Citation Nr: 21031582 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-39 915 DATE: May 24, 2021 ORDER A 20 percent rating, but no higher, for a low back disability is granted. A 20 percent rating, but no higher, for right lower extremity radiculopathy is granted. FINDINGS OF FACT 1. During the period on appeal, the Veteran's low back disability limited forward flexion of the thoracolumbar spine to 60 degrees; it did not result in ankylosis of the spine or incapacitating episodes of invertebral disc syndrome totaling at least 4 weeks over a 12-month period. 2. During the period on appeal, the Veteran experienced no more than moderate symptoms of right lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher, for a low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a. 2. The criteria for a 20 percent rating, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to July 1998. This case returns to the Board of Veterans' Appeals (Board) after a remand to the agency of original jurisdiction (AOJ) in March 2019. The AOJ substantially complied with the Board's remand instructions, and the case is ready for further review. Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. VA must evaluate all of the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two evaluations shall be applied, a 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. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Low back disability The Veteran seeks an increased initial rating for his low back disability. On remand, the AOJ granted a 10 percent rating. See July 2020 rating decision/supplemental statement of the case. After careful review, the Board finds that a 20 percent rating, but no higher, is warranted. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in a higher evaluation. See 38 C.F.R. § 4.71a. Although VA recently amended portions of the rating schedule for musculoskeletal disabilities, these changes do not affect the applicable rating criteria for this case. See 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). Under the General Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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 warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where 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 warranted where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating 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. Any associated objective neurological abnormalities, including but not limited to bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id., General Formula at Note 1. For VA purposes, "unfavorable ankylosis" means that the entire cervical spine, the entire thoracolumbar 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., General Formula at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider functional loss caused by pain or other factors that could occur during flare-ups or after repeated use which may not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.45, VA must also consider less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Under 38 C.F.R. § 4.59, painful motion associated with joint or periarticular pathology typically warrants at least the minimum compensable rating for the affected joint. Id. at 36; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., at Note 1. The Board instructed the AOJ to schedule the Veteran for a new examination and to obtain outstanding treatment records on remand. The Veteran received an examination in December 2019. During the 2019 examination, the Veteran complained of pain, muscle spasms, and limited range of motion. He reported that he can sit or stand for no more than one hour, carry or lift no more than 50 pounds, and climb no more than six flights of stairs. His reported treatment included ibuprofen, pain cream, and seeing a chiropractor. He also described "moderate to severe" back flare-ups, which occur weekly and last 3 days; these flare-ups are precipitated by prolonged sitting, standing, athletic activities and, at times, simple daily movements, and are alleviated by rest and time. The Veteran's initial range of motion was 90 degrees on forward flexion; 20 degrees on extension; 20 degrees on right lateral flexion; 20 degrees on left lateral flexion; 20 degrees on right lateral rotation; and 15 degrees on left lateral rotation. He exhibited pain in every direction. There was no loss of function or range of motion after three repetitions. The 2019 examiner indicated that pain significantly limits functional ability with repeated use over a period of time or during flare-ups, and estimated an additional 5-degree loss in range of motion in each direction. The examiner indicated that there was no ankylosis of the spine, and that the Veteran had no incapacitating episodes of IVDS in the past 12 months. As discussed below, the examiner found evidence of right lower extremity radiculopathy; however; there were no other neurologic abnormalities related to the low back disability. The AOJ obtained private chiropractic treatment records in December 2019. Notably, treatment reports from December 2014 indicate that the Veteran's range of motion was 60 degrees on forward flexion; 25 degrees on extension; 25 degrees on right lateral flexion; and 25 degrees on left lateral flexion. This clinical evidence supports a 20 percent rating under the General Formula. Even when considering the Veteran's reports of increased pain during flare-ups, the Board finds no evidence of forward flexion limited to 30 degrees, or of ankylosis of the spine during the period on appeal. Nor does the Board find evidence of incapacitating episodes of IVDS totaling at least 4 weeks over a 12-month period. As such, there is no basis for assigning a rating higher than 20 percent under either the General Formula or the Formula for Rating IVDS Based on Incapacitating Episodes. In sum, resolving any reasonable doubt in the Veteran's favor, the Board finds that his low back disability limited forward flexion of the thoracolumbar spine to 60 degrees during the appeal period. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A 20 percent rating is granted. 2. Right lower extremity radiculopathy In its July 2020 rating decision, the AOJ assigned a 10 percent rating for right lower extremity radiculopathy associated with the Veteran's low back disability. The record contains evidence of radiculopathy or sciatica symptoms throughout the appeal period. See e.g. April 2013 notice of disagreement; December 2014 medical records. The issue of entitlement to an increased rating for right lower extremity radiculopathy is therefore within the scope of this appeal. Chavis v. McDonough, No. 18-2928, at *18-19 (Vet. App. Apr. 16, 2021). On review, the Board finds that a 20 percent rating for radiculopathy, but no higher, is warranted. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. A maximum 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible for muscles below the knee, and flexion of the knee is weakened or lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis of the nerve. When incomplete paralysis is wholly sensory, the rating should be for the mild, or at most, moderate degree. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." See also Miller v. Shulkin, 28 Vet. App. 376, 380 (2017) (non-sensory manifestations are not necessarily rated at a higher level). VA regulations provide that ratings for peripheral neurological disorders are assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. The Board must also consider loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. In this case, the 2019 examination revealed right lower extremity radiculopathy. The examiner indicated that the Veteran's symptoms included mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. There were no other signs or symptoms of radiculopathy. A sensory exam revealed decreased sensation throughout the entire right lower extremity. Deep tendon reflexes were normal (2+) at the knee and ankle. Muscle strength testing was also normal, with no evidence of muscular atrophy. Overall, the examiner characterized the level of severity of radiculopathy as "mild." Chiropractic treatment records for the period on appeal support a higher rating. These records show a sciatica diagnosis in December 2014. At the time, the Veteran reported that he had developed "constant moderately severe right leg pain," which he rated as 8 out of 10. This description is consistent with other lay statements on file. For example, he described frequent shooting pain in the leg and tingling in the ankle and foot in his April 2013 notice of disagreement. His lay statements as to the frequency and severity of these subjective symptoms are competent, credible, and highly probative. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds no evidence in the record of non-sensory manifestations of radiculopathy, such as a reflex abnormality, weakness, or muscle atrophy. Because the disability is "wholly sensory," a rating at the moderate degree (i.e., 20 percent) is the maximum rating available. Miller, 28 Vet. App. at 380. Thus, resolving any reasonable doubt in his favor, the Board finds that the Veteran has experienced moderate right lower extremity radiculopathy symptoms during the period on appeal. Gilbert, 1 Vet. App. at 53. A 20 percent rating is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.