Citation Nr: 21015757 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-13 425 DATE: March 18, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected radiculopathy, right thigh is denied. Entitlement to an initial 20 percent rating, but not higher, for service-connected lumbar sprain with residual myofascial pain is granted. FINDINGS OF FACT 1. The Veteran's radiculopathy of the right lower extremity has manifested in no more than mild intermittent pain and mild numbness. 2. The Veteran's lumbar sprain with residual myofascial pain is manifested by muscle spasms severe enough to result in abnormal spinal contour, but not by forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for service-connected radiculopathy, right thigh have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.123, 4.124, 4.124a, Diagnostic Code 8720. 2. The criteria for entitlement to an initial 20 percent rating, but not higher, for service-connected lumbar sprain with residual myofascial pain have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the Marine Corps from November 1995 to November 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for both lumbar sprain with residual myofascial pain and radiculopathy of the right thigh. The Veteran was assigned a 10 percent rating for each condition effective June 26, 2012. The Veteran testified before the undersigned Veterans Law Judge at a May 2019 video-conference hearing. A transcript of the hearing is included in the claims file. In September 2019, the Board remanded the claims for further evidentiary development. The case has been returned to the Board for further appellate proceedings. Increased Rating 1. Entitlement to an initial rating in excess of 10 percent for service-connected radiculopathy, right thigh is denied. In November 2013, the RO granted a 10 percent disability rating for radiculopathy, right thigh under 38 C.F.R. § 4.124, Diagnostic Code 8720. The Veteran now seeks a higher initial rating for this service-connected condition. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve, respectively. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve, which exists where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or lost. 38 C.F.R. § 4.124a. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than that suffered under complete paralysis, whether due to varied levels 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 words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” and “moderate” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. After a thorough review of the lay and medical evidence of record, the Board finds that the criteria for a rating in excess of 10 percent for service-connected radiculopathy, right thigh are not met. The December 2019 VA examiner noted that the Veteran has radiculopathy with only mild intermittent pain and mild numbness in his right lower extremity. No constant pain, paresthesias, or dysesthesias was noted. The VA examiner indicated that the Veteran's sciatic nerve was involved and that the overall severity of the radiculopathy was mild. He had 5 out of 5 muscle strength in all strength tests of the right lower extremity and had no muscle atrophy. This is in line with the results of the 2013 VA examination and 2016 Disability Benefits Questionnaire (DBQ), which also indicated that the severity of the radiculopathy of the right lower extremity was mild. The only difference in the earlier examinations was that the Veteran was listed as suffering from mild constant pain in the right lower extremity. He did not suffer from intermittent pain, paresthesias, dysesthesias, or numbness in either the right or left lower extremity in the earlier examinations. There is no other evidence of record indicating that the Veteran experiences more than mild symptoms of radiculopathy in his right leg. The Board notes that the Veteran is competent to report symptoms of his radiculopathy of the right lower extremity, as doing so requires only personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is also credible in his belief that he is entitled to a higher initial rating. However, the Veteran is not competent to offer a medical opinion, for example, as to the relative severity of his neurological symptoms of the right lower extremity. Doing so requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). Therefore, in assigning a disability rating, the Board relies upon the competent, probative opinions provided by the medical professionals. Those opinions are probative because the professionals have the knowledge and expertise necessary to evaluate neurological disorders, and because they are based on a review of the record or an accurate understanding of the Veteran's medical history, and on an in-person examination of the Veteran. They are thorough and provide enough detail to rate the Veteran under the relevant rating criteria. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). As discussed above, the VA examinations reveal that, throughout the rating period, the Veteran's radiculopathy of the right lower extremity has resulted in sciatic nerve symptoms of no greater than a mild degree of severity. Such manifestations do not warrant a rating in excess of 10 percent under the relevant rating criteria. The Board has also considered whether a higher rating is available under a different diagnostic code, such as Diagnostic Codes for radiculopathy of other nerves, but the evidence only shows involvement of the Veteran's sciatic nerve. Thus, no higher rating is available under an alternate Diagnostic Code. Based on this record, the criteria for a rating in excess of 10 percent are not met for the service-connected radiculopathy, right thigh at any point since the effective date of service connection under Diagnostic Code 8720. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial 20 percent rating, but not higher, for service-connected lumbar sprain with residual myofascial pain is granted. The Veteran was granted service connection for lumbar sprain with residual myofascial pain in the November 2013 rating decision; a 10 percent rating was assigned. He disagreed with the assigned initial rating and this appeal follows. For the reasons set forth below, the Board finds that the Veteran’s claim must be denied. The Diagnostic Code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243. The Veteran’s service-connected lumbar spine disability has been rated under Diagnostic Code 5237. VA’s schedule for rating musculoskeletal and muscle injury disabilities was revised effective February 7, 2021, during the pendency of the appeal. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Prior to February 7, 2021, the old rating criteria solely applies. From February 7, 2021, the most favorable rating criteria of the two applies. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the revisions to the General Rating Formula for Diseases and Injuries of the Spine do not include changes to DC 5237 contemplating lumbosacral strain. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5242). Under the General Rating Formula for Diseases and Injuries of the Spine, 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 is rated at 10 percent. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 30 percent rating is warranted when forward flexion of the cervical spine is 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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. These normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 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 that 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.”). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion and in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In the present case, the Veteran was afforded a VA examination of his back in October 2013. The Veteran reported that during flare-ups, he experiences functional impairment described as mild, daily aggravation that has increased pain as well as decreased range of motion. The VA examination reflected the Veteran’s forward flexion of the thoracolumbar spine was 80 degrees, meaning it was greater than 60 degrees but not greater than 85 degrees. The combined range of motion of the thoracolumbar spine was 205 degrees, which is greater than 120 degrees but not greater than 235 degrees. While the Veteran did have guarding or muscle spasm of the thoracolumbar spine, the examiner stated that it was not severe enough to result in abnormal gait or spinal contour. The examiner stated that the Veteran did not have intervertebral disc syndrome of the lumbar spine. Also of record are the Veteran’s VA outpatient treatment records showing his complaints of chronic low back pain. On examination in September 2014 and August 2015, the Veteran’s back was tender to palpation on the L4-L5 area. The examiner noted deviation of the lumbar area and tight muscles in the lumbar area, as well as pronounced lordosis. The September 2014 examiner stated that the last diagnostic tests showed moderate exaggeration of the expected lumbar lordosis, normal vertebral body alignment with no evidence of fracture or subluxation, mild to moderate disc space narrowing at L4-L5 and L5-S1 with mild narrowing at L3-L4, and facet arthritis at the lumbosacral junction. The Veteran used a TENS unit for his low back pain. A September 2015 MRI of the Veteran’s spine showed marked L4/5 degenerative change with disc bulge/extrusion, annular fissure and marked bilateral foraminal narrowing; moderate L5/S1 degenerative change with marked disc bulge/extrusion, annular fissure and moderate bilateral foraminal narrowing; and marked L3/4 disc bulge/extrusion with annular fissure. The Veteran’s problem list included a diagnosis of intervertebral disc prolapse. The Veteran was subsequently provided a DBQ by the VA in July 2016. He reported flare-ups of his back pain, described as “constant source of flare-ups and sometimes simply bending over causes his back to lock up and flare-up.” The pain and discomfort were ongoing. He reported constant limitations on all activities and constant recurrent pain. On examination, his initial forward flexion was to 90 degrees. However, after repetitive use forward flexion of the spine was limited to 70 degrees. The examiner stated that pain, weakness, and lack of endurance significantly limit functional ability with repeated use over a period of time and with flare-ups. In terms of range of motion, the examiner stated that the Veteran’s forward flexion of the lumbar spine would be limited to 70 degrees with repeated use over a period of time and with flare-ups. While the Veteran did have guarding or muscle spasm of the thoracolumbar spine, the examiner stated that it was not severe enough to result in abnormal gait or spinal contour. The examiner stated that the Veteran did have intervertebral disc syndrome (IVDS) of the lumbar spine, but no episodes of signs and symptoms of IVDS that required bedrest prescribed by a physician during the past 12 months. The Veteran was most recently afforded a VA medical examination in December 2019. He stated that he continued with “on and off” lower back pain. The pain was mostly in lower right lumbar region that radiated to the right side and at times was a “stiffness/ache like sensation” with occasional sharp stabbing pain. It then radiated down his right lateral thigh region. The Veteran also stated that during some flares he could have incapacitating right lower back spasms. He reported having flare-ups with prolonged sitting, standing, mis-stepping or bending. The flares occurred approximately one to two times a month, with pain at 9/10, and lasted approximately one day to a day and a half. During flares, the Veteran stated that he could only sit, stand or bed for short periods of time. On examination, his thoracolumbar spine demonstrated a forward flexion of 75 degrees with pain, which once again fell between the range of 60 degrees and 85 degrees. The VA examiner discovered that while the Veteran’s initial ROM is abnormal, the examiner found that it does not result in or cause functional loss. While pain was noted on the exam, the pain does not result in or cause functional loss. There was also no objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive-use testing with at least three repetitions and there was no additional loss of function or ROM after these three repetitions. Regarding Sharp, the examiner explained that after review of the Veteran's records, DBQ, physical examination, reported history and subjective complaints, and relevant evidence of record, and using her medical knowledge and expertise, she had no basis to offer additional losses of function or motion during a flare up. Regarding Correia, the examiner explained the following: passive ROM of the spine was not performed as it was not feasible to do so in a safe and reasonable manner. A non-weight bearing assessment was also not applicable because there was no objective evidence of pain when the spine is in a non-weight bearing position at rest. Opposing joint assessment was not applicable either because the spine does not have an opposing joint. The Board finds that the criteria for a 20 percent rating have been met for the Veteran’s service-connected lumbar spine disability for the entire appellate period. The Veteran has been shown to have muscle spasms in his lower back. While the October 2013 and July 2016 VA examiners found that the muscle spasms were not severe enough to result in abnormal gait or spinal contour, this is refuted by the Veteran’s VA outpatient treatment records. Specifically, VA treatment records dated in September 2014 and August 2015 showed tight muscles in the lumbar area with deviation of the lumbar area and pronounced lordosis, with moderate exaggeration of the expected lumbar lordosis shown on x-ray. Thus, as the evidence supports a finding of muscle spasm severe enough to result in abnormal spinal contour, the criteria for a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine have been met. However, the preponderance of the evidence is against entitlement to a disability rating in excess of 20 percent, as the Veteran’s lumbar spine disorder has not been manifested by forward flexion limited to 30 degrees or less or by favorable ankylosis of the entire thoracolumbar spine. There have been no complaints or findings of ankylosis of the spine. At worst, forward flexion of the lumbar spine was limited to 70 degrees with repeated use over a time and with flare-ups, as explained by the June 2016 VA examiner. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 206 -07 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011). Thus, the criteria for a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine have not been met or more nearly approximated. Diagnostic Code 5243, contemplating IVDS, is not applicable here as the Veteran is not service connected for IVDS. Further, the December 2019 VA examiner stated that the DJD of the Veteran’s lumbar spine and bulging/herniated disc shown on the MRI done in 2015 were not related to his service-connected lumbar strain with myofascial pain residuals because medical literature (listed by the examiner) does not support a "muscle sprain" causing DJD or herniated disc. Accordingly, an initial 20 percent disability rating, but not higher, is granted for lumbar sprain with residual myofascial pain under Diagnostic Code 5237. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gonzalez, Damian 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.