Citation Nr: 21023590 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-26 460 DATE: April 21, 2021 ORDER Entitlement to a disability rating of 10 percent for degenerative arthritis of the lumbar spine (a lumbar spine disability), prior to March 29, 2019, is denied. Entitlement to a disability rating of 40 percent, but no higher, for a lumbar spine disability, from September 26, 2016 to August 31, 2020, is granted. Entitlement to a disability rating in excess of 40 percent for a lumbar spine disability, since September 1, 2020, denied. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy is denied. Entitlement to a disability rating in excess of 10 percent for service-connected right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Prior to September 26, 2016, the preponderance of the evidence shows that the Veteran’s lumbar spine disability has not resulted in forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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; or, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes. 2. From September 26, 2016 to August 31, 2020, the Veteran’s service-connected lumbar spine disability, when considering his pain and corresponding functional impairment, is analogous to disability manifested by forward flexion to no greater than 30 degrees without pain. 3. Since September 1, 2020, the preponderance of the evidence shows that the Veteran’s lumbar spine disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during the past twelve months. 4. The Veteran’s left lower extremity radiculopathy has not been shown to be more than moderate in degree during the pendency of this appeal. 5. The Veteran’s right lower extremity radiculopathy disability has not been shown to be more than mild in degree during the pendency of this appeal. CONCLUSIONS OF LAW 1. Prior to September 26, 2016, the criteria for a disability rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243. 2. From September 26, 2016 to September 1, 2020, the criteria for a disability rating of 40 percent, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243. 3. Since September 1, 2020, the criteria for a disability rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243. 3. The criteria for a disability rating in excess in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for a disability rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1990 to September 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2015 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing is in the Veteran’s file. In June 2020, the Board remanded, the issue above and issues of entitlement to service connection for left lower extremity radiculopathy, to include as secondary to a service-connected lumbar spine disability, entitlement to service connection for right lower extremity radiculopathy, to include as secondary to a service-connected lumbar spine disability, and entitlement to service connection for depression, to include as secondary to a service-connected lumbar spine disability, for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Subsequently, in a September 2020 rating decision, the RO granted service connection for an adjustment disorder. Service connection for a scar of the low back was also granted. A noncompensable disability rating was assigned, effective September 26, 2016. As the Veteran has not appealed either the evaluations or effective dates assigned to these disabilities, these matters are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In the same rating decision, service connection for radiculopathy of the left lower extremity was granted. A 20 percent disability rating, effective December 10, 2014, was assigned. Service connection for radiculopathy of the right lower extremity was also granted. A 10 percent disability rating, effective December 2014, was assigned. The Board will consider whether higher ratings could be assigned as the assignment of these ratings as they occurred during the pendency of the appeal for the higher rating for the associated lumbar spine. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Lumbar Spine Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s lumbar spine disability is currently evaluated as 10 percent disabling prior to September 1, 2020, and 40 percent thereafter. The service-connected lumbar spine disability is currently rated under Diagnostic Codes 5239. 38 C.F.R. § 4.71a. Diagnostic Code 5239 pertains to rating spondylolisthesis or segmental instability of the spine. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (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. The General Rating Formula provides a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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 to 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 warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992). The General Rating Formula also provides at Note (1) that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Plate V, 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula 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 for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating 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. Note (1) to Diagnostic Code 5243 provides that an incapacitating episode is 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. The United States Court of Appeals for Veterans Claims (Court) has also issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016). This decision clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Board has reviewed the Veteran’s lay statements, testimony from the January 2020 Board hearing, and all relevant medical evidence, with particular attention to the VA examinations from May 2015, September 2016, March 2019 and September 2020. Prior to September 26, 2016 The May 2015 VA examination showed that the Veteran’s forward flexion was to 70 degrees. His combined range of motion was 150 degrees. The evidence did not show that the Veteran had muscle spasms or guarding resulting in an abnormal gait or abnormal spinal contour. Even considering additional functional limitation due to pain on movement as noted for the Veteran’s range of motion during the May 2015 examination, the overall evidence is found to be appropriately contemplated in the 10 percent evaluation. See DeLuca, 8 Vet. App. 202. An increased rating is also not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, as there is no evidence to show that the Veteran had incapacitating episodes during this period. Accordingly, the appeal is denied for the period prior to September 26, 2016 From September 26, 2016 to August 31, 2020 Based on the evidence, and when resolving reasonable doubt in favor of the Veteran, the Board finds that after consideration of the Veteran’s limitation of motion, his lumbar spine disability more nearly approximated a 40 percent rating for the entire period since September 26, 2016. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. The September 2016 VA examination report shows that the VA examiner was unable to test the Veteran’s range of motion, as the he was 4 weeks post-operation for surgery on his back and was under physical restrictions and experiencing post-operation pain. No muscle spasms were noted, and localized tenderness and guarding, not resulting in an abnormal gait or abnormal spinal contour, was noted. While the September 2016 VA examiner noted prescribed bed rest regarding the Veteran’s condition, the treatment was specifically due to the pre-and post-operation requirements surrounding the Veteran’s back surgery. Absent other evidence of incapacitating episodes, an further increased rating under this formula is not warranted. The March 2019 VA examination report shows forward flexion of the lumbar spine to 30 degrees, with pain. The Veteran reported flare-ups during the cold and rainy weather. The September 2020 VA examination report shows forward flexion of the lumbar spine to 20 degrees, with pain. The Veteran reported limited mobility and pain and functional loss were noted upon examination. Taken as a whole, the Board finds that objective showings of limitation of motion, and objective evidence of pain, are indicative of pain-free motion not greater than 30 degrees for this period of the appeal. Accordingly, and in light of DeLuca, when considering painful motion, the Board finds that a higher 40 percent rating is warranted since September 26, 2016. Since September 1, 2020 For this period on appeal, the Board finds that a rating in excess of 40 percent disabling is not warranted. Under the General Rating Formula for Diseases and Injuries of the Spine, to warrant a 50 percent disability rating under the General Rating Formula, the evidence must establish that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine. A review of the evidence shows that the Veteran’s lumbar spine is not ankylosed. The September 2020 VA examination report shows that movement was found in the Veteran’s extension, left and right lateral flexion, and left and right lateral rotation motions. The VA examiner noted that the Veteran’s back was not ankylosed. Further, the 2020 VA examination meets the requirements of Correia and still does not show limitation of motion approximating unfavorable ankylosis warranting a 50 percent rating. Accordingly, there is no basis for a higher evaluation on the basis of ankylosis Also, under the IVDS Formula, a 60 percent disability rating may be assigned for incapacitating episodes having a total duration of at least six weeks during the past twelve months. The September 2020 VA examination report shows that no incapacitating episodes were reported. Hence, there is no adequate evidence of any “incapacitating episodes” as defined by VA, and a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5243 based on incapacitating episodes of IVDS is not warranted at any time during this period on appeal. Moreover, the Veteran has not specified any particular treatment provider who has required bedrest. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Board accepts that the Veteran is competent to report that his disabilities are more severe than the ratings currently assigned reflect. Layno v. Brown, 6 Vet. App. 465, 469 (1994). While the Board is sympathetic to the difficulties presented by the Veteran’s lumbar spine disability, to include pain and limited mobility when walking, sitting, or bending, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for higher disability ratings, his complaints along with the medical findings do not meet the schedular requirements. The Board’s determination thus represents a partial grant and partial denial. Left and Right Lower Extremity Radiculopathy The service-connected radiculopathy of the left and right lower extremities is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. The left lower extremity is assigned a 20 percent disability rating, and the right lower extremity is assigned a 10 percent disability rating. Diagnostic Code 8520 assigns ratings based upon complete or incomplete paralysis of the lower extremities. When there is incomplete paralysis of the sciatic nerve, a 10 percent rating is assigned for mild impairment, a 20 percent rating is assigned for moderate impairment, a 40 percent rating is assigned for moderately severe impairment, and a 60 percent rating is assigned for severe impairment with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Words such as “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 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 Board has reviewed all relevant medical and lay evidence for this period on appeal, to include private and VA treatment records and examinations. Given the evidence, the Board finds the ratings currently assigned to be appropriate. The March 2015 VA examination report shows that for the Veteran’s left lower extremity, radiculopathy testing showed moderate results for intermittent pain, paresthesias and/or dysesthesias and numbness. For the Veteran’s right lower extremity, radiculopathy testing showed mild results for intermittent pain, paresthesias and/or dysesthesias and numbness. No other signs or symptoms were noted. The VA examiner noted that the severity of the Veteran’s left lower radiculopathy was moderate, and the right lower radiculopathy was mild. The Veteran reported experiencing numbness in both his lower extremities. The September 2016 VA examination report shows that for the Veteran’s left lower extremity, radiculopathy testing showed mild results for intermittent pain, paresthesias and/or dysesthesias and numbness. For the Veteran’s right lower extremity, radiculopathy testing showed no results of radiculopathy symptoms. No other signs or symptoms were noted. The VA examiner noted that the severity of the Veteran’s left lower radiculopathy was mild. The Veteran reported experiencing pain that radiated, bilaterally, with the sensation of numbness. The March 2019 VA examination report shows that for the Veteran’s left lower extremity, radiculopathy testing showed moderate results for constant pain, and severe results for intermittent pain, paresthesias, and/or dysesthesias and numbness. For the Veteran’s right lower extremity, radiculopathy testing showed moderate results for constant pain, paresthesias and/or dysesthesias and numbness and severe results for intermittent pain. No other signs or symptoms were noted. The VA examiner noted that the severity of the Veteran’s right lower radiculopathy was mild. The Veteran reported experiencing radiating pain in his left leg. The September 2020 VA examination report shows that for the Veteran’s left lower extremity, radiculopathy testing showed severe results for intermittent pain, paresthesias, and/or dysesthesias and numbness. For the Veteran’s right lower extremity, radiculopathy testing showed mild results for numbness. No other signs or symptoms were noted. The VA examiner noted that the severity of the Veteran’s left lower radiculopathy was moderate, and the right lower radiculopathy was mild. The Veteran reported experiencing numbness, tingling and pain down his bilateral lower extremities. None of the VA examinations showed muscle atrophy in the left or right lower extremity. For the Veteran’s service-connected radiculopathy of the left lower extremity, the Board finds that the evaluation assigned during the pendency of the appeal, 20 percent disabling under Diagnostic Code 8520, is fully appropriate to the findings shown upon examination. To warrant a 40 percent rating under Diagnostic Code 8520, the Veteran’s radiculopathy would have to result in moderately severe incomplete paralysis. While the lay and medical evidence of record describe individual symptoms of radiculopathy in the Veteran’s left lower extremity from mild to severe, as noted above, based on the cumulative evidence, the Board finds that his left lower extremity disability more closely approximates the moderate impairment. The VA examination reports do not reflect that the Veteran’s radiculopathy of the left lower extremity more nearly approximates a moderately severe impairment. At most, the VA examiners found the severity of radicular pain of the left lower extremity to be moderate. The Board accepts that the Veteran is competent to report that his disabilities are more severe than the ratings currently assigned reflect. Layno, supra. However, the Board concludes that the medical findings on examination are of greater probative value than the Veteran’s assertions regarding the severity of his radiculopathy. Further, none of the VA examination reports showed muscle atrophy in the left lower extremity. Under 38 C.F.R. § 4.124a, a moderate rating is the highest that can be assigned when the involvement is wholly sensory, as here. As such, the claim for a rating in excess of 20 percent must be denied. 38 C.F.R. § 4.7. For the Veteran’s service-connected radiculopathy of the right lower extremity, the Board finds the 10 percent rating currently assigned to be proper. To warrant a 20 percent rating under Diagnostic Code 8520, the Veteran’s radiculopathy would have to result in moderate incomplete paralysis. While the lay and medical evidence of record describes symptoms of radiculopathy in the Veteran’s right lower extremity from none to severe as noted above, based on the cumulative evidence, the Board finds that his right lower extremity disability more closely approximates the mild incomplete paralysis described by the 10 percent ratings. In this regard, each VA examiner has characterized the overall severity of the Veteran’s right lower extremity radiculopathy as mild. The Board accepts that the Veteran is competent to report that his disabilities are more severe than the ratings currently assigned reflect. Layno, supra. However, the Board concludes that the medical findings on examination are of greater probative value than the Veteran’s assertions regarding the severity of his radiculopathy. As such, the claim for a rating in excess of 10 percent must be denied. 38 C.F.R. § 4.7. Other Considerations Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Specifically, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), it was held that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim when such is raised by the record. The May 2015 VA examiner noted that the Veteran’s condition prevented heavy lifting, and prolonged standing and walking. The March 2019 VA examiner noted that the Veteran could not perform tasks that required prolonged standing or sitting without reasonable accommodations for change in position, repetitive bending or lifting, or any tasks that required lifting above his head, pulling, pushing, crawling, or stooping. Based on the physical examination and medical record, the Veteran remained independent with his basic activities of daily living, but performed them with difficulty because of his back condition, due to pain. The September 2020 VA examiner noted that Veteran would have limited bending due to pain and would have to rest during flares. The Veteran has not specifically contended, and there is no evidence of record, showing that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Accordingly, a TDIU claim has not been raised, and no action pursuant to Rice is necessary. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.