Citation Nr: 21025433 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-08 804A DATE: April 28, 2021 ORDER Entitlement to a rating in excess of 40 percent for radiculopathy of the sciatic nerve of the left lower extremity is denied. Entitlement to a rating in excess of 20 percent prior to July 20, 2015 and in excess of 40 percent thereafter for lumbar disc disease is denied. FINDINGS OF FACT 1. The objective medical evidence shows at no time during the appeal period since July 20, 2015 did radiculopathy of the sciatic nerve of the left lower extremity more closely approximate incomplete paralysis higher than a moderately severe level. 2. The objective medical evidence shows at no time during the appeal period prior to July 20, 2015 did the Veteran’s back disability manifest by clinical findings of limitation of flexion to 30 degrees or less; nor were incapacitating episodes as prescribed by a physician indicated. 3. The objective medical evidence shows at no time during the appeal period since July 20, 2015 did the Veteran’s back disability manifest by clinical findings of unfavorable ankylosis of the spine; nor were incapacitating episodes as prescribed by a physician indicated. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 40 percent for radiculopathy of the sciatic nerve of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for entitlement to a rating in excess of 20 percent prior to July 20, 2015 and in excess of 40 percent thereafter for lumbar disc disease have not been met. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. § §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4,71a, DC 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1983 to August 1992. The Board of Veterans’ Appeals (Board) remanded this case in November 2018, April 2019, November 2019, and April 2020. The case has returned to the Board for appellate review. As an initial matter, the radiculopathy rating at issue in this appeal concerns impairment of the sciatic nerve of the lower left extremity. Service connection has been separately granted for radiculopathy of the bilateral lower extremities for the femoral nerve, obturator nerve, and the external cutaneous nerve of the thigh in an August 2019 rating decision issued by the Agency of Original Jurisdiction (AOJ). There has been no disagreement with the ratings assigned to those nerves and they are not at issue herein. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). 1. Entitlement to a rating in excess of 40 percent for radiculopathy of the sciatic nerve of the left lower extremity As an initial matter, the Board notes that the Veteran’s radiculopathy of the sciatic nerve of the left lower extremity was originally assigned a 20 percent disability rating effective July 20, 2015. A 40 percent rating was assigned effective September 15, 2015. While this appeal was pending, the AOJ granted entitlement to a 40 percent disability rating, effective July 20, 2015. Thus, the remaining question on appeal is whether the Veteran’s radiculopathy of the sciatic nerve of the left lower extremity disability picture warrants a rating higher than 40 percent since July 20, 2015. The radiculopathies of the sciatic nerve are rated under Diagnostic Code 8520, which provides, in relevant part, that moderately severe incomplete paralysis warrants a 40 percent evaluation and, severe, with marked muscular atrophy, incomplete paralysis warrants a 60 percent disability evaluation. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Turning to the record, the Veteran was afforded VA examinations addressing radiculopathy symptoms in July 2015, November 2016, August 2019, and September 2020. The Board found the July 2015, November 2016, and August 2019 examinations to be somewhat inadequate for rating purposes, so the Board did not rely on these examinations when making this present decision, but these examinations provide the Board with a general notion of the Veteran’s back disability and related radiculopathy symptoms throughout the course of this appeal. The July 2015 VA examination notes that the Veteran has radicular symptoms as pain that goes to his left leg just below his knees. The Veteran described the pain as sharp, constant, and severe. He reported no lower extremity weakness, involvement would be the L4 through the S3 nerve roots, most consistent with the sciatic nerve. The examiner described the severity rating as moderate. The November 2016 VA examination for the Veteran’s back disability described left lower extremity paresthesias and/or dysesthesias as mild. The examiner provided the severity rating for radiculopathy as severe. A December 2016 VA medical treatment record shows normal sensation and the Veteran denied paralysis and paresthesia. A December 2018 VA treatment note shows the Veteran complained of back pain with no associated weakness, paresthesias, paralysis, or incontinence. The Board remanded this matter in April 2019 to afford the Veteran with a new VA examination. The August 2019 VA examination for the Veteran’s back disability indicates mild severity of the radiculopathy of the lower left extremity. The examiner further provided that the progression of sciatica varies, it may come on suddenly, the symptoms may wax and wane, and it may become progressively worse over time. The examiner further provided that the condition may also vary in types of symptoms experiences as well as severity of symptoms. The August 2019 VA examination for the Veteran’s radiculopathy of the lower left extremity described left lower extremity symptoms as mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The left sciatic nerve was described as mild incomplete paralysis. The examiner remarked that commenting on anything more than the noted progression and consistency of the left lower leg radiculopathy would be rendering opinions that resort to speculation, the need to speculate is caused by a deficiency in the record or the examiner (i.e., additional facts are required). It is unclear whether the examiner meant the deficiency was in the record, in himself, or both. In November 2019, the Board remanded this matter, finding the August 2019 VA examiner’s medical opinion to be inadequate pursuant to Sharp v. Shulkin, specifically that an examiner’s statement that an opinion could not be offered without resort to mere speculation is competent only if it is determined that it is not based on the absence of procurable information on a particular examiner’s shortcomings or a general aversion to offering an opinion on issues not directly observed. 29 Vet. App. 26, 32 (2017). The September 2020 VA examiner described the Veteran’s left lower radiculopathy symptoms as no constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The severity of radiculopathy of the left side was described as moderate. The examiner noted the Veteran’s radiculopathy symptoms as pain, numbness, and tingling, symptoms occur with the flare ups. The examiner noted that with flare-ups the Veteran’s radiculopathy is severe, subjective history notes the severe symptoms when he has a flare-up. As set forth above, Diagnostic Code 8520 requires a finding of moderately severe incomplete paralysis for a 40 percent evaluation and "[s]evere, with marked muscular atrophy, incomplete paralysis" for a 60 percent disability evaluation. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The record does not offer medical evidence establishing radiculopathy of the sciatic nerve of the left lower extremity at more than a moderately severe level of severity, under the rating criteria of Diagnostic Code 8520. The Board has considered the lay statements of the Veteran but concludes that the findings on the VA examinations are more probative for purposes of adjudication in regard to the rating criteria of Diagnostic Code 8520. Therefore, for these reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for disability evaluations in excess of 40 percent for radiculopathy of the sciatic nerve of the left lower extremity. 2. Entitlement to a rating in excess of 20 percent prior to July 20, 2015 and in excess of 40 percent thereafter for lumbar disc disease Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 innervations, or other pathology, or it 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating and rating disabilities of the joints include weakness, fatigability, incoordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Veteran contends that he is entitled to a higher rating for his service-connected back disability, which was assigned a 20 percent rating prior to July 20, 2015 and 40 percent thereafter pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243. The Board notes that the Veteran’s service-connected back disability was originally rated under DC 5243, his back disability is currently rated under DC 5242. DC 5242 pertains to the general rating formula for diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. For the thoracolumbar spine, the General Rating Formula for Diseases and Injuries of the Spine (DCs 5235 5243), a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the 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 an 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 rating is warranted for unfavorable ankylosis of the entire spine. See 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 DC. Id. at Note 1. 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). Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell, 25 Vet. App. at 33, 43. In Correia v. McDonald, 28 Vet. App. 158 (2016), the 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, therefore the holding in Correia is not applicable in that respect. 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. Also, applicable to the Veteran's claim is Diagnostic Code 5243, pertaining to intervertebral disc syndrome. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation is warranted 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 evaluation is assigned for 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 evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Such episodes are defined as prescribed by a medical provider. Id. Turning to the record, the Veteran was afforded VA examinations for his back in June 2011, July 2015, November 2016, August 2019, and September 2020. The Board found the June 2011, July 2015, November 2016, and August 2019 examinations to be somewhat inadequate for rating purposes, so the Board did not rely on these examinations when making this present decision, but these examinations provide the Board with a general notion of the Veteran’s back disability and related radiculopathy symptoms throughout the course of this appeal. The June 2011 VA examiner noted that the physical examination revealed no deformity, crepitation, scars, or tenderness. Range of motion (ROM) testing revealed forward flexion to 41 degrees and extension to 30 degrees. There was no objective evidence of pain, painful motion, spasm, weakness, tenderness, atrophy, or guarding. No ankylosis. Functional loss was described as pain, fatigue, and lack of endurance without weakness or lack of incoordination. These findings do not satisfy the rating criteria for the next higher evaluation. See 38 C.F.R. § 4.71a, DC 5242, 5243. At the July 2015 VA examination, the Veteran reported that he needs to lie down during flare-ups of back pain. Initial ROM testing revealed flexion to 5 degrees, extension to 5 degrees. The Veteran had subjective pain, there was evidence of pain with weightbearing. The Veteran was able to perform three repetitions with no additional loss of function. The examiner noted that he was unable to say without resorting to mere speculation the functional loss over a period of time or during a flare-up. The examiner noted that the Veteran has a history of intervertebral disc syndrome (IVDS) with no incapacitating episodes. These findings do not satisfy the rating criteria for the next higher evaluation. See 38 C.F.R. § 4.71a, DC 5242, 5243. At the November 2016 VA examination, ROM testing revealed forward flexion to 40 degrees and extension to 5 degrees. The examiner noted that the Veteran cannot bend very far in any one direction, pain noted on exam and causes functional loss. The examiner noted that there was evidence of pain with weight-bearing. The Veteran was unable to perform repetitive use testing with at least three repetitions as he was in too much pain. Guarding not resulting in abnormal gait or abnormal spinal contour. No ankylosis of the spine. The examiner noted that the Veteran had IVDS with no incapacitating episodes. The examiner noted that the veteran had difficulty with prolonged weight-bearing, but passive ROM testing and non-weightbearing testing was not performed. These findings do not satisfy the rating criteria for the next higher evaluation. See 38 C.F.R. § 4.71a, DC 5242, 5243. At the August 2019 VA examination, the Veteran reported flare-ups caused by bending or turning the wrong way, he treats flares with rest, stretches, and ibuprofen. He has 4 to 5 flares per month. Initial ROM testing revealed forward flexion to 50 degrees and extension to 10 degrees. The examiner noted that there was evidence of pain with weightbearing. After repetitive-use testing, there was additional loss of ROM with forward flexion to 40 degrees and extension to 5 degrees. No ankylosis. The examiner noted IVDS with no incapacitating episodes. These findings do not satisfy the rating criteria for the next higher evaluation. See 38 C.F.R. § 4.71a, DC 5242, 5243. At the September 2020 VA examination, the Veteran reported daily low back pain with flares at least 2 to 3 times a month causing him to need bed rest for several days. The Veteran reported flares with increased pain, stiffness with decreased ROM. Functional loss was described as hard to sit, stand, or walk for long periods of time due to pain, avoid heavy or repetitive lifting. Initial ROM testing revealed forward flexion to 55 degrees and extension to 15 degrees. ROM itself contributes to functional loss as the Veteran is unable to bend to pick up items from the floor. The Veteran was able to perform repetitive-use testing with no additional loss of function or ROM after three repetitions. The examiner described functional loss after repeated use over time in terms of ROM with forward flexion to 45 degrees and extension to 10 degrees. Functional loss during a flare in terms of ROM was described as forward flexion to 30 degrees and extension to 5 degrees. The examiner noted the Veteran has guarding not resulting in abnormal gait or abnormal spinal contour. No ankylosis. The examiner noted that the Veteran has IVDS with no incapacitating episodes. The examiner provided there was no objective evidence of pain in non-weightbearing and passive ROM cannot be performed or is not medically appropriate. These findings do not satisfy the rating criteria for the next higher evaluation. See 38 C.F.R. § 4.71a, DC 5242, 5243. A November 2020 addendum opinion provided that passive ROM is not medically appropriate for the Veteran as such testing can result in harm to the Veteran. With active ROM, pain is noted almost immediately (within the first 5 degrees) on each ROM and greatest in the last 5 degrees in each ROM. There is evidence of pain with weightbearing and non-weightbearing. ROM testing, in degrees, is not medically appropriate with non-weightbearing. Pain, in degrees, with weightbearing is forward flexion to 55 degrees and extension to 15 degrees. These findings do not satisfy the rating criteria for the next higher evaluation. See 38 C.F.R. § 4.71a, DC 5242, 5243. The Board has also considered whether the Veteran's back disability resulted in a level of functional loss greater than that already contemplated by the assigned ratings throughout the period on appeal. DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. Functional loss due to pain is rated at the same level where functional loss is impeded. Stated another way, a range of motion may be possible beyond the point when pain sets in, but for rating the disability, only to the extent pain limits motion is considered. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). While the Veteran complains of pain throughout the range of motion of his back, the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion except as discussed above and does not serve as a basis for evaluations greater than those assigned above. Further, to receive a higher rating for incapacitating episodes, the Veteran must have a total duration of at least four weeks or more, that requires bed rest prescribed by a physician and treatment by a physician. Although the Veteran was found to have IVDS, none of the VA examinations or VA treatment records indicate any incapacitating episodes. The Board acknowledges that the Veteran reported at the September 2020 VA examination that he has flares for at least 2 to 3 times a month causing him to need bed rest for several days. The record does not reflect that the bed rest is prescribed by a medical provider or that it lasts for 4 to 6 weeks at a time. Nor is there any evidence of these episodes anywhere else in the record. Therefore, the criteria for a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board acknowledges the Veteran's contentions that his service-connected back disability warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to his back disability, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2018). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected back disability. See Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran's statements are consistent with the ratings assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran's medical records. Consequently, the Board finds examinations conducted by trained medical professionals are more probative in determining the severity of the Veteran's service-connected back disability. The Board notes that revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board may consider these changes without remand to the AOJ for consideration in the first instance. See 38 C.F.R. § 20.904(d)(2). The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). Thus, the changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date. See id.; 85 Fed. Reg. 76453. The Board finds that changes to DC's 5242 and 5243, which clarify when these diagnostic codes apply, do not affect the outcome of this claim, as the Board has considered the evaluation of the Veteran's lumbar spine disability under both the General Rating Formula and the Formula for Rating IVDS. See 85 Fed. Reg. at 76462. The Board finds no other changes relevant to the Veteran's service-connected back disability.   In sum, the preponderance of the evidence establishes that the Veteran's service-connected back disability does not warrant a disability rating higher than 20 percent prior to July 20, 2015 and no higher than 40 percent thereafter. As such, the reasonable doubt doctrine is not for application. 38 U.S.C. § 5107 (b). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.