Citation Nr: 21032197 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-04 125 DATE: May 26, 2021 ORDER Entitlement to an increased rating in excess of 40 percent for lumbar spine disability is denied. Entitlement to an initial rating of 10 percent, but no higher, for sciatic nerve radiculopathy of the left lower extremity from September 9, 2010 to May 31, 2017 is granted. Entitlement to an increased rating in excess of 20 percent for sciatic nerve radiculopathy of the left lower extremity from May 31, 2017 is denied. Entitlement to an initial rating in excess of 20 percent for sciatic nerve radiculopathy of the right lower extremity is denied. Entitlement to an initial rating in excess of 20 percent for femoral nerve radiculopathy of the right lower extremity is denied. Entitlement to an initial rating in excess of 20 percent for femoral nerve radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. The probative evidence of record does not show that the Veteran's lumbar spine disability has manifested to unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine. 2. Prior to May 31, 2017, the probative evidence shows the Veteran had mild radiculopathy symptoms of the sciatic nerve in his left lower extremity from the date of his initial increased rating claim. 3. From May 31, 2017, the probative evidence of record does not show the Veteran's sciatic nerve radiculopathy of the bilateral lower extremities has manifested to moderately severe symptoms. 4. The probative evidence of record does not show the Veteran's femoral nerve radiculopathy of the bilateral lower extremities has manifested to severe symptoms. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 40 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 2. The criteria for an initial rating of 10 percent, but no higher, for sciatic nerve radiculopathy of the left lower extremity from September 9, 2010 to May 31, 2017 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8520. 3. The criteria for an increased rating in excess of 20 percent for sciatic nerve radiculopathy of the left lower extremity from May 30, 2017 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8520. 4. The criteria for an increased rating in excess of 20 percent for sciatic nerve radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8520. 5. The for an initial rating in excess of 20 percent for femoral nerve radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8526. 6. The criteria for an initial rating in excess of 20 percent for femoral nerve radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from August 1991 to March 1999. In February 2019, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. The claims were brought before the Board in January 2021 and were remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, 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. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that 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). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Entitlement to an Increased Rating: Lumbar Spine The Veteran's service-connected lumbar spine disability is currently rated as 40 percent disabling under Diagnostic Code 5242 for Degenerative Arthritis of the Spine. Under this Diagnostic Code, the disability is rated based on the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. The Board notes that portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021. While this diagnostic code was revised to pertain to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome," there were no substantive changes to the rating criteria under this diagnostic code. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76543, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5242). In November 2010, the Veteran attended a VA examination. The Veteran reported back pain and taking muscle relaxant at bedtime. He reported using heating pads that help. He reported flare-ups in the form of being limited in bending and walking. He reported his pain was sharp, severe, constant, and daily. The Veteran's gait was abnormal. He did not have any ankylosis, muscle spasms, or atrophy. He did have guarding, pain with motion, and weakness. The Veteran's range of motion (ROM) was forward flexion to 45 degrees with pain, extension to 5 degrees with pain, left lateral flexion to 15 degrees with pain, right lateral flexion to 19 degrees with pain, left rotation to 9 degrees with pain, and right rotation to 11 degrees with pain. The examiner noted the condition affects his daily activities. In May 2017, the Veteran attended another VA examination. The Veteran reported flare-ups of the back that include back spasms, leg cramps, and shooting hip pain. He reported taking medication for pain and his wife having to help him with shoes and getting in and out of bed. He also reported he can't ride in a car for long periods of time without stopping and resting. The Veteran's ROM was forward flexion to 60 degrees, extension to 30 degrees, bilateral lateral flexion to 20 degrees, and right lateral rotation to 20 degrees. ROM itself did not contribute to functional loss. There was pain noted on examination on rest and non-movement. The Veteran was able to perform repetitive use testing and did not suffer additional loss after. The examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups. Pain, weakness, and lack of endurance significantly limited functional ability with repeated use over and during flare-ups. The Veteran's ROM with repeated use over time remained the same. However, his ROM during flare-ups was described as being limited to forward flexion to 30 degrees, and extension, bilateral lateral flexion, and bilateral lateral rotation for all to 10 degrees. The Veteran did have muscle spasms resulting in abnormal gait or abnormal spine contour. Additional factors contributing to the disability were weakened movement, disturbance locomotion, interference with sittings, interference with standing. There was no muscle atrophy. There was no ankylosis of the spine. The Veteran did have intervertebral disc syndrome (IVDS), however, he did not have any incapacitating episodes within the last 12 months. The Veteran did have regular use for a back brace. The Veteran attended another VA examination in July 2018. The Veteran reported constant back pain. He reported still working and his job requiring lifting 50 pounds and being unable to lay flat at times. The Veteran reported flare-ups in the form of muscle spasms that occur with increased activity or with certain movements. He further reported not being to sit for longer than 15 minutes and sleeping in his recliner at times due to not being able to lay flat. The Veteran's ROM was forward flexion to 30 degrees, extension and bilateral lateral flexion to 15 degrees, left lateral rotation to15 degrees, and right lateral rotation to 15 degrees. ROM itself did contribute to functional loss in being unable to bend over and tie his shoes. Pain noted on examination did cause functional loss and was noted in all ranges of motion. There was evidence of pain on weight bearing. There was no additional loss following repetitive testing. The examiner was medically consistent with the Veteran's statements describing functional loss with repeated use over time and during flare-ups. Pain, weakness, fatigue, and lack of endurance significantly limited functional ability with repeated use over time and during flare-ups. The Veteran did have muscle spasms resulting in abnormal gait or abnormal spinal contour. Additional factors attributing to his disability was less movement than normal which resulted in decreased ROM. The Veteran did not have muscle atrophy. The Veteran did not have ankylosis or IVDS. The Veteran did have constant use of a back brace and cane. There was objective evidence of pain when the back is used in non-weight bearing. The examiner lastly noted there was worsening of the Veteran's symptoms. Most recently, the Veteran was provided a VA examination in March 2021. The Veteran reported flare-ups that were moderate daily that lasted an hour to up to 24 hours and caused sharp pain to the back. He reported the flare-ups were caused by moderate activity such as prolong walking and standing. The Veteran's ROM was forward flexion to 15 degrees, and extension, bilateral lateral flexion, and bilateral lateral rotation were all to 10 degrees. ROM itself did contribute to functional loss and pain was noted in all ranges of motion. Passive range of motion could not be performed due to it possibly causing the Veteran severe pain or risk of further injury. There was evidence of pain on weight-bearing and active motion that caused functional loss. There was objective evidence of crepitus and pain on palpation that moderate in the low back. Repetitive testing was unable to be performed due to pain. The Veteran was being examined immediately following repeated use over. Pain, fatigability, weakness, lack of endurance, and incoordination did cause functional loss with repeated use over time and during flare-ups. The Veteran's estimated ROM with repeated use over time and flare-ups was forward flexion to 10 degrees, and extension, bilateral lateral flexion, and bilateral rotation to 5 degrees. The Veteran had localized tenderness that did not result in abnormal gait or abnormal spinal contour. There was guarding and muscle spasms that did result in abnormal gait or spinal contour. There was no ankylosis or IVDS. The Veteran did have constant need for a cane. The Veteran condition did not cause functional impairment of an extremity such that no effective function remains. The Board notes that VA treatment records do show periodic visits for chronic back pain and physical therapy. However, none of the records show the Veteran's limitation in range of motion or notations of ankylosis. After review of the evidence of record, the Board finds that a rating in excess of 40 percent is not warranted. At no time has the Veteran shown ankylosis, favorable or unfavorable, of the thoracolumbar spine or entire spine, even when considering functional impairment. The Veteran further has never been found to have any incapacitating episodes of IVDS. Thus, a rating in excess of 40 percent is not warranted. See 38 C.F.R. § 4.71a, DC 5237-5243. The Board acknowledges VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202. However, the Board notes that there are no medical records of evidence showing severe functional loss due to his lumbar spine disability to the extent that the Veteran's lumbar spine disability more nearly approximated ankylosis. The Board acknowledges that the Veteran was noted as being additional limited due to pain, fatigue, and weakness in his November 2010, May 2017, and March 2021 VA examinations and has reported chronic pain throughout the period. However, the Board also notes that the Veteran's forward flexion, at worst, was to 10 degrees at his March 2021 VA examination, which met the requirement of a forward flexion of 30 degrees or less, as contemplated by the criteria for a 40 percent rating. Thus, his additional pain, fatigue, and weakness, to include during flare-ups and with repeated use over time, were considered in providing him with a 40 percent rating. Thus, the Board finds that the requirements of DeLuca were already considered and met in the rating provided. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202. The Board notes that the Veteran has not been found to have unfavorable ankylosis of the entire spine, or been found to have the functional equivalent of ankylosis, such as the spine or spinal segment is fixed in flexion or extension, and thus, a rating of 50 percent or 100 percent is not warranted for any period on appeal. See 38 C.F.R. § 4.71a, DC 5242, Note 5; See also Chavis v. McDonough, No. 18-2928 (April 2021). The Board has also considered neurological impairment of the lumbar spine, but notes that the Veteran has already been separately rated for right lower extremity radiculopathy and left lower extremity radiculopathy, and that he has no additional neurological impairment other than that for which he has been compensated. Further, his increased rating claims for his neurological impairment in the form of radiculopathy will be discussed in the section below. In light of the foregoing, the Board concludes that a rating in excess of 40 percent is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Entitlement to an Increased Rating: Radiculopathy of the Bilateral Extremities The Veteran's radiculopathy disabilities of the left and right lower extremities are each provided a 20 percent rating under Diagnostic Codes 8520 for the sciatic nerve, and under DC 8526 for the anterior crural (femoral) nerve. Under Diagnostic Code (DC) 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires evidence of complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. Under DC 8526, a non-compensable rating is assigned for mild to moderate complete paralysis of the femoral nerve, a 20 percent rating is assigned for moderate incomplete paralysis, 30 percent for severe incomplete paralysis, and 40 percent for complete paralysis. 38 C.F.R. § 4.124a, DC 8526. The Board notes that the terms "mild," "moderate" and "severe" are not defined. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as "mild" or "severe" by VA examiners and others, although 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. In November 2010, the Veteran was provided a VA examination. The Veteran reported pain that radiated to the left leg. He reported it was a burning pain. The Veteran reported the radiating pain that only occurred 1 to 2 times a month and only for a few seconds. The examiner noted the Veteran had paresthesias that may be related to lumbar radiculopathy. The Veteran's left lower extremity pain was noted as affecting the sciatic nerve. He was noted as having normal vibration, position sense, light touch and pain or pinprick test was normal. The Veteran did not have dysesthesias. In May 2017, the Veteran attended another VA examination. The Veteran reported increased pain, numbness, burning, and tingling sensation to the lower extremities on a daily basis. The Veteran was diagnosed with radiculopathy of the right and left lower extremities. He was noted as having moderate constant pain, moderate paresthesias, and moderate numbness. His radiculopathy was noted as involving the sciatic nerve and femoral nerve. The overall severity of the radiculopathy was noted as moderate. The Veteran attended another VA examination in July 2018. The Veteran reported pain, numbness, and tingling down the back of his legs. The Veteran's radiculopathy was noted as moderate intermittent pain, moderate paresthesias, and moderate numbness. The examiner noted the affected nerve was the sciatic nerve. The overall severity of the radiculopathy was noted as moderate. The Veteran was most recently provided an examination in March 2021. He reported sharp pain radiating down to his legs. The Veteran's symptoms were moderate constant pain, moderate paresthesias, and moderate numbness. His radiculopathy was noted as involving the femoral nerve and sciatic nerve. To start, the Board notes that the Veteran's sciatic nerve radiculopathy and femoral nerve radiculopathy have been granted from May 31, 2017, the date of initial diagnosis. However, the Board notes that the Veteran reported left leg pain and numbness in his November 2010 VA examination. It was further noted by the examiner that the Veteran had paresthesias that was possible lumbar radiculopathy. The examiner noted it affected the sciatic nerve of the left lower extremity. Although the examiner did not make an official diagnosis of radiculopathy, the Board finds that the overall evidence weighs in favor of finding that the Veteran's left leg sciatic nerve radiculopathy was present during this period. As such, the Board finds that a 10 percent rating, but no higher, from September 9, 2010, the date of the Veteran's initial increased rating claim, to May 30, 2017 is warranted for the Veteran's sciatic nerve radiculopathy of the left lower extremity. However, a rating in excess of 10 percent prior to May 30, 2017 is not warranted. During this period, the Veteran reported that his pain only occurred one to two times a month and only lasted a few seconds at a time. Therefore, the Veteran's symptoms can be described more as mild and did not rise to the level of being moderate. See 38 C.F.R. § 4.124a, DC 8520. Moreover, the Board finds that ratings in excess of 20 percent from May 30, 2017 for the Veteran's sciatic nerve radiculopathy of the right and lower extremity, and for his femoral nerve radiculopathy of the right and left lower extremity are also not warranted. The evidence of record does not show the Veteran's sciatic nerve or femoral nerve radiculopathy as being considered moderately severe or severe at any time during the pendency of the appeal. His medical records do not show his sciatic nerve described as moderately severe or his femoral nerve condition described as severe at any time. In fact, VA examiners have consistently found the overall severity of the Veteran's radiculopathy, sciatic and femoral, as only being moderate on both the right and left side. He further has not been found to have muscular atrophy or complete paralysis, which would warrant higher ratings under either of the conditions' respective Diagnostic Codes. See 38 C.F.R. § 4.124a, DC 8520, 8526. The Board acknowledges that VA treatment records show the Veteran reported the pain can sometimes be severe and that he has occasional leg weakness. However, the Board finds that the overwhelming evidence has not shown the Veteran's condition is severe, to include him not reporting any severe numbness or tingling. He further has not reported any falls and has not been found to be a fall risk in VA treatment visits. The Board has also considered whether any other diagnostic codes are applicable to the Veteran's service-connected radiculopathy conditions. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Here, however, the objective evidence shows that the Veteran's symptomatology most closely reflects the current diagnostic codes, DC 8520 and DC 8526. Accordingly, the Board finds that an initial rating of 10 percent, but no higher, for sciatic nerve radiculopathy of the left lower extremity from September 9, 2010 to May 30, 2017 is warranted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). However, a rating in excess of 20 percent for sciatic nerve radiculopathy of the left lower extremity from May 30, 2017, a rating in excess of 20 percent sciatic nerve radiculopathy of the right lower extremity, and ratings in excess of 20 percent for his femoral nerve radiculopathy of the bilateral lower extremities are not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.