Citation Nr: 21023944 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-30 762 DATE: April 21, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for lumbosacral strain (lumbar spine disability) is 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 20 percent for service-connected right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s lumbar spine disability has not resulted in forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes. 2. The Veteran’s left lower extremity radiculopathy is productive of moderate, incomplete paralysis/impairment. 3. The Veteran’s right lower extremity radiculopathy is productive of moderate, incomplete paralysis/impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 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, Diagnostic Codes 5235-5243. 2. The criteria for a disability 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. §§ 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability 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. §§ 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2007 to August 2007 and from August 2009 to June 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2016 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in September 2019. In September 2019 and November 2020, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a January 2021 rating decision, the RO granted service connection for radiculopathy of the left lower extremity, and service connection for radiculopathy of the right lower extremity, both effective January 8, 2020 and both assigned a 20 percent disability rating. The Board will consider whether a higher rating could be assigned for each extremity, as the assignment of the ratings occurred during the pendency of this appeal. 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 lumbar spine disability is currently evaluated as 20 percent disabling and rated under Diagnostic Code 5237. 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 (IVDS)). 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 affected area 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, the only motion which may result in a higher than 20 percent rating, is zero to 90 degrees. 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), which 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 all relevant lay and medical evidence, to include the testimony from the September 2019 Board hearing, with particular attention to the VA examinations from October 2016, January 2020, and January 2021. As to limitation of motion, the only possible basis for an increase, taking into account DeLuca factors, would be flexion limited to 30 degrees. The rating schedule does not allow for a higher evaluation based upon limitation of any other motions. In terms of limitation of flexion, the report from the October 2016 VA examination revealed that forward flexion of the lumbar spine was to 70 degrees, to include pain. The reports from the January 2020 and January 2021 VA examinations both revealed that forward flexion of the lumbar spine was to 65 degrees, to include pain. During each examination, there was no decrease in range of motion for flexion on repetitive motion. Further, no ankylosis was found upon examination at any time during the appeal period. In this case, the objective medical evidence is the most persuasive indication of functional loss, and here it reflects findings falling within the requirements for a 20 percent evaluation. The Board has also considered whether there exists a basis for an evaluation in excess of 20 percent under Diagnostic Code 5243, concerning intervertebral disc syndrome. Ratings under this section, however, are entirely predicated on incapacitating episodes, defined as acute signs and symptoms requiring physician-prescribed bed rest. In this case, there simply is no evidence of physician-prescribed bed rest, let alone of such bed rest of a total duration of at least four weeks but less than 6 weeks during the past 12 months. This Diagnostic Code accordingly provides no basis for an increased evaluation. The preponderance of the evidence is against the claim for a disability rating in excess of 20 percent for the Veteran’s service-connected lumbar spine disability; there is no doubt to be resolved; and an increased rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 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, effective January 8, 2020. Each lower extremity is assigned a 20 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 lay and medical evidence, to include the testimony from the September 2019 Board hearing, with particular attention to the VA examinations from October 2016, January 2020, and January 2021. Given the evidence, the Board finds the ratings currently assigned to be appropriate. Of note, the October 2016 VA examination report shows that no signs or symptoms due to radiculopathy were found for either the left or right lower extremity. The January 2020 VA examination report shows that for the Veteran’s left lower extremity, radiculopathy testing showed mild results for intermittent pain and numbness. For the Veteran’s right lower extremity, radiculopathy testing showed a moderate result for intermittent pain and a mild result for numbness. No other signs or symptoms were noted. The VA examiner noted that the severity of the Veteran’s left lower radiculopathy was mild, and the severity of the right lower radiculopathy was moderate. The Veteran reported experiencing radiating pain down the posterior of both extremities and numbness. The January 2021 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 moderate 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 mild, and the severity of the right lower radiculopathy was moderate. None of the VA examinations showed muscle atrophy in either the left or right lower extremities. 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 claims for ratings in excess of 20 percent must be denied. 38 C.F.R. § 4.7. The Board notes that the Veteran contends that he experiences pain every day and that exacerbations can last up to several days, depending on the severity of the pain. (See September 2019 Board hearing). However, the medical evidence, which directly addresses the criteria under which back and radiculopathy conditions are evaluated, is far more probative than the Veteran’s own subjective assessments as to severity. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues as to the specific issues in this case, symptoms specifically related to the actual severity of service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities fall outside the realm of common knowledge of a lay person. Jandreau, supra. The Board gives more weight and credence to the opinion of the VA examiners which were rendered by licensed medical professionals rather than a lay person and were based on medical principles set forth in the reports. 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 October 2016 VA examiner noted that the pain impacted the Veteran’s functional ability of lifting, bending, prolonged standing and walking. The January 2020 VA examiner noted that the Veteran was limited with prolonged sitting and standing. The January 2021 VA examiner noted that the Veteran’s back condition negatively impacted the Veteran’s ability to perform occupational tasks, including heavy lifting. While the record reflects statements regarding pain, there is no evidence of record showing that the 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.