Citation Nr: 21026222 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-27 707 DATE: April 30, 2021 ORDER 1. Entitlement to service connection for left lower extremity radiculopathy is denied. 2. Entitlement to a rating in excess of 20 percent for a lumbar spine disability, outside a period of convalescence, is denied. FINDINGS OF FACT 1. The Veteran is not shown to have a diagnosis of left lower extremity radiculopathy. 2. Other than during a period of convalescence, the Veteran’s lumbar spine disability is not shown to have resulted in forward flexion of the lumbar spine limited to 30 degrees or less; ankylosis of the spine; incapacitating episodes of thoracolumbar disc disease; or neurological manifestations other than right lower extremity radiculopathy. CONCLUSIONS OF LAW 1. Service connection for left lower extremity radiculopathy is not warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304, 3.310. 2. A rating in excess of 20 percent for a lumbar spine disability is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had active service from April 1966 to April 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from September 2014 and November 2016 Department of Veterans Affairs (VA) rating decisions that denied service connection for left lower extremity radiculopathy and a rating in excess of 20 percent for a lumbar spine disability. In August 2019, a hearing in the matter was held before the undersigned; a transcript is in the record. In September 2019 and October 2020, the claims were remanded for further development. A December 2020 rating decision granted a temporary 100 percent rating for period of convalescence for the Veteran’s lumbar spine disability from September 22, 2020 through October 31, 2020 (and that period is not for consideration). Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic disabilities may be presumed to be service connected if they become manifest to a compensable degree within a specified period of time postservice (one year for organic diseases of the nervous system). 38 C.F.R. § 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). For such disease, service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b). Secondary service connection may be established for a disability which is proximately due to, or the result of (caused or aggravated by), a service-connected disability. 38 C.F.R. § 3.310(a). To substantiate a secondary service connection claim, the evidence must show (1) a current (claimed) disability; (2) an already service-connected disability; and (3) a medical nexus establishing a connection between the service-connected disability and the current claimed disability. Wallin v. West, 11 Vet. App. 509 (1998). Left Lower Extremity Radiculopathy The Veteran’s service treatment records (STRs) from his active service do not show any complaints, treatment, or diagnosis of left lower extremity radiculopathy. The Veteran has not alleged otherwise. His theory of entitlement to this benefit is entirely one of secondary service connection; he asserts that he has left lower extremity radiculopathy due to his service-connected lumbar spine disability. At the August 2019 Board hearing, he testified that bilateral lower extremity radiculopathy was diagnosed by his physician. The Veteran’s postservice medical records show treatment for his lumbar spine disability and show a diagnosis of right lower extremity radiculopathy, but not a diagnosis of left lower extremity radiculopathy. In September 2011, he denied having any radiating lumbar spine pain. While he reported that his lumbar spine pain radiated into his left thigh in February 2012, left lower extremity radiculopathy was not then diagnosed. In February 2016, he indicated that his lumbar spine pain did not [emphasis added] radiate into his left lower extremity. In October 2020, he denied having any new neurological deficits. The Veteran has been afforded multiple VA examinations. On November 2011, September 2014, August 2016, November 2019, and December 2020 VA examinations, examiners indicated that the Veteran did not have left lower extremity radiculopathy. The November 2019 VA examiner noted that the Veteran denied having left lower extremity radiculopathy. The Veteran has not submitted any probative medical evidence supporting that he has left lower extremity radiculopathy. While he has asserted that he has left lower extremity radiculopathy, he has generally (with one exception, in February 2012, when left leg radiculopathy was not diagnosed) denied having such manifestation when he was being examined or treated. The Board observes that the diagnosis of radiculopathy is a complex medical question, it requires medical expertise, informed by clinical testing, and cannot be diagnosed by lay observation alone. The Veteran is a layperson, and does not profess to have any medical expertise. He does not cite to supporting clinical data or medical opinion or treatise evidence, and his own opinion has no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The threshold requirement for substantiating a claim of service connection (whether direct or secondary) is that there must be competent evidence of the disability for which service connection is sought. In the absence of proof of a current disability, there is valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, it is not shown by competent (medical) evidence that at any time for consideration the Veteran was found to have a left lower extremity radiculopathy. Here, that threshold requirement is not met. Considering the foregoing, the Board concludes that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or (if they include IVDS) the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in a higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Code 5243, Note (1). Under the General Rating Formula, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation 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. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Lumbar Spine Disability The Veteran has reported that his lumbar spine causes constant pain. At the August 2019 Board hearing, he testified that the pain was worsening; he also reported having lumbar spine flare-ups that last 30 minutes. The Veteran’s lumbar spine is rated 20 percent under Code 5242 for degenerative arthritis of the spine. The evidence of record does not show that the Veteran has experienced incapacitating episodes of IVDS. Thus, the analysis turns (is limited to) whether a rating in excess of 20 percent is warranted under the General Formula and whether a further separate rating is warranted for neurological manifestations other than right lower extremity radiculopathy. The September 2014 and two December 2020 VA examiners each noted that the Veteran did not have IVDS. While a November 2019 VA examiner noted that the Veteran has IVDS, the examiner also indicated that the IVDS had not required bed rest prescribed by a physician and treatment by a physician in the previous twelve months (i.e., that there were incapacitating episodes of IVDS). There is no evidence in the record showing that bed rest has been prescribed to treat the Veteran’s lumbar spine disability. The Veteran’s medical records show that he received treatment for his lumbar spine disability, to include injection therapy. They do not show any range of motion studies that show limitations or ankylosis that would warrant a rating in excess of 20 percent. Regarding neurological manifestations, right lower extremity radiculopathy is service-connected (and separately rated). Treatment records show that the Veteran denied having incontinence in July 2013, November 2013, March 2015, August 2019, November 2019, February 2020, May 2020, August 2020, and September 2020. In October 2020, he specifically denied having any new neurological deficits. Therefore, the record does not show any additional neurological manifestations of his lumbar spine disability (that would warrant another separate rating). On September 2014 VA examination, the Veteran reported flare-ups that impacted on lumbar spine function, in that they restricted him from lifting heavy items. On examination, forward flexion was to 40 degrees, with pain. Repetitive use testing did not result in any additional limitation of motion. The examiner indicated that the Veteran had functional loss and/or functional impairment that included less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. The examiner indicated that the Veteran did not have any other neurological abnormalities or findings related to his lumbar spine disability, such as bowel or bladder problems, and that the spine was not ankylosed. In September 2019, considering the Veteran’s hearing testimony alleging worsening, the Board remanded the claim for a contemporaneous examination. On November 2019 examination, the Veteran reported having flare-ups with overuse that resulted in pain and limitation of range of motion that impacted on lumbar spine function. On examination, forward flexion was to 40 degrees, with pain. Repetitive use testing did not result in additional limitation of motion. The examiner indicated that pain, weakness, fatigability, and incoordination significantly limited functional ability with repeated use over a period of time and during flare-ups, but did not result in any additional limitation of flexion. The examiner stated that the Veteran did not have any other neurological abnormalities or findings related to his lumbar spine disability, such as bowel or bladder problems, and indicated that the Veteran’s spine was not ankylosed. On December 2020 VA examination pursuant to an October 2020 Board remand, the Veteran reported having flare-ups that impacted on lumber spine function by restricting prolonged walking, difficulty climbing stairs, and increased pain. On examination, forward flexion was to 85 degrees, with pain. The examiner noted that there was no evidence of pain with weight-bearing but there was objective evidence of pain in non-weight-bearing. Repetitive use testing did not result in any additional limitation of motion or loss of function. The examiner indicated that pain and weakness significantly limited functional ability with repeated use over a period of time and during flare-ups, but did not result in any additional limitation of flexion. The examiner stated that the Veteran did not have any other neurological abnormalities or findings related to his lumbar spine disability, such as bowel or bladder problems, and stated that the Veteran’s spine was not ankylosed. On a second December 2020 VA examination, the Veteran reported having flare-ups that resulted in stabbing pain and inability to sit, stand, or walk for prolonged periods. On examination, forward flexion was to 70 degrees, with pain. The examiner indicated that there was no evidence of pain with weight-bearing or non-weight bearing. The examiner opined that repetitive use and flare-ups further limited flexion to 60 degrees, and indicated that pain and weakness significantly limited functional ability with repeated use over a period of time and during flare-ups, but did not result in any additional limitation of flexion. The examiner indicated that the Veteran did not have any other neurological abnormalities or related to his lumbar spine disability, such as bowel or bladder problems, and that his spine was not ankylosed. The pertinent evidence is summarized above. No examination during the period for consideration found limitation of lumbosacral flexion warranting a rating in excess of 20 percent (to 30 degrees or less). The medical records show that his lumbar spine forward flexion was limited, at most, to 40 degrees, even considering such factors as repetitive use and during flare-ups. Ankylosis of the spine was not shown (and has not been specifically alleged). Furthermore, no additional (to right lower extremity radiculopathy) neurological manifestations are shown. The Board has considered whether a higher rating may be warranted based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement under 38 C.F.R. §§ 4.40 and 4.45 (or on the level of impairment present during flare-ups). See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The September 2014 VA examiner indicated that the Veteran had functional loss that included less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. The November 2019 VA examiner indicated that pain, weakness, fatigability, and incoordination significantly limited functional ability with repeated use over a period of time and during flare-ups, but did not result in any additional limitation of flexion. The first December 2020 VA examiner indicated that pain and weakness significantly limited functional ability with repeated use over a period of time and during flare-ups, but did not result in any additional limitation of flexion (i.e., function on which the back is rated ). The second December 2020 VA examiner indicated that repetitive use and flare-ups further limited the Veteran’s flexion to 60 degrees which is considerably short of limitation to 30 degrees that would warrant the next higher, 40 percent, rating. The Veteran’s treatment records do not show functional limitations warranting a rating in excess of 20 percent. Accordingly, a rating in excess of 20 percent based on functional limitations due such factors is not warranted. While the Veteran has been shown to experience back pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, of itself it does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” to constitute functional loss warranting an increased rating. Here, such is not shown. see 38 C.F.R. § 4.40. The Board has no reason to question the Veteran’s reports that his lumbar spine disability results in pain that limits his physical activities. Such limitations are contemplated by the criteria for the 20 percent rating that has been assigned. The Board also finds that the lumbar spine symptoms and impairment shown do not include any that are not adequately addressed by the schedular rating criteria. The disability picture presented is not shown (nor alleged) to be exceptional, so as to suggest referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321 may be warranted. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.