Citation Nr: 21030446 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-33 606 DATE: May 18, 2021 ORDER Entitlement to increases in the "staged" ratings 10 percent prior to December 10, 2015, and 20 percent since, for herniated nucleus pulposus (HNP) at L4-5 with degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS) is denied. A rating higher than 10 percent for associated radiculopathy of the left lower extremity prior to April 3, 2015 is denied A higher 40 percent rating for this associated radiculopathy of the left lower extremity is granted from April 3, 2015 onwards, though no greater rating. FINDINGS OF FACT 1. Prior to December 10, 2015, because of his low back disability, forward flexion of the Veteran's thoracolumbar spine was to 60 degrees or greater, but it since has been limited to between 30 and 60 degrees. 2. Prior to April 3, 2015, the associated radiculopathy of his left lower extremity caused, at most, mild incomplete paralysis of the sciatic nerve, but it since has caused moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to increases in the "staged" ratings for the Veteran's low back disability, meaning higher than 10 percent prior to December 10, 2015 or higher than 20 percent since. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 5242-5243. 2. The criteria are not met for entitlement to a rating higher than 10 percent for the associated left lower extremity radiculopathy prior to April 3, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8620. 3. However, the criteria are met for entitlement to a higher 40 percent rating for the associated left lower extremity radiculopathy since April 3, 2015. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1990 to December 1992. This appeal to the Board of Veterans' Appeals (Board) originated from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for left lower extremity radiculopathy with an initial 10 percent rating retroactively effective from February 15, 2013, but conversely confirmed and continued the existing 10 percent rating then in effect for the Veteran's underlying low back disability (HNP at L4-5 with DDD and IVDS). He appealed for higher ratings. A more recent May 2016 rating decision, during the pendency of this appeal, increased the rating for the left lower extremity radiculopathy to 40 percent from April 3, 2015 through December 9, 2015, assigned a 20 percent rating as of December 10, 2015, and increased the rating for the underlying low back disability to 20 percent also as of that date December 10, 2015, the date of a VA examination showing the Veteran had less forward flexion of his thoracolumbar spine, so when he first met the requirements for this higher rating. Thus, the ratings have been "staged" to compensate the Veteran for the varying level of severity of these service-connected disabilities, which is done irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). This appeal therefore now concerns whether higher ratings are warranted during any of these stages. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). In March 2020, the Board remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)) for further development and consideration including especially to obtain any outstanding VA treatment records and any private chiropractic or physical therapy records relevant to these claims and then to have the Veteran reexamined to reassess the severity of these service-connected disabilities. There since has been the required compliance certainly acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board, therefore, is proceeding to deciding the appeal of these claims. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 1. Entitlement to increases in the "staged" ratings for the associated radiculopathy of the left lower extremity The Veteran contends that he is entitled to higher ratings for this service-connected left lower extremity radiculopathy, which is rated under DC 8620. According to DC 8620, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately-severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and a maximum 80 percent rating is warranted for complete paralysis (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). These descriptive terms "mild," "moderate," "moderately severe", and "severe" are not defined in the Rating Schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. However, according to 38 C.F.R. § 4.124a, when the involvement is wholly sensory, the evaluation should be for the mild, or at the most, the moderate degree. Examples of physical manifestations include, but are not limited to, muscle weakness, muscle atrophy and diminished or absent reflexes. Examples of sensory manifestations include, but are not limited to, pain (constant, intermittent or dull), numbness, paresthesias (abnormal touch sensation, burning or prickling, often in the absence of external stimulus), and dysesthesias (distortion of any sense, or unpleasant abnormal sensation produced by normal stimuli). When adjudicating claims not involving wholly sensory impairment (i.e., there is a mix of physical and sensory impairments, such as decreased reflexes and numbness), the Board finds that a rating of mild incomplete paralysis is warranted when there are less persistent sensory deficits that affect small areas, or for very minimal reflex or muscle strength impairment. A rating of moderate incomplete paralysis may be warranted when there are combinations of significant sensory changes and mild or slight muscle or reflex impairment, or muscle and/or reflex impairment that has been noted by the examiner to be moderate in nature. The Veteran first underwent a VA examination for his radiculopathy in April 2015. The examiner diagnosed left leg sciatica with lumbar stenosis. The examiner noted that, as a result, the Veteran experienced moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in his left leg. He had decreased left knee extension strength, absent deep tendon reflexes, and decreased left lower leg, ankle, foot and toe sensation. The examiner indicated this radiculopathy caused moderately severe incomplete paralysis of the left sciatic nerve. The Veteran was next examined by VA for his radiculopathy in December 2015. The examiner diagnosed radiculopathy of the left lower extremity. The Veteran had moderate intermittent pain and paresthesias and/or dysesthesias of his left leg. He had decreased strength of knee extension and ankle plantar flexion of his left leg. He also had an antalgic gait. The examiner indicated this radiculopathy caused moderately severe incomplete paralysis of the sciatic nerve. The Veteran was most recently examined in July 2020. The examiner diagnosed lumbar radiculopathy. The Veteran had moderate, intermittent pain, paresthesias and/or dysesthesias, and numbness of his left leg. He had decreased ankle plantar flexion and ankle dorsiflexion strength. He had decreased deep tendon reflexes of his left knee and ankle. The examiner indicated this radiculopathy caused moderately severe incomplete paralysis of the sciatic nerve. All three of those examiners described the severity of the radiculopathy affecting the Veteran's left lower extremity in the same way as amounting to what can be characterized as moderately severe incomplete paralysis of the sciatic nerve. Their assessment of the severity of this left lower extremity radiculopathy is commensurate with a 40 percent rating since April 3, 2015. So, the claim is granted to this extent (i.e., it was inappropriate to assign a lesser 20 percent rating as of December 10, 2015). However, the Board finds that a rating higher than 10 percent prior to April 3, 2015, and a rating higher than 40 percent since, is not warranted. Moreover, as the preponderance of the evidence is against these other aspects of the claim, the benefit-of-the-doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to increases in the "staged" ratings for the underlying low back disability (HNP at L4-5 with DDD and IVDS) 10 percent prior to December 10, 2015, and 20 percent since The Veteran asserts that he is entitled to higher ratings for his low back disability, which is evaluated under 38 C.F.R. § 4.71a, hyphenated DC 5242-5243. Hyphenated DC 5242-5243 incorporates both the General Rating Formula for Diseases and Injuries of the Spine (DCs 5235-5242) and the Formula for Rating IVDS Based on Incapacitating Episodes (DC 5243). Prior to the recent amendments to the criteria for rating musculoskeletal disabilities that took effect as of February 7, 2021, degenerative joint disease (DJD), i.e., degenerative arthritis, and DDD/IVDS were rated under two different DCs, 5242 and 5243, respectively, so at least arguably were considered two different conditions. But the amendments to the rating criteria that took effect as of that date, among other things, now allow for rating both degenerative arthritis (DJD) and DDD/IVDS under Diagnostic Code 5242 in certain circumstances, so not instead rating DDD/IVDS exclusively under DC 5243. According to the General Rating Formula, a 10 percent rating is assigned when forward flexion of the thoracolumbar (thoracic and lumbar) spine is to greater than 60 degrees but not to greater than 85 degrees, or combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 225 degrees, or there is 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 assigned for forward flexion of the thoracolumbar spine to greater than 30 degrees but not to 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. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 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. And the highest possible 100 percent rating is warranted for unfavorable ankylosis of the entire spine (that is, when additionally considering the adjacent cervical segment). See 38 C.F.R. § 4.71a, DCs 5235-42 (as in effect prior to February 7, 2021). The Veteran underwent a VA examination of his low back in January 2014. The examiner diagnosed HNP at L4-5 with DDD and IVDS. The Veteran had 85 degrees of forward flexion of his thoracolumbar spine with pain at 75 degrees. There was no change in his range of motion during repetitive use testing. He had functional loss including pain on movement and interference with sitting, standing, and/or weight bearing. The Veteran was next examined in December 2015. The examiner again diagnosed HNP at L4-5 with DDD and IVDS. The Veteran reported that his low back disability had worsened and that he could not stand longer than 30 minutes or walk more than half a mile. He had just 45 degrees of forward flexion, although here was no change in his range of motion during repetitive use testing. The Veteran was next examined concerning his low back disability in July 2020. IVDS again was diagnosed. He reported functional loss including needing to avoid heavy lifting and limiting activities requiring extended sitting, standing, walking, or bending. He had 70 degrees of forward flexion with no change during or after repetitive use testing. The results of those examinations do not support a rating higher than 10 percent prior to December 10, 2015 or higher than 20 percent since for the Veteran's low back disability. As already explained, a higher 40 percent rating requires forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. These records and the others in the file pertinent to this claim do not indicate he has or has had ankylosis of his thoracolumbar spine or forward flexion limited to 30 degrees or less at any time during the rating period on appeal, even when considering his pain and other functional loss. During the examinations, at worst, his forward flexion was limited to 45 degrees (so in the 30 to 60 degree range for at most a 20 percent rating), and he did not have any decrease in his range of motion even after repetitive use; in other words, that testing did not reduce his range of motion to less than 30 degrees to, in turn, provide reason or justification for increasing his rating to 40 percent. See, e.g., DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). See also 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). In Mitchell v. Shinseki, 25Vet. App.32 (2011), the Court held that, although pain may cause functional loss, pain itself does not constitute functional loss. The Court in Mitchell explained that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1Vet.App.484, 488 (1991), when read together with DC 5003 (and, here, DC 5242) concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar (thoracic and lumbar) spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in the neutral position (0 degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, Note (5) to DCs 5235-42. The evidence of record does not indicate that the Veteran's thoracolumbar spine, or entire spine (so even when additionally considering the adjacent cervical segment), is fixed in flexion or extension. By definition, then, he does not have the required ankylosis, favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Lastly, as concerning the IVDS component of the Veteran's low back disability, there is no indication a physician has prescribed bedrest for treatment of this service-connected disability. Therefore, according to Note (1) in DC 5243, the Veteran definitionally has not experienced any incapacitating episodes much less of the required frequency and duration as to warrant a higher rating under this other Code. If, as an example, he elects to rest in bed on his own initiative, even if he feels that was warranted as a modality of treatment, is not in turn tantamount to concluding he has had an incapacitating episode. Moreover, it is not shown that during a flare-up, so even when he has the most limitation of motion, he has sufficient restriction of motion to the point of considering it the functional equivalent of or tantamount to ankylosis. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). For these reasons and bases, the Board finds that the preponderance of evidence is against increases in the "staged" ratings for the Veteran's low back disability, meaning a rating higher than 10 percent prior to December 10, 2015, or a rating higher than 20 percent since, and in this circumstance the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal of this claim consequently is denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.