Citation Nr: 21029455 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-02 726 DATE: May 13, 2021 ORDER Entitlement to a rating in excess of 10 percent from October 27, 2009 to November 3, 2009 for a lumbar spine disability is denied. Entitlement to a rating in excess of 100 percent from November 3, 2009 to May 1, 2010 for a lumbar spine disability is denied. Entitlement to a rating in excess of 10 percent from May 1, 2010 to February 11, 2020, and in excess of 40 percent since February 11, 2020 for a lumbar spine disability is denied. An earlier effective date of October 27, 2009, for the award of left lower extremity sciatica is granted. An earlier effective date of October 27, 2009, for the award of right lower extremity sciatica is granted. FINDINGS OF FACT 1. From October 27, 2009 to November 3, 2009, and May 1, 2010 to February 11, 2020, the Veteran's lumbar spine disability has not manifested with less than 60 degrees flexion. 2. For the entire period on appeal, the Veteran's lumbar spine disability has not been manifested by unfavorable ankylosis of the thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes requiring bedrest prescribed by a physician for a total duration of 4 weeks or greater. 3. There is competent evidence the Veteran was experiencing left lower extremity sciatica symptoms as of her October 27, 2009 informal claim. 4. There is competent evidence the Veteran was experiencing right lower extremity sciatica symptoms as of her October 27, 2009 informal claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent from October 27, 2009 to November 3, 2009, for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; DC 5237-5243. 2. From November 3, 2009 to May 1, 2010, the Veteran has received a rating of 100 percent, for surgery and convalescence and no higher rating is warranted for this period. 38 C.F.R. § 4.30. 3. The criteria for a rating in excess of 10 percent from May 1, 2010 to February 11, 2020, and in excess of 40 percent since February 11, 2020, for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; DC 5237-5243. 4. The criteria for an earlier effective date of October 27, 2009 for the award of a separate rating for left lower extremity sciatica are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400; DC 8520. 5. The criteria for an earlier effective date of October 27, 2009 for the award of a separate rating for right lower extremity sciatica are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400; DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Air Force from July 1990 to August 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2010 and June 2011 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in August 2018. A transcript of the hearing is associated with the claims file. The Board notes that at the time of the hearing the Veteran was unrepresented. In April 2019, the Board remanded the Veteran's lumbar disability claim for more development including a new VA examination. The Veteran was afforded a new VA examination in February 2020. In May 2020, a rating decision granted an increase in rating of the Veteran's lumbar spine disability from 10 percent to 40 percent effective on February 11, 2020. In the same May 2020 rating decision, the Veteran was granted service connection at 20 percent disabling for right lower extremity sciatic nerve radiculopathy and 10 percent disabling for left lower extremity sciatica nerve radiculopathy, both effective on February 11, 2020. The Veteran has already been granted TDIU effective April 20, 2012. Increased Rating Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Functional loss and possible limitation of functional ability must be considered as well as whether there is additional range of motion (ROM) loss due to pain on use or during flare-ups. See Sharp v Shulkin, 29 Vet. App. 33 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, and incoordination must also be considered and, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 207 (1995); see also 38 C.F.R. §§ 4.45, 4.59. 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). Accordingly, VA examinations for musculoskeletal issues are required to include joint testing for pain during both active and passive motion, weight bearing and non-weightbearing, and if possible, with range of motion measurement of the opposite undamaged joint, where an opposite joint exists. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). In rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 1. Entitlement to a rating in excess of 10 percent from October 27, 2009 to November 3, 2009 for a lumbar spine disability is denied. See section 3 below. 2. Entitlement to a rating in excess of 100 percent from November 3, 2009 to May 1, 2010 for a lumbar spine disability is denied. See section 3 below. 3. Entitlement to a rating in excess of 10 percent from May 1, 2010 to February 11, 2020, and in excess of 40 percent since February 11, 2020 for a lumbar spine disability is denied. The Veteran contends that her back condition has worsened over time. She reported that she had excruciating pain down her legs. She also had tingling in her feet. See Hearing Transcript received August 2018. Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula), under DCs 5235 to 5243. 38 C.F.R. § 4.71a. Both the DC for Invertebral Disc Syndrome and the General Rating Formula are to be considered by the Board, and the DC that results in the higher evaluation for the Veteran is to be used. See 38 C.F.R. § 4.71(a); DCs 5235 to 5243, Note (6). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See Note (2) for General Rating Formula, 38 C.F.R. § 4.71a. Additionally, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. See Note (3) for General Rating Formula, 38 C.F.R. § 4.71a. In this case, the Veteran's lumbar spine disability (Lumbosacral strain and intervertebral disc syndrome, was previously rated as a strain of the lumbar spine) is rated 100 percent disabling pursuant to 38 C.F.R. § 4.30 from November 3, 2009 to May 1, 2010, 10 percent disability from October 27, 2009 to November 3, 2009, and May 1, 2010 to February 11, 2020 pursuant to 38 C.F.R. § 4.71a, DC 5242-5243, and 40 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5242-5243 since May 18, 2018. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding are severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. A 40 percent rating for the thoracolumbar spine is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, 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. These ratings apply to diseases and injuries of the spine with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. The Board has reviewed all of the evidence of record, including the VA examination reports, treatment records, and the Veteran's lay statements. After a thorough review of the evidence of record in this matter, the Board finds that the Veteran was properly rated at 100 percent from November 3, 2009 to May 1, 2010 under 38 C.F.R. § 4.30, due to her two back surgeries. The Board finds that an evaluation in excess of 10 percent disabling prior to November 3, 2009 and immediately after May 1, 2010 to February 1, 2020 was not warranted. The Board also finds that an evaluation in excess of 40 percent disabling since February 11, 2020 is not warranted. Even considering the functional loss due to pain, fatigue, weakness, lack of endurance, or any flare-ups, the Veteran does not meet the next higher levels of disability. The Veteran had a VA examination in April 2009. See VA Examination received April 2009. She reported pain down her right and left lower extremity to her feet daily. The Veteran also reported increased radiating pain into her legs with more activity. Id. The Veteran's lumbar spine range of motion was zero to 90 degrees flexion; zero to 20 degrees extension; zero to 45 degrees right and left lateral rotation; and zero to 45 degrees left and right lateral flexion. She had diffuse tenderness to palpitation, negative straight leg raise testing, and intact sensation. Id. In April 2009, the Veteran had EMG or nerve conduction testing. See Medical Treatment Record-Non-Government Facility dated October 2009. The testing results noted that there was not enough evidence to suggest radiculopathy. Id. However, in June 2009, the Veteran's provider found that she had chronic low back pain with lumbar radiculitis. Id. In November 2009, the Veteran had a microdiskectomy and laminotomy due to bilateral leg pain. The surgical note reported finding multiple fragments of herniated disc. See Medical Treatment Record-Non-Government Facility dated October 2009. She reported some relief of leg pain after her first surgery, but the pain returned. In March 2010, the Veteran had an anterior lumbar interbody fusion at L5 to S1 with an artificial disc at L4 to L5. See Medical Treatment Record-Non-Government Facility received April 2010. Then in November 2010, the Veteran had another VA examination of her spine. See VA Examination dated November 2010. She reported pain radiating into her thighs and knees. The Veteran's thoracolumbar spine range of motion was zero to 90 degrees flexion, zero to 20 degrees extension, zero to 30 degrees left lateral flexion, zero to 30 degrees left lateral rotation, zero to 30 degrees right lateral flexion, zero to 30 degrees right lateral rotation. The examination reported pain with repetitive motion but no loss of range of motion. Id. Then in February 2020 the Veteran had another VA examination of her lumbar spine. The Veteran's lumbar spine range of motion was zero to 35 degrees flexion, zero to 5 degrees extension, zero to 15 degrees left lateral flexion, zero to 15 degrees left lateral rotation, zero to 15 degrees right lateral flexion, zero to 15 degrees right lateral rotation. After the initial range of motion testing, the Veteran was unable to perform observed, repeated range of motion testing due to fear of pain. See C&P Exam received in June 2017. The examiner estimated the Veteran's loss of function, after repeated use, overtime, as zero to 10 degrees flexion, zero to 5 degrees extension, zero to 10 degrees left lateral flexion, zero to 10 degrees left lateral rotation, zero to 10 degrees right lateral flexion, zero to 10 degrees right lateral rotation. Id. The Board notes that over a period of years a Veteran's disability claim will change and that both the examination and the evaluation of the disability should be received in relation to its history. See 38 C.F.R. § 4.1. While the examiner in April 2009 did not express their own opinion in terms of additional loss of range of motion, the Board must consider the rating based on all the evidence, even if an examination is lacking. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, there must be some evidence to support the application of the higher rating. As noted above, the Veteran was rated at 100 percent for the period of time from November 3, 2009 to May 1, 2010 under 38 C.F.R. § 4.30, due to her two back surgeries. There is no basis for a higher rating for this period. The Board finds that an evaluation in excess of 10 percent disabling prior to November 3, 2009 and immediately after May 1, 2010 to February 1, 2020 was not warranted. During this time, the evidence does not show that the Veteran's flexion was limited to less than 60 degrees. In April 2009, the Veteran had zero to 90 degrees flexion in her lumbar spine. See VA Examination received April 2009. Then in November 2010, the Veteran again had zero to 90 degrees flexion in her lumbar spine. See VA Examination dated November 2010. The evidence does not support that the Veteran was limited to 30 degrees flexion or less prior to February 2020. The Board also finds that an evaluation in excess of 40 percent disabling since February 11, 2020 is not warranted. Even considering the functional loss due to pain, fatigue, weakness, lack of endurance, or any flare-ups, the Veteran does not meet the next higher levels of disability. In the February 2020 VA examination, the VA examiner estimated that on repetitive use over time the Veteran's flexion in the lumbar spine would be zero to ten degrees. Considering all the evidence, in the light favorable to the Veteran, her chronic lumbar spine disability did not manifest in favorable or unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes requiring bedrest prescribed by a physician due to the back for a total duration of four weeks or greater as contemplated by DC 5243. Separate associated neurological abnormalities were provided separate ratings and are discussed below. The amendments to the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a effective February 7, 2021, have no impact of the rating of the Veteran's spine, as discussed above. 85 Fed. Reg. 230 (Nov. 30, 2020). Accordingly, the Board concludes that the ratings discussed above, consider all of the evidence available in a light most favorable to the Veteran and that no higher rating is appropriate. Overall, any functional loss that the Veteran may have experienced in her back after repeated use of the joint or during a flare up is adequately accounted for in the ratings assigned. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-207. Further, the Veteran does not qualify for a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The evidence of record does not show that she was ordered to bedrest for over four weeks. As a preponderance of the probative, credible evidence of record weighs against a finding of a lumbar spine disability rating in excess of 10 percent disabling prior to November 3, 2009, in excess of 10 percent from May 1, 2010 to February 11, 2020, and in excess of 40 percent disabling since February 11, 2020, the benefit of the doubt doctrine does not apply, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an earlier effective date for right lower extremity radiculopathy is granted A May 2020 rating decision granted service connection for right lower extremity sciatica and left lower extremity sciatica, effective February 11, 2020, the date of a VA examination. The Veteran's attorney contends she is entitled to an earlier effective date. The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Generally, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. See Lalonde v. West, 12 Vet. App. 377 (1999); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). The mere presence of a disability does not establish intent on the part of a claimant to seek service connection for that disability. See KL v. Brown, 5 Vet. App. 205 (1993); Crawford v. Brown, 5 Vet. App. 33 (1995); Brannon v. West, 12 Vet. App. 32 (1998). There is an exception to the above rule in increased ratings claims. If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). In October 27, 2009, the Veteran filed an informal claim to reopen her back claim and add bilateral sciatic nerve damage. See VA 21-4138, Statement in Support of Claim received October 2009. The Board notes that the Veteran had a VA examination in April 2009. See VA Examination received April 2009. She reported that she had pain down her right and left lower extremity to her feet daily. The Veteran also reported increased radiating pain into her legs with more activity. Id. Then in June 2009, the Veteran's provider found that she had chronic low back pain with lumbar radiculitis. Id. In November 2009, the Veteran had a microdiskectomy and laminotomy due to bilateral leg pain. The surgical note reported finding multiple fragments of herniated disc. See Medical Treatment Record-Non-Government Facility dated October 2009. She reported some relief of leg pain after her first surgery, but the pain returned. In March 2010, the Veteran had an anterior lumbar interbody fusion at L5-S1 with an artificial disc at L4 to L5. See Medical Treatment Record-Non-Government Facility received April 2010. In November 2010, the VA examiner noted that the Veteran had complaints of leg stiffness and pain, which are indicators of herniation in the spine. See VA Examination received November 2010. Before the February 2020 VA examination, the records note complaints of leg pain and treatment of leg pain related to her spine disability. For example, in May 2013, the Veteran had pain management at the VA. The provider stated that she had persistent radicular pain in the bilateral lower extremities. See CAPRI received January 2020. Then in August 2013, the Veteran stated that she continued to have radicular pain and also trouble walking. In August 2013, she requested a cane. Id. The February 2020 VA examiner stated that the Veteran had intervertebral disc syndrome, which leads to nerve impingement and bilateral sciatic nerve impingement. The examiner stated that the Veteran had radicular pain with involvement of the L4/L5/S1/S2/S3 bilateral nerve roots. See C&P Exam received February 2020. The Board finds that the claim should be granted back to October 27, 2009, when the Veteran filed her informal claim for bilateral sciatic nerve damage. See VA 21-4138, Statement in Support of Claim received October 2009. Since the effective date should generally be the date of receipt of the claim or the date entitlement arose, whichever is later, and the evidence suggests that the Veteran has had sciatica since even before filing her claim, the date of the receipt of the claim appears to be the proper date. The Board does not find another factually ascertainable date within the year prior to the Veteran's formal claim as to warrant an effective date prior to October 27, 2009. 38 U.S.C. § 5110(b)(2). In sum, the Board finds the earlier effective date of October 27, 2009 for the grant of bilateral lower extremity sciatica is warranted. 5. Entitlement to an earlier effective date for left lower extremity radiculopathy is granted See section 4 below. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.