Citation Nr: 21027020 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-51 064 DATE: May 4, 2021 ORDER Prior to October 15, 2020, entitlement to a disability rating in excess of 20 percent for lumbosacral strain and degenerative arthritis of the spine (lumbar spine disability) is denied. From October 15, 2020, entitlement to a disability rating of 40 percent for lumbar spine disorder is granted. From October 15, 2020, entitlement to a disability rating of 20 percent for right lower extremity radiculopathy is granted. From October 15, 2020, entitlement to a disability rating of 20 percent for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. Prior to October 15, 2020, lumbar spine disorder, at worst, did not manifest as forward flexion to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 2. From October 15, 2020, lumbar spine disorder, at worst, did not manifest as unfavorable ankylosis of the entire thoracolumbar spine. 3. From October 15, 2020, the Veteran's right lower extremity radiculopathy manifests as moderate incomplete paralysis of the right sciatic nerve. 4. From October 15, 2020, the Veteran's left lower extremity radiculopathy manifests as moderate incomplete paralysis of the left sciatic nerve. CONCLUSIONS OF LAW 1. Prior to October 15, 2020, the criteria for a disability rating in excess of 20 percent for lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59. 4.71a, Diagnostic 5237 (2020). 2. From October 15, 2020, the criteria for a disability rating of 40 percent for lumbar spine disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59. 4.71a, Diagnostic 5237. 3. From October 15, 2020, the criteria for a disability rating of 20 percent for right lower extremity radiculopathy have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 3.102, 3.159, 4.59, 4.124a, Diagnostic Code 5237-8622 (2020). 4. From October 15, 2020, the criteria for a disability rating of 20 percent for left lower extremity radiculopathy have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 3.102, 3.159, 4.59, 4.124a, Diagnostic Code 5237-8622. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from April 1979 to August 1984. These matters come before the Board of Veterans' Appeals (Board) from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for lumbosacral strain and degenerative arthritis of the spine with degenerative disc disease and assigned a 20 percent rating, effective May 21, 2016. In June 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran's claims file contains a transcript of that proceeding. In July 2020, the Board remanded the appeal for a higher ratings for further development of the evidence. Increased Disability Ratings The Veteran asserts that a 20 percent disability rating does not reflect the severity of her service-connected lumbar spine disorder. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). 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 enervation, 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. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The RO has rated this disability under 38 C.F.R. § 4.71a, Diagnostic Code 5237, which compensates for lumbosacral strain, and applies the General Rating Formula for Diseases and Injuries of the Spine. Under that rating criteria, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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 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, Diagnostic Code 5237. A 20 percent rating is assigned 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. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. Applicable to this case, Note (1) under the General Rating Formula for Diseases and Injuries of the Spine is for consideration. This Note stipulates that any associated objective neurological abnormalities including but not limited to, bowel and bladder impairment should be evaluated separately under an appropriate Diagnostic Code. An alternative method of evaluating spine disabilities is pursuant to Diagnostic Code 5243, which compensates based on incapacitating episodes due to intervertebral disc syndrome (IVDS). These ratings are not to be combined, and only the rating which results in a higher evaluation is to be granted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, in this matter, the Veteran has not shown such pathology, and therefore a rating under Diagnostic Code 5243 is not for consideration. The rating criteria pertaining to Diagnostic Code 5010 was revised effective February 7, 2021. Posttraumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under an affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Evidence and Analysis Private treatment records disclose that Dr. L., a private physician, noted that the Veteran complained of back pain as early as 2008 through 2012. In November 2011, Dr. L. indicated that the Veteran's musculoskeletal system was clinically normal. In October 2016, the Veteran reported for a VA thoracolumbar spine conditions examination. A clinician reviewed the claims file; considered the Veteran's lay accounts and conducted an evaluation. The Veteran generally reported flare-ups, chronic pain, and limited movement but did not provide any description of her limitations during flare-ups from which the examiner could provide an estimate of additional loss of function. Forward flexion was to 35 degrees, with pain; extension to 5 degrees, with pain; right lateral flexion to 10 degrees, with pain; left lateral flexion to 10 degrees, with pain; right lateral rotation to 10 degrees, with pain; and left lateral rotation to 10 degrees, with pain. The combined range of motion was 80 degrees. The Veteran was capable of repetitive use (of at least three repetitions) without additional loss in ranges of motion. The Veteran did not have guarding, localized tenderness, or pain on palpation of the soft tissue/joints of the thoracolumbar spine. There was no evidence of muscle spasm, muscle atrophy, and the Veteran commanded normal muscle strength. The Veteran had normal reflexes and normal sensory responses. The clinician indicated that there was no evidence of radiculopathy, IVDS, ankylosis, or other neurological abnormalities. In a section of the examination devoted to other pertinent findings, the clinician noted that the Veteran has decreased range of motion and pain with movement. X-ray imaging showed osteoarthritic change of the lumbosacral spine at L1-2 and L2-3. The clinician opined that this disability functionally impacted the Veteran's ability to work in that it curtailed bending and load carrying. Lastly, the clinician reported that the Veteran complained of paresthesias and intermittent bilateral sciatic nerve numbness; however, the Veteran was asymptomatic for bilateral radiculopathy upon examination. A review of Dr. L.'s subsequent private treatment records includes a problems list which includes degeneration of invertebral disc disorder (with an onset date of May 2015). Also, in July 2018 the Veteran complained of pain that radiated throughout her spine. At this time, the Veteran reported that certain movement and the Valsalva maneuver aggravated/provoked her endorsed pain. In September 2018. VA received copies of the Veteran's Social Security Administration (SSA) medical records. Upon review of this records, the Board finds that the Veteran claimed "lower back pain" as a disability. The Veteran noted that she could lift no more than 50 pounds. In pertinent part, Dr. L.'s records constitute the documentation of the Veteran's back complaints and treatment, as articulated above. In 2018 VA treatment records, clinicians reported that the Veteran's past medical history includes chronic low back pain "on" (presumably treated with) opioids. A review of 2019 and 2020 VA progress notes and treatment records reveal that the Veteran complained about her lower back pain on numerous occasions. Upon interpretation of VA magnetic resonance imaging (MRI) in August 2019, a VA radiologist provided primary impressions of: 1) grade 1 anterolisthesis (indicative of early x-rays), suggestive of motion and instability at the L5-S1 level; 2) multilevel degenerative changes of the lumbar spine with mild stenosis at L2-L3 and L4-L5; and 3) patchy sclerotic focus within the left lateral aspect of the L3 vertebral body. In 2020, the Veteran reported that she experienced radiculopathy for many years. At the June 2020 Board hearing, the Veteran testified about the course of her back injury and post-service treatment. The Veteran also testified that her lumbar spine disorder worsened since her October 2016 VA examination. The Veteran's representative contended that the October 2016 examination was inadequate because the examiner did not consider limitations during flare-ups. In a July 2020 decision and remand, the Board directed the RO to arrange for VA thoracolumbar spine conditions examiner. Specifically, the Board requested that the examining clinician, [P]erform all necessary clinical testing to assess the current severity of the Veteran's lumbar spine disorder. All symptoms and manifestations of the lumbar spine disorder must be noted in the report, including ranges of motion. The clinician is requested to do joint testing for pain and to test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing (as appropriate for the thoracolumbar spine). If the clinician is unable to conduct the required testing or concludes that the required testing is not necessary in this case, she or he should clearly explain why that is so. [And,] The clinician must indicate whether pain or weakness significantly limits functional ability during flare-ups or when the thoracolumbar spine is used repeatedly over a period of time. The clinician must also determine whether the thoracolumbar spine exhibits weakened movement, excess fatigability or incoordination; if feasible, these determinations must be expressed in terms of additional range-of-motion loss due to any weakened movement, excess fatigability or incoordination. If it is not feasible to express any functional impairment caused by pain, weakened movement, excess fatigability or incoordination, found in terms of additional range-of motion loss, the clinician must explain why. The Board also underscored that the Veteran is competent to report her symptoms and history, including continuity of symptomatology. On October 15, 2020, the Veteran reported for a VA thoracolumbar spine conditions examination. The clinician indicated a present diagnosis of IVDS. The Veteran reported that she experiences flare-ups "constantly." Such flare-ups last for weeks and nothing alleviates the severe pain. And, physical activity precipitates flare-ups, although that is not consistent with constant flare-ups. The Veteran endorsed functional impairment as the inability to lift more than 20 pounds as well as the need of using a shopping cart as a walker. The clinician indicated that he was unable to do any range of motion testing whatsoever because the Veteran reported pain on rest and non-movement. The Veteran also reported that she was in in the midst of experiencing the extreme pain of a current flare-up. There was objective evidence of pain at the left lower spine paraspinals of mild severity, related to the Veteran's IVDS. As the Veteran did not engage in any range of motion testing, the clinician could not offer an opinion as to any losses in ranges of motion during flare-ups or when the thoracolumbar spine is used repeatedly over a period of time. Nevertheless, the clinician indicated that pain and lack of endurance limited functional ability with repeated use over time and pain, fatigue, weakness, and lack of endurance limited functional ability during flare-ups. Despite the Veteran's contention and somewhat contradictorily, the clinician indicated that examination was not taking place during a flare-up. There was evidence of guarding but no evidence of muscle spasm or muscle atrophy. The clinician reported that guarding showed no manifestations. The Veteran had normal muscle strength, with the exceptions of bilateral hip flexion which showed strength of 4/5 ("active movement against some resistance"). The Veteran's reflex testing showed bilateral-knee deep tendon reflexes (DTRs) of 3 plus ("hyperactive without clonus") and bilateral-ankle DTRs of zero ("absent"). Sensory testing was normal, with the exception of L3/4 bilaterally which elicited decreased sensation to light touch. Radiculopathy was present, manifesting as moderate bilateral lower extremity constant pain; mild bilateral lower extremity paresthesias and/or dysesthesias; and mild bilateral lower extremity numbness. The clinician reported the involvement of the bilateral sciatic nerve roots. Overall, the clinician opined that bilateral lower extremity radiculopathy was moderate. There was no evidence of ankylosis or other neurological abnormalities. The Veteran's IVDS did not require any periods of physician-prescribed bedrest over the past 12 months. X-ray imaging disclosed arthritis. As to functional impact on the ability to work, the clinician indicated no bending; no running; no walking beyond a half mile; no sitting for more than 45 minutes; and no standing for more than 10 minutes. Lastly, the clinician reported that passive range of motion testing was not appropriate for the spine and there was no evidence of pain on non-weight bearing. The Veteran believes that her lumbar spine disorder is more severe than that contemplated by a 20 percent rating. The Board recognizes that the Veteran holds a nursing certificate. Indeed, the Court accepts a nurse's observations as competent medical evidence. See YT v. Brown, 9 Vet. App. 195, 201 (1996); see also Goss v. Brown, 9 Vet. App. 109 (1996). Noting this level of clinical/medical competence, the Board also finds that the Veteran's statements during the examination were facially plausible, consistent internally, and consistent with the clinician's findings, despite the lack of range of movement measurements. Additionally, the Board finds that Veteran's accounts of her degree of disability are credible. As such, the Board assigns considerable probative weight to the Veteran's statements. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The current 20 percent rating under Diagnostic Code 5237 is assigned for this disability. To receive a higher disability rating, there would need to be a showing of forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The pertinent evidence is summarized above. No examination during the evaluation period found forward flexion of the thoracolumbar spine with an endpoint of 30 degrees or less or ankylosis. The Veteran contends that the flexion of 35 degrees measured in October 2016 is so close to the 30 degrees required for a higher rating that had an opinion been provided for flare-ups, it would have met the criteria. The Veteran reported flare-ups with chronic pain but did not provide any information from which an examiner could have made an estimate of more limiting range of motion. The Veteran also did not report incapacitating episodes. Nevertheless, the Board finds that the Veteran's informed credible accounts amply compensate for the lack of a goniometric measurement of forward flexion. The most recent (October 15, 2020) clinician indicated that pain and lack of endurance limited functional ability with repeated use over time and pain, fatigue, weakness, and lack of endurance limited functional ability during flare-ups. The clinician indicated that the Veteran's lumbar spine disorder presents such daunting functional challenges as to prohibit bending; running; walking beyond a half mile; sitting for more than 45 minutes; and standing for more than 10 minutes. Pain may cause a functional loss, but of itself does not constitute functional loss. See Saunders, 886 F. 3d 1356. Rather, as is the case here, 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. Id.; see 38 C.F.R. § 4.40. Consequently, the Board finds that a 40 percent rating most nearly approximates the severity of the Veteran's service-connected lumbar spine disability from October 15, 2020. Right lower extremity radiculopathy Left lower extremity radiculopathy The October 15, 2020 clinician indicated that the Veteran's lumbar spine disorder includes bilateral lower extremity radiculopathy, which manifests as moderate bilateral lower extremity constant pain; mild bilateral lower extremity paresthesias and/or dysesthesias; and mild bilateral lower extremity numbness. And, there is evidence of the involvement of the bilateral sciatic nerve root to the extent that bilateral lower extremity radiculopathy presents overall as moderate. As recited above Note (1) to 38 C.F.R. § 4.71a stipulates that any associated objective neurological abnormalities including but not limited to, bowel and bladder impairment should be evaluated separately under an appropriate Diagnostic Code. Here, the Board finds that Diagnostic Code 5237-8520 appropriately contemplates sciatic radiculopathy of the bilateral lower extremities. Diagnostic Codes 8520-8720 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 3 8 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Thus, the October 15, 2020 clinician, in whose report the Board assigns significant probative weight, found that the severity of the Veteran's sciatic radiculopathy of the bilateral lower extremities, associated with her service-connected lumbar spine disorder, presents overall as moderate. While other symptoms of associated radiculopathy are mild, constant bilateral pain is moderate. Consequently, the Board finds that, as of October 15, 2020, the preponderance of evidence warrants granting a 20 percent disability rating for right lower extremity radiculopathy and granting a 20 percent disability for left lower extremity radiculopathy. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.