Citation Nr: 21022092 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-11 457 DATE: April 14, 2021 ORDER Entitlement to an initial compensable evaluation prior to July 12, 2016, and over 20 percent thereafter for the lumbar spine disability is denied. REMANDED The issue of entitlement to a separate compensable rating for radiculopathy of the right lower extremity is remanded. FINDING OF FACT The Veteran had a diagnosis of degenerative arthritis and IVDS for the entire appeal period. Prior to July 12, 2016 no significant limitation of motion or other functional impairment was shown. As of July 12, 2016, the disorder was manifested, at worst, as 55 degrees in forward flexion with no bedrest shown to be prescribed by a medical provider, no diminished reflexes, and no ankylosis of the spine. CONCLUSION OF LAW The criteria for a compensable rating for a lumbar spine disability prior to July 12, 2016, and over 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1998 to May 2003. The Veteran initially requested a hearing before the Board. The Veteran was notified that he was scheduled for a hearing on January 8, 2020, in an October 2019. The October 2019 letter explained the process for rescheduling the hearing and that if he did not show for the hearing, he must file a written motion for a new hearing date within 15 days. The Veteran did not show for the January 8, 2020 hearing. The Veteran did not provide cause for missing the hearing. The Veteran has not submitted a motion for a new hearing. Thus, the Board deems the hearing request withdrawn. 38 C.F.R. § 20.704 (d). Finally, it is noted that a separate compensable rating has been assigned for radiculopathy of the left lower extremity and there has been no disagreement with that action. As noted below, the record raises the issue of whether a separate compensable rating should be assigned for radiculopathy of the right lower extremity. That matter will be discussed in the Remand section below. The issue considered herein concerns the rating to be assigned for orthopedic findings during the appeal period. Entitlement to an initial compensable evaluation prior to July 12, 2016 and an initial evaluation in excess of 20 percent thereafter for a lumbar spine disability The Veteran contends that he is entitled to a higher rating than currently assigned for his lumbar spine disability. He reported having considerable pain and limitations in bending and rotation in the lumbar spine as a result of his lumbar spine disability, for which he was medically discharged. August 2015 Notice of Disagreement. Furthermore, he stated that he had never been asked about pain, though what the examiner requested him to do was painful, at a June 2015 VA examination. February 2016 VA Form 9. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). The Veteran’s lumbar spine disability is currently rated as lumbosacral strain with herniated lumbar disc and intervertebral disc syndrome (previously diagnosed as back condition, Diagnostic Code 5237) under Diagnostic Code 5242-5243. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses musculoskeletal system and muscle injuries. 85 Fed. Reg. 76453 (November 30, 2020). The final rule went into effect on February 7, 2021. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot pre-date the effective date of the amendments. The February 2021 revision did not change the rating criteria for Diagnostic Codes 5242 or 5243. However, it clarified for what conditions these Diagnostic Codes apply. Namely, Diagnostic Code 5242 and Diagnostic Code 5243 prior to February 2021 applies to degenerative arthritis of the spine and intervertebral disc syndrome (IVDS), respectively. 38 C.F.R. § 4.71a (2020). However, under the revised regulation effective February 2021, Diagnostic Code 5242 applies to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, and Diagnostic Code 5243 applies to IVDS when there is disc herniation with compression and/or irritation of the adjacent nerve root. The evidence indicates that the Veteran has degenerative disc disease and IVDS with disc herniation for the entire appeal period, as he had this condition since he was in service. See March 2002 and January 2003 service treatment records. Thus, prior to February 7, 2021, the Veteran’s lumbar spine affords consideration under both Diagnostic Codes 5242 and 5243, but under the revised regulation effective February 2021, the Veteran’s disability must be evaluated under Diagnostic Code 5243 only. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). 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. Under the General Rating Formula, a 10 percent rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Alternatively, where, as here, there is intervertebral disc syndrome, the spine may be evaluated under Diagnostic Code 5243 based on incapacitating episodes. Under Diagnostic Code 5243, a 20 percent disability rating is assigned when there is intervertebral disc syndrome with incapacitating episodes having a total duration of least two weeks but less than four weeks during the past 12 months. A 40 percent disability rating is assigned when there is intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. A 60 percent disability rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An “incapacitating episode” is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. 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 determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Turning to the evidence, the Veteran was diagnosed with degenerative joint disease of lumbosacral spine with herniated disc while in service, as noted above. At a June 2015 VA examination, the Veteran reported his back condition had remained the same since the onset in service with current symptoms of low-grade pain. He did not report flareup. The range of motion test showed normal results in all movement with no objective evidence of pain. The Veteran was able to perform repetitive-use testing with 3 repetitions with no loss in range of motion or functional loss. He did not have localized tenderness or pain to palpation or guarding or muscle spasm. Muscle strength was normal with no muscle atrophy. Sensory examination was normal and there was no symptom of radiculopathy. The examiner found that the Veteran had no IVDS. No imaging study was reviewed. The examiner determined that the Veteran’s back condition did not impact his ability to work and that none of pain, weakness, fatigability, or incoordination significantly limited functional ability during flareups or with repeated use over a period of time. A June 2015 VA treatment record indicates that the Veteran complained about chronic pain, but no sciatica. He reported rarely taking any pain medicine and the back condition did “not really slow him down much.” In an August 2015 notice of disagreement, the Veteran reported he was having considerable pain and limitations in flexibility, especially in bending and rotation. In a March 2016 VA Form 9, the Veteran reported that the June 2015 examiner did not ask about pain during the examination. He stated he had pain though he did whatever the examiner asked to do. A July 12, 2016 VA examination reflects a diagnosis of lumbosacral strain, degenerative arthritis of the spine, and IVDS, as well as diagnosis of herniated lumbar disc and lumbar radiculopathy. The Veteran reported having progressive pain, currently at about a 3/10. He stated that depending on activities, he could “be out for 3 days.” He further reported that his back issues had caused him to be released from his previous employment with the city working for parks. His pain was a constant dull ache running across the whole lower back. When the muscles were tensed up from use and activity, it would become a sharp pain and “it can put me down on my knees.” He reported radicular symptoms at night when he was trying to go to bed where the pain just ran down the back of his legs as well. He reported he had gone for deep tissue massages and acupuncture in private practice for relief, but had not found anything that worked to keep the pain away. At the examination, the Veteran reported flareups on a daily basis because he was not able to sit erect and back in a chair and they could last for a few minutes to a couple of hours. He reported he would lose about 40 percent of range of motion/functioning with flareups especially when they were severe, putting him out for about 3 to 4 days. His reported functional loss was inability to sit or stand in a position for too long, in car to drive for a long distance without taking frequent breaks, and to run. He reported pain increased with lifting, walking over various terrain, twisting, pulling, and leaning forward. The initial range of motion test showed forward flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees bilaterally, and right and left lateral rotation to 25 degrees bilaterally. Pain was noted in every movement, but did not result in additional functional loss. There was mild tenderness with palpation to L4-S1 region. He was able to perform repetitive use testing with at least three repetitions without any additional loss of function or range of motion. During a flareup, pain and weakness significantly limited functional ability. In terms of range of motion, the functional limitation would be as follows: forward flexion to 55 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees each, and right and left lateral rotation to 20 degrees each. The Veteran had localized tenderness and guarding, neither of which did not result in abnormal gait or abnormal spinal contour. Additional factors contributing to disability were disturbance of locomotion and interference with sitting and standing. Muscle strength was normal with no muscle atrophy. Reflex and sensory examinations were normal. He had radicular pain due to radiculopathy with involvement of left sciatic nerve. There was no ankylosis of the spine. The Veteran had IVDS of the thoracolumbar spine, but had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician or treatment by a physician in the past 12 months. He occasionally used a walking stick for assistive device. The examiner reported that the Veteran’s back condition was currently at a moderate level of severity due to continued progressive process of the disease and continued pain with decreased range of motion. He was noted to have decreased mobility, problems with lifting and carrying, and weakness and fatigue. Pain limited his ability to sit, stand, or talk for prolonged periods and required frequent rest or change in positions. A July 2019 VA examination reflects a diagnosis of degenerative arthritis of the spine, lumbosacral strain with herniated lumbar disc, and IVDS. His current symptom was low back pain. He reported that he did not have any treatment for the condition. During a flareup, he had to lie for about 3 or 4 days, and he could not work or function. He reported having an episode of moderate to severe flareup twice a month, lasting for a day. The initial range of motion test showed normal range for all movements. Pain was noted in forward flexion, left and right lateral flexion and rotation, but did not result in functional loss. There was no objective evidence of localized tenderness or pain on palpation. He was able to perform repetitive-use testing with at least three repetitions with no additional loss of function. For both during flareups and with repeated use over a period of time, pain and lack of endurance significantly limited his functional ability, resulting in reduction in range of motion as follows: forward flexion to 65 degrees, but such reduction was not noted for the other movements. He did not have guarding or muscle spasm. Muscle strength was normal with no muscle atrophy. Reflex and sensory examinations were normal. Radiculopathy of bilateral femoral nerves was observed. There was no ankylosis of the spine. The Veteran had IVDS with reported episodes of bed rest having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, based on the Veteran’s report of medical history only, without documentation. No use of assistive device was noted. The functional impact on his ability to work was loss of 1-2-week work time in the last 12 months and flareups. Based on a review of the evidence of record, the Board finds that the Veteran had a diagnosis of degenerative arthritis and IVDS for the entire appeal period on appeal. Prior to July 12, 2016, he had a full range of motion, and reported some pain on motion but no limitation of function was shown on examination. He reportedly was taking no pain medication, had no atrophy and all reflexes were normal. There was no radiculopathy reported on that examination, and overall, a basis for a compensable rating at that time is not shown. As of the July 12, 2016 examination, there was evidence of limitation of motion, which was manifested, at worst, as 55 degrees in forward flexion. Again, reflexes were normal, as was muscle strength and there was no atrophy. Both medical evidence, to include VA examinations and VA treatment records, and lay evidence do not indicate that the Veteran’s lumbar spine disability manifested in forward flexion 30 degrees or less or resulted in incapacitating episodes with a total duration of more than 4 weeks. On the more recent July 2019 examination, slightly better motion was shown, although the Veteran did report some episodes of incapacitation. He did not however, indicate that these had been prescribed by a physician, and there is no evidence to suggest otherwise. As such, while there is a basis for assignment of the 20 percent rating from July 12, 2016, there is no evidence demonstrating entitlement to a higher rating, based on limitation of motion or functional impairment. REASONS FOR REMAND The issue of entitlement to a separate compensable rating for radiculopathy of the right lower extremity due to lumbar spine disability is remanded. A July 2019 VA examination notes a diagnosis of radiculopathy involving nerves both lower extremities. This appears to be the first showing of right leg involvement. As such, the record raised the issue of whether a separate compensable rating is warranted for radiculopathy of the right leg, and if so specifically what nerve or nerve groups is/are involved. As such additional examination and initial consideration of this issue is warranted. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician concerning the Veteran’s radiculopathy of the right lower extremity. An examination should be conducted if needed. The examiner must opine: Whether the Veteran has radiculopathy involving the right lower extremity and if so, which nerve or nerve groups are involved. All functional limitations, if any, should be described.   All opinions expressed must accompany sufficient rationales. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor 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.