Citation Nr: 21022938 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-39 783 DATE: April 19, 2021 ORDER Entitlement to a rating in excess of 20 percent rating for degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome prior to June 18, 2019, is denied. Entitlement to a 40 percent rating for spinal stenosis with degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome from June 18, 2019 is granted. Entitlement to a rating in excess of 40 percent for spinal stenosis with degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome from June 18, 2019 is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity is denied.   FINDINGS OF FACT 1. Prior to June 18, 2019, degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome was manifested by forward flexion of greater than 30 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees. There are no incapacitating episodes of IVDS and there is no ankylosis. 2. From June 18, 2019, spinal stenosis with degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome has manifested by forward flexion to 30 degrees or less. There are no incapacitating episodes of IVDS and there is no ankylosis. 3. Based upon facts found, including testimony, an increase in disability due to spinal stenosis was demonstrated. 4. Radiculopathy of the right lower extremity is manifest by no greater than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to June 18, 2019, the criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. From June 18, 2019, the criteria for a rating of 40 percent for spinal stenosis with degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome, but no higher, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5238. 3. The criteria for an evaluation in excess of 40 percent for spinal stenosis with degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5238. 4. The criteria for a rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2003 to November 2006. This appeal stems from an October 2016 rating decision that granted service connection for degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome and radiculopathy of the right lower extremity and assigned 20 percent evaluations for both. The Veteran filed a Notice of Disagreement in January 2017 seeking higher evaluations. A Statement of the Case was issued in March 2017, and the Veteran appealed to the Board in May 2017. In April 2020 the Board remanded these claims to obtain new VA examinations for the Veteran’s degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome and radiculopathy of the right lower extremity. These examinations were provided in December 2020. The prior remand instructions have been substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. 1. Spinal stenosis with degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome. The Veteran seeks a higher rating for spinal stenosis with degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome, currently rated 20 percent from March 14, 2014 to November 24, 2020, and 40 percent thereafter. Disabilities of the spine are rated under Diagnostic Codes 5235 through 5243 using the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Diagnostic Code 5243 may be used to evaluate the disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran’s disability was rated under Diagnostic Code 5242 from March 14, 2014 to November 24, 2020, which pertains to degenerative arthritis of the spine. In a December 2020 rating decision, the Regional Office rerated the Veteran’s lumbar spine disability under Diagnostic Code 5238, which pertains to spinal stenosis. The change was effective November 24, 2020 and was made based on the November 2020 VA examiner’s determination that the Veteran’s symptoms were caused by spinal stenosis. Both Diagnostic Codes 5242 and 5238 use the General Formula and the same rating criteria. Under the General Formula, a 10 percent rating is warranted 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 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 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 contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5238, 5242. The Veteran has been diagnosed with intervertebral disc syndrome (IVDS) for the entire period on appeal. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted 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 evaluation is warranted 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 evaluation is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note (1) to Diagnostic Code 5293 defined an “incapacitating episode” as “a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” “Chronic orthopedic and neurologic manifestations” were defined as “orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.” i. From March 14, 2014 to June 18, 2019. The Veteran’s degenerative disc disease of the lumbosacral spine with intervertebral disc syndrome was rated 20 percent disabling from March 14, 2014 to November 24, 2020 under Diagnostic Code 5242. At the September 2016 VA examination the Veteran reported chronic daily low back pain of mild intensity. During flares, he minimized weight bearing activities and treated his back with rest and pain medication. He noted that he could sit about an hour, stand about 30 minutes, walk from one end of the mall to the other, and drive in intervals of 75 – 80 miles before he needs to get out and stretch. He could lift and carry around 25 pounds, had to minimize bending, and could not crawl or climb. Range of motion testing shows forward flexion to 45 degrees with pain causing functional loss. Total range of motion was 180 degrees. Repetitive use testing showed no additional loss of function or range of motion after three repetitions. Localized tenderness did not result in abnormal gait or spinal contour. There was no muscle spasm or guarding. IVDS did not require bed rest prescribed by a physician. There was no finding of ankylosis. VA treatment records document treatment for the Veteran’s low back pain, including multiple surgical consultations. At an April 2015 VA orthopedic surgery consultation, he reported 1 to 2 episodes per year where his back acts up. August 2015 primary care notes show the Veteran had fallen and injured his back, resulting in severe pain that caused trouble sitting and walking. He contacted his VA primary care physician after the appointment to report that it had taken him 45 minutes to get out of bed due to pain, that he had fallen to the ground in the parking lot due to pain and could not get up, and had to be helped to his car by another Veteran. A January 2016 surgical consultation shows a symptomatic disk herniation that had failed all methods of conservative treatment, and that the attending physician believed it appropriate to move forward with a L5-S1 microdiscectomy surgery. We note that more recent VA records show the Veteran has been unable to have the surgery due to ongoing anemia. He has been prescribed multiple short acting opioid medications for back pain throughout the period on appeal, including tramadol and hydrocodone. The current 20 percent evaluation contemplates pain on motion, forward flexion better than 30 degrees, and a total range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of flexion reduced to 30 degrees or less. We note that the 20 percent evaluation was assigned following the September 2016 examination, which showed forward flexion to 45 degrees and total range of motion of 180 degrees. The Veteran has complained of low back pain throughout the course of this appeal. However, as discussed above, to warrant a 40 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the evidence must show that the Veteran’s back disability results in forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. We find the Veteran’s low back symptomatology did not approach the criteria required for a 40 percent disability rating for the period from March 14, 2014 through June 2019. First, the record is absent any indication of ankylosis. Moreover, the objective medical evidence demonstrates that the Veteran maintained forward flexion of better than 30 degrees. The only range of motion measurements available dating from this period are from the September 2016 examination. There are no medical findings to the contrary during the period under consideration. The Board has considered the Veteran’s reports regarding pain, functional impairment, and his flareups. See DeLuca v. Brown, 8 Vet. App. 202 (1995). He experienced essentially constant low back pain during this period and has reported severe flareups that gradually increased in frequency. However, the Board places greater probative value on the objective clinical findings which are against a higher disability rating. The flare-ups remained infrequent during this period and do not provide a basis for ignoring the September 2016 examination results, which do not show forward flexion was limited to 30 degrees or less. A higher evaluation under Diagnostic Code 5243 and the formula for rating IVDS is not warranted, as there is no indication the Veteran has had incapacitating episodes requiring bed rest prescribed by a physician at any point during the period on appeal. We note that the Veteran is service connected for radiculopathy of the left and right lower extremities as secondary to his lumbar spine disorder. Any associated neurologic abnormalities are to be evaluated separately under the appropriate diagnostic codes. The rating for the right lower extremity is addressed later in this decision. The rating for the left lower extremity is currently part of a separate appeals stream and will not be addressed in this decision. The record reflects that there are no other associated neurologic abnormalities, including but not limited to bowel or bladder impairment. See Note 1, General Rating Formula for Diseases and Injuries of the Spine. The Board finds that the 20 percent rating adequately compensates the Veteran for any functional impairment attributable to his low back disability. See 38 C.F.R. §§ 4.41, 4.10. Accordingly, a 40 percent disability rating of the Veteran’s lumbar spine is not warranted for this period. ii. From June 18, 2019. The Veteran testified before the undersigned VLJ at a Board hearing in June 2019. Regarding his back disability, he reported there were situations where he could not bend forward more than 30 degrees. He recalled a situation a month prior where he had hurt his back bending down to pick up a television remote and that when the pain was at its worst, he could not stand, sit, or sleep. The flareups had occurred once every other month but had recently increased to once or twice per month. He was provided a new VA examination in November 2020. The Veteran reported constant sharp low back pain. He could not lift over 15 pounds, avoided bending or picking things up off the ground, and was unable to run or jump. He avoided sitting for more than one or two hours, standing more than 45 minutes, and walking more than two blocks. Range of motion testing showed forward flexion of the thoracolumbar spine was limited to 35 degrees initially but fell to 20 degrees with repeated use. The Veteran reported severe flareups twice per month that lasted 6 to 18 days and were precipitated by bending, lifting, and twisting. The examiner estimated that flexion was limited to 10 degrees during flareups. There was no finding of ankylosis. We note that the 40 percent rating, effective November 24, 2020, was assigned as of the date of the VA examination. Here, the Veteran provided competent and credible lay testimony that his lumbar spine disability limited forward flexion to less than 30 degrees, which was later confirmed upon examination in November 2020. As such, the Board will partially grant the Veteran’s claim and assign a 40 percent rating effective June 18, 2019, the date of the Board hearing. Although his reports during the hearing reflect impairment prior to such testimony, it is the date of the hearing that provides the facts found to justify a change in the evaluation. However, the Board finds that a rating in excess of 40 percent is not warranted. The level of limitation demonstrated by the Veteran’s testimony and the November 2020 examination report supports a 40 percent rating pursuant to the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71. Forward flexion was limited to 30 degrees or less, one of the criteria warranting a 40 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Codes 5238, 5242. The next question is whether the Veteran’s lumbar spine disorder meets or more nearly approximates the criteria for a higher rating. As explained above, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Additionally, a 60 percent rating would be warranted for IVDS with incapacitating episodes (a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician) having a total duration of 6 weeks in a 12-month period. See Diagnostic Code 5243. The current 40 percent evaluation contemplates no appreciable remaining functional flexion. We find that the criteria for a rating more than 40 percent under the General Formula are not met or approximated at any time relevant to this claim. The Veteran has not asserted, nor have either treatment records or the VA examination reports shown, any ankylosis. A higher evaluation under Diagnostic Code 5243 and the formula for rating IVDS is not warranted, as there is no indication the Veteran has had incapacitating episodes requiring bed rest prescribed by a physician at any point during the period on appeal. The Board is mindful of the Veteran’s assertions as to pain and functional limitation. However, he is in receipt of the maximum evaluation for limitation of motion. A 40 percent evaluation contemplates forward flexion of the thoracolumbar spine limited to 30 degrees or less, which was demonstrated at the Board hearing and the November 2020 VA examination. Unfavorable ankylosis of the spine must be shown to warrant a higher rating under the General Formula, and the evidence establishes there is no ankylosis of the Veteran’s spine. Moreover, the General Rating Formula for the spine is used to rate spine disability with or without symptoms such as pain of the lumbosacral spine. The Veteran’s complaints of pain and limited motion are consistent with his 40 percent rating. Accordingly, a 40 percent rating adequately represents any functional impairment attributable to the disability at all relevant times. See 38 C.F.R. §§ 4.41, 4.10. The preponderance of the evidence is against a rating in excess of 40 percent at any time during the pendency of the claim for this disability. Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Radiculopathy right lower extremity. The Veteran’s radiculopathy of the right lower extremity is rated 20 percent throughout the period on appeal. The radiculopathy is rated under Diagnostic Code 8520, which pertains to paralysis of the sciatic nerve. A 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity, where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term incomplete paralysis indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. We find that there was not more than moderate incomplete paralysis shown or approximated for either lower extremity during the appeal period, and the appeal must be denied. The Veteran was provided a VA back conditions examination in September 2016. Regarding radiculopathy symptoms, he reported pain radiating to his right lower extremity to his knee with intermittent dysesthesias in his right calf. Muscle strength testing showed normal strength and the right knee and ankle reflexes were hypoactive. Right lower leg, ankle, foot, and toe sensation was decreased. Mild paresthesias and dysesthesias and moderate intermittent pain were noted in the right lower extremity. The examiner indicated the right lower extremity radiculopathy was moderate in severity. At the November 2020 VA examination, the Veteran reported intermittent tingling and numbness in his right posterior thigh and back of the knee, with intermittent sharp pains from his low back to his knee. He reported no impact from the numbness and tingling. There were mild paresthesias and dysesthesias, moderate intermittent pain, and severe numbness of the right lower extremity. Muscle strength testing showed normal strength for the right lower extremity and there was no muscle atrophy. Right ankle reflexes were hypoactive, and sensation testing for light touch of the right foot and toes was absent. The remaining relevant reflexes and sensory testing were normal. The Veteran had a slightly antalgic gait attributed to back pain only. The examiner assessed moderate incomplete paralysis of the right sciatic nerve. The VA examination findings do not suggest there was moderately severe incomplete paralysis of the sciatic nerve. Moderately severe incomplete paralysis was specifically noted as not present by the examiners. The VA treatment records for the appeal period are consistent with this examination report in that they do not support more than moderate incomplete paralysis. The Veteran has reported radiculopathy symptoms during the relevant appeals period. At an April 2015 orthopedic consultation, he reported thigh numbness and weakness during a flare of low back pain and that his legs feel heavy if walking more than half a block. More recent VA treatment records primarily show complaints of pain radiating into the left leg rather than the right. See, e.g., December 2019 Primary Care Notes. April 2020 progress notes show pain occasionally radiating to his left leg with no numbness, tingling, or weakness. He had pain radiating to the bilateral buttock in July 2020. The Board has considered the Veteran’s testimony at the June 2019 Board hearing where he discussed symptoms relating to his right lower extremity radiculopathy. There was numbness and tingling into his right leg to the knee, and he reported that he had a constant limp that interfered with his ability to walk up and down stairs and squat and rise. The Veteran is competent to describe his symptoms and their functional impact, such as interference with walking, using stairs, and squatting. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, we find that these described limitations, when combined with the medical record, result in a disability picture that fits within the criteria contemplated by the assignment of the current 20 percent ratings. A limp has not been noted by any medical professional during the period on appeal. The Veteran’s gait has been noted as normal during VA appointments. Although he had an antalgic gait at the November 2020 examination, such was attributed to his low back pathology only rather than his radiculopathy. Furthermore, the November 2020 examination report shows the Veteran reported no impact from the right leg numbness and tingling. There is no muscle atrophy or other trophic changes. Critically, no medical professional assessed more than moderate sciatic nerve paralysis. We also note that many of the Veteran’s complaints made during VA treatments have been for left leg radiculopathy, which is not at issue in the instant appeal. In sum, more than moderate incomplete paralysis of the sciatic nerve of the right lower extremity is not suggested by the evidence. Although the Veteran reported physical manifestations during the Board hearing, such have generally not been identified elsewhere. Antalgic gait was attributed to his low back pathology only during the November 2020 examination. The documented findings relating to the Veteran’s right lower extremity radiculopathy have been wholly sensory. See 38 C.F.R. § 4.124a. For the foregoing reasons, the preponderance of the evidence is against a rating in excess of 20 percent for radiculopathy of the right lower extremity. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.