Citation Nr: 21026269 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 05-28 861 DATE: April 30, 2021 ORDER Prior to February 27, 2018, a single 60 percent initial rating for lumbar spine degenerative disc disease (DDD) with sciatic neuropathy is granted. From February 27, 2018, an initial rating higher than 40 percent for lumbar spine DDD is denied. From February 27, 2018, a 40 percent rating for right lower extremity sciatica is granted. From February 27, 2018, a separate 40 percent rating for left lower extremity sciatica is granted. REMANDED A total disability rating based on individual unemployability (TDIU) prior to May 26, 2017 is remanded. FINDINGS OF FACT 1. Prior to February 27, 2018, lumbar spine DDD was pronounced, manifested by sciatic neuropathy and characteristic pain. 2. From February 27, 2018, lumbar spine DDD was not manifested by unfavorable ankylosis. 3. From February 27, 2018, right lower extremity sciatica was manifested by moderately severe incomplete paralysis. 4. From February 27, 2018, left lower extremity sciatica was manifested by moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to February 27, 2018, the criteria for a single 60 percent initial rating for lumbar spine DDD with sciatic neuropathy have been met. 38 U.S.C. §§ 1155, 5103A; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5293 (2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45. 2. From February 27, 2018, the criteria for an initial rating higher than 40 percent for lumbar spine DDD have not been met. 38 U.S.C. §§ 1155, 5103A; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5243. 3. From February 27, 2018, the criteria for a 40 percent rating for right lower extremity sciatica have been met. 38 U.S.C. §§ 1155, 5103A; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.120, 4.124a, DC 8520. 4. From February 27, 2018, the criteria for a separate 40 percent rating for left lower extremity sciatica have been met. 38 U.S.C. §§ 1155, 5103A; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.120, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Air Force from March 1965 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision. Most recently, the Board issued a June 2018 decision denying higher ratings for the Veteran’s lumbar spine disability. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court), which remanded the matter back to the Board in a March 2020 decision. The Veteran is presently assigned a 10 percent initial rating for his lumbar spine DDD effective from August 27, 2002 to August 9, 2013. From August 10, 2013, he has a 20 percent rating. From February 27, 2018, he has a 40 percent rating. He also has a separate 20 percent rating for right lower extremity sciatica associated with his lumbar spine DDD effective from August 10, 2013. Effective September 26, 2003, VA revised the entire section of the rating schedule that addresses disabilities of the spine - including a renumbering of the diagnostic codes pertinent to back ratings. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The amended versions may only be applied as of their effective date. Notably, the June 2018 Board decision and March 2020 Court decision did not address the rating criteria in place prior to September 26, 2003. 1. Prior to February 27, 2018, a single 60 percent initial rating for lumbar spine DDD with sciatic neuropathy is granted. Under the “old” criteria, pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief warranted a 60 percent disability evaluation. 38 C.F.R. § 4.71a, DC 5293 (2002). VA records from August 2002 show the Veteran sought treatment for severe back pain. He had a marked antalgic gait and was unable to forward flex or go onto the examination table. The treatment provider noted that the Veteran had difficulty rising from a chair and had limitation range of motion. In February 2004, he was noted to have occasional radicular symptoms into the bilateral lower extremities. The Veteran attended physical therapy in January 2008, and his initial assessment including reports of infrequent numbness and tingling into his big toe. He also stated that pain prevent him from performing activities of daily living. The following month, he requested discharge from physical therapy because he was experiencing severe pain which he felt was caused by that therapy. In a June 2011 statement, the Veteran reported that his disability prevented him from working, walking, sitting, climbing stairs, and lifting, as those activities caused extreme pain and spasm. During an August 2013 VA examination, the Veteran was diagnosed with sciatica. He also experienced the onset of pain at 50 degrees of forward flexion. An April 2016 electromyography study indicated bilateral motor radiculopathies. The Board acknowledges that the Veteran’s lumbar spine disability was not consistently severe. For example, treatment records from October 2007 show no complaints of radicular pain, and the Veteran was able to flex to within 10 centimeters of touching the floor. However, the overall weight of the evidence from this period demonstrates persistent symptoms compatible with sciatic neuropathy with characteristic pain. Therefore, a 60 percent initial rating is warranted. The Board expressly notes that, for the period prior to February 27, 2018, this 60 percent rating under DC 5292 replaces the previously assigned 10 and 20 percent ratings under DC 5243 for the lumbar spine as well as the 20 percent rating under DC 8520 for right lower extremity sciatica in effect from August 10, 2013. The Board has considered whether a greater benefit can be awarded under the “new” rating criteria in effect since September 26, 2003. The General Rating Formula for Diseases and Injuries of the Spine, found in 38 C.F.R. § 4.71a, provides for a 40 percent rating for the lumbar spine when forward flexion is no greater than 30 degrees, or when favorable ankylosis is present. The evidence of record does not show either finding during the period prior to February 27, 2018. The General Rating Formula also provides for separate ratings based on associated neurological abnormalities. In this case, the Veteran was assigned 20 percent rating for right lower extremity sciatica effective from August 10, 2013, under DC 8520. 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. 38 C.F.R. § 4.124a. The August 2013 VA examination diagnosed mild right sciatic nerve radiculopathy. The examination otherwise showed normal strength, reflexes, and sensation in the lower extremities. The remainder of the objective evidence of record from this period does not show any significant impairment in lower extremity strength, reflexes, or sensation. The end result of this analysis is that the evidence does not support a combination of lumbar spine and neurological symptoms to warrant ratings that, when combined, would provide a greater benefit than the single 60 percent rating awarded above. 2. From February 27, 2018, an initial rating higher than 40 percent for lumbar spine DDD is denied. As discussed below, the Board has concluded that a separate rating for left lower extremity radiculopathy is warranted from February 27, 2018. Therefore, as of that date, the combined ratings for the lumbar spine and associated neurological abnormalities exceed the single 60 percent rating under the previous DC 5292. Regarding the lumbar spine specifically, however, the evidence does not show that unfavorable ankylosis was present during the period in question. Indeed, the Veteran did not challenge this 40 percent rating in his appeal to the Court. 3. From February 27, 2018, a separate 40 percent rating for right lower extremity sciatica is granted. The February 27, 2018 VA examination documented right lower extremity strength of 5/5 at the hip and knee, and 4/5 below the knee. Similarly, sensation was intact above the knee and decreased below the knee. Reflexes were intact at the knee and diminished below the knee. The examiner noted symptoms of severe constant pain, paresthesias, and numbness, and concluded that the Veteran had an overall moderate level of sciatic nerve incomplete paralysis. Given the severe level of symptoms documented during the examination, combined with the objective neurological impairments noted in the lower leg, the Board finds that a “moderately severe” level of incomplete paralysis is shown. However, the absence of any atrophy means that the higher 60 percent rating cannot be assigned. Therefore, a separate 40 percent rating is granted. 4. From February 27, 2018, a separate 40 percent rating for left lower extremity sciatica is granted. The February 2018 VA examination findings for the left lower extremity were identical to those of the right lower extremity. Therefore, a separate 40 percent rating for left leg sciatica is also warranted as of February 27, 2018. REASONS FOR REMAND TDIU prior to May 26, 2017 In its June 2018 decision, the Board remanded the issue of entitlement to a TDIU as part and parcel of the Veteran’s claim for increased ratings. In a June 2019 rating decision, the Agency of Original Jurisdiction (AOJ) granted a TDIU effective from May 26, 2017. However, it incorrectly characterized this award as a “full grant” of the benefit sought and failed to adjudicate the Veteran’s entitlement to a TDIU prior to May 26, 2017. In order to preserve the Veteran’s due process rights, the issue must first be adjudicated by the AOJ. The matter is REMANDED for the following action: Adjudicate the issue of entitlement to a TDIU prior to May 26, 2017. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.