Citation Nr: 21023205 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-24 971 DATE: April 20, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for service- connected degenerative disc disease of the lumbar spine is denied. Effective January 20, 2021, an increased rating of 20 percent, but no greater, for radiculopathy of the right lower extremity is granted. FINDINGS OF FACT 1. During this appeal period, the Veteran’s service-connected degenerative disc disease of the lumbar spine did not demonstrate forward flexion of 30 degrees or less or favorable ankylosis of the thoracolumbar spine. 2. Since January 20, 2021, the Veteran’s radiculopathy of the right lower extremity has been manifested by severe incomplete paralysis of the peroneal nerve of the right foot. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for degenerative joint disease of the thoracic spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. Effective, January 20, 2021, the criteria for a separate rating of 20 percent, but no higher, for radiculopathy of the right lower extremity involving the superficial peroneal nerve are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2010 to September 2010. These matters come to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In December 2011, the AOJ issued a rating decision granting service connection for degenerative disc disease of the lumbar spine and assigned a 20 percent evaluation effective September 9, 2010. In June 2012 the Veteran requested reconsideration of the initial disability rating assigned for her back disability. In June 2014 the AOJ proposed to reduce the Veteran’s evaluation to 10 percent effective September 1, 2014. In May 2020, the Board restored the 20 percent rating and remanded the increased rating claim to afford the Veteran a contemporaneous VA medical examination and obtain outstanding treatment records. The AOJ obtained the outstanding treatment records and afforded the Veteran a contemporaneous VA examination. There has been substantial compliance with the Board’s remand directives. Entitlement to a disability rating in excess of 20 percent for the service-connected degenerative disc disease of the lumbar spine. The Veteran contends her service-connected degenerative disc disease of the lumbar spine (back disability) warrants a greater than 20 percent disability rating. See June 2012 NOD. The question for the Board is whether the Veteran has established entitlement to a greater than 20 percent disability rating for her back disability at any time during the appeal period. For the reasons discussed below, the Board concludes a higher disability is not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 U.S.C. § 1155; 38 C.F.R., Part 4. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying scheduler criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-39 (2011). The Veteran’s service-connected degenerative disc disease of the lumbar spine is rated as 20 percent disabling under DC 5242, Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome. 38 C.F.R. § 4.71a. Under DC 5242, rates are based on limitation of flexion. That code provides that a 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but less than 60 degrees, or the combined range of motion of the thoracolumbar spine is less than 120 degrees. The next higher rating, a 40 percent rating, is warranted when there is evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability evaluation is warranted when there is evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is warranted when there is evidence of unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The record reflects the Veteran is service connected for superficial peroneal nerve injury with sensory and motor deficit in the right foot and is rated as 10 percent disabling under DC 8599-8522. 38 C.F.R. § 4.124a. Under Diagnostic Code 8522, a 10 percent disability rating is warrant when there is moderate incomplete paralysis of the superficial peroneal nerve (nerve). A 20 percent rating is warranted for severe incomplete paralysis of the nerve. A 30 percent disability rating is warranted for complete paralysis of the nerve manifested by eversion (a turning inside out) of foot weakened. A 30 percent rating is the highest rating available under that Code. 38 C.F.R. § 4.124a 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. 38 C.F.R. § 4.124a. The words “mild,” “moderate” and “severe” are not defined in the VA Schedule for Ratings Disabilities. 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. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Reasonable doubt exists when there is an approximate balance of positive and negative evidence for and against the claim. 38 C.F.R. § 3.102. In April 2011, the Veteran underwent her first VA disability examination for her back condition. The Veteran reported she started observing back pain during basic training and it progressively worsened since her separation from service (September 2010). See April 2011 Compensation and Pension Examination at 2. The Veteran also reported flare-ups of moderate pain brought on by excessive walking. She reported her flare-ups occur weekly and last one to two days. The examiner noted there was no functional impairment caused by the Veteran’s flare-ups. Id. at 6. Range of motion testing was performed on her back. Initial measurement for forward flexion was 0 to 60 degrees; for extension, 0 to 20 degrees; for right lateral flexion, 0 to 30 degrees; left lateral flexion, 0 to 30 degrees; right lateral rotation, 0 to 30 degrees; left lateral rotation, 0 to 30 degrees. The combined range of motion for the thoracolumbar spine was 200 degrees. The examiner noted there was no pain on motion. Id. at 11. The examiner noted the diagnosis of degenerative disc disease. The examiner also noted there was no effects on her ability to work or perform daily activities. Id. at 21. The examiner als noted that straight leg testing was performed, and the results were negative. Id. at 11. And the examiner did not diagnose a right foot condition. Id. at 21. In August 2012, the VA received a statement from the Veteran’s mother, M.C., wherein she provided her observations of the Veteran. M.C. reported she observes the Veteran have difficulty performing daily activities, to include standing at the counter to prepare meals, carrying bags of groceries, and chores around the house. And she observed the Veteran walk with a limp. See July 2012 Statement from M.C. Later, on February 19, 2013, the VA received two more statements: one from the Veteran and another from her (now former) spouse. Her spouse, T.S., reported he observes the Veteran have difficulty performing daily activities, to include standing at the counter to prepare meals, carrying bags of groceries, and chores around the house. And he noticed she walked with a limp. See July 2012 Statement from T.S. In the Veteran’s statement, she indicated her back disability appeared to be worsening, to include a need to take pain relievers, her back gave out more often, and she noticed difficulties walking. She added that he back disability interfered with her ability to work. See July 2012 Statement. Later, in August 2013, the Veteran underwent another VA disability examination for her back disability. She reported observing pain since her last disability examination. She added that she observed tightness at her lower back. See August 2013 VA Disability Benefits Questionnaire at 2. During this examination, the Veteran did not report flare-ups. Id. The examiner noted the diagnosis of degenerative disc disease of the lumbar spine. Id. at 2. The examiner also noted the Veteran’s back disability impacted her ability to work. As an example, the Veteran’s was unable to lift items more than 25 pounds or stand for more than 15 minutes, which impacted her work in retail management. Id. at 8. Range of motion testing was performed on her back. Initial measurement for forward flexion was 0 to 75 degrees; for extension, 0 to 25 degrees; for right lateral flexion, 0 to 25 degrees; left lateral flexion, 0 to 20 degrees; right lateral rotation, 0 to 25 degrees; left lateral rotation, 0 to 25 degrees. The combined range of motion for the thoracolumbar spine was 195 degrees. The examiner noted there was no objective evidence of pain on motion. Id. at 2-3. The examiner noted there was no additional loss of motion after repetitive use testing, but pain contributes to functional loss. Id. at 3-4. The examiner added that repetitive use testing indicates the Veteran would have significantly limited functional ability of the lumbar spine due to pain when the joint is used repeatedly over time, regardless of whether she is in a flare-up or not. Id. at 7-8. The examiner did not find signs or symptoms of radiculopathy nor any other neurological abnormalities. Id. at 6. The examiner also noted the Veteran has intervertebral disc syndrome (IVDS) but no incapacitating episodes over the last 12 months. Id. at 6. The same examiner who conducted the Veteran’s evaluation of her back disability also evaluated the Veteran’s service-connected right foot disability involving the peroneal nerve. During that examination, the Veteran reported her observations of symptoms associated with this disability have been the same since her last examination (April 2011). See August 2013 VA DBQ Peripheral Nerve at 1. The examiner evaluated the severity of her right foot disability as moderate. Id. at 14. Private medical records submitted by the Veteran include an April 2019 note showing her doctor consulted with an orthopedic surgeon about her back problems. Provider investigated Veteran’s back problems. To that end, provider consulted with an orthopedic surgeon who reviewed her MRIs: the orthopedic surgeon concluded Veteran did not have radicular symptoms. See April 2, 2019, Record by S.R., MD. In January 2021, the Veteran underwent another VA disability examination for her back disability. The Veteran reported her symptoms have worsened since her last examination. Now, she observes constant pain at her back. She described it as throbbing pain that, at times, is accompanied by tingling sensations or numbness. She also reported paralysis of some of the toes of her right foot. See January 2012 VA DBQ at 2. The Veteran also reported flare-ups. She reported she observes severe back pain that will appear without any observable cause occur. She added that the pain lasts about three to four days. And the flare-ups occur at a frequency of twice a week. She added that her flare-ups limit her about to do anything. Id. at 3. The examiner noted the diagnoses of degenerative arthritis of the spine. Id. at 1. The examiner also noted the Veteran’s disability interferes with her ability to engage in prolonged standing, sitting, walking. Also, the Veteran walks with a right leg limp, related to her radiculopathy. Id. at 15. The examiner added the Veteran’s back disability impacts her ability to work. Range of motion testing was performed on her back. Initial measurement for forward flexion was 0 to 75 degrees; for extension, 0 to 25 degrees; for right lateral flexion, 0 to 20 degrees; left lateral flexion, 0 to 20 degrees; right lateral rotation, 0 to 20 degrees; left lateral rotation, 0 to 20 degrees. The combined range of motion for the thoracolumbar spine was 180 degrees. Pain on motion was noted for forward flexion, extension, right lateral flexion, right lateral rotation, left lateral flexion, and left lateral rotation. The examiner also noted mild soreness at the lower lumbar spine. Id. at 4. The examiner indicated the Veteran was not able to participation in repetitive use testing out of fear of pain. As a result, the examiner did not provide an opinion as to any additional loss of motion after three repetitions. Id. at 5. The examiner considered the Veteran’s observations and concluded that pain, fatigue, weakness, lack of endurance, and incoordination result in limited functional ability with repeated use over time. The examiner described the functional loss in terms of range of motion limitations: forward flexion was 0 to 70 degrees; extension, 0 to 20 degrees; right lateral flexion, 0 to 15 degrees; left lateral flexion, 0 to 15 degrees; right lateral rotation; 0 to 15 degrees; left lateral rotation, 0 to 15 degrees. The combined range of motion for the thoracolumbar spine was 150 degrees. Id. at 5-6. Although the examiner did not conduct the range of motion testing during a flare up, the examiner provided an opinion based on the Veteran’s statements describing functional loss: the examiner opined that pain, fatigue, weakness, lack of endurance, and incoordination result in functional loss. The examiner described that functional loss in terms of range of motion limitations: forward flexion was 0 to 70 degrees; extension, 0 to 20 degrees; right lateral flexion, 0 to 20 degrees; left lateral flexion, 0 to 20 degrees; right lateral rotation; 0 to 20 degrees; left lateral rotation, 0 to 20 degrees. The combined range of motion for the thoracolumbar spine was 170 degrees. The examiner noted evidence of pain on passive, and non-weight bearing testing of the back. Id. at 15. The examiner noted there is no evidence of guarding or muscle spasm. Id. The examiner found that the Veteran had radiculopathy at the right lower extremity involving the right superficial peroneal nerve. When evaluating its severity, the examiner noted moderate intermittent pain as well as severe numbness, paresthesias (an abnormal touch sensation, such as burning, prickling, or formication, often in the absence of an external stimulus) and/or dysesthesias (distortion of any sense, especially of that of touch). Then, the examiner concluded the overall severity of the Veteran’s radiculopathy of the right lower extremity is severe. Id. at 10-11. The examiner noted there is no radiculopathy at the left lower extremity. Id. Nor is there ankylosis. Id. at 11. Nor any other neurological abnormalities related to the thoracolumbar spine, to include intervertebral disc syndrome (IVDS). Id. at 10, 11. The examiners also noted the functional loss due to pain, fatigue, weakness, and lack of endurance. And they quantified those effects in terms of range of motion limitations. Mitchell, 25 Vet. App. at 37-38. Since the examiners considered the Veteran’s lay statements and addressed any functional loss due to flare-ups—the Board finds the August 2013 and January 2021 VA DBQs provide clear pictures of the extent to which pain is disabling—and assigned them significant probative weight. Id. at 44. Based on the examiners’ descriptions of range of motion limitations, the Veteran is not entitled to a disability rating greater than 20 percent, which is the disability rating currently assigned. During those examinations, her forward flexion ranged from 70 to 75 degrees, even when flare-ups were considered. Also, the combined range of motion range from 150 to 195 degrees. See August 2013 VA DBQ at 2-4; January 2021 VA DBQ at 7. In this case, the evidence is not approximately balanced in favor of an increased disability rating. The lay evidence of record did not describe a disability picture that approximates limitations that warrant a greater than 20 percent disability rating. The Veteran’s lay assertions were found credible but of little help in determining evaluating her disability. And probative value of the lay evidence was outweighed by the findings in the more the probative August 2013 and January 2021 VA DBQs. So, reasonable doubt could not be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Accordingly, The Board finds the evidence does not support a grant of a greater than 20 percent disability rating on and after February 2013. Although the examiners who conducted the August 2013 and January 2021 VA DBQs found signs or symptoms of IVDS, they also noted it was not accompanied by incapacitating episodes having a total duration of at last 4 weeks but less than 6 weeks during the past 12 months, which is required for a greater that 20 percent rating under DC 5243, IVDS. 38 C.F.R. § 4.71a, DC 5243. And the examiner did not note disc herniation with compression and/or irritation of the adjacent nerve root. So, a rating assignment under the amended Code would not be warranted. See Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76457, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243). Furthermore, the Veteran’s forward flexion has been greater than 60 degrees throughout the appeal period. In sum, the evidence of record does not show that the severity of the Veteran’s service-connected back disability rated under DC 5242 warrants a rating greater than 20 percent rating at any time during the period on appeal. Hart, 21 Vet. App. at 505. Since the examiner who conducted the January 2021 VA disability examination found radiculopathy involving the superficial peroneal nerve and the Veteran is already service-connected for a disability involving that nerve, the first question is whether the Board can grant an increased disability rating when the Veteran has not contested the rating already assigned one. The answer to that question is yes because the rating formula for the spine instructs adjudicators who are evaluating ratings for back disabilities to award separate ratings for radiculopathy, even when those disabilities have not been expressly raised. 38 C.F.R. § 4.71(a) Note (1). Specifically, that note tells adjudicator to evaluate any associated objective neurological abnormalities separately, under an appropriate diagnosis. The examiner who conducted the January 2021 VA disability examination found radiculopathy of the right lower extremity involving the superficial peroneal nerve. See January 2021 VA DBQ at 10. Since the examiner is a medical professional who is qualified to make that determination, her finding is objective evidence of a neurological abnormality. So, there is sufficient evidence to warrant a separate rating, effective January 20, 2021. Hart, 21 Vet. App. at 509-10. The examiner concluded the Veteran’s radiculopathy of the superficial peroneal nerve is severe. See January 2021 VA DBQ at 11. Since the examiner is a medical professional who is qualified to make that determination, the Board assigned her conclusion great weight. The Board notes the examiner did not indicate the Veteran has complete paralysis of the right foot, which is required for the next higher rating of 30 percent. In this case, the weight of the evidence is in favor of finding symptoms associated with the peroneal nerve are severe. As a result, the Board assigned a 20 percent disability rating for severe incomplete paralysis. Accordingly, the Board finds that the evidence supports an increased disability rating under DC 8522 of 20 percent for the Veteran’s radiculopathy of the right lower extremity effective January 20, 2021. The Board recognizes the Veteran has been assigned a disability rating of 10 percent under DC 8522 for a right foot disability; however, a search of the record did not reveal evidence that warranted a 20 percent rating earlier than January 20, 2021. That search included her August 2013 VA disability examination for peripheral nerves where she reported that her symptoms have remained the same since her April 2011 examination. So, there is no indication her symptoms warranted a disability rating greater than already assigned for that period of time. Effective, January 20, 2021, the criteria for a separate rating of 20 percent, but no higher, for radiculopathy of the right lower extremity involving the superficial peroneal nerve are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8522. R.R. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.