Citation Nr: 21026181 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-16 102 DATE: April 30, 2021 ORDER A rating in excess of 20 percent for a lumbar spine disability is denied. A rating in excess of 10 percent for left lower extremity radiculopathy, for the period prior to December 23, 2020, is denied. A rating in excess of 20 percent, for left lower extremity radiculopathy, for the period from December 23, 2020, is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s lumbar spine disability has been characterized by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. For the period prior to December 23, 2020, the Veteran’s left lower extremity radiculopathy has been characterized by such symptoms as mild to moderate pain, mild numbness, and mild paresthesias and/or dysesthesias. 3. For the period from December 23, 2020, the Veteran’s left lower extremity radiculopathy has been characterized by such symptoms as moderate pain, moderate numbness, and moderate paresthesias and/or dysesthesias. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a rating in excess of 10 percent for left lower extremity radiculopathy, for the period prior to December 23, 2020, have not been met. 38 U.S.C. § §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, DC 8520. 3. The criteria for a rating in excess of 20 percent, but no higher, for left lower extremity radiculopathy, for the period from December 23, 2020, have not been met. 38 U.S.C. § §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in in the Army from January 1991 to November 1995. These matters come before the Board of Veterans’ Appeals (Board) from August 2013 and May 2016 rating decisions. The Veteran testified before the Board at a hearing in July 2019. A transcript of the hearing has been associated with the claims file. In February 2020, the Board remanded the Veteran’s claim to obtain VA treatment records and private treatment records and to afford the Veteran a new VA examination regarding the severity of his lumbar spine disability and left lower extremity radiculopathy. The claim has since been returned to the Board for review. For the reasons indicated in the discussion below, the additional development conducted pursuant to the Board’s remand instructions was adequate and the agency of original jurisdiction (AOJ) therefore complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbar Spine Disability The Veteran’s lumbar spine disability is evaluated under 38 C.F.R. § 4.71a, DC 5237. The Veteran’s lumbar spine disability is presently assigned a 20 percent rating. Under DC 5237, a rating of 10 percent is warranted when the evidence demonstrates: • forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; • forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; • combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; • combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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, DC 5237. A rating of 20 percent is warranted when the evidence demonstrates: • forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; • forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; • the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, • the combined range of motion of the cervical spine not greater than 170 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 rating of 30 percent is warranted when the evidence demonstrates: • forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A rating of 40 percent is warranted when the evidence demonstrates: • unfavorable ankylosis of the entire cervical spine; or, • forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted when the evidence demonstrates: • unfavorable ankylosis of the entire thoracolumbar spine. Id. Additionally, spine disabilities based on invertebral disc disease (IVDS) with incapacitating episodes may be rated under 38 C.F.R. § 4.71a, DC 5243. A rating under DC 5243 is warranted when the evidence demonstrates: • incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent); • incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); • incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); or • incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent maximum). 38 C.F.R. § 4.71a, DC 5243. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. For purposes of the Veteran’s disability, the rating criteria did not change. The Board has reviewed the evidence of record and finds that a rating in excess of 20 percent is not warranted for the Veteran’s lumbar spine disability. The Veteran asserts that he is entitled to a higher disability rating for his lumbar spine disability. Specifically, in the November 2013 notice of disagreement, the Veteran stated that his range of motion was more restricted than demonstrated by the findings of his July 2013 VA examination. Additionally, during the July 2019 hearing before the Board, the Veteran stated that the symptoms related to his lumbar spine disability have worsened since the July 2013 VA examination. As noted above, in the February 2020 Board decision, the matter of an increased rating for the Veteran’s lumbar spine disability was remanded to obtain a new VA examination. Specifically, the Board found that the July 2013 VA examination was inadequate because the examiner failed to comply with the holdings of Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, the findings of the July 2013 VA examination are inadequate for rating assignment purposes. Next, in November 2013, the Veteran submitted a disability and benefits questionnaire (DBQ) completed by his private physician. The Veteran reported waking each morning with severe pain that progressively improves throughout the day. The physician diagnosed lumbosacral spondylosis, lumbalgia, and lumbar subluxation. Upon physical examination, the physician documented that the Veteran’s forward flexion is limited to 35 degrees with painful motion beginning at 10 degrees; extension is limited to 10 degrees with painful motion beginning at 5 degrees; right lateral flexion is 10 degrees with painful motion beginning at 5 degrees; left lateral flexion is 20 degrees with painful motion beginning at 15 degrees; right lateral rotation is 10 degrees with painful motion beginning at 5 degrees; and, left lateral rotation is 20 degrees with painful motion beginning at 20 degrees. The physician documented that the Veteran experienced flare-ups but did not indicate whether flare-ups cause additional functional loss. Further, the physician indicated that the Veteran was in too much discomfort to obtain range of motion measurements with repetitive use testing. The physician also determined that the Veteran did not have any guarding or muscle spasms resulting in abnormal gait or spinal contour and did not have IVDS. The Board concludes that the findings of the November 2013 DBQ do not demonstrate that a rating in excess of 20 percent is warranted. Specifically, the findings demonstrate that the Veteran’s forward flexion is limited to 35 degrees with painful motion beginning at 10 degrees. Although VA’s policy is to grant at least the minimal compensable rating for actually painful motion pursuant to 38 C.F.R. § 4.59, pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). As the findings of the November 2013 DBQ do not demonstrate that the Veteran has any accompanying functional limitation in addition to forward flexion limited to 35 degrees, his painful motion beginning at 10 degrees cannot serve as the sole basis for a higher rating. Rather, the findings demonstrate that the combined range of motion of the thoracolumbar spine is greater than 120 degrees, which is consistent with the 10 percent rating criteria. The findings also demonstrate that forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, which is consistent with the 20 percent rating criteria. Additionally, the evidence does not demonstrate that the Veteran’s forward flexion of the thoracolumbar spine is 30 degrees or less or that he has favorable ankylosis of the entire thoracolumbar spine, as contemplated by the 40 percent rating criteria. Further, the examiner did not properly provide range of motion measurements regarding additional functional loss with repeated use testing or during flare-ups as required to adequately assign a disability rating. Next, in December 2020, the Veteran underwent a VA examination regarding his lumbar spine disability. The Veteran reported experiencing flare-ups that cause sharp pain and stiffness. Further, the Veteran reported that his lumbar spine symptoms cause difficulty with heavy lifting, bending, prolong walking, and climbing stairs. The examiner diagnosed lumbosacral strain and IVDS. Upon physical examination, the examiner documented that the Veteran’s forward flexion was 0 to 50 degrees and that his range of motion in all other directions was 0 to 20 degrees. The examiner documented that the Veteran experiences additional functional loss upon repetitive use testing and repeated use over time. The examiner also documented that the Veteran experiences the most significant functional loss due to flare-ups and determined that this additional loss would cause forward flexion to be limited to 35 degrees and range of motion in all other directions to be limited to 10 degrees. Lastly, the examiner determined that the Veteran does not have any guarding or muscle spasms resulting in abnormal gait or spinal contour, does not have any ankylosis of the spine, and has not experienced any incapacitating episodes due to IVDS within the past 12 months. The Board concludes that the findings of the December 2020 VA examination demonstrate that a rating in excess of 20 percent is not warranted. Specifically, the examiner found that flare-ups cause the most significant functional loss limiting forward flexion to 35 degrees and limiting the total the combined range of motion of the thoracolumbar spine to 90 degrees. Therefore, these findings demonstrate that forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees and that the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, which is consistent with the 20 percent rating criteria. Additionally, the evidence does not demonstrate that the Veteran’s forward flexion of the thoracolumbar spine is 30 degrees or less or that he has favorable ankylosis of the entire thoracolumbar spine, as contemplated by the 40 percent rating criteria. Lastly, the examiner determined that the Veteran did not have any IVDS episodes within the past 12 months as required to warrant a rating under DC 5243. Therefore, the Board finds that the Veteran’s lumbar spine disability is properly contemplated by the 20 percent rating criteria. The Board notes that pursuant to the February 2020 Board remand directives, the Veteran's VA treatment records and private treatment records were properly obtained and associated with the claims file in March 2020, April 2020, August 2020, and December 2020. The Veteran's VA treatment records and private treatment records indicate complaints of an ongoing lumbar spine disability; however, the records do not contain the findings and diagnostic testing necessary to properly assign a disability rating. Therefore, the Board finds these treatment records to be of little probative value. Accordingly, the Board finds that the preponderance of the evidence is against the claim of a rating in excess of 20 percent for the Veteran's lumbar spine disability, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. Left Lower Extremity Radiculopathy The Veteran is presently assigned a 10 percent rating for the period prior to December 23, 2020, and a 20 percent rating thereafter, for left lower extremity radiculopathy due to his service-connected lumbar spine disability. In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § § 4.124a. Ratings regarding radiculopathy involving the sciatic nerve root are rated under 38 C.F.R. § 4.124a, DC 8520. Under DC 8520, ratings are assigned for: • Mild incomplete paralysis (10 percent); • Moderate incomplete paralysis (20 percent); • Moderately severe incomplete paralysis (40 percent); • Severe incomplete paralysis with marked muscular atrophy (60 percent); or • Complete paralysis (100 percent). Id. Period Prior to December 23, 2020 The Board finds that a rating in excess of 10 percent for left lower extremity radiculopathy, for the period prior to December 23, 2020, is not warranted. The Veteran underwent a VA examination in July 2013 regarding his lumbar spine disability. The examiner did not diagnose the Veteran as having left lower extremity radiculopathy; however, the examiner noted that the Veteran experienced radicular symptoms in the left lower extremity, including moderate constant pain, and mild paresthesias and/or dysesthesias. Next, in the November 2013 DBQ, the Veteran's private physician diagnosed the Veteran as having left lower extremity radiculopathy. Upon examination, the physician documented that the Veteran experienced mild intermittent pain and mild numbness in the left lower extremity; that Veteran’s sensation to light touch of the left lower extremity was overall normal with increased sensitivity in the left ankle; that reflex testing of the left lower extremity was normal; and, that that muscle strength testing of the left lower extremity indicated at least active movement against gravity or active movement against some resistance. The physician determined the severity level of the Veteran's left lower extremity radiculopathy to be mild. The Board finds that for the period prior to December 23, 2020, the probative evidence of record demonstrates that Veteran's left lower extremity radiculopathy was properly contemplated by the 10 percent rating criteria. First, although the July 2013 VA examiner did not diagnose the Veteran as having left lower extremity radiculopathy the examiner indicated that the Veteran had one moderate symptom, pain, and one mild symptom, paresthesias and/or dysesthesias. Second, in the November 2013 DBQ, the Veteran's private physician specifically determined the severity of the Veteran's left lower extremity radiculopathy to be mild based on two mild symptoms, pain, and numbness. Further, both the July 2013 VA examination and November 2013 DBQ indicate that the results of the muscle strength, reflex, and sensory testing were predominately normal. These findings do not demonstrate that the Veteran’s overall disability picture indicates symptoms that are predominately characterized as moderate as only one symptom, pain noted during the July 2013 VA examination, was characterized as moderate. Thus, during this period the Veteran’s predominately mild symptoms are consistent with the 10 percent rating criteria and do not rise to the level of moderate to warrant a 20 percent rating. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of a rating in excess of 10 percent for left lower extremity radiculopathy for the period prior to December 23, 2020, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied in this regard. Period from December 23, 2020 As did the Regional Office, the Board finds that a rating of 20 percent, but no higher, for left lower extremity radiculopathy, for the period from December 23, 2020, is warranted. During the December 2020 VA examination, the examiner assessed the severity of the Veteran’s left lower extremity radiculopathy. Upon examination, the physician documented that the Veteran experienced moderate constant pain, moderate numbness, and moderate paresthesias and/or dysesthesias in the left lower extremity; that Veteran’s sensation to light touch of the left lower extremity was normal; that reflex testing of the left lower extremity was normal; and, that muscle strength testing of the left lower extremity was normal. The physician determined the severity level of the Veteran’s left lower extremity radiculopathy to be moderate. (Continued on the next page)   Additionally, the Board notes that pursuant to the February 2020 Board remand directives, the Veteran’s VA treatment records and private treatment records were properly obtained and associated with the claims file in March 2020, April 2020, August 2020, and December 2020. The Veteran’s VA treatment records and private treatment records indicate complaints of ongoing left lower extremity radiculopathy; however, the records do not contain the findings and diagnostic testing necessary to properly assign a disability rating. Therefore, the Board finds these treatment records to be of little probative value. The Board finds that for the period from December 23, 2020, the probative evidence of record demonstrates that Veteran’s left lower extremity radiculopathy is consistent with the 20 percent rating criteria. Specifically, the December 2020 VA examiner characterized the severity of the Veteran’s left lower extremity as moderate based on three moderate symptoms, including constant pain, numbness, and paresthesias and/or dysesthesias. Further, during this period none of the Veteran’s symptoms are characterized as moderately severe to warrant a rating consistent with the 40 percent rating criteria. Accordingly, the Board finds that the requirements for establishing a rating higher than 20 percent from December 23, 2020, have not been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal in this regard is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, Associate 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.