Citation Nr: 21030523 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-44 600 DATE: May 19, 2021 ORDER Effective December 29, 2014, an initial 40 percent rating for lumbar spondylolysis with minimal L5 on S1 anterolisthesis is granted. Effective December 29, 2014, an initial 20 percent rating for right lower extremity radiculopathy is granted. Effective December 29, 2014, an initial 20 percent rating for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. Considering the Veteran's pain and corresponding functional impairment, including during flare-ups, throughout the appeal, his lumbar spondylosis is productive of disability analogous to limitation of motion to 30 degrees or less of forward flexion; the preponderance of the evidence shows that the disability is not manifested by the functional equivalent of ankylosis, including during flare-ups. 2. Resolving all doubt in his favor, the Veteran's back disability has been productive of radiculopathy of the right lower extremity that results in disability analogous to moderate incomplete paralysis of the sciatic nerve. 3. Resolving all doubt in his favor, the Veteran's back disability has been productive of radiculopathy of the left lower extremity that results in disability analogous to moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Throughout the appeal, the criteria for an increased rating for 40 percent for lumbar spondylolysis with minimal L5 on S1 anterolisthesis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. 2. Throughout the appeal, the criteria for a 20 percent rating for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 4.124a. DC 8520. 3. Throughout the appeal, the criteria for a 20 percent rating for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 4.124a. DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1977 to April 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for chronic low back disability, effective December 29, 2014, This case was previously remanded by the Board in a May 2019 decision for additional development. In doing so, the Board determined that the prior VA examination report was not adequate for rating purposes. The record indicates that the Veteran is currently employed as a truck driver; therefore, the issue of entitlement to a total disability based on individual unemployability (TDIU) is not before the Board. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. An increased rating for 40 percent for lumbar spondylolysis with minimal L5 on S1 anterolisthesis The Veteran is seeking a rating in excess of 20 percent for his back disability, pursuant to DC 5243. In the May 2019 Board decision, the Board found that the April 2018 VA examination was inadequate as the Veteran was not examined immediately after repetitive use over time or during a flare-up. The Board pointed out that in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask her to describe the additional functional loss, if any, she suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Here, the Board found that none of the VA examinations for the Veteran's back disability complied with addressing the impact of flare-ups on range of motion of the Veteran's back, pursuant to Sharp. Therefore, the claim was remanded to afford the Veteran a new VA examination for his back. In a September 2020 rating decision, the Veteran was granted an increased rating to a 20 percent evaluation for his back disability, effective September 2, 2020. The Veteran was also granted separate 10 percent ratings for left lower extremity radiculopathy and right lower extremity radiculopathy, respectively. Diagnostic Code 5243 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is 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 rating is 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, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, 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. The 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 provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Otherwise, disabilities of the spine are rated according to the number of incapacitating episodes a person has had in the past 12 months. 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. See Note (1) to Diagnostic Code 5243. Under the formula, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 month period, a 20 percent rating is assigned for incapacitating episodes having a total duration between 2 to 4 weeks during the past 12 month period, a 40 percent rating is assigned for incapacitating episodes having a total duration between 4 to 6 weeks during the past 12 month period, and a 60 percent rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Under the revised regulations, effective February 7, 2021, DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; Diagnostic Code 5242 is assigned for all other disc diagnoses. As the Veteran's back diagnoses include disc herniation with compression and/or irritation of the adjacent nerve root (IVDS), DC 5243 will be applied to adjudicate the claim. Pursuant to the Board's May 2019 remand instructions, the Veteran was afforded a VA examination for his back disability in September 2020. The Veteran was diagnosed with IVDS in the September 2020 VA examination and reported chronic low back pain and stiffness, constant aching pain, sharp stabbing pain radiating down back of legs and flare-ups occurring 3-4 times a month on average with increased stiffness and low back spasms. He reported having functional loss of his back resulting in difficulty walking long distances, with any repetitive bending or twisting and with any heavy lifting. He reported taking 750mg of methocarbamol twice a day and Advil as needed for his back. The Veteran's initial range of motion measurements were noted at 0 to 55 degrees of forward flexion. Pain was noted and caused functional loss; there was also evidence of pain with weight bearing. Range of motion upon repetitive use testing was estimated as forward flexion limited to 45 degrees forward flexion. The Veteran was not examined during a flare-up; however, the examiner noted pain and fatigue significantly limited functional ability during flare-ups and described range of motion as forward flexion limited to 45 degrees. The Veteran did not have muscle spasms, guarding, muscle atrophy or ankylosis. Because the September 2020 VA examination note pain, fatigue, and significant limit on functional ability of the back disability, and the prior examinations were not conducted during a flare-up, the Board finds that the Veteran's back disability more nearly approximates the criteria for a 40 percent rating when considering this report of pain and limited functional ability with flare-ups. The Board concludes that considering the lay and medical evidence, including the September 2020 VA examination report which shows that the Veteran had forward flexion to 55 degrees and forward flexion during flare-ups was estimated to 45 degrees but limitation of motion during flare-ups did not consider the impact of the medications the Veteran uses to treat his back disability, the condition warrants a 40 percent rating throughout the appeal. The evidence, however, shows that the Veteran does not have ankylosis of the entire thoracolumbar spine or the entire spine. Moreover, the preponderance of the evidence shows that his low back disability is not productive of functional equivalent of ankylosis during flare-ups. See Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). As such, a rating of 40 percent, and no more, throughout the appeal is warranted. Moreover, the Veteran does not contend, and the evidence does not show that his back disability has been manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. As such, the preponderance of the evidence is against a rating in excess of 40 percent. 2. Entitlement to a 20 percent rating for right lower extremity radiculopathy 3. Entitlement to a 20 percent rating for left lower extremity radiculopathy The Veteran seeks increased ratings for his right lower extremity and left lower extremity radiculopathy, pursuant to DC 8520. The Veteran was granted service connection for his bilateral lower extremity radiculopathy disabilities with 10 percent evaluations in a September 2020 rating decision. Sciatic nerve neurological manifestations are rated under Diagnostic Code 8520, 8620, or 8720 as, respectively, paralysis, neuritis or neuralgia of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of 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. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." Subsequent to the May 2019 Board decision, the Veteran was afforded a VA examination for his back in September 2020. The Veteran reported sharp stabbing pain radiating down the back of his legs. The Veteran was found to have radicular pain due to radiculopathy and was diagnosed with moderate intermittent pain in both lower extremities, mild paresthesias and/or dysesthesias in both lower extremities and mild numbness in both lower extremities. Both lower extremities had radicular involvement of L4/L5/S1/S2/S3 nerve roots. The severity for both lower extremities was noted as mild. In light of the above medical evidence and the Veteran's report of sharp and severe radicular pain and his reliance on pain medication on a daily basis, the Board finds that the evidence from the September 2020 VA examination for the back shows that the Veteran's right and left lower extremity radiculopathy is manifested by moderate incomplete paralysis of the sciatic nerve. Accordingly, a 20 percent rating is warranted for the Veteran's right lower extremity radiculopathy and left lower extremity radiculopathy. A higher rating of 40 percent is not warranted as the Veteran's bilateral lower extremity radiculopathy has resulted in no more than moderate incomplete paralysis of the sciatic nerve. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.