. As of June 28, 2018, the Veteran’s lumbar spine disability has been manifested by moderate right lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a separate 20 percent rating for right lower extremity radiculopathy associated with lumbar spine disability effective from June 28, 2018 has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§, 4.71a, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1986 to February 1990 1. Entitlement to a rating in excess of 40 percent for lumbar spine disability 2. Entitlement to a separation 20 percent rating for right lower extremity radiculopathy associated with lumbar spine disability The Veteran contends that he is entitled to a higher rating because his lumbar spine disability has progressively worsened, and he has flare-ups of low back symptomatology that impact his ability to perform activities of daily living. See May 2012 notice of disagreement; June 2018 Disability Benefits Questionnaire (back) report, and October 2019 VA back examination report. He further contends that his symptomatology includes manifestations related to his history of herniated disc and back surgery and should be considered under rating criteria applicable to degenerative disc disease. See May 2018 Board hearing transcript. The Veteran’s lumbar spine disability was previously rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237, for lumbosacral strain. Based on the findings contained in the October 2019 VA examination report, the RO recharacterized the Veteran’s lumbar spine disability and it is currently rated at 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS) throughout the pendency of the appeal. See August 2020 rating decision. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with 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 Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is 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. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. Effective from February 7, 2020, VA made non-substantive edits to the parenthetical of Diagnostic Code 5242 so that it now includes degenerative disc disease (other than intervertebral disc syndrome). VA also made clarifying changes to Diagnostic Code 5243 so that it is only assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root and provides that all other disc diagnoses are evaluated under Diagnostic Code 5242. See 85 Federal Register, 76453, 76462 (November 30, 2020). Unfavorable ankylosis is defined as “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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. 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.”). 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 40 percent for lumbar spine disability based on incapacitating episodes. Although medical evidence of record shows that the Veteran does have 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. In this regard, both the April 2011 and October 2019 VA examiners found that the record did not show that the Veteran had been prescribed bedrest by a physician for any during in the previous 12 months. Although during the April 2011 VA examination report the Veteran reported that he is “bed ridden” during flares-up of back pain and he informed the October 2019 VA examiner that he must lay down to relieve flare-ups of back pain, a review of the VA treatment records do not show that he has actually been prescribed bed rest by a physician for any duration during the pendency of appeal. The Veteran has not identified any outstanding records of pertinent treatment which reflects he was prescribed bedrest by a physician during the pendency of the appeal. The Board has considered that the June 2018 DBQ physician marked that the Veteran experienced incapacitating episodes of at least 6 weeks in past 12 months and he noted that the Veteran had stated it “could be up to 3 months”. Although the physician marked a review of the claims folder in conjunction with the DBQ report, the physician did not specify when or how the Veteran was actually prescribed bedrest by a physician. Moreover, it appears from the physician’s notation that evidence of incapacitating episodes is based on the Veteran’s self-reported history. Aside from the notation in the DBQ (based on the Veteran’s self-reported history), there is no other evidence of record that shows the Veteran was actually prescribed bedrest for his lumbar spine disability. As noted above, the Veteran’s VA examinations and treatment records do not contain evidence of prescribed bedrest during the pendency of the appeal. Accordingly, the Board finds that the preponderance of evidence of record is against the assigment of a rating in excess of 40 percent based on incapacitating episodes for IVDS. See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. The Board also finds that the preponderance of the evidence is against a rating in excess of 40 percent for lumbar spine disability based on limitation of motion. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to constant pain and discomfort in his low back pain which renders him unable to sit, stand, or walk for prolonged periods and unable to bend below the waist, and limits his ability lift and carry more than 5 pounds. See October 2019 VA back examination report. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that his low back pain causes him functional impairment would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. In this regard, the medical evidence of record shows that the Veteran at worst had limitation of forward flexion to 17 degrees, limitation of extension to 4 degrees, and combined range of motion limited to 85 degrees due to pain after repeated use overtime. Neither the VA examiners nor the DBQ physician observed clinical evidence of unfavorable ankylosis of the spine. See April 2011 and October 2019 VA back examination reports, and June 2018 DBQ back report. The Board acknowledges that although the Veteran described flare-ups of lumbar spine symptomatology, the October 2019 VA examiner stated that he was unable to described in terms of range of motion any additional limitation due to functional impairment during flare-ups based on the Veteran’s reported statements and the procurable from assembled data. To the extent that either VA examination did not comply with Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), such non-compliance is harmless error because a higher rating is not available unless the functional equivalent of unfavorable ankylosis of the thoracolumbar spine is shown. However, the record shows that the Veteran has retained motion in the thoracolumbar spine during the entire relevant appeal period. As such, any failure of the VA examination to comply with Correia or Sharp is harmless. Moreover, the Veteran’s level of restricted motion, albeit significant, is not tantamount to or indicative of ankylosis either favorable or unfavorable. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland’s Illustrated Medical Dictionary at 86 (27th ed. 1988). Ankylosis is “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” See Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. While the Veteran has significant limitation of motion of lumbar spine, he retains some measure of motion, so this segment of his spine is not fixated, therefore not ankylosed either favorably or unfavorably. Consequently, no greater than a 40 percent rating is warranted. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Regarding associated neurological impairment, both the April 2011 and October 2019 VA back examination reports do not reflect any neurologic abnormalities associated with the Veteran’s lumbar spine disability. Pertinently, the October 2019 VA examiner remarked that although that the Veteran reported subjective complaints in his lower extremities, the objective evidence from clinical evaluation did not demonstrate radiculopathy in either leg. In addition, VA treatment record do not show diagnoses or findings of neurologic abnormality, including radiculopathy in either leg, associated with lumbar spine disability. However, the Board cannot ignore the findings from the June 2018 DBQ back report in which the physician recorded that the Veteran experienced symptoms of radiculopathy. The physician noted that the Veteran complained of moderate constant pain in the right lower extremity and severe constant pain left lower extremity, as well as intermittent pain. On neurologic evaluation, the DBQ physician observed findings of decreased muscle strength (3/5) in both lower extremity, and evidence of muscle atrophy in the left leg quadricep. The Veteran had normal reflexes and sensation in both legs. The physician only marked findings of moderate right lower extremity radiculopathy which was manifested by “right groin pain.” It appears from notations in the DBQ that the Veteran’s left lower extremity was likely attributable to his history of multiple left knee surgery. Resolving doubt in favor of the Veteran, the Board finds that the competent evidence demonstrates right lower extremity radiculopathy has been present since June 28, 2018, the date of receipt of the June 2018 DBQ back report. Although prior to that the date, the Veteran has asserted he has radiculopathy associated with his lumbar spine disability, this is the first competent medical evidence showing a diagnosis of radiculopathy in the right lower extremity. Again, prior to June 2018, the Veteran’s VA examination report and VA treatment records do not show findings of radiculopathy in the right lower extremity, despite his subjective complaints. Based on the evidence of record, the Board finds that the Veteran’s right lower extremity radiculopathy supports the assignment of a separate 20 percent rating as of June 28, 2018. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Again, the June 2018 DBQ back report shows findings of moderate impairment in the right lower extremity, with objective findings of reduced muscle strength but normal reflexes and sensation. A higher rating is not warranted without evidence of more severe symptomatology or complete paralysis of the sciatic nerve. See Id. To the extent that the Veteran has asserted that he has radiculopathy in both lower extremities that is related to his lumbar spine disability throughout the pendency of the appeal, he has not shown that he has the medical experience or training to diagnosis such a medical condition, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, such a determination must be made by a medical professional with appropriate expertise. Id. Accordingly, the Veteran’s statements that he has radiculopathy in both his lower extremities related to his lumbar spine disability throughout the pendency of the appeal are not competent evidence to support the assignment of separate rating for left lower extremity radiculopathy or a separate rating prior to June 2018 for his right lower extremity. Furthermore, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The Veteran has not asserted, and the competent medical records do not show, that he has any bladder or bowel impairment associated with his lumbar spine disability. The Board acknowledges the Veteran’s lay statements regarding the severity of his symptoms and his belief that a higher rating is warranted. The Veteran has reported constant low back pain; inability to sit, stand, and walk for prolonged periods; difficulty with bending forward; and inability to carry or lift more than 5 pounds due to back pain. Laypersons are competent to attest to physical symptoms that are experienced or observed. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that the lay evidence describing the symptoms in this case does not establish a greater degree of functional impairment. In sum, the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s service-connected lumbar spine disability. However, a separate 20 percent rating for right lower extremity radiculopathy, effective from June 28, 2018, is warranted. As the preponderance of the evidence shows that the criteria for a rating higher than 40 percent for the Veteran’s lumbar spine disability have not been met, and the record does not support the assignment of any other separate rating during the period under review, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (Continued on the next page)   Lastly, the Board has considered that the Veteran’s VA treatment records show that he is no longer working as of March 2020. The Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such a claim is raised by the record or asserted by the Veteran. However, the Veteran has not asserted, and the record does not indicate, that he is unemployable because of the severity of his service-connected disabilities. Rather, a March 2020 VA treatment records indicated that his inability to work is related to his non-service connected stroke. As such, Rice is inapplicable in this appeal. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record regarding the claims decided herein. 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). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.