Citation Nr: 21032589 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-02 407 DATE: May 27, 2021 ORDER Entitlement to a rating in excess of 20 percent for chronic low back pain with degenerative disc disease of the lumbar spine at L5-S1 is denied. Entitlement to an effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, left lower extremity (femoral nerve) is granted. Entitlement to an earlier effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, right lower extremity (femoral nerve) is granted. Entitlement to an earlier effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, left lower extremity (sciatic nerve) is granted. Entitlement to an earlier effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, right lower extremity (sciatic nerve) is granted. Entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment only is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran's lumbar spine disability manifested in pain on movement, limitation of range of motion, and has caused functional limitations, but even during flare-ups and with repeated use over time has not approximated forward flexion limited to 30 degrees or less, or ankylosis. 2. Entitlement to compensable evaluations for bilateral lower extremity radiculopathy is inferred from the increased rating claim related to the back, the rating window for which commenced with the filing of the December 8, 2015 claim. 3. The Veteran had mild incomplete paralysis of the femoral nerve of the bilateral lower extremities since December 8, 2015. 4. The Veteran had mild incomplete paralysis of the sciatic nerve of the bilateral lower extremities since December 8, 2015. 5. The Veteran does not have loss of use of a lower extremity or ankylosis of a knee or hip by reason of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for chronic low back pain with degenerative disc disease of the lumbar spine at L5-S1 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5242. 2. The criteria for entitlement to an effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, left lower extremity (femoral nerve) have been met. 38 U.S.C. §§ 1155, 5110(a), 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.124a, Diagnostic Code 8526. 3. The criteria for entitlement to an earlier effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, right lower extremity (femoral nerve) have been met. 38 U.S.C. §§ 1155, 5110(a), 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.124a, Diagnostic Code 8526. 4. The criteria for entitlement to an earlier effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, left lower extremity (sciatic nerve) have been met. 38 U.S.C. §§ 1155, 5110(a), 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for entitlement to an earlier effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, right lower extremity (sciatic nerve) have been met. 38 U.S.C. §§ 1155, 5110(a), 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. The criteria for entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment only have not been met. 38 U.S.C. §§ 3901, 3902, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.808. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from June 1985 through August 1985. These matters come to the Board of Veterans' Appeals (Board) from April 2016 and October 2016 Rating Decisions. In December 2020, the Veteran, with a representative, participated in a Central Office hearing before the undersigned Veterans Law Judge (VLJ), a transcript of which is of record. 1. Entitlement to a rating in excess of 20 percent for chronic low back pain with degenerative disc disease of the lumbar spine at L5-S1 is denied. The Veteran seeks an increased rating for his service-connected back disability, currently evaluated at 20 percent disabling. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237-5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating 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 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, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for his service-connected lumbar spine disability. The May 2015 VA examination recorded range of motion that was abnormal; forward flexion was measured to 60 degrees, extension to 30 degrees. No pain was noted on examination. The Veteran was unable to perform repetitive use testing, but this was because he was in a wheelchair due to a below the knee amputation (BKA) the month prior. The examiner indicated that neither pain, weakness, fatiguability, or incoordination significantly limited the Veteran's functional ability due to repetitive use over time. The Veteran denied flare-ups and functional impairment. The examiner did not note any radiculopathy. Muscle strength and reflex testing were normal. There was decreased sensation to light touch testing in the left lower ankle (L4/L5/S1) and left lower foot/toes (L5). No sensory or reflex testing could be performed below the right knee, due to the BKA. However, the examiner noted that vibratory sense was diminished in the lower bilateral legs, to the right stump. The April 2016 VA examination noted diagnoses of lumbosacral strain and degenerative arthritis of the spine. The Veteran reported that he has had more back pain; he reported left buttock pain, with no radiation to the ankle. He reported that bending and sitting for 30 minutes aggravated his condition, and standing for greater than 20 minutes aggravated condition, as well as reaching for objects. He reported that lying down and use of head alleviated pain. He reported using a motorized wheelchair and a cane to walk, and needing assistance in lifting heavy objects. The examiner indicated that a December 2015 rehabilitation note showed the Veteran denied his back pain was radiating to the lower extremities. The Veteran reported flare-ups occurring every other day, with sharp shooting pain mid back to his left buttock, and that the pain lasts all day. Forward flexion was measured to 40 degrees; extension to 15 degrees. Pain was noted on examination and to cause functional loss. There was low back tenderness. Repetitive use testing did not cause additional functional loss. The examiner did not provide an opinion regarding the specific range of motion, if any, that would be lost due with repeated use over time or during flare-ups. Guarding, spasm, and tenderness were noted not to result in abnormal gait or spinal contour. Muscle strength was noted normal. Reflexes were normal. Light touch testing was normal. Straight leg raising test results were negative. The examiner noted the Veteran did not have ankylosis or IVDS. The August 2019 VA examination provided a diagnosis of chronic low back pain with degenerative disc disease of the lumbar spine at L5- S1/ degenerative arthritis of the spine, and bilateral lower extremity radiculopathy. The Veteran reported progression of the disability, with sharp pain, limited range of motion, and spasms. The Veteran reported using lidocaine patch 5%, heating pad, and a custom back brace. The Veteran reported flare-ups of sharp intense pain intermittent pain with bending forward or standing straight. He reported difficulty standing for long periods of time. Forward flexion was measured to 80 degrees; extension to 20 degrees. Pain was noted on exam but was noted not to cause additional functional loss. Pain was noted to limit functional ability with repeated use over time, but the range of motion limitations for forward flexion and extension did not change. Pain during flare-ups were noted to further limit forward flexion to 70 degrees; extension to 10 degrees. Guarding and muscle spasm was present, but did not result in an abnormal gait or spinal contour. The Veteran was noted to have a right-side, below the knee prosthesis. He was noted to have mild numbness, intermittent pain, paresthesias and/or dysesthesias, bilaterally, noted to be involvements of femoral and sciatic nerves, bilaterally, at the mild level of severity. The examiner noted the additional conditions found were related to the service-connected diagnosis. The examiner noted no ankylosis or IVDS; the Veteran was noted to use a brace constantly. There was no objective evidence of pain in non-weight bearing, passive range of motion was noted to be unable to be performed or not medically appropriate, and there was no objective evidence of pain on passive range of motion testing. On review, the April 2016 VA examination findings are inadequate, as the examiner did not fully consider the extent of functional limitation with repeated use over time or during flare-ups, as required by Sharp. It is notable, however, that repetitive use testing did not cause additional functional loss or loss of motion. The December 2015 and August 2019 VA examination findings are, however, adequate for rating the disability. No examination report reflects that the Veteran's lumbar spine disability approximates forward flexion limited to 30 degrees or ankylosis, even during flare-ups or with repeated use over time. Indeed, the December 2015 examination report shows the Veteran denied functional impairment and flare-ups. The August 2019 VA examiner indicated that the lumbar spine range of motion would only be limited to 70 degrees; this range of forward flexion is consistent with the 20 percent rating currently assigned. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Based on the foregoing, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for his lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran has been service-connected for his related neurological disabilities and has been assigned an effective date of May 23, 2019 for such. The Board has jurisdiction to assign associated ratings for neurological disabilities for the entirety of the period on review for the period from his underlying claim for increase, intent to file which was received on December 8, 2015. See 38 C.F.R. § 4.71a, Note 1. Accordingly, entitlement to compensable evaluations for radiculopathy for this period is discussed below. Unemployability due to service-connected disability was affirmatively and specifically disclaimed during the hearing before the undersigned and is not otherwise claimed or implicated in the evidence of record. Accordingly, the Board's analysis will not address the issue of entitlement to a total disability rating based on individual unemployability. 2. Entitlement to an effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, left lower extremity (femoral nerve) is granted; and 3. Entitlement to an earlier effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, right lower extremity (femoral nerve) is granted; and 4. Entitlement to an earlier effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, left lower extremity (sciatic nerve) is granted; and 5. Entitlement to an earlier effective date of December 8, 2015 for the assignment of a 10 percent evaluation for radiculopathy, right lower extremity (sciatic nerve) is granted. During the pendency of the Veteran's claim for an increased rating for his back pain, ratings for bilateral lower extremity radiculopathy were assigned under Diagnostic Code 8520 (sciatic) and Diagnostic Code 8526 (femoral), effective May 23, 2019. See August 2019 rating decision. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. But unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). Here, the increased rating claim on appeal for the back disability includes the inferred issues of entitlement to compensable evaluations for associated neurological abnormalities. See 38 C.F.R. § 4.71a, Note 1. As for the underlying appeal, the Veteran filed his VA Form 21-0966 on December 8, 2015 and submitted his request for an increase to his back disability timely thereafter. Accordingly, if warranted, the associated neurological disabilities may also be granted service connection as early as this date if shown to exist at such time. On review, the evidence indicates that the Veteran had radiculopathy affecting his bilateral lower extremities, as evidenced in medical records dating back to 2013, showing a diagnosis of lumbar radiculopathy in the medical problem list. The CAPRI records documenting VA treatment show diagnosis of back disability related radiculopathy dated back to 2013. The May 2015 VA examination report shows the examiner did not note any radiculopathy. Muscle strength and reflex testing were normal. There was decreased sensation to light touch testing in the left lower ankle (L4/L5/S1) and left lower foot/toes (L5). No sensory or reflex testing could be performed below the right knee, due to the BKA. However, the examiner noted that vibratory sense was diminished in the lower bilateral legs, to the right stump. The April 2016 VA examination report reflects that muscle strength in the lower extremities was noted normal. Reflexes were normal. Light touch testing was normal. Straight leg raising test results were negative. At the May 2019 VA examination, the Veteran was noted to have mild numbness, intermittent pain, paresthesias and/or dysesthesias, bilaterally. The examiner indicated there was involvement of the femoral and sciatic nerves, bilaterally, the severity of which was mild. Based on review of the VA treatment records and the VA examination reports, the severity of the bilateral lower extremity radiculopathy involving the sciatic and femoral nerves appears to be consistent with, and no worse, than the findings shown in the August 2019 VA examination report. In other words, the severity of these conditions during this period of time were no worse than mild in terms of severity. Resolving all reasonable doubt in the Veteran's favor, for the entirety of the period on appeal (from December 8, 2015) the evidence reflects radiculopathy of the bilateral lower extremities, and specifically mild incomplete paralysis of the sciatic nerve of each bilateral lower extremity, and mild incomplete paralysis of the femoral nerve of each bilateral lower extremity. As such, the awarded ratings for these conditions are assigned to the prior period. The Veteran does not dispute the assigned ratings based on the August 2019 VA examination, and review of the criteria at 38 C.F.R. § 4.124a, Diagnostic Codes 8520 and 8526 shows that a 10 percent evaluation is appropriately assigned for each of these conditions. Such is awarded and represents a full grant of the benefit sought on appeal with regards to these conditions. 6. Entitlement to automobile or other conveyance and adaptive equipment or adaptive equipment only is denied. The Veteran seeks financial assistance for the purchase of a vehicle and adaptive equipment, or for adaptive equipment only. Financial assistance may be provided to an "eligible person" in acquiring an automobile or other conveyance and adaptive equipment, or automotive adaptive equipment only. 38 U.S.C. § 3902 (a)(b). Eligibility for assistance to purchase a vehicle and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 C.F.R. § 3.808. The loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of balance, propulsion, etc., could be accomplished equally well by an amputation stump prosthesis. 38 C.F.R. §§ 3.350 (a)(2)(i), 4.63. The Veteran's service-connected disabilities are: chronic low back pain with degenerative disc disease of the lumbar spine at L5-S1; radiculopathy, bilateral lower extremities (sciatic and femoral nerves) associated with chronic low back pain with degenerative disc disease of the lumbar spine at L5-S1. It is noted that the record reflects the Veteran does have a nonservice-connected BKA, right knee amputation and diabetic neuropathy, but the predominant question presented to the Board is solely whether any service-connected disability is productive of such disability so as to cause loss of use. Of particular probative value is the August 2019 VA examination that the Veteran's functioning due to service-connected back/radiculopathy disabilities is not so diminished that amputation with prosthesis would equally serve him and does not find any medical evidence asserting otherwise. Additionally, during this examination, the Veteran was noted to retain 4/5 muscle strength for ankle dorsiflexion and toe extension on the non-amputated side, and the conditions were noted only to cause "difficulty with job functions that would require prolonged walking, standing, or climbing." The Veteran's testimony as to his nerve impairments causing an inability to balance and propel is noted, as is his testimony as to the added difficulties the back disability has caused him in using his prosthetic device for his right leg, and contentions regarding using a wheelchair. However, the Veteran's testimony on this point is not considered as probative as to the VA examination results, which noted the specific impacts of the service-connected disability, and the level of radiculopathy noted on examination and the noted functional impact on examination does not support this contention of service-connected disability causing loss of use of either foot. Accordingly, it is concluded that there is not loss of use of any lower extremity, nor is there ankylosis of a knee or hip by reason of service-connected disability, and as such, entitlement to financial assistance for automobile or other conveyance and adaptive equipment, or automotive adaptive equipment only remains denied on appeal. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. C. KING 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.