Citation Nr: 21025783 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-28 146 DATE: April 29, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to October 23, 2020 for degenerative arthritis and low back intervertebral disc syndrome (low back disability) is denied. Entitlement to a rating of 40 percent, but no more, from October 23, 2020 for a low back disability is granted. A separate 10 percent rating, but no more, for left lower extremity radiculopathy is granted, effective July 19, 2016. A separate 10 percent rating, but no more, for right lower extremity radiculopathy is granted, effective October 23, 2020. FINDINGS OF FACT 1. Prior to October 23, 2020, the Veteran’s low back disability was manifested by sharp, intermittent pain, exacerbated by prolonged sitting, sudden movements, and lifting; forward flexion of the thoracolumbar spine less than 30 degrees; ankylosis, and incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during a period of twelve months were not shown. 2. From October 23, 2020, the Veteran’s low back disability was manifested by forward flexion of the thoracolumbar spine 30 degrees or less; ankylosis was not shown. 3. During the respective appeal periods, the Veteran’s left and right lower extremity radiculopathy have been characterized by mild symptoms; moderate symptoms have not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to October 23, 2020 for degenerative arthritis and low back intervertebral disc syndrome (low back disability) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for a rating of 40 percent, but no more, from October 23, 2020 for a low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 3. The criteria for a separate 10 percent rating for left lower extremity radiculopathy, effective July 19, 2016, have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 4. The criteria for a separate 10 percent rating for right lower extremity radiculopathy, effective October 23, 2020, have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2009 to April 2013. The undersigned Veterans Law Judge presided over a Board hearing in November 2020. A transcript of this hearing is of record. The Board notes that while the Veteran was represented by Disabled American Veterans at his September 2020 Board Hearing, a valid Form VA 21-22 was received in February 2021, changing his representative to Massachusetts Department of Veterans Affairs. Finally, the Board notes the recent adoption of a new musculoskeletal rating scheme, effective February 7, 2021. The new scheme is as favorable to the Veteran as the old scheme. Specifically, the only relevant changes involve when a veteran is to be rated for IVDS. The Veteran in this case disc herniation with compression and/or irritation of the adjacent nerve root. Accordingly, the pre-February 7, 2021 regulations are applied in this case. 1. Entitlement to a rating in excess of 20 percent prior to October 23, 2020 for degenerative arthritis and low back intervertebral disc syndrome (low back disability) The Veteran reported a worsening in his back pain in a February 2014 Form VA 21-526 application for benefits. As a result, he received a May 2014 rating decision maintaining his 20 percent rating. No evidence as to the Veteran’s back rating was received within a year of issuance of this rating decision. Subsequently, VA received evidence relevant to the Veteran’s back disability on December 2, 2016. VA continued the Veteran’s 20 percent rating. 38 C.F.R. § 4.71a, DC 5243 applies a general rating that is applicable for most spine disabilities. Under this rating formula, a 20 percent rating is warranted when the evidence shows: • Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; • Combined range of motion of the thoracolumbar spine not greater than 120 degrees; • Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; or • Intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating is warranted when the evidence shows: • Forward flexion of the thoracolumbar spine to 30 degrees or less; or • Favorable ankylosis of the entire thoracolumbar spine; or • Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DCs 5237, 5243 A 50 percent rating is warranted when the evidence shows unfavorable ankylosis of the entire thoracolumbar spine. Id. Ankylosis is the “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The term “combined range of motion” refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5243, Note 2. Additionally, 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.” 38 C.F.R. § 4.71a, DCs 5237, 5243, Note 1. Based on the evidence of record, a rating in excess of 20 percent is not warranted prior to October 23, 2020. Specifically, at a March 2016 visit, the Veteran complained of greatly worsened pain, including with bowel movements. In April 2016, he reported sharp low back pain, ranging from 5 to 9 out of 10. At a May 2016 MRI, despite use of a TENS unit, the Veteran’s flexion and extension was impeded by pain, with tenderness to palpation at L4. At a July 2016 visit, the Veteran reported level 9 pain. While these records mention lessened flexion and extension due to pain, they do not shed light on the Veteran’s actual limitation of range of motion. Without a clear indication that range of motion was limited to less than 30 degrees forward flexion, a rating in excess of 20 percent cannot be awarded. At his December 2016 C&P examination, the Veteran complained of daily back pain he rated 8 out of 10, and that he was unable to bend and/or twist without pain. His pain worsened with sudden movement. The Veteran’s examiner reported an inability to test range of motion. Unfortunately, the examination report does not elucidate why, and the evidence discussed above does not warrant a rating in excess of 20 percent. In his May 2018 substantive appeal the Veteran complains that medication, back brace, and TENS unit do not provide the expected relief, and as a result, he cannot get more than three hours of sleep. These complaints are consistent with an October 2018 nursing note in which the Veteran reports 9/10 pain most of the time unless he takes medication. In July 2019 and August 2019 notes, the Veteran complained of sharp, intermittent pain, exacerbated by sudden movements. At an August 2019 examination, the Veteran demonstrated pain and decreased range of motion on forward flexion, backward extension, bilateral rotation, and bilateral flexion. Notably, the examiner observed severe, diffuse pain with minimal activity, deconditioning, and positive Waddell signs. At his September 2020 Board hearing, the Veteran endorsed increased pain and the use of a back brace, to facilitate activities of daily life. Notably, he discussed flareups about weekly, during which he described locking, with “minimal” movement. While locking may, in some instances, imply an inability to flex the joint, the Veteran’s statements here indicate a measurable range of motion. Further, the Veteran’s hearing testimony does not indicate a restriction to 30 degrees. The Veteran’s symptoms and lay statements discussed above suffice to entitle the Veteran to a 20 percent rating, but no more, based on limited range of motion. In considering these ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, the Veteran’s pre-October 2020 symptoms, as noted in his substantive appeal and at his hearing, are compensated by his current ratings. Further, the additional functional loss caused by the musculoskeletal pain is accounted for in his range of motion measurements. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Put another way, the Veteran’s complaints are adequately contemplated in the ratings he currently receives. Based on the Veteran’s observable ranges of motion, his positive Waddell test, and his statements during this period, the Board finds it unlikely that flare-ups limited the Veteran’s range of motion prior to October 23, 2020, such that the next higher rating is for contemplation. 2. Entitlement to a rating of 40 percent, but no more, from October 23, 2020 for a low back disability Next, the Board finds that the Veteran is entitled to a 40 percent rating, but no more, from October 23, 2020, Given the positive Waddell test at the previous visit, the Board finds that the October 2020 examination is the first showing of credible evidence that the Veteran is entitled to a 40 percent rating. Indeed, this is the first record in evidence to ascribe the Veteran’s functional limitation wholly to his low back disability. Specifically, at his October 2020 C&P examination, the Veteran’s range of motion was measured at 35 degrees forward flexion. His range of motion was limited to 25 degrees after repetitive use testing, and further still by flare-ups, to 15 degrees forward flexion (estimated). These ranges of motion suffice for a 40 percent rating, as forward flexion is limited to below 30 degrees. To obtain a rating in excess of 40 percent, the Veteran must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. However, the Veteran exhibited a small, but measurable range of motion during his October 2020 VA examination. His muscle strength in the lower extremities was diminished slightly, to hip and knee flexion and extension impaired, 3/5 (active movement against gravity) on right, 2/5 (active movement with gravity eliminated) on the left side. Additionally, his examiner found that no ankylosis existed. As he exhibited a measurable range of motion and no ankylosis, the Veteran cannot be considered for a rating based on ankylosis. Therefore, the Board concludes that a rating in excess of 40 percent is not warranted during this period. The Board is aware of the Veteran’s occupational limitations for this period, such as decreased mobility and limited activities during flareups. Despite the severity of these functional limitations, they are adequately addressed by the Veteran’s current rating for this period. Further, while the Veteran was noted to have intervertebral disc syndrome (IVDS) in his most recent C&P examination report, he was not prescribed bedrest for a total of more than one week. Accordingly, the Board concludes that a rating in excess of 40 percent is not warranted for the Veteran’s lumbosacral spine disability from October 23, 2020. Without a finding of ankylosis, this is the highest schedular rating for this disability. Neurological Impairment When evaluating the extent of the Veteran’s back disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71 (a). Here, the most applicable diagnostic code for neurological disorders resulting from a lumbar spine disability is 38 C.F.R. § 4.71a, DC 8520, 8526, which address incomplete paralysis, neuritis and neuralgia of the sciatic and femoral nerves, respectively. Under these diagnostic codes, a 10 percent rating applies when there is incomplete paralysis that is “mild” in nature, and a 20 percent rating applies when there is incomplete paralysis that is “moderate.” In the case of DC 8520, a 40 percent rating is warranted when there is incomplete paralysis that is “moderately severe” in nature, and a 60 percent rating is warranted when the paralysis is “severe, with marked muscle atrophy.” In the case of DC 8526, a 30 percent rating is warranted for incomplete paralysis that is “severe” in nature. In this case, the Veteran is currently not in receipt of a rating for radiculopathy in any extremity. However, the Board finds that a 10 percent rating for mild radiculopathy is warranted for the Veteran’s left leg and right leg, but a separate rating is not warranted for the Veteran’s upper extremities. The left leg rating is effective July 19, 2016, and the right leg rating is effective October 23, 2020, the dates the evidence first shows these intermittent symptoms in each leg. Specifically, at the Veteran’s July 2016 PT consult, intermittent left leg pain to knee. At January 2019 and August 2019 pain consults, the Veteran reported pain from the left knee, down the lateral aspect of the leg, to all of his toes, with some numbness of the toes and feet. He rates the pain as an 8/10 severity at today’s visit but states that it is much higher than that when he has severe episodes of pain. The pain comes and goes but severe episodes of pain can last 4 days to 1 week. Associated symptoms include numbness in the medial aspect of both feet, worse on the left side, that occurs simultaneously with the onset of his back pain. Subsequent evidence shows somewhat milder symptoms. The Veteran’s November 2019 PT note reported the absence of radicular leg pain or paresthesia. At his September 2020 Hearing, the Veteran endorsed pain and numbness in the left knee with possible motor weakness. And at his October 2020 C&P examiner found that there was moderate radiculopathy in each lower extremity. Specifically, the examiner noted moderate bilateral leg intermittent pain, paresthesias and/or dysesthesias, and numbness. femoral and sciatic nerves involved. Normal reflexes and muscle strength described above. However, the Board disagrees and finds a mild rating appropriate, given the overall symptoms during the appeal periods. Despite two episodes of bladder incontinence in 2019, and reports of pain with bowel movements, the Veteran has not shown competent, consistent evidence of other neurological residuals such as bladder or bowel impairment. Further, despite a January 2019 note ascribing erectile dysfunction to medication he took for back pain, the Veteran’s May 2019 C&P examiner found the Veteran’s erectile dysfunction based in many known and unknown interrelated factors (for example, his marriage relationship, which he describes as so-so.) Medical diagnoses of and treatment for obstructive sleep apnea, chronic pain syndrome, skin conditions, PTSD, and insomnia are also thought to likely play a role. While some of these disorders are service connected, the examiner’s observations do not warrant a conclusion that his service connected disorders independently caused or aggravated the Veteran’s ED. Accordingly, only separate 20 percent ratings for moderate neurological residuals in the Veteran’s right leg is warranted effective July 19, 2016, and in his left leg effective October 23, 2020. Ratings for other neurological symptoms are not warranted. In considering the appropriate disability ratings, the Board has considered the Veteran’s statements that his disabilities are worse than the ratings he currently receives. Specifically, the Veteran must sometimes hold a wall for balance, and has difficulty sitting for prolonged periods, as well as with bending. His back pain also affects personal intimacy. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).  On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination and treatment reports) directly address the criteria under which this disability is evaluated.  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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia