Citation Nr: 21023892 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-50 369 DATE: April 21, 2021 ORDER Entitlement to a rating in excess of 20 percent for a low back disability prior to June 18, 2014 is denied. Entitlement to a rating in excess of 10 percent for a low back disability from June 18, 2014 to January 31, 2020 is denied. Entitlement to a rating in excess of 20 percent for a low back disability beginning January 31, 2020 is denied. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Prior to June 18, 2014, the Veteran’s low back disability manifested by pain and stiffness; there was no evidence of limitation of forward flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 2. From June 18, 2014 to January 31, 2020, the Veteran’s low back disability was manifested by forward flexion limited to no worse than 70 degrees and a combined range of motion greater than 120 degrees. 3. Beginning January 31, 2020, the Veteran’s low back disability was manifested by no worse than forward flexion limited to 45 degrees; there was no evidence of forward flex limited to 30 degrees or less or of favorable ankylosis of the entire thoracolumbar spine. 4. Throughout the appeal, the Veteran’s bilateral lower extremity radiculopathy has been moderate in severity; moderately severe radiculopathy has not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for a low back disability prior to June 18, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to a rating in excess of 10 percent for a low back disability from June 18, 2014 to January 31, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237. 3. The criteria for entitlement to a rating in excess of 20 percent for a low back disability beginning January 31, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5237. 4. The criteria for entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. The criteria for entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to October 1989 that was followed by Reserve service. This appeal to the Board of Veterans’ Appeals (Board) is from November 2013 and June 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified during a video conference hearing before the undersigned; a transcript of this hearing is of record. During the hearing, the undersigned agreed to keep the record open for 60 days to allow the Veteran or her agent to submit additional evidence. The agent submitted additional evidence. In November 2019, the Board remanded these issues. The Board also remanded the issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). In a November 2020 rating decision, the RO granted service connection for PTSD and entitlement to a TDIU, so those matters are no longer before the Board. Increased Rating Disability ratings are based on average impairment in earning capacity resulting from a disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations apply, 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. 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. 1. Entitlement to a rating in excess of 20 percent for a low back disability prior to June 18, 2014. 2. Entitlement to a rating in excess of 10 percent for a low back disability from June 18, 2014 to January 31, 2020. 3. Entitlement to a rating in excess of 20 percent for a low back disability beginning January 31, 2020. A September 2008 rating decision established service connection for the Veteran’s low back disability. The claim for increase was received in February 2013. Staged ratings were assigned during the course of the appeal. The Veteran’s low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that traumatic arthritis of the spine (Diagnostic Code 5242) is rated under the criteria for lumbosacral strain (Diagnostic Code 5237). Portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, but Diagnostic Codes 5242 and 5237 were not changed. The Veteran’s low back disability is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 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, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. A 20 percent evaluation 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. Id. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned of unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. The normal ranges of motion of the lumbar spine are flexion 0 to 90 degrees, extension 0 to 30 degrees, bilateral lateral flexion 0 to 30 degrees, and bilateral rotation 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V. When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). In May 2013, the Veteran reported having constant low back pain. When she did not move at night, she would awake in the morning feeling very stiff. The clinician found that she had tenderness on the right side of her low back. A June 2013 treatment record shows the Veteran complained of low back. She described her pain as a burning pain that started in her back and radiated to her legs and feet several times per day. She rates her pain at 4-10/10 in severity. See November 2013 CAPRI records. In February 2014, the Veteran reported having an increase in pain with increased activity and getting massages daily for “knots” in her back. Some pain radiated to the back of her legs to her knee and she used a cane some with long walking, but she was not using a cane at the time of her appointment. She also reported having an increase in pain in April 2014. See June 2014 CAPRI records. On June 2014 VA examination, the Veteran reported that she had flare ups and that she had to be carried from the bed to the living room when in extreme pain. She also spent a lot of time in hot baths to reduce the pain. The examination showed that forward flexion was to 80 degrees with pain at 70 degrees; extension was to 20 degrees with pain at 15 degrees; and bilateral lateral bending and rotation were to 20 degrees with pain at 15 degrees. There was no additional loss in range of motion after repetitive use testing. Functional loss and/or impairment was due to less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight bearing. There was no guarding or muscle spasms. There were contributing factors of pain, weakness, fatigability and/or incoordination and there was additional limitation of functional ability during flare-ups or repeated use over time. The degrees of range of motion lost during these times was approximately an additional 10 degrees of forward flexion. She used a cane constantly for stability and back pain. See June 2014 C&P Exam. A June 2016 lumbar MRI showed a disc bulge. In October 2016, the Veteran reported having chronic pain that radiated to both legs. The MRI had shown some bulging disc at L4 with some Modic changes. There was no significant spinal stenosis. She ambulated down the hallway easily and easily got in and out of a chair. See October 2016 Medical Treatment Record – Non-Government Facility. In December 2016, the Veteran reported having worse back pain after getting pulled off a porch by a dog. Her pain was 4/10 in severity. See August 2019 Medical Treatment Record – Government Facility. A September 2017 treatment records shows she has difficulty with prolonged standing due to DJD (degenerative joint disease) in her low back. In May 2018, the Veteran called to say she had bent over to pick up a laundry basket and then was unable to straighten her back; she was in a lot of pain. Her lower back pain that radiated to her bilateral legs. She walked to her bed to lay down and felt like her legs were very weak and would not support her. She suffered sharp low back pain for over 3 hours. See August 2019 Medical Treatment Record – Government Facility and January 2020 CAPRI records. A November 2018 lumbar MRI showed multilevel spondylotic changes of the lumbar spine, no focal neural compression. See August 2019 Medical Treatment Record – Government Facility. During the July 2019 hearing, the Veteran stated an MRI showed a worsening of the back disability and that her back locked up when she bent over. See July 2019 Hearing Transcript. On January 2020 VA examination, the Veteran reported that her current symptoms were low back pain, radiculopathy and neuropathy. She took medication for her symptoms and used a cane. She was unable to sit or stand for more than 15 minutes and unable to walk long distances; she had frequent falls. The Veteran reported being in constant pain and staying in bed most of the day due to pain. Her functional loss and/or impairment was being unable to bend over. He had several falls due to nerve damage in her right leg. The examination showed forward flexion to 50 degrees, extension to 20, and bilateral lateral bending and rotation to 25 degrees. Her range of motion did not contribute to functional loss. The examiner noted that pain on examination did not cause functional loss and was present in all ranges tested. There was no evidence of pain with weight bearing or changes in range of motion after three repetitions. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or flare-ups. There was no guarding, muscle spasms, ankylosis or IVDS (intervertebral disc syndrome). The examiner commented that there was objective evidence of pain on passive range of motion testing of the back but no evidence of pain on non-weight bearing testing of the back. The disability made it difficult for her to stand for longer period (more 15 minutes), sitting for long periods (more than 20 to 30 minutes), required having to reposition frequently, and difficulty bending/loses train of thought. See February 2020 C&P Exam. On October 2020 VA examination, she reported having back pain 6/10 in severity that increased to 10/10 with flare-ups and overuse. She also had stiffness and decreased range of motion with forward flexion and side bending. She was unable to lift more than 10 pounds. Her feet fell asleep and she had numbness and tingling and pain in her lower extremities. The examination showed forward flexion was to 60 degrees, extension was to 10 degrees, and bilateral lateral bending and rotation were to 30 degrees. Pain was noted on examination that caused functional loss manifested by decreased range of motion with forward flexion and side bending. There was no pain with weight bearing or changes in ranges of motion with repetitive use testing. Pain, weakness, fatigability or incoordination significantly limited her functional ability with repeated use over a period of time. She had functional loss caused by pain, fatigue, and weakness, which expressed in degrees resulted in limitation of forward flexion to 45 degrees, extension to 10 degrees, and bilateral lateral bending and rotation to 30 degrees. Pain and fatigue significantly limited her functional ability with flare ups. The range of motion during flare-ups was the same as with repeated use over time. Other factors contributing to her low back disability were disturbance of locomotion, interference with sitting, interference with standing. There was no guarding or muscle spasm. The Veteran had no pain with non-weight bearing, and active and passive range of motion were the same. See November 2020 C&P Exam. For the period on appeal prior to June 18, 2014, the evidence does not show that the Veteran’s low back disability met the criteria for a rating in excess of 20 percent. In this regard, there was no evidence that forward flexion was limited to 30 degrees or less or that there was favorable ankylosis in the entire thoracolumbar spine. There was no VA examination during this period and the available treatment records only note her complaints of pain, stiffness, and use of a cane with long walks. Although there are no treatment records that document range of motion or whether the Veteran had ankylosis, the June 2014 VA examination clearly shows there was no evidence of ankylosis, so it is sufficient to also establish there was no ankylosis prior to the examination. Furthermore, the June 2014 VA examination showed that forward flexion was no worse than to 70 degrees, so this finding at the very least shows that a rating in excess of 20 percent would not have been assignable as of the date of the examination. For these reasons, the Board finds that a preponderance of the evidence is against a rating greater than 20 percent prior to June 18, 2014. For the period from June 18, 2014 to the January 31, 2020, the Veteran only had very minimal limitation of motion and the combined range of motion was greater than 120 degrees, as shown on the June 2014 VA examination. Even with painful motion and taking into consideration other factors that caused the loss of an additional 10 degrees of forward flexion during flare-ups or after repeated use over time, the limitation is not enough to meet the criteria for a rating greater than 10 percent. The Board also considered the hearing testimony that the Veteran’s back locked up when she bent over. Only one such incident was documented in a May 2018 treatment record, but as the record also shows the Veteran gardened and given the physical activity this involved the Board finds that it is unlikely any episodes of locking were anything more than infrequent occurrences. See January 2020 CAPRI records. Treatment records have been considered and while they note complaints of pain and stiffness, there is nothing that indicates pain, or any other factor produced a level of impairment consistent with a 20 percent rating or greater. Thus, the Board finds that a preponderance of the evidence is against a rating greater than 20 percent from June 18, 2014 to January 31, 2020. VA examinations in January and October 2020 show the Veteran’s range of motion had decreased to a degree that is consistent with a 20 percent rating, but not higher. A higher rating of 40 percent is not assignable since forward flexion of the lumbar spine was not limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The January 2020 VA examinations instead showed there was no ankylosis and that forward flexion was limited to no worse than 45 degrees, which was during flare-ups or after repeated use over time. There are no other factors or findings that are consistent with a rating greater than 20 percent during this period. There is no evidence of record at any time during the appeal that shows the Veteran’s low back disability had been manifested by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician, so the criteria for intervertebral disc syndrome are not applicable. See 38 C.F.R. § 4.71a; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). The Board recognizes that in January 2020 the Veteran reported she spent a lot of time in bed due to her disability, but absent physician prescribed bed rest, she is not shown to have incapacitating episodes as defined by regulation. In short, as the evidence of record does not reveal symptomatology and findings consistent with higher ratings at any time during the appeal, a preponderance of the evidence is against higher ratings. 4. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy. 5. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy. A September 2012 rating decision granted service connection for right lower extremity radiculopathy and the claim for increase was received in January 2014 along with the claim for entitlement to service connection for left lower extremity radiculopathy. The June 2014 rating decision established service connection for left lower extremity radiculopathy. The Veteran’s bilateral lower extremity radiculopathy is rated under Diagnostic Code 8520. Diagnostic Code 8520 provides a 10 percent evaluation for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is assigned for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is assigned for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is assigned for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is assigned for complete paralysis of the sciatic nerve of the lower extremity. 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. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 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. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as “mild,” “moderate,” “severe,” and “pronounced” are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. A February 2014 VA treatment record shows the Veteran reported having some pain radiating down the back of her legs to her knee; the Veteran used a cane some with long walking, but not at the time of the appointment. See June 2014 CAPRI records. On June 2014 VA examination, muscle and reflex testing were normal and there was decreased sensation in both lower legs/ankles and feet/toes. The straight leg test positive on the right, which meant pain radiated below the knee, and this suggests radiculopathy often due to herniation. The Veteran reported her bilateral radiculopathy was manifested by constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness that were all moderate in severity. The examiner indicated that the severity of the radiculopathy was moderate. She reported that she constantly used a cane and the clinician indicated that the Veteran had an antalgic gait due to radiculopathy. See June 2014 C&P Exam. In October 2016, she reported having chronic pain and it radiated to both legs. An examination showed normal strength in her legs and no weakness was detected. She ambulated down the hallway easily and easily got in and out of a chair. See October 2016 Medical Treatment Record – Non-Government Facility. In January 2017, the Veteran reported that her legs became numb and she had a bilateral intermittent thigh numbness that went away when she moved around. She also reported that she was sitting six to eight hours a day, which may increase the numbness, and she was advised to get up periodically and move around to increase blood flow. See August 2019 Medical Treatment Record – Government Facility. A May 2018 treatment record indicate deep tendon reflexes were 0 to 1+. See January 2002 CAPRI records. In October 2018, she reported having more severe low back pain that radiated to her foot, which caused numbness and tingling on the inner calf and top of her foot and sole of her foot. She had episodes where her leg buckled, and she fell off her porch. She had a limping gait and deep tendon reflexes were diminished at the right knee. See August 2019 Medical Treatment Record – Government Facility. During the July 2019 hearing, the Veteran reported her radiculopathy had worsened since her VA examination in 2014 and that she was using a cane. She was falling and had pain that radiated to her knees and feet. Her agent indicated that the Veteran had urinary incontinence in January 2017 and that this and worsening pain were evidence that the disability had worsened. She also had giving way. See July 2019 Hearing Transcript. An August 2019 treatment record shows her gait was normal and that she ambulated without assistance. In December 2019, she was observed walking into exam room. The clinician noted that she ambulated independently with good arm swing, non-shuffling, and no ataxia. See January 2020 CAPRI records. On January 2020 VA examination, the Veteran reported that her leg buckles and she fell and had poor balance, pain in her right foot, and numbness. It made it difficult to drive and she was unable to walk long distances. She reported needing help cleaning her house and preparing meals, and she was always afraid of falling. She fell and hit her head about six months earlier; she was unable to get up on her own. The examiner found no signs or symptoms on examination regarding pain, numbness, or paresthesias and/or dysesthesias. Strength, reflexes, and sensory testing were normal. Her gait was normal, and strength was 5/5. Reflexes and sensation were also normal. There was no evidence of atrophy. The clinician stated there were no radicular pain or other signs or symptoms noted on examination. She could not comment on the severity of the radiculopathy because symptoms and signs were quiescent on examination. See February 2020 C&P Exam. A March 2020 treatment record shows that her deep tendon reflects were intact. See November 2020 CAPRI records. On October 2020 VA examination, the Veteran reported having frequent falls. The last fall was 2020 and it occurred five times due to her right leg giving out. Her bilateral lower extremity radicular symptoms consisted of severe intermittent pain, and moderate paresthesias and/or dysesthesias and numbness. Strength was 5/5, reflexes were normal, there was no atrophy, and sensation was decreased in both lower legs, ankles, feet, and toes. She constantly used a cane for her back and radiculopathy. The examiner commented that the severity of the bilateral radiculopathy was moderate. See November 2020 C&P Exam. The Board notes that throughout the appeal, no examiner has described the Veteran’s bilateral lower extremity radiculopathy as being worse than moderate. Although their description of the severity is not dispositive to rating the claim it is probative evidence, which the Board also finds to be consistent with the record. The April 2014 and October 2020 VA examinations show that the Veteran reported she constantly walked with a cane due to radiculopathy; however, other records, such as in February 2014, October 2016, August 2019, December 2019, and January 2020, show she walked easily and had a normal gait. Some of the records also noted that she ambulated without assistance. The Veteran also reported having falls due her legs buckling, but several falls noted in the record are not shown to be related to her disability. In this regard, on January 2020 VA examination, she reported falling and hitting her head approximately six months earlier; however, a May 2019 treatment record shows that she hit her head after falling out of bed while trying to check on a dog under her bed. There is also a record in February 2019 that shows she reported two episodes of falling, but she reported they occurred when she bent over at her waist. See January 2020 CAPRI records. None of these falls appear to be related to her radiculopathy. Examinations and treatment records showed full strength and some decreased sensation in the lower extremities from the lower legs, and there was no evidence of weakness. Diminished reflexes were not found on VA examinations, and treatment records contain mixed findings with some showing reflexes were intact and others showing they were reduced. Thus, the Board finds her intermittent symptoms to be no worse than moderate. Regarding her agent’s assertion during the July 2019 hearing that the Veteran’s urinary incontinence was due to her radiculopathy, the Veteran did complain of urinary incontinence in January 2017, but an October 2018 treatment record indicates the Veteran had urinary incontinence related to stress. See August 2019 Medical Treatment Record – Government Facility. Therefore, there is no probative evidence that links urinary continence to her radiculopathy. Overall, the impairment due to bilateral lower extremity radiculopathy is primarily sensory and with the mixed findings regarding other signs and symptoms and the impact radiculopathy had on her ability to function, the Board finds that the bilateral lower extremity radiculopathy is no worse than moderate throughout the appeal. Accordingly, a preponderance of the evidence is against the claim for higher ratings. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.