Citation Nr: 21041002 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-62 623 DATE: July 7, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine for the period prior to January 21, 2020 is denied. Entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine for the period beginning January 21, 2020 is denied. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity for the period prior to January 21, 2020 is denied. Entitlement to an evaluation of 20 percent, but no higher, for radiculopathy of the right lower extremity for the period beginning January 21, 2020 is granted. FINDINGS OF FACT 1. For the period prior to January 21, 2020, the Veteran's lumbar spine disability did not result in functional loss or impairment equivalent to forward flexion limited to less than 60 degrees; or 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. 2. For the period beginning January 21, 2020, the evidence of record does not show that the Veteran's lumbar spine disability has been resulting in forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 3. The evidence of record does not show that the Veteran's radiculopathy of the right lower extremity resulted in moderate incomplete paralysis for the period prior to January 21, 2020. 4. A worsening of the Veteran's symptoms of right lower extremity radiculopathy was shown during the VA examinations conducted on January 21, 2020, and he has been having a moderate level of incomplete paralysis for the period beginning January 21, 2020. CONCLUSIONS OF LAW 1. For the period prior to January 21, 2020, the criteria for an evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2020). 2. For the period beginning January 21, 2020, the criteria for an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine have not been met. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2020). 3. For the period prior to January 21, 2020, the criteria for an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2020). 4. For the period beginning January 21, 2020, the criteria for an evaluation of 20 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to February 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran submitted a written request in June 2019 to withdraw his previously requested Board hearing. In October 2019, the Board remanded the matters for further development. Now the matters are returned to the Board. The Veteran is seeking a higher evaluation for his service-connected lumbar spine disability and a higher initial evaluation for service-connected radiculopathy of the right lower extremity. The Board notes that the RO increased the evaluation for the Veteran's degenerative arthritis of the lumbar spine from 10 percent to 20 percent, effective January 21, 2020. See June 2020 Rating Decision. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Also, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2020). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (2020). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2020). The intent of Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2020). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). Otherwise, it will assign the lower rating. Id. 1. Degenerative arthritis of the lumbar spine The Veteran's service-connected lumbar spine disability was rated at 10 percent from August 22, 2008, and is now evaluated at 20 percent from January 21, 2020. Thus, the Board will examine whether the Veteran is entitled to an evaluation in excess of 10 percent for the period prior to January 21, 2020 and in excess of 20 percent for the period beginning January 21, 2020. Pursuant to Diagnostic Code 5242, degenerative arthritis of the spine is evaluated under either the General 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 the higher rating. 38 C.F.R. § 4.71a (2020). Here, the evidence indicates the presence of the Veteran's IVDS from January 2020, but an evaluation under General Formula would result in a higher rating since he did not have any incapacitating episodes due to IVDS. Thus, the Veteran's increased rating claim for his lumbar spine disability will be evaluated under General Formula. Under General Formula, in pertinent part, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; and a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Formula (2020). A maximum 100 percent evaluation is warranted for unfavorable ankylosis of entire spine. Id. An August 2015 diagnostic imaging report showed mild disc degenerative changes at L3 to L4 and L4 to L5. On April 2016 VA examination, the examiner noted the Veteran's diagnosis of degenerative arthritis of the lumbar spine at L3 to S1. The Veteran reported that back pain is not better since his back surgery in 2011, and that he has biweekly flare-ups. The Veteran also stated that he is unable to bend over and pick up things from the floor during a flare-up. The Veteran's range of motion was measured at: forward flexion to 70 degrees; extension to 15 degrees; right and left lateral flexions to 30 degrees; and right and left lateral rotations to 30 degrees. The examiner indicated that the Veteran's range of motion is normal for the Veteran, although it is outside of normal range, because he is centrally overweight. Pain was noted on examinations for forward flexion and extension, but the examiner stated that it does not result in or cause functional loss. There was objective evidence of localized tenderness or pain on palpation at lumbar spine L5-S1. The Veteran was able to perform repetitive-use testing with at least 3 repetitions without any additional loss of function or range of motion afterwards. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Also, he did not have muscle atrophy, ankylosis of the spine, or IVDS of the thoracolumbar spine. The examiner noted that the Veteran's lumbar spine condition impacts his ability to work because he has to take one day off biweekly due to back pain and required physical therapy. A July 2017 X-ray results showed fusion at L5 to S1, degenerative disc disease at L3 to L4 and L4 to L5 with disc space narrowing, and mild arthritic changes in disc margins. A March 2018 private treatment record shows that the Veteran described his back pain as dull, aching, sharp, squeezing, and tightening, and it is aggravated by bending forward, climbing stairs, coughing/sneezing, rising from a seated position, sitting, standing, and walking. On January 2020 VA examination, the examiner noted the Veteran's diagnosis of degenerative arthritis of the lumbar spine at L3 to S1. The Veteran reported that he has constant back pain with fluctuations in intensity, and he experiences back pain with bending over, prolonged sitting, standing, and lying down. The examiner noted the Veteran's history of lumbar fusion at L3 to S1 in October 2011 and a failed trial of spinal cord stimulator in June 2019. The Veteran's range of motion was measured at forward flexion to 60 degrees; extension to 10 degrees; right and left lateral flexions to 30 degrees; and right and left lateral rotations to 30 degrees. The Veteran was able to perform repetitive-use testing with at least 3 repetitions without additional loss of function or range of motion afterwards. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The examiner indicated that the Veteran has IVDS of the thoracolumbar spine, but he has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. In light of the foregoing, the Board finds that the Veteran's lumbar spine disability, for the period prior to January 21, 2020, did not result in functional loss or impairment equivalent to forward flexion limited to less than 60 degrees; or 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. Consequently, the Veteran's entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine for the period prior to January 21, 2020 is not warranted. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2020). Moreover, the Board finds that the evidence of record does not show that the Veteran's lumbar spine disability has been resulting in forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine for the period beginning January 21, 2020. Thus, the Veteran's entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine for the period beginning January 21, 2020 is also not warranted. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2020). 2. Radiculopathy of the right lower extremity A 10 percent evaluation was assigned for the Veteran's service-connected radiculopathy of the right lower extremity. Radiculopathy of the lower extremity is evaluated under Diagnostic Code 8520. In pertinent part, a 20 percent evaluation is warranted for moderate incomplete paralysis, a 40 percent evaluation is warranted for moderately severe incomplete paralysis, and a 60 percent evaluation is warranted for severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2020). A maximum of 80 percent evaluation is warranted for complete paralysis. Id. On April 2016 VA examination for back conditions, the examiner noted the Veteran's diagnosis of radiculopathy of the right lower extremity. The examiner indicated that the Veteran had no constant pain or paresthesias and/or dysesthesias in the right lower extremity, but had mild intermittent pain (usually dull) and mild numbness. The examiner noted that the Veteran had mild radiculopathy of the right side involving sciatic nerve. In April 2019, the Veteran's private physician noted numbness, tingling, and weakness in the leg as associated symptoms of the Veteran's lumbar spine disability. The Board notes that the Veteran underwent VA examinations for evaluating his radiculopathy disability on January 21, 2020. On January 2020 VA examination for back conditions, the examiner noted moderate level of constant pain and mild level of numbness in the Veteran's right lower extremity. The examiner indicated that the Veteran did not have intermittent pain or paresthesias and/or dysesthesias due to radiculopathy. The examiner provided that the Veteran has a moderate level of radiculopathy affecting his right side. On January 2020 VA examination for peripheral nerves conditions, the examiner noted moderate level of constant pain and mild level of numbness due to the Veteran's radiculopathy of the right lower extremity. The examiner reported that the Veteran's symptoms do not include intermittent pain or paresthesias and/or dysesthesias. The examiner provided that the Veteran has moderate incomplete paralysis involving the right side sciatic nerve, and it does not impact his ability to work. Based on above, the Board finds that the evidence of record does not show that the Veteran's radiculopathy of the right lower extremity resulted in moderate incomplete paralysis for the period prior to January 21, 2020. As the evidence shows that the severity of the Veteran's right lower extremity radiculopathy more approximates a mild level of incomplete paralysis for that period, the Board concludes that the initial evaluation of 10 percent was appropriate. Consequently, the Veteran's entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2020). However, the Board finds that a worsening of the Veteran's symptoms of right lower extremity radiculopathy was shown on the VA examinations conducted on January 21, 2020, and he has been having a moderate level of incomplete paralysis for the period beginning January 21, 2020. Nonetheless, the evidence does not show moderately severe radiculopathy disability, which is required for a 40 percent evaluation under Diagnostic Code 8520. Consequently, the Veteran's entitlement to an evaluation of 20 percent, but no higher, for radiculopathy of the right lower extremity for the period beginning January 21, 2020 is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.