Citation Nr: 21022702 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-22 188 DATE: April 19, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for a lumbar spine disability is denied. Entitlement to an initial evaluation of 20 percent, but no higher, prior to November 3, 2011, and from November 1, 2015, through March 31, 2016, for radiculopathy of the left lower extremity is granted. Entitlement to an evaluation in excess of 10 percent from November 3, 2011, through October 31, 2015, and beginning April 1, 2016, for radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. The evidence of record reflects the Veteran’s lumbar spine manifested in pain, at times severe, and limitation of forward flexion of to 75 degrees throughout the period on appeal. 2. From September 19, 2011, through November 2, 2011, and from November 1, 2015, through March 31, 2016, the Veteran’s left lower extremity radiculopathy manifested in increased pain, decreased strength, and decreased sensation to light touch. 3. From November 3, 2011, through October 31, 2015, and beginning April 1, 2016, the Veteran’s left lower extremity radiculopathy manifested primarily in intermittent pain. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1 4.10, 4.71a, Diagnostic Code 5003-5242. 2. The criteria for an initial evaluation of 20 percent, but no higher, prior to November 3, 2011, and from November 1, 2015, through March 31, 2016, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 8520. 3. The criteria for an evaluation in excess of 10 percent from November 3, 2011, through October 31, 2015, and beginning April 1, 2016, for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.71a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Coast Guard from October 1988 to October 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2014. This case was previously before the Board in April 2015, May 2016, September 2017, December 2018, and October 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. The Board notes the Veteran recently indicated confusion regarding who had requested an increase in his lumbar spine and radiculopathy ratings. The Veteran initiated this appeal in February 2013, when he submitted a notice of disagreement with the 10 percent evaluation assigned for his lumbar spine disability in a March 2012 rating decision. He perfected the appeal in July 2013 when he submitted a VA form 9, and he later gave testimony regarding the severity of his lumbar spine disability before the undersigned VLJ in December 2014. Since that time, although the Board has examined the Veteran’s case several times, no final adjudication of the ratings has been completed, and the Veteran has not withdrawn his appeal in writing. Therefore, the Board maintains jurisdiction over the ratings. Next, the Board notes the Veteran refused an examination to determine the current severity of his lumbar spine and radiculopathy disabilities until he understood the nature of the current appeal. In November 2020, VA sent the Veteran a letter explaining the examination requested was for the appeal the Veteran initiated in response to the March 2012 rating decision. As noted, the Veteran did not withdraw the appeal, and the Veteran did not otherwise respond to the letter to reschedule the examination. Therefore, the Board will proceed with the evidence of record. Increased Rating Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Entitlement to an initial evaluation in excess of 10 percent for a lumbar spine disability The Veteran’s lumbar spine disability is currently rated as 10 percent disabling under Diagnostic Code (DC) 5003-5242 from November 1, 2009. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for degenerative arthritis of the lumbar spine. Spine disabilities are typically rated under the same general formula, except for intervertebral disc syndrome (IVDS), which has an alternate rating formula for incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5235-5243. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent rating for a lumbar spine disability is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or spinal contour; or there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal fate or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. All of these evaluations under the general formula for rating spine injuries consider the disabilities 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. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability 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 disability 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, DC 5243. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, 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. Id. Certain changes to the musculoskeletal rating criteria went into effect on February 7, 2021, including to the diagnostic code relevant to IVDS. This code now requires there be disc herniation with compression and/or irritation of the adjacent nerve root. The rating criteria formula remained the same. (The Board notes no changes were made to the General Rating Formula for Diseases or Injuries of the Spine or associated diagnostic codes.) 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, a finding of which must be supported by adequate pathology and evidenced by visible behavior on motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 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 also include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, VA must consider the provisions of 38 C.F.R. § 4.40 and § 4.45. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss of a joint can give rise to a higher schedular rating, to include if such functional loss is due to pain, but pain itself does not rise to the level of functional loss contemplated by VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-38 (2011). As noted above, the Veteran recently refused an examination to determine the current severity of his lumbar spine and radiculopathy disabilities. Therefore, the Board will proceed adjudication of the appeal based on the existing evidence of record. The record does not reflect the Veteran sought treatment for low back pain at any VA medical center during the period on appeal. In June 2011, the Veteran was afforded a VA spine examination, at which he reported sharp pain in his low back that arises from lifting, bending, or twisting. He reported taking over-the-counter pain reliever as needed, and practicing back protection and exercises learned during service on his own to prevent and treat back pain. The Veteran endorsed having moderate flare-ups of low back pain every five to six months that last three days to a week. The Veteran endorsed having muscle spasms in his back and denied fatigue, stiffness, and weakness. No abnormal gait or spinal contour was noted. The range of motion was measured to be 75 degrees in flexion; 20 degrees in extension; and 30 degrees in left and right lateral flexion and rotation. Pain was noted on motion. IVDS was not noted on the examination. The Veteran’s private treatment records reflect complaints in September 2011 of lower back pain with radiation to the left leg. He underwent a course of physical therapy to treat the pain; at the initial consultation in September 2011, the Veteran’s forward flexion was described as “to floor with symptoms easing,” and he was noted to move in a “very forward flexed body position.” The physical therapist noted “little, if any, lumbar spine movement” in lateral flexion. The Veteran reported limiting his work to office work instead of on-site visits due to a lack of tolerance to standing and walking. He also reported being limited to lifting only a few pounds. By October 2011, the physical therapist noted the Veteran was able to sit without favoring the left side and was walking at a more normal pace and in a more upright stance. The Veteran reported in October 2011 that the pain he initially reported had subsided, and he was able to lift and carry 15 to 20 pounds. The physical therapist noted in November 2011 that the Veteran had met all the treatment goals, could tolerate standing with an upright trunk position, and lift 35 pounds. In December 2014, the Veteran testified at a Board hearing. He reported that he leans back when sitting at work to keep pressure off his spine, and that lifting, twisting, and walking too long will affect his sciatic nerve. The Veteran testified that he purchased a TENS unit that helps relieve back pain and prevents his leg muscles from locking up during a flare-up. He also testified that his back pain limits him bending and standing on ladders, so at times he has to stop performing certain chores at home, such as lifting the goats onto the milk crate or lifting bags of feed. The Veteran testified that he needs to stop and rest if his work requires a lot of walking or work on ladders, noting that his back disability slows him down. In September 2015, the Veteran attended another VA spine examination, at which he reported continuing the exercises from physical therapy on his own and treating low back pain with over-the-counter pain relievers when needed. He also reported occasionally using a TENS unit that had been recommended by the physical therapist. The Veteran reported constant low back pain with referred pain into the left buttock, and he reported that climbing ladders causes increased pain. He also reported increased pain and decreased range of motion with prolonged standing or strenuous activity. The Veteran endorsed flare-ups, which he described as pain that shoots down the left leg into the left foot. The range of motion was measured to be 75 degrees in flexion; 20 degrees in extension; and 30 degrees in left and right lateral flexion and rotation. Pain was noted in extension and right lateral rotation but did not cause functional loss. The examiner opined the examination is consistent with the Veteran’s description of functional loss after repeated use or during a flare-up. The examiner noted localized tenderness, but noted that it did not result in abnormal gait or spinal contour; muscle spasms and guarding were not noted on the examination. IVDS was noted, but did not result in episodes requiring physician-prescribed bedrest. In February 2016, in a written statement, the Veteran indicated that he was experiencing increased pain from his low back disability, noting that if it did not improve, he would see a private provider for treatment. He described constant pain in the lower back and left leg, with daily episodes of severe pain every day since November 2015 during which he only finds relief by sitting in a recliner. The Veteran reported needing to lean forward slightly when standing in order to avoid pain, and using a cane for help in walking and standing. He described severe pain from walking in the grocery store while shopping. In March 2016, the Veteran submitted records of a CT scan of his lumbar spine from a private provider. The records also included a problem list showing arthralgia of the sacroiliac joint, arthropathy of the lumbar facet joint, congenital deformity of the lumbosacral region, lumbar radiculopathy, and lumbar spondylosis, all characterized as moderate in severity. No treatment notes related to the problem list or imaging were submitted. The record does not contain any other private medical records or statements from the Veteran pertaining to the low back disability. After review of the available evidence, the Board finds that an increased evaluation for the low back disability is not warranted. At both VA examinations during the period on appeal, the Veteran’s forward flexion was measured to be 75 degrees. Therefore, based on limitation of motion alone, an increase is not warranted, as the next higher evaluation requires limitation of forward flexion to less than 60 degrees. Similarly, although muscle spasms were reported at the June 2011 VA examination, there is no indication in the record of these resulting in abnormal spinal contour or gait, and the September 2011 physical therapy treatment notes do not provide precise measurements to determine whether the limitation noted in lateral flexion resulted in a combined range of motion not greater than 120 degrees. The Board has also considered the provisions of section 4.40 and 4.45, given the Veteran’s consistent and credible complaints of low back pain. See DeLuca, 8 Vet. App. at 207-08. The Veteran testified that his low back pain at times limits his ability to complete chores at home, and later reported experiencing daily episodes of severe pain relieved only by rest in a recliner. The Board also notes the episode of severe pain for which the Veteran sought treatment in 2011. However, the Board does not find that these complaints of low back pain cause an additional level of disability. First, the September 2011 physical therapist described the Veteran’s forward flexion as “to [the] floor,” indicating that the Veteran was not significantly limited in bending forward, despite the complaints of pain; the treatment notes even seem to indicate that bending forward helped ease the complained-of symptoms. Next, although the Veteran reported occasionally having to stop performing chores to avoid increased pain, the record does not reflect that pain prohibited the Veteran from bending forward less than 60 degrees or would result in muscle spasms causing abnormal gait or spinal contour. In fact, the Veteran’s testimony indicates he was able to lift goats and bags of feed for a period of time prior to occasionally wanting to stop. Similarly, he testified that the low back disability slows him down in that he needs to stop and rest; he did not testify that he was unable to perform any of these tasks. Finally, there are no range of motion measurements from the period from November 2015 to March 2016, when the Veteran reported daily episodes of severe pain. However, the Veteran reported that he continued to be able to walk and stand with a cane, and described being able to complete grocery shopping, although it resulted in pain. As pain itself does not rise to the level functional loss contemplated by VA regulations, Mitchell, 25 Vet. App. at 37 38, the Board does not find that a higher evaluation based on functional limitation is warranted in this case. The Board has also considered application of the IVDS rating formula based on the finding of IVDS at the September 2015 VA examination. However, as there is no evidence of physician-prescribed bedrest in the record, this rating formula does not afford the Veteran a higher evaluation for his low back disability. For these reasons, the Board finds an initial evaluation in excess of 10 percent is not warranted in this case. 2. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity The Veteran is currently in receipt of a 10 percent evaluation effective September 19, 2011, for radiculopathy of the left lower extremity under DC 8520, which governs paralysis of the sciatic nerve. Diagnostic Code 8520 provides for an 80 percent evaluation where there is complete paralysis of the sciatic nerve, with the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost. Lower ratings are assigned for incomplete paralysis of the sciatic nerve: a 60 percent evaluation for severe incomplete paralysis, with marked muscular atrophy; a 40 percent evaluation for moderately severe incomplete paralysis; a 20 percent evaluation for moderate incomplete paralysis; and a 10 percent evaluation for mild incomplete paralysis. 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 a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe,” as used in the various diagnostic codes, are not defined in the rating schedule. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. 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. Again, the Board notes the Veteran refused an examination to determine the current severity of his disabilities, so the Board will adjudicate the claim based on the available evidence of record. On September 19, 2011, the Veteran first sought treatment from a private physician for burning pain radiating from his left buttock down his left leg. He began a private physical therapy program to treat the radicular pain, which he described as primarily affecting the left thigh when standing or walking, occasionally feeling pain in the calf and infrequently in the ankle. The Veteran described the pain level as a four out of ten, with the worst being a seven out of ten. The physical therapist noted the Veteran walked with a limp and an antalgic gait, at a very slow pace. On examination, decreased sensation to light touch in the left anterior thigh and medial calf was noted, as was decreased bilateral lower extremity strength. By November 2, 2011, the Veteran reported a reduction in symptoms, particularly in radicular pain, which was described as a zero or one out of ten, more a feeling of discomfort or sensation of weakness than pain. He reported being able to spend six hours on his feet, and no longer having difficulty sleeping or driving due to the left leg symptoms. The Veteran reported being able to climb a ladder without difficulty and to walk at a more normal pace. At the December 2014 Board hearing, the Veteran testified that his sciatic nerve is affected by lifting, twisting, and walking too long; he reported he can walk “a couple of miles” on flat ground before he experiences pain in the left leg. He described the episode in 2011 as locking up his muscles down his leg, and that he learned exercises and techniques in the physical therapy that help him prevent similar episodes. The Veteran testified that his low back and left leg disabilities had worsened in that the left leg took a long time to recover from the severe episode in 2011, and that he felt his left leg was “still not the same.” In September 2015, the Veteran attended a VA spine examination, at which he reported that flare-ups of his low back disability consist of pain that shoots down his left leg into his left foot. He reported treating his pain with physical therapy exercises on his own, over-the-counter pain relievers, and a TENS unit he purchased himself. Muscle strength was noted to be slightly decreased in left hip flexion, but was otherwise normal in left knee flexion, ankle plantar flexion, ankle dorsiflexion, and great toe extension, and muscle atrophy was not noted. Reflexes were noted to be normal. Decreased sensation to light touch was noted in the upper anterior thigh, but was normal in the left thigh, knee, lower leg, ankle, foot, and toes. The examiner noted mild intermittent pain, paresthesias, and numbness in the left lower extremity. In a February 2016 written statement, the Veteran reported that his low back and left leg symptoms had increased in severity. He reported constant pain in his left leg, which he described varying from a three to a nine out of ten; he also reported daily episodes of “protracted severe pain” varying from a seven to a nine out of ten since “Late November.” The Veteran reported the pain affected his ability to stand and walk without pain. He reported using a cane to help in walking and standing, and described experiencing severe pain from walking through a grocery store while shopping. The Veteran reported experiencing leg cramps in his left leg, which affected his sleep. He also reported that he avoided climbing ladders due to pain and fear of falling due to a leg cramp or muscle weakness in the left leg. The Veteran noted that he had been treating his symptoms by himself, but that he would seek treatment if they continued without improvement. In March 2016, the Veteran submitted records of a CT scan of his lumbar spine from a private provider. The records also included a problem list showing lumbar radiculopathy characterized as moderate in severity. No treatment notes related to the problem list or imaging were submitted. The record does not contain any other private medical records or statements from the Veteran pertaining to the left lower extremity radiculopathy. After review of the available evidence, the Board finds that an increased evaluation for the radiculopathy is warranted for portions of the period on appeal. In September 2011, the Veteran’s private physical therapist noted decreased strength and sensation to light touch in the left lower extremity, as well as ambulation with a limp and a very slow pace. These clinical findings and observations, together with the Veteran’s reports of pain in the thigh, calf, and ankle, tend to describe moderate incomplete paralysis of the sciatic nerve. Similarly, in the period described by the Veteran in his February 2016 written statement, the Veteran reported experiencing severe pain and difficulty standing and walking, as well as leg cramps and a sensation of muscle weakness in the left leg. The Board also notes the private treatment provider’s problem list noted moderate lumbar radiculopathy. In this period, too, the Veteran’s left lower extremity radiculopathy symptoms tend to be better described as moderate than mild. Therefore, the Board finds that a 20 percent evaluation for radiculopathy is warranted for these two periods of increased symptomatology. The first period is from September 19, 2011, the date of the award of service connection, through November 2, 2011, when the Veteran’s physical therapist noted improvement. The second period, resolving benefit of doubt in favor of the Veteran, is from November 1, 2015, the month when the daily episodes of severe pain began, through March 31, 2016, the end of the month in which the Veteran sought private treatment for radiculopathy. For the period from November 3, 2011, through October 31, 2015, and the period beginning April 1, 2016, the Board finds that no increase is warranted. The Veteran’s testimony at the December 2014 Board hearing did not describe any current symptoms besides pain brought on by physical activity, and the evidence from the September 2015 VA examination indicates only mild sensory symptoms and clinical findings indicating slight decreases in strength and sensation in the upper thigh. Similarly, after seeking treatment in March 2016, the Veteran has not indicated that he sought treatment again throughout the rest of the appeal period. Although he consistently reported treating his symptoms on his own with conservative and preventative measures, the Veteran sought private treatment each time he had an increase in severity that has been characterized as moderate symptomatology. Therefore, the Board finds that the evidence reflects mild radiculopathy after March 2016, corresponding to the 10 percent evaluation the Veteran is already in receipt of. In conclusion, the Board finds that the appropriate evaluations for the Veteran’s left lower extremity radiculopathy throughout the appeal period are a 20 percent evaluation from September 19, 2011, through November 2, 2011; a 10 percent evaluation from November 3, 2011, through October 31, 2015; a 20 percent evaluation from November 1, 2015, throughout March 31, 2016; and a 10 percent evaluation beginning April 1, 2016. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.