Citation Nr: 21029148 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 05-18 790 DATE: May 12, 2021 ORDER Entitlement to an initial rating in excess of 10 percent, prior to May 4, 2006, for degenerative disc disease, lumbar spine (lumbar spine disability), is denied; a rating of 20 percent, but no higher, from May 4, 2006 through October 1, 2015, is granted; and in excess of 40 percent, thereafter, is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy, sciatic nerve, left lower extremity (left lower extremity radiculopathy) is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy, sciatic nerve, right lower extremity (right lower extremity radiculopathy) is denied. FINDINGS OF FACT 1. Prior to May 4, 2006, the Veteran's lumbar spine disability was manifested by chronic pain and limited motion with flexion greater than 60 degrees, and no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. Between May 4, 2006 through October 1, 2015, the Veteran's lumbar spine disability was manifested by chronic pain and limited motion with flexion greater than 60 degrees with evidence of muscle spasms or guarding severe enough to result in an abnormal gait. 3. Beginning October 1, 2015, the Veteran's lumbar spine was manifested by chronic pain and limited motion with flexion 30 degrees or less, but did not result in ankylosis, nor did it require bed rest prescribed by a physician and treatment by a physician in the previous 12 months. 4. For the entire appeal period, the competent and credible evidence shows the Veteran's radiculopathy of the left lower extremity is manifested by moderate incomplete paralysis of the sciatic nerve. 5. For the entire appeal period, the competent and credible evidence shows the Veteran's radiculopathy of the right lower extremity is manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a lumbar spine disability, prior to May 4, 2006, have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5243, 5242 2. Beginning May 4, 2006 through October 1, 2015, the criteria for a rating of 20 percent for a lumbar spine disability have been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, DCs 5243, 5242. 3. For the entire appeal period, the criteria for a disability rating higher than 40 percent for the Veteran's lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § § 3.321, 4.1, 4.3, 4.40, 4.41, 4.59, 4.71a, DCs 5242, 5243. 4. The criteria for entitlement to an increased rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8620. 5. The criteria for entitlement to an increased rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, DC 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 through April 1978, November 1990 through October 1991, and July 1992 through December 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from June 2010 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14. Additionally, the Court of Appeals for Veterans Claims has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id. (quoting 38 C.F.R. § 4.40). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. See 38 C.F.R. § 4.45. Entitlement to an initial rating in excess of 10 percent, prior to May 4, 2006, for degenerative disc disease, lumbar spine (lumbar spine disability), is denied; a rating of 20 percent, but no higher, from May 4, 2006 through October 1, 2015, is granted; and in excess of 40 percent, thereafter, is denied. The Veteran contends that he is entitled to increased ratings for his service-connected lumbar spine disability. Briefly, a June 2010 rating decision implemented the February 2010 Board decision's grant of service connection for the Veteran's lumbar spine disability and assigned a 10 percent disability rating, effective October 2002. A January 2013 rating decision found clear and unmistakable error in the assignment of the effective date, an assigned a new effective date of August 13, 2002. Thereafter, a November 2015 rating decision granted an increased 40 percent rating for the Veteran's lumbar spine disability, effective October 1, 2015. He has appealed the assigned ratings. Of note, the criteria for evaluating spine disabilities were amended several times during the pendency of this appeal, with changes effective September 23, 2002, September 26, 2003, and February 7, 2021. If a law or regulation changes during the course of an appeal, the version more favorable to the appellant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 & 3-2000. Prior to September 23, 2002 Ratings were available for ankylosis (complete bony fixation) of the entire spine and of the lumbar spine at DCs 5286 and 5289, dependent upon whether such fixation was at a favorable or unfavorable angle. However, as this Veteran is not shown to have bony fixation of the entire spine or the lumbar spine at any point during this appeal, these prior ratings based on ankylosis are not relevant here. Prior to the September 2002 regulation change, limitation of motion of the lumbar spine was rated under DC 5292 with slight limitation assigned a 10 percent rating, moderate limitation a 20 percent rating, and severe limitation a 40 percent rating. Terms 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. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The rating for intervertebral disc syndrome (IVDS) in effect prior to September 23, 2002, was identified by DC 5293 and assigned a 60 percent rating for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the site of the diseased disc and little intermittent relief. A 40 percent rating was assigned for severe intervertebral disc syndrome, with recurrent attacks, with intermittent relief, a 20 percent rating when moderate with recurrent attacks, a 10 percent rating when mild, and a noncompensable rating for postoperative, cured. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). The criteria for rating IVDS was revised in September 2002 under 38 C.F.R. § 4.71a, DC 5243 based on the number of incapacitating episodes a person has in a 12-month period. 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. A 10 percent rating is assigned for incapacitation episodes with a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating is assigned for incapacitating episodes with a total duration of between 2 and 4 weeks; a 40 percent rating is assigned for incapacitating episodes with a total duration of between 4 and 6 weeks; and a 60 percent rating is assigned for incapacitating episodes with a total duration of at least 6 weeks during the past 12 months. The IVDS regulations were changed again in September 2003, but these changes only revised the number of the diagnostic code (to Diagnostic Code 5243, rather than 5293) and did not include any substantive changes. As of September 2003, disabilities of the spine began to be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the revised regulations, a 10 percent rating is currently assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when combined range of motion of the thoracolumbar spine is 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 rating is currently assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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 rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2005). A rating in excess of 40 percent is not available unless ankylosis is present. In addition to the orthopedic manifestations of a spinal disability, the revision to the spinal regulations, effective in September 2003, also requires the consideration of neurological impairment from a back disability (which is then combined with any orthopedic rating). In this case, the Veteran has been assigned a separate disability rating for neurological impairment of the bilateral lower extremities. Effective February 7, 2021, the Schedule of Ratings for the Musculoskeletal System was again revised. Pertinent to this case, DC 5242 was modified from "degenerative arthritis of the spine" to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)." In addition, DC 5243 (intervertebral disc syndrome) was revised to specify that that diagnostic code was to be assigned only when there was disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 was to be used for all other disc diagnoses. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5242, 5243). These changes to the rating criteria need not be discussed here because they do not affect or allow for a more favorable outcome in this case. For purposes of this case, the Board notes that under the General Rating Formula for Diseases and Injuries of the Spine, ratings are assigned, in pertinent part, under DC 5243 (IVDS) and 5242 (degenerative arthritis of the spine). The Veteran has been historically rated under DC 5243. As the application of DC 5242 is more favorable to the Veteran based on the existing evidence of record, an evaluation under DC 5242 has been applied throughout the period on appeal. Turning to the evidence of record, treatment notes in November 2001 contain a general examination of the Veteran noting full and painless range of motion of the musculoskeletal system. There was also no tenderness, swelling, or crepitus. At a March 2005 VA examination, the Veteran complained of low back problems that worsened with prolonged standing and walking. His gait was normal. On physical examination, forward flexion was 0 to 70 degrees, extension was 0 to 20 degrees; and left and right lateral rotation was 0 to 35 degrees. Range of motion was not limited with repetitive motion or additionally limited by pain, fatigue, weakness, or lack of endurance. By May 2006, VA treatment notes document treatment for complaints of chronic back pain. Upon examination, the Veteran's gait was antalgic. He had difficulty sitting in a chair. His lumbar flexibility was deemed to be severely restricted in extension and side bending. He also had tenderness to palpation to the lower lumbar facets and muscle guarding. At an October 2006 VA examination, the Veteran complained of constant back pain having a severity of a 9 on a 10-point scale. His pain was worse with prolonged sitting and standing. He denied flareups. His gait was antalgic. On physical examination, forward flexion was 0 to 70 degrees, extension was 0 to 15 degrees; left and right rotation to 30 degrees; and left and right lateral rotation was 0 to 20 degrees. He had pain with all movements. The examiner determined that the Veteran would have some decrease in range due to pain with repetitive use, but it is not possible to quantify the limitations in degrees. The Veteran was afforded another examination in October 2015. Here, diagnoses of intervertebral disc syndrome and degenerative arthritis of the spine were documented. The Veteran indicated that there were no days that he had been at home in bed with back pain. He also denied flareups. Upon examination, his flexion was to 35 degrees, extension to 20 degrees, bilateral lateral flexion to 25 degrees, and bilateral rotation to 30 degrees. Pain was noted on examination at rest. There was evidence of pain with weightbearing and tenderness to palpation. He had additional limitation with repetitive movements of flexion limited to 30 degrees, extension limited to 18 degrees, right lateral flexion to 20 degrees, left lateral flexion to 22 degrees, and bilateral lateral rotation to 28 degrees. With repeated use over time, his estimated range of motion would be consistent with his range of motion after repetitive testing. The Veteran additionally had muscle spasms, guarding, and localized tenderness resulting in slow and abnormal gait. There was no atrophy. There was also no ankylosis. While he did have IDVS, there were no episodes of required bedrest prescribed by a physician, and treatment by a physician, in the past 12 months. At a January 2021 VA examination, he again denied flareups. Upon examination, his flexion was limited to 50 degrees, extension to 20 degrees, bilateral lateral flexion to 25 degrees, and bilateral lateral rotation to 20 degrees. Pain was noted on examination. There was no additional loss with repetitive movements. Repeated use over time would cause pain. He also had localized tenderness and muscle spasms not resulting in abnormal gait or abnormal spinal contour. There was no ankylosis. He did not have IVDS. Passive range of motion testing was not performed as to not cause severe pain or risk of injury to the Veteran. There was no pain with weightbearing or non-weightbearing status. Based on the aforementioned, prior to May 4, 2006, the most probative medical evidence of record demonstrates that the Veteran's lumbar spine disability manifested with symptoms that most nearly approximate those associated with the 10 percent rating. Although the Veteran consistently endorsed chronic back pain, he had flexion of at least 70 degrees. Further, while the March 2005 found that the Veteran would have some additional loss of range of motion with repeated use over time, such limitation could not be estimated in terms of degrees and there is no evidence to demonstrate such reduction in range motion would warrant a higher rating. During this time, there was also no evidence of muscle spasms or guarding resulting in abnormal gait or spinal contour. Rather, the Veteran was consistently noted to have normal gait. To assign a higher disability rating, the Veteran's flexion would have to have been greater than 30 degrees, but no greater than 60 degrees. Alternatively, his lumbar spine disability would have had to manifested with muscle spasms or guarding resulting in abnormal gait. The evidence of record does not support a finding that there are instances where he experienced functional loss consistent with a 20 percent disability rating, prior to May 4, 2006. However, beginning May 4, 2006 and through October 1, 2015, the lumbar spine disability manifested with muscle spasms and guarding severe enough to result in abnormal gait. Specifically, VA treatment notes in May 2006 and a VA examination in October 2006 began to document muscle spasms with antalgic gait. Thus, a higher 20 percent rating is warranted between May 4, 2006 through October 1, 2015. However, a rating in excess of 20 percent for this time period is not warranted. To assign a higher disability rating, the Veteran's flexion would have to have been limited to 30 degrees or less or resulted in favorable ankylosis. This is not shown by the probative evidence of record, or after consideration of any additional functional impairment during repeated use over time. To this point, the October 2006 VA examiner documented forward flexion well in excess of what is required for a higher rating. Further, the record does not demonstrate that the Veteran required periods of doctor prescribed bed rest due to his lumbar spine disability. In other words, a higher rating for incapacitating episodes is also not warranted. Beginning October 1, 2015, the most probative medical evidence of record demonstrates that the Veteran's lumbar spine disability manifested with symptoms that most nearly approximate those associated with the 40 percent rating. The October 2015 VA examination documented forward flexion limited to 35 degrees with additional limitation to 30 degrees with repetitive movement. However, the record did not demonstrate unfavorable ankylosis during any time during the period on appeal, which is necessary to warrant the assignment of a higher rating. Additionally, the Veteran admitted to having no periods of bed rest due his lumbar spine disability. Thus, similarly, a higher rating is not warranted for IDVS. In so finding, the Board has considered any additional limitations due to repeated usage over time. The award of a rating of 40 percent approximated additional loss with repeated use over time. Prior to October 2015, there was no quantifiable limitations shown with repeated use over time. In particular, the VA examiners attempted to elicit information from the Veteran in this regard, and he stated that he generally had increased pain with prolonged activity. During the period at issue, there has been no representation, in lay statements or medical evidence, that repeated usage over time would decreased his range of motion in his lumbar spine so greatly that a higher rating would be warranted at any time during the period on appeal. The ratings assigned for the timeframes on appeal for the lumbar spine disability adequately portray any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his spine. See DeLuca, supra; see also Mitchell, supra; and 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that the Veteran is competent to report symptoms of his back pain and difficulty with movement, and it has considered his lay statements in reaching this conclusion. Conversely, the Board notes that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss but does not itself constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; 38 C.F.R. § 4.40. The Board finds the VA examiners to be competent and there is no evidence to undermine the credibility of the medical opinions rendered. As such, the Board assigns the opinions significant weight for each respective appeal period. See Nieves v. Rodriguez, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Based on the lay and medical evidence of record, the Board finds that the most probative evidence of record does not demonstrate that the Veteran's lumbar spine disability warrants a disability rating higher than 10 percent, prior to May 4, 2006. However, from May 4, 2006 through October 1, 2015, a higher rating of 20 percent is warranted. Beginning October 1, 2015, a rating in excess of 40 percent is not warranted. In so finding, the Board has considered the assignment of a higher rating under the applicable rating criteria versions for the relevant time periods. Prior to September 23, 2003, the record did not demonstrate more than slight limitation of motion of the lumbar spine or more than mild IVDS. As discussed above, during this time, the Veteran had full and painless range of motion upon examination. There was also no evidence of prescribed bed rest. Thus, at most, the Veteran's lumbar spine disability manifested with slight limitation of motion or mild IVDS. Application of the revised criteria, beginning September 23, 2003 would not warrant a more favorable outcome than assessed within this decision and is consistent with the rating evaluations noted above. Lastly, the Board has considered the Veteran's neurological manifestations of his lumbar spine disability as consistent with Note 1 under the General Rating Formula for Diseases or Injuries of the Spine. The Veteran is in receipt of awards for radiculopathy affecting the bilateral lower extremities. Evidence of record show no other neurological abnormalities that warrant a separate rating. Entitlement to an initial rating in excess of 20 percent bilateral lower extremity radiculopathies The Veteran contends that higher ratings are warranted for his bilateral lower extremity radiculopathies. The Veteran was awarded separate ratings for his bilateral lower extremity radiculopathies in a November 2015 rating decision and assigned a rating of 20 percent, effective October 1, 2015. Under DC 8620, a 10 percent rating is warranted for mild paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8620. A 20 percent rating is warranted for moderate paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe paralysis of the sciatic nerve. A 60 percent rating is warranted for severe paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is warranted for: complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. At the October 2015 VA examination, the Veteran had radiculopathy affecting the bilateral extremities. Light touch was decreased in the thigh and knee bilaterally. His right lower extremity had symptoms of severe intermittent pain. His left lower extremity had moderate intermittent pain. There was no numbness or paresthesias found in either lower extremity. There were also no other signs of radiculopathy. The bilateral sciatic nerve was affected with moderate severity. There was no atrophy. In January 2021, he had intermittent pain in both lower extremities. There was no constant pain, parathesis, or numbness. His sensory examination was normal and there was no atrophy. The examiner found that there was no objective evidence of radiculopathy and the Veteran denied sensory loss. Straight leg testing was negative. (Continued on the next page) Based on the aforementioned, ratings higher than 20 percent are not warranted because the evidence does not indicate the Veteran's radiculopathy of either the right or left lower extremities is moderately severe. Rather, the evidence demonstrates that the Veteran primary symptoms manifested in intermittent pain and decreased sensation to light touch. However, there was no numbness or paresthesias documented. He maintained normal muscle strength without evidence of atrophy. At the January 2021 VA examination, the Veteran denied having sensory loss. Thus, the Veteran's bilateral lower extremity radiculopathy manifested with no more than moderate symptoms. Additionally, the evidence does not reflect that there is complete paralysis of the sciatic nerve in either lower extremity. To warrant a higher rating, the Veteran's bilateral lower extremity would have to manifest with greater symptomology. Because the evidence fails to establish any of the criteria required for a higher rating, the Board finds that the severity of these disabilities more closely approximates the criteria of the 20 percent rating for the right or left lower extremity; thus, increased ratings are denied. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.