Citation Nr: 21024303 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-50 572 DATE: April 22, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to June 24, 2019, for degenerative arthritis of the spine with intervertebral disc syndrome (IVDS) and spinal stenosis is denied. Entitlement to a 40 percent rating for the period from June 24, 2019, to January 4, 2021, for degenerative arthritis of the spine with IVDS and spinal stenosis is granted. Entitlement to a rating in excess of 40 percent from January 4, 2021, for degenerative arthritis of the spine with IVDS and spinal stenosis is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. Prior to June 24, 2019, the Veteran’s lumbar spine disability was manifested by forward flexion to 70 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; no incapacitating episodes; and had no associated neurologic abnormalities other than the service-connected right lower extremity radiculopathy. 2. For the period from June 24, 2019, to January 4, 2021, the Veteran's lumbar spine disability was manifested by forward flexion to five degrees during flare-ups; incapacitating episodes lasting at least two weeks but less than four weeks over the past 12 months; and no associated neurologic abnormalities other than the service-connected bilateral lower extremity radiculopathy. 3. From January 4, 2021, the Veteran's lumbar spine disability has been manifested by forward flexion to 30 degrees during flare-ups; no incapacitating episodes; and no associated neurologic abnormalities other than the service-connected bilateral lower extremity radiculopathy. 4. The Veteran’s left lower extremity disability is manifested by no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran’s lumbar spine disability are not met prior to June 24, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a 40 percent rating for the lumbar spine disability are met for the period from June 24, 2019, to January 4, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 3. The criteria for a rating in excess of 40 percent for the lumbar spine disability are not met from January 4, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 4. The criteria for a disability rating in excess of 10 percent for the left lower extremity disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 2003 to August 2014. He testified before the undersigned Veterans Law Judge during a July 2019 hearing. This matter is on appeal from a November 2014 rating decision, and was previously remanded by the Board of Veterans’ Appeals (Board) in December 2019. A separate 10 percent evaluation for the left lower extremity disability (radiculopathy) was granted as of June 24, 2019 in a February 2021 rating decision and is considered part of the spine rating currently on appeal. Increased Rating 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 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. The lower rating will otherwise be assigned. See 38 C.F.R. § 4.7. The Veteran’s lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 for IVDS. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. As of February 7, 2021, Diagnostic Code 5243 clarifies that this diagnostic code is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 will be assigned for all other disc diagnoses. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, there is no relevant evidence dated February 7, 2021, or later in this case, and thus the amended criteria are inapplicable. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted 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 rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted 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, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Entitlement to an initial rating in excess of 10 percent prior to June 24, 2019, for degenerative arthritis of the spine with intervertebral disc syndrome and spinal stenosis The Veteran contends that he is entitled to a higher rating because of pain and his daily symptoms. July 2019 Hearing Transcript at 3-4. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent prior to June 24, 2010, for the Veteran's lumbar spine disability based on incapacitating episodes. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. The Veteran did not have any incapacitating episodes in the past 12 months as shown in a May 2014 VA examination. There are also no treatment records showing incapacitating episodes. The preponderance of the evidence is also against a rating in excess of 10 percent for the Veteran's lumbar spine disability under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain on movement. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that symptoms get better and worse, depending on the hours, would not result in limitation of motion more nearly approximating 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. The Veteran reported that flare-ups resulted in intermittent, sharp, crippling pain. He reported that he experienced pain every day, but some days were worse than others. The Veteran had flexion to 70 degrees with pain at 70 degrees, and a combined range of motion greater than 120 degrees at the May 2014 VA examination. He continued to have flexion to 70 degrees, and a combined range of motion greater than 120 degrees, following repetition. The examination shows that the Veteran did not have guarding or muscle spasm. Regarding neurological impairment, the Veteran has already been granted service connection for right lower extremity radiculopathy for this period. The initial rating decision on appeal granted service connection for that disability. The Veteran did not appeal the rating assigned. Further, he has not made any statements during this appeal regarding his right lower extremity symptomatology indicating that he was seeking a higher rating. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his lumbar spine disability prior to June 24, 2019. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for his lumbar spine disability prior to June 24, 2019. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Moreover, as the Veteran has not contended, nor does the evidence show that this disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). 2. Entitlement to a rating in excess of 20 percent for the period from June 24, 2019, to January 4, 2021, for degenerative arthritis of the spine with IVDS and spinal stenosis The Veteran contends that he is entitled to a higher rating because of pain and his daily symptoms. July 2019 Hearing Transcript at 3-4. The Board finds that the preponderance of the evidence supports a rating of 40 percent, but no higher, for the Veteran's lumbar spine disability for the period from June 24, 2019, to January 4, 2021, under the General Rating Criteria. The Veteran had flexion to 40 degrees during a private June 2019 examination. However, his flexion was shown to be to 5 degrees after repetition. The Veteran's functional loss during periods of flare-ups was estimated to be flexion limited to 5 degrees. A 40 percent rating is warranted for limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less. Further, the agency of original jurisdiction (AOJ) assigned a 40 percent rating effective January 4, 2021, based on the results of a VA examination that date. The Veteran's contentions indicate that he experienced the same symptomatology warranting a 40 percent rating even prior to January 4, 2021. See, e.g., April 2021 correspondence. As such, a rating of 40 percent is warranted for the period from June 24, 2019, to January 4, 2021, under the General Rating Criteria. An even higher 60 percent rating is not warranted. Regarding incapacitating episodes, the Veteran had incapacitating episodes lasting at least 2 weeks but less than 4 weeks over the past 12 months as shown in the June 2019 private evaluation. The next higher rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There are no treatment records during this time period showing that the Veteran had incapacitating episodes for a duration that meets the criteria for a 60 percent rating. A 60 percent rating under the General Rating Criteria is also not warranted. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to less movement than normal, weakened movement, excess fatigability, pain on movement, instability of station, interference with sitting, and interference with standing. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he had flare-ups with weakness, and the inability to work out and complete daily activities, would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The Veteran still had motion of his lumbar spine during flare-ups, with flexion and extension both estimated to 5 degrees, bilateral lateral flexion estimated to 10 degrees, and bilateral lateral rotation estimated to 15 degrees as shown in the private June 2019 evaluation. Ankylosis was not shown at the examination. The evidence does not suggest that his symptoms more nearly approximate fixation of a spinal segment in neutral position. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy for this period. A January 2021 rating decision granted service connection for left lower extremity radiculopathy, effective June 24, 2019. Service connection for the left lower extremity was granted during the appeal, and after the notice of disagreement with the initial rating decision on appeal. As such, the Board will address the rating assigned to this disability as a separate issue. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his lumbar spine disability for the period from June 24, 2019, to January 4, 2021. Based on the foregoing, the preponderance of the evidence supports a 40 percent rating, but no higher, for the period from June 24, 2019, to January 4, 2021. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor has the record reasonably raised any other issues. Moreover, as the Veteran has not contended, nor does the evidence show that this disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. 3. Entitlement to a rating in excess of 40 percent from January 4, 2021, for degenerative arthritis of the spine with IVDS and spinal stenosis The Veteran contends that he is entitled to a higher rating because of pain and his daily symptoms. July 2019 Hearing Transcript at 3-4. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's lumbar spine disability based on incapacitating episodes. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. The Veteran had no incapacitating episodes in the past 12 months as shown in a January 2021 VA examination. There are no treatment records during this time period showing that the Veteran had incapacitating episodes for a duration that meets the criteria for a 60 percent rating. The preponderance of the evidence is also against a rating in excess of 40 percent for the lumbar spine disability under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran had severe flare-ups that lasted for two to three days, and occurring twice in the past year, would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The Veteran reported that he was unable to walk or move and required urgent care for treatment or that he would not be able to work during flare-ups. He also reported functional impairment of being unable to stand over 30 seconds until pain increased, or sit over 15 minutes without repositioning. The Veteran reported being unable to run, participate in sports, or perform most any bending/pushing/pulling at home, physical fitness, or work activities. The Veteran had flexion to 35 degrees, with no additional loss after repetition as shown in the January 2021 examination. Flexion was estimated to be to 30 degrees during flare-ups. Ankylosis was not shown at the examination. Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy for this period. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his lumbar spine disability for the period from January 4, 2021. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for his lumbar spine disability from January 4, 2021. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor has the record reasonably raised any other issues. Moreover, as the Veteran has not contended, nor does the evidence show that this disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. 4. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. Regarding impairment of motor functions, the Veteran had normal strength at the June 2019 private examination and January 2021 VA examination. Regarding trophic changes, neither the June 2019 private examination nor the January 2021 VA examination showed any trophic changes. Regarding sensory disturbances, the Veteran had a normal sensory examination at the June 2019 private examination. Position sense, vibration sensation, and cold sensation were all normal in June 2019. The Veteran had no paresthesias and/or dysesthesias, but did have mild numbness. The January 2021 VA examination reveals normal light touch for the upper anterior thigh and thigh/knee. The Veteran had decreased light touch for the lower leg/ankle and foot/toes. He had no paresthesias and/or dysesthesias, but had mild numbness. Regarding loss of reflexes, the Veteran had normal knee and ankle reflexes of 2+ during both the private June 2019 private evaluation and the January 2021 VA examination. Regarding pain, the Veteran had moderate constant pain at the June 2019 private evaluation. The January 2021 VA examination shows no constant pain, but mild intermittent pain. Regarding muscle atrophy, neither the June 2019 private examination nor the January 2021 VA examination showed any muscle atrophy. Regarding complete paralysis, neither the June 2019 private examination nor the January 2021 VA examination showed indications of complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Based on the above, the Board finds that the disability is primarily manifested by sensory disturbance and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifested by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. A February 2021 addendum opinion from the 2021 VA examiner reveals that the Veteran's radiculopathy was determined to be mild. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for his left lower extremity disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor has the record reasonably raised any other issues. Moreover, as the Veteran has not contended, nor does the evidence show that this disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Barstow, 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.