Citation Nr: 21027224 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-19 988 DATE: May 5, 2021 ORDER Prior to July 11, 2019, a rating of 20 percent, but no higher, for degenerative arthritis of the lumbar spine is granted. From July 11, 2019, a rating in excess of 40 percent for degenerative arthritis of the lumbar spine is denied. Prior to February 12, 2019, a rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. From February 12, 2019, a rating of 40 percent, but no higher, for radiculopathy of the right lower extremity is granted. Prior to January 27, 2020, a rating of 10 percent, but no higher, for migraine headaches is granted. From January 27, 2020, a rating in excess of 50 percent for migraine headaches is denied. FINDINGS OF FACT 1. Prior to July 11, 2019, the Veteran's lumbar spine disability was manifested by a forward flexion of greater than 30 but not greater than 60 degrees or was additionally limited by less movement than normal, weakened movement, and pain on movement. 2. From July 11, 2019, the Veteran's lumbar spine disability is not shown to result in ankylosis of the thoracolumbar spine, and the Veteran is not prescribed bed rest to treat his lumbar spine disability. 3. Prior to February 12, 2019, the Veteran's radiculopathy of the right lower extremity was primarily manifested by mild symptoms. 4. From February 12, 2019, the Veteran's radiculopathy of the right lower extremity is primarily manifested by moderate to severe symptoms. 5. Prior to January 27, 2020, the Veteran's migraines were more closely shown as prostrating attacks averaging one in 2 months over the last several months. 6. From January 27, 2020, the Veteran is provided the maximum rating allowed under the schedular criteria for his migraine headaches. CONCLUSIONS OF LAW 1. Prior to July 11, 2019, the criteria for a rating of 20 percent, but no higher, for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 2. From July 11, 2019, the criteria for a rating in excess of 40 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242 3. Prior to February 12, 2019, the criteria for a rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8720. 4. From February 12, 2019, the criteria for a rating of 40 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8720. 5. Prior to January 27, 2020, the criteria for a rating of 10 percent, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.124(a), Diagnostic Code 8100. 6. From January 27, 2020, the criteria for a rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.124(a), Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1982 to May 2003. In August 2019, the claims were brought before the Board and were remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson, 12 Vet. App. 119; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The U.S. Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Lumbar Spine The Veteran's service-connected lumbar spine disability is rated as 10 percent disabling prior to February 12, 2019, as 20 percent from February 12, 2019 to July 11, 2019, and as 40 percent disabling thereafter under Diagnostic Code 5242 for Degenerative Arthritis. Under this Diagnostic Code, the disability is rated based on the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. Under the General Rating Formula, a 10 percent rating is warranted 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. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Additionally, under the Formula for Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is awarded for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is awarded for 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 awarded for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1), following the IVDS section notes that 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. In May 2012, the Veteran was provided a VA examination. The Veteran reported an increase in pain. On examination, the Veteran's range of motion (ROM) was forward flexion to 70 degrees, with painful motion at 60 degrees; extension to 20 degrees, with pain at 15 degrees; right lateral flexion to 30 degrees, with pain at 25 degrees; left lateral flexion to 30 degrees, with no painful motion; and bilateral lateral rotation to 30 degrees with no painful motion. The Veteran was able to perform repetitive testing with at least 3 repetitions and did not suffer additional loss of ROM after. The Veteran did have additional limitation and/or functional loss due to less movement than normal, weakened movement, and pain on movement. The Veteran did not have localized tenderness or pain on palpation. The Veteran did not have guarding or muscle spasms. There was no muscle atrophy. In February 2019, the Veteran was provided another VA examination. The Veteran reported pain with most range of motion. He did not report flare-ups. He did report functional loss in pain with impact, bending, lifting, and twisting. The Veteran's ROM was forward flexion to 50 degrees, extension to 30 degrees, bilateral lateral flexion to 25 degrees, and right lateral rotation to 30 degrees. ROM itself did contribute to functional loss in the form of the Veteran not being able to bend over. There was pain noted on examination in all ranges of motion. There was evidence of pain with weight bearing. There was moderate localized tenderness or pain on palpitation in the bilateral paraspinous area. The Veteran was able to perform repetitive use testing and did not suffer additional loss after. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran with repeated use over a period of time. The Veteran did have muscle spasms and guarding that did not result in abnormal gait or abnormal spinal contour. Additional factors to the Veteran's disability were disturbance of locomotion, interference with sitting, and interference. The Veteran did not have muscle atrophy or ankylosis. The Veteran did have IVDS; however, he did not have any episodes or acute symptoms that required bed rest prescribed by a physician in the past 12 months. The Veteran did not have use of assistive devices. There was no evidence of pain on passive range of motion or on non-weight bearing. The Veteran was provided another VA examination in July 2019. The Veteran reported increase in pain and stated that "everything" aggravates his condition. He reported flare-ups that last 4 months in which he can barely move that happen about twice a year. The Veteran reported functional loss in not being able to participate in any activity with impact. He reported being unable to work out, hunt, or play sports, and needing to change positions several times a day. The Veteran's ROM was forward flexion to 20 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, and bilateral lateral rotation to 25 degrees. ROM itself did contribute to functional loss with the Veteran having limited spinal mobility and unable to bend or reach for things on the floor. Pain noted on examination did cause functional loss in all ranges of motion. There was no evidence of pain with weight bearing or localized tenderness or pain on palpitation of the joints. The Veteran was able to perform repetitive use testing with at least three repetitions and suffered additional loss in ROM with forward flexion to 12 degrees and bilateral lateral rotation to 18 degrees. His ROM was also decreased during flare-ups to forward flexion to 12 degrees and bilateral lateral rotation 15 degrees. The examiner noted that pain caused the functional loss. The examination was consistent with the Veteran's statements regarding functional loss with repetitive use over time and during flare-ups. Pain caused functional loss with repeated use over time and during flare-ups. The Veteran did have muscle spasms and guarding that did not result in abnormal gait or spinal contour. Additional factors contributing to the Veteran's disability was less movement than normal and interference with sitting. The Veteran did not have muscle atrophy or ankylosis. The Veteran did have IVDS but did not have any episodes of acute signs or symptoms that required bed rest prescribed by a physician in the last 12 months. The Veteran did not have need for assistive devices. VA treatment records and private medical records show complaints of chronic low back pain. However, none of the records show the Veteran's range of motion or notations of ankylosis. After review of the evidence of record, the Board finds that a rating of 20 percent, but no higher, for the entire appeal period prior to July 11, 2019 is warranted. Although the Veteran did not meet the criteria for having a forward flexions more than 30 degrees but no greater than 60 degrees for the entire period, the Board notes the May 2012 VA examination showed the Veteran had pain at 60 degrees for forward flexion. He was also noted as being additionally limited due to less movement than normal, weakened movement, and pain on movement. Thus, under DeLuca, the Board finds that a rating of 20 percent, but no higher, for the entire appeal period prior to July 11, 2019 is warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. However, the Board finds that a rating in excess of 20 percent prior to July 11, 2019 is not warranted. At no time during this period did the Veteran have a forward flexion of less than 30 degrees. Even when considering the additional limitation noted on the February 2019 VA examination, the Veteran did not have a forward flexion of less than 50 degrees. The Veteran also did not report flare-ups and did not have any incapacitating episodes of IVDS. Thus, the Board finds the minimal functional impairment noted is considered within the schedular criteria for a 20 percent rating and a rating in excess of 20 percent is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, 5243. For the period from July 11, 2019, after a complete review of the entire claims file, the medical evidence does not show ankylosis of the spine. As such, a rating in excess of 40 percent is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 from July 11, 2019. See also DeLuca, 8 Vet. App. 202. However, the Veteran is in receipt of the maximum rating allowed based on range of motion from July 11, 2019. The only higher ratings available contemplate ankylosis of the spine. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). In light of the foregoing, the Board concludes that a rating of 20 percent, but no higher, for the entire period prior to July 11, 2019, is warranted; however, a rating in excess of 40 percent thereafter is not warranted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Right Lower Extremity Radiculopathy The Veteran is currently rated as 10 percent disabling prior to February 12, 2019, and as 20 percent disabling thereafter for his radiculopathy of the right lower extremity (RLE) under Diagnostic Code 8720 for neuralgia, which is rated under Diagnostic Code 8520 for the Sciatic Nerve. Under Diagnostic Code 8720, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires evidence of complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. The Board notes that the terms "mild," "moderate" and "severe" are not defined. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as "mild" or "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In May 2012, the Veteran was provided a VA examination. The Veteran reported a burning dull ache that went from his right thigh to his right knee. The Veteran's radiculopathy was noted as mild constant pain, mild intermittent pain, mild paresthesias, and no numbness. The Veteran did not have any other signs or symptoms of radiculopathy. The overall severity of the Veteran's condition was noted as mild. In February 2019, the Veteran was provided another VA examination. The Veteran reported pain radiating down to his legs. The Veteran had constant moderate pain, severe intermittent pain, moderate paresthesias, and no numbness. The Veteran had no other signs related to his condition. The Veteran did not have muscle atrophy. The overall severity of his condition was moderate. The Veteran received another VA examination in July 2019. The examiner noted the Veteran had right lower extremity radiculopathy. He reported constant pain down to his legs, intermittent periods of numbness and paresthesias, and intermittent periods of severe pain in legs. The Veteran's symptoms were moderate constant pain, severe intermittent pain, moderate paresthesias, and moderate numbness. The Veteran did not have muscle atrophy. After review of the evidence of record, the Board finds that a rating in excess of 10 percent prior to February 12, 2019 is not warranted. The Board notes that during this period the Veteran's condition was only noted as mild overall, as well as the Veteran only reported mild constant pain, intermittent pain, and paresthesias, and did not report any numbness. Therefore, the Veteran's condition did not rise ot the level of moderate during this period. However, the Board finds that a rating of 40 percent, but no higher, from February 12, 2019 is warranted. During this period, the Veteran reported moderate constant pain, severe intermittent pain, and began to report moderate numbness. Thus, the Board finds that the Veteran's condition is more appropriately represented by "moderately severe." The Board notes that at no time has the Veteran been found to have overall severe symptoms, muscle atrophy, or complete paralysis. Thus, a rating in excess of 40 percent is not warranted for any period on appeal. In light of the above, the Board finds that a rating of 20 percent prior to February 12, 2019 is not warranted; however, a rating of 40 percent, but no higher, thereafter for radiculopathy of the right lower extremity is warranted. The benefit of the doubt doctrine has been applied. See Gilbert, 1 Vet. App. 49; Ortiz, 274 F.3d 1361. Migraine Headaches The Veteran's headaches are currently rated as non-compensable prior to January 27, 2020 and as 50 percent disabling thereafter under Diagnostic Code 8100 for Migraines. Under Diagnostic Code 8100, a 10 percent rating is assigned for migraines headaches with characteristic prostrating attacks averaging one in two months over last several months. A 30 percent disability rating is assigned for headaches with characteristics of prostrating attacks occurring, on average, once a month. A 50 percent disability rating is provided for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In May 2012, the Veteran was provided a VA examination. The Veteran reported his headaches have gotten worse, with them occurring twice a week. The Veteran was noted as taking medications for his condition. His overall symptoms were pulsating, or throbbing head pain and pain localized to one side of the head. The Veteran also reported nausea. His head pain was noted as occurring less than 1 day and on the right side of his. He did not have characteristic prostrating attacks of headache pain or prolonged attacks of headache pain. The Veteran did not have prostrating attacks of non-migraine headache pain as well. Most recently, the Veteran was provided an examination in January 2020. The Veteran reported headaches with nausea and vomiting, light and sound sensitivity, and sensitivity with flashing lights. He reported taking Excedrin migraine and Imitrex. The Veteran's symptoms were constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain that worsens with physical activity. The Veteran also had nausea, vomiting, sensitivity to light and sound, and changes in vision. His head pain would last 1 to 2 days and occur on both sides of the head. The Veteran did have characteristic prostrating attacks of migraine and non-migraine headache pain that occurs more frequently than once per month. The Veteran also had very prostrating and prolonged attacks of migraine and/or non-migraine pain productive of severe economic inadaptability. Private medical records show notations of migraine-headaches with the Veteran reporting occurrences once or twice week, to include in a July 2016 visit. However, there are no notations of whether the headaches are prostrating. After review of the evidence of record, the Board finds that a rating of 10 percent prior to January 27, 2020 is warranted. Although the evidence does not show notations of prostrating migraine attacks, the Veteran reported headaches that occur weekly. The Veteran further reported his migraine headaches affect him daily and decrease his daily activity because he is forced to lay in a dark room when they occur. Therefore, the Board finds his migraine-headaches more closely approximate prostrating attacks averaging one in two months. However, a rating in excess of 10 percent is not warranted prior to January 27, 2020. During this period, there is no evidence showing the Veteran has had prostrating attacks occurring on average once a month. Further, the Board notes that the Veteran has not provided medical records showing consistent complaints or treatment for migraine headaches. Therefore, a rating in excess of 10 percent is not warranted. Further, the Board notes that the Veteran's 50 percent rating from January 27, 2020 is the maximum rating available under the schedular criteria, and therefore, a higher rating is not warranted. The Board has considered whether an extraschedular evaluation is warranted for the Veteran's issue on appeal. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321 (b)(1). Here, the evidence of record shows the Veteran reported constant headache pain that is throbbing or pulsating on both sides of the head. He also reported nausea, vomiting, sensitivity to light, and loss of vision. The Veteran reported that his head pain lasts only one to two days several times of month. The Board acknowledges that the Veteran reports constant head pain that occurs several times a month. However, the Boards that these symptoms are considered under the 50 percent rating for migraines with very frequent prostrating and prolonged attacks productive of severe economic inadaptability. Further, the Board notes that the Veteran's migraines were not noted as causing sensory changes, as well as the Veteran has not provided any evidence that his migraine headaches have required constant medical treatment, as his medical records show minimal to no visits for his headache pain. (Continued on the next page) In light of the foregoing, the Board concludes that a rating of 10 percent, but no higher, prior to January 27, 2020 is warranted; however, a rating in excess of 50 percent thereafter is not warranted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.