Citation Nr: 21015504 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-33 539 DATE: March 17, 2021 ORDER An initial rating in excess of 10 percent prior to December 4, 2020, and in excess of 20 percent thereafter for lumbar spine myofascial syndrome is denied. As of February 6, 2014, but no earlier, a separate 10 percent rating, but no higher, for radiculopathy of left lower extremity (LLE) is granted, subject to the laws and regulations governing the payment of monetary awards. The award of a separate rating for radiculopathy of the right lower extremity (RLE), evaluated as 10 percent disabling as of December 4, 2020, is proper; the appeal is denied. FINDINGS OF FACT 1. For the appeal period prior to December 4, 2020, the Veteran’s lumbar spine myofascial syndrome did not result in forward flexion limited to 60 degrees or less or a combined range of motion of 120 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour, ankylosis, intervertebral disc syndrome (IVDS), or associated objective neurological abnormalities other than radiculopathy of the LLE as of February 6, 2014. 2. As of December 4, 2020, the Veteran’s lumbar spine myofascial syndrome was manifested by forward flexion greater than 30 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, IVDS, or associated objective neurological abnormalities other than radiculopathy of the LLE and RLE. 3. As of February 6, 2014, the Veteran’s radiculopathy of the LLE resulted in no more than mild incomplete paralysis of the sciatic nerve. 4. As of December 4, 2020, the Veteran’s radiculopathy of the RLE resulted in no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to December 4, 2020, and in excess of 20 percent thereafter for lumbar spine myofascial syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. As of February 6, 2014, but no earlier, the criteria for a separate 10 percent rating, but no higher, for radiculopathy of the LLE have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124, 4.124a, DC 8720. 3. The assignment of a separate rating for radiculopathy of the RLE, evaluated as 10 percent disabling as of December 4, 2020, is proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.124, 4.124a, DC 8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 to November 2003 and January 2008 to March 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2011 by a Department of Veterans Affairs (VA) Regional Office. In September 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2020, the Board remanded the case for additional development and it now returns for further appellate review. While on remand, in a December 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded an increased rating of 20 percent for the Veteran’s back disability and assigned separate 10 percent ratings for LLE and RLE radiculopathy affecting the sciatic nerve, effective December 4, 2020. The Board notes that the Veteran did not appeal with respect to the propriety of the assigned ratings or effective dates for such disabilities; however, these issues are part and parcel of his claim for a higher initial rating for his back disability as the rating criteria governing the evaluation of such disability specifically indicates that any associated objective neurologic abnormalities be separately evaluated under an appropriate DC. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Therefore, such issues have been included in the decision and will be addressed herein. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). 1. Entitlement to an initial rating in excess of 10 percent prior to December 4, 2020, and in excess of 20 percent thereafter for lumbar spine myofascial syndrome. Since March 9, 2011, the date of service connection, the Veteran’s back disability has been rated as 10 percent disabling, which was increased to 20 percent disabling as of December 4, 2020, pursuant to DC 5237, which provides that lumbosacral strain is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this DC was not changed. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Such provides for a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but no 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 warranted 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. 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. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1): Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical 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. 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 cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. 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. Note (3): 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 stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, 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 (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. IVDS may be evaluated under either the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.25 (combined ratings table). The IVDS Rating Formula provides that a 10 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A20 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. As an initial matter, the Board notes that the record does not show, and the Veteran does not contend, that his back disability resulted in IVDS with incapacitating episodes as defined by VA regulations. Therefore, the IVDS Rating Formula is inapplicable and higher initial ratings for his back disability are not warranted under such criteria. As pertinent to the General Rating Formula, in April 2011, the Veteran underwent a VA examination, at which time he reported that he had back pain in the bilateral lower lumbar spine rated as 2/10 that would increase to 6-7/10. He had no radiation of pain and no numbness or tingling. He also did not have flare-ups that incapacitated him though he did have episodes of increased pain, particularly after work. The Veteran’s gait was normal and there were no palpable muscle spasms. Range of motion (ROM) testing revealed forward flexion to 90 degrees without pain and extension to 30 degrees with pain at 30 degrees. Right and left lateral rotation was to 30 degrees without pain and right and left lateral flexion was to 30 degrees with complaints of discomfort at 30 degrees. While the Veteran complained of increased pain on repetitive motion testing, he did not exhibit any additional loss due to pain, fatigue, weakness, lack of endurance, or incoordination on repetitive motion testing. The Veteran was afforded another VA examination in January 2014. At such time, he reported central lower back pain with no radiation of pain or radicular symptoms. He also reported flare-ups daily to 2 to 3 times per week, which caused him to stop activity and lay down or sit in a recliner to rest. He would not seek medical attention or become incapacitated. ROM testing revealed forward flexion to 90 degrees or greater with objective evidence of pain at 90 degrees and extension to 30 degrees or greater with objective evidence of pain at 30 degrees. Right and left lateral rotation and later flexion were to 30 degrees with objective evidence of painful motion at 30 degrees, except right lateral rotation where there was no objective evidence of painful motion. He was able to perform repetitive-use testing and his ROM remained unchanged. He did not have any functional loss and /or functional impairment of the thoracolumbar spine. He had tenderness to palpation at the L4/5 area, but no muscle spasms or guarding. He also had full strength and sensation in the bilateral lower extremities (BLE), and normal reflexes. The examiner noted that the Veteran did not have radiculopathy of the BLE or any other neurologic abnormalities. There was also no ankylosis of the spine. Subsequent treatment records, to include a February 6, 2014, record, indicate the Veteran continued to complain of low back pain that was dull and was radiating into his left hip and leg. See February 2014, July 2014, and January 2015 VA treatment records. Additionally, at the September 2018 Board hearing, the Veteran testified that his back locked up and was stiff, and he had muscle spasms. He also stated that he had pain radiating from his left hip down to his leg that was tingling. In this regard, the Veteran indicated that, while such symptoms sometimes occurred in his right leg, they were usually in his left leg. Pursuant to the April 2020 remand, the Veteran underwent a VA examination on December 4, 2020. At such time, he reported he had constant pain in his lower back that sometimes went down his legs. He did not report flare-ups and stated that he could not carry anything over 50 pounds. ROM testing revealed forward flexion to 65 degrees and extension to 15 degrees. Right and left lateral flexion was to 30 degrees. Right lateral rotation was to 25 degrees and left lateral rotation was 20 degrees. Pain was exhibited with forward flexion, extension, and left lateral rotation and caused functional loss. The Veteran was able to perform repetitive-use testing with at least 3 repetitions and there was no additional loss of function or ROM. With repeated use over time, the examiner noted that pain caused functional loss with reduced ROM. Specifically, the Veteran’s forward flexion was to 60 degrees and his extension was to 10 degrees. His right and left lateral flexion were to 25 degrees. His right lateral rotation was to 25 degrees and his left lateral rotation was to 20 degrees. Regarding Correia, there was objective evidence of pain when the spine was non-weight bearing, but not weight-bearing, and the examiner noted that passive ROM of the spine was not performed as it was not feasible to do in a safe and reasonable manner. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine and was no ankylosis of the spine. Other than radiculopathy of the BLE, which will be discussed in further detail below, no neurologic abnormalities or findings related to the Veteran’s back disability, to include bladder or bowel problems, were noted on examination. Based on the foregoing, the Board finds that an initial rating in excess of 10 percent prior to December 4, 2020, and in excess of 20 percent thereafter for the Veteran’s back disability is not warranted. Specifically, prior to December 4, 2020, the evidence of record does not reveal that forward flexion of the thoracolumbar spine was limited to 60 degrees or less or the combined range of motion was limited to 120 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Furthermore, there was muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis. However, as of December 4, 2020, the date of VA examination, the Veteran’s forward flexion was limited to 60 degrees following repeated use over time due to pain. Nonetheless, a rating in excess of 20 percent as of such date is not warranted as there was no evidence showing forward flexion of the lumbar spine was limited to 30 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, or ankylosis. The Board has also considered whether separate ratings for associated objective neurologic abnormalities other than the Veteran’s already separately rated radiculopathy of the BLE are warranted pursuant to Note (1) of the General Rating Formula. However, as there is no evidence that his service-connected back disability results in such manifestations, such additional separate ratings are not warranted. Accordingly, an initial rating in excess of 10 percent prior to December 4, 2020 and in excess of 20 percent thereafter for the Veteran’s back disability under the General Rating Formula is not warranted. 2. Propriety of the assignment of the separate rating for radiculopathy of the LLE, evaluated as 10 percent disabling as of December 4, 2020. 3. Propriety of the assignment of the separate rating for radiculopathy of the RLE, evaluated as 10 percent disabling as of December 4, 2020. As noted above, the Veteran is in receipt of separate ratings for radiculopathy of the LLE and RLE associated with his back disability. Such disabilities are rated pursuant to DC 8720, which pertains to neuralgia of the sciatic nerve, which, in turn is rated as paralysis of the sciatic nerve under DC 8520. Such provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve; a 20 percent rating for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve; and a 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Further, an 80 percent rating is warranted where there is complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. 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 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. 38 C.F.R. § 4.124a. The Veteran’s radiculopathy of the LLE is rated as 10 percent disabling as of December 4, 2020. In this regard, the Board finds that an effective date of February 6, 2014, but no earlier, is warranted for the assignment of such rating. Specifically, no radicular symptoms were reported or noted on examination in April 2011 and January 2014; however, a February 6, 2014, VA treatment record reflects the Veteran’s report of low back radiating to his left hip and leg, and objective examination revealed decreased sensory of the left L3 and L4. Thus, after resolving all doubt in favor of the Veteran, the Board finds that an earlier effective date of February 6, 2014, is warranted for the award of a separate rating for the Veteran’s radiculopathy of the LLE. However, the Board also finds that a rating in excess of 10 percent for radiculopathy of the LLE is not warranted as such disability results in no more than mild incomplete paralysis of the sciatic nerve. In this regard, on February 6, 2014, the Veteran’s muscle and reflex tests were normal for his LLE. In July 2014, his lower sensory examination was also intact, and he had normal muscle and reflex tests of his LLE. In January 2015, the Veteran continued to complain of back pain radiating to his left hip and leg with numbness in the leg. He had decreased sensory examination at the left L4-L5, but normal muscle and reflex tests. The Veteran’s sensation was also intact in October 2016 and, in November 2018, BLE strength was intact. Furthermore, at the December 2020 VA examination, the Veteran reported mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the LLE; however, sensory, reflex, and strength examinations were normal. Based on such subjective symptoms and objective examination, the examiner determined that the Veteran’s LLE radiculopathy resulted in, at most, mild incomplete paralysis of the sciatic nerve. Thus, based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted for radiculopathy of the LLE. With regard to the propriety of the separately assigned rating for the Veteran’s radiculopathy of the RLE, the Board finds that, as such objective neurologic abnormality was not shown prior to December 4, 2020, an earlier effective date for such separate rating is not warranted. Specifically, while the Veteran first reported RLE symptomatology, described as radiating tingling pain, at the September 2018 Board hearing, such is contemplated by the rating assigned under the General Rating Formula, and was not objectively shown, which is required under Note (1), until December 4, 2020. Specifically, at the VA examination conducted on such date, the Veteran reported mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the RLE; however, sensory, reflex, and strength examinations were normal. Based on such subjective symptoms and objective examination, the examiner determined that the Veteran’s RLE radiculopathy resulted in, at most, mild incomplete paralysis of the sciatic nerve. Thus, the Board finds that the assignment of a separate rating for RLE radiculopathy, evaluated as 10 percent disabling as of December 4, 20202, was proper. Other Considerations In reaching its conclusions, the Board acknowledges the Veteran’s belief that his back disability with associated radiculopathy of the BLE is more severe than as reflected by the currently assigned ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule and, while the Board recognizes that the Veteran is competent to provide evidence regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his back disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disabilities. The Board considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected back disability with associated radiculopathy of the BLE; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning additional staged ratings is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in connection with the initial rating claims adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching such determinations, the Board has considered the applicability of the benefit of the doubt doctrine, which has resulted in a partial award of the assignment of February 6, 2014, for the award of the separate 10 percent rating for the Veteran’s radiculopathy of the LLE. However, insofar as the Board has denied higher ratings for the disabilities on appeal, the preponderance of the evidence is against such aspects of the Veteran’s claims. Thus, the benefit of the doubt doctrine is not applicable in such regard and his initial rating claims must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.